Appeal from the Order entered in the Court of Common Pleas of Montgomery County, Civil Division, No. 79-15832
Diane M. Zabowski, Collegeville, for appellant.
Leon H. Fox, Jr., Norristown, for appellee.
Cirillo, President Judge, and Brosky, McEwen, Del Sole, Montemuro, Beck, Tamilia, Popovich and Johnson, JJ. Cirillo, President Judge, files a concurring statement. Brosky, J., files a concurring opinion.
[ 384 Pa. Super. Page 297]
Appellant William M. Coburn initiated this action by filing a petition for contempt of an agreed custody Order against appellee Diane M. Edinger, formally Diane Coburn, seeking to enforce his rights under the Order. After a hearing and in consideration of appellee's new matter claim that appellant is not the biological father of appellee's youngest daughter, the trial court entered an Order on April 20, 1987 directing appellee, the child, and the putative father to submit to blood tests for the purpose of establishing the paternity of the child -- the Order did not direct appellant to submit to a blood test. Appellant appeals from this Order.
The parties were married on June 15, 1974 and divorced on August 2, 1979. Two children were born during their marriage: Jennifer Leah Coburn, born May 18, 1975, and Angie Lee Coburn, born August 7, 1976. Since their divorce, appellee has remarried to Ronald Edinger.
On October 15, 1979, the parties entered into an agreed custody Order whereby appellee retained physical custody of the children and appellant was permitted regular visitation consisting of alternating weekends from 12:00 p.m.
[ 384 Pa. Super. Page 298]
Saturday to 6:00 p.m. Sunday, with one week summer vacation and holiday visitation on an annually alternating basis from 10:00 a.m. to 6:00 p.m. for New Year's Day, Easter, Memorial Day, Fourth of July, Labor Day, and Thanksgiving and with Christmas Day visitation from 1:00 p.m. to 6:00 p.m. A contemporaneous Order for the payment of child support was also entered. Appellee's admissions in her answer to appellant's petition for contempt indicate that in December, 1982 the parties agreed to an informal modification of the visitation schedule, allowing appellant increased rights consisting of alternating weekends from 5:30 p.m. Friday to 6:00 p.m. Sunday with two consecutive weeks summer vacation and the same holiday visitation previously ordered. Both the custody arrangement and support Order were substantially complied with until February, 1987. In February, 1987, appellee told both children appellant was not the natural father of Angie Lee and she refused to allow appellant further visitation with Angie Lee, on the basis that he was not her biological father. In response, appellant filed a contempt petition on March 17, 1987, alleging appellee was in violation of the agreed custody Order.
A hearing on the contempt petition was scheduled on April 20, 1987, and on that date, appellee filed an answer and new matter averring appellant was not Angie Lee's biological father and requesting the court to order appellant to submit to a blood test to determine the paternity of Angie Lee. At the hearing, appellee presented the testimony of the putative father, Thomas Schwartz, Jr., who stated he was the biological father, indicated his willingness to accept the legal and financial responsibilities of paternity, and agreed to submit to blood testing. Appellee, on behalf of herself and Angie Lee, also consented to such testing, however, appellant refused. At the conclusion of the hearing, the trial court entered an Order, pursuant to 42 Pa.C.S. § 6133, directing that red cell typing and Human Leucocyte Antigen ("HLA") testing be performed on the putative father, appellee and child. This appeal followed. Requests for stay of the blood test Order were denied by both the
[ 384 Pa. Super. Page 299]
trial court and the Superior Court, and the blood tests were completed, indicating a 99.97 per cent probability that Schwartz is the biological father of Angie Lee. In light of these results, the trial court dismissed the petition for contempt on May 22, 1987, without holding further hearings.
A number of issues are presented by this appeal, not the least of which is its propriety. Complicating this issue is the fact that appellant's contempt proceeding has taken on the posture of a custody proceeding due to the new matter claim of paternity raised by appellee. Further, appellant did not raise prior to this appeal his substantive issue of whether appellee has waived or is precluded from raising any objection to appellant being Angie Lee's father under grounds of res judiciata, collateral estoppel and equitable estoppel.
In the past we have found interlocutory Orders concerning blood testing appealable, Chrzanowski v. Chrzanowski, 325 Pa. Super. 298, 303, n. 3, 472 A.2d 1128, 1130, n. 3 (1984); Commonwealth ex rel. Hall v. Hall, 215 Pa. Super. 24, 257 A.2d 269 (1969); Commonwealth ex rel. Weston v. Weston, 201 Pa. Super. 554, 193 A.2d 782 (1963), and we find the same circumstances call for allowance of this appeal. Additionally, under these circumstances we find appellant's failure to raise his issues of estoppel and res judicata before the trial court does not preclude his ability to present those claims on appeal. Appellant filed his petition for contempt on March 17, 1987 and did not receive appellee's answer until the day of the hearing on the petition. The answer was filed at 9:27 a.m. on the day of the hearing and was not accompanied by a certificate of service indicating if, or when, appellant was served with the answer. This supports appellant's contention that he received the answer minutes before the hearing. Pennsylvania Rule of Civil Procedure 1915.12, governing the procedure for contempt of a custody Order, specifically provides in subsection (c), "[n]o answer to the petition shall be required." The rule's explanatory note indicates that custody
[ 384 Pa. Super. Page 300]
contempt pleadings are purposely kept to a minimum in order to insure a quick resolution of the matter: "Rule 1915.12 provides a streamlined contempt procedure . . . . The defendant is not required to answer the petition and he is given a period of at least seven days in which to defend." The rules neither require an answer to a contempt petition nor a response to new matter raised in an answer filed.
We find no merit to appellee's claims that appellant's issues are waived for failure to raise them in post-trial motions, because "exceptions are not required in a child custody case." In re Custody of Frank, 283 Pa. Super. 229, 233, 423 A.2d 1229, 1232 (1980); see Pa.R.C.P. 1915.10(b) ("No Motion for Post-Trial Relief may be filed to an order of custody, partial custody or visitation."). Appellant did raise his issues concerning estoppel and ...