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09/17/97 LISA A. BRINKLEY v. RICHARD E. KING

September 17, 1997

LISA A. BRINKLEY, APPELLANT
v.
RICHARD E. KING, APPELLEE



Appeal from the Order of the Superior Court dated October 18, 1995, at No. 0594PGH95, affirming the Order of the Court of Common Pleas of Lawrence County, Civil Division, dated January 25, 1995, at No. 939 of 1993 D.R. Composition OF The Court: Mr. Chief Justice John P. Flaherty. Zappala, Cappy, Castille, Nigro, Newman, JJ. Mr. Justice Zappala files a Concurring opinion. Mr. Justice Nigro files a Concurring and Dissenting opinion. Madame Justice Newman files a Concurring and Dissenting opinion in which Mr. Justice Castille joins.

The opinion of the court was delivered by: Flaherty

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

MR. CHIEF JUSTICE FLAHERTY

DECIDED: SEPTEMBER 17, 1997

One of the strongest presumptions in Pennsylvania law is that a child conceived or born in a marriage is a child of the marriage. In order to rebut the presumption it must be proved by clear and convincing evidence that at the time of conception, the husband either was not physically capable of procreation or had no access to the wife. The issue in this case is whether the presumption applies to the facts of this case.

Lisa Brinkley was married to and was living with George Brinkley in February 1991, when Lisa's daughter, Audrianna, was conceived. George moved out in July, 1991, four months before the child was born. Lisa stated that at the time Audrianna was conceived the former husband slept on the couch and she slept in a bedroom. Further, although her former husband was not physically incapable of procreation at the time Audrianna was conceived and although he was free to enter her bedroom, she and her husband did not have sexual relations. Lisa also testified that she was having sexual relations with Richard King during the period when Audrianna was conceived *fn1 and that her husband filed for divorce because he learned that she was pregnant by King.

Lisa testified that King came to the hospital when Audrianna was born and he visited the child on a weekly basis thereafter for approximately two years until Lisa filed a complaint for support. Although King and his wife also paid Lisa a monthly stipend for Audrianna's support, Lisa filed a complaint for support because the amount was insufficient. Finally, Lisa testified that King placed Audrianna on his medical insurance.

Concerning her former husband, Lisa testified that after they were separated, the former husband came to visit her other child, whom the former husband acknowledged as his own, but he did not visit Audrianna. *fn2

On October 29, 1993, Lisa filed a complaint for support against Richard King, alleging that Audrianna was the child of King. King denied paternity and refused blood testing. Lisa then filed a motion for adjudication of paternity and King answered that Lisa was precluded from claiming that he was the father of Audrianna because she had failed to rebut the presumption that her former husband was the father. The trial court treated the motion for adjudication of paternity as a motion for blood tests and directed the parties to submit memoranda of law on their positions. The court thereafter concluded that Lisa had failed to rebut the presumption that her former husband was Audrianna's father, for she was unable to establish that the former husband had no access during the period of conception, and denied the motion for blood tests. Lisa then appealed to Superior Court.

Superior Court affirmed, holding that Lisa had not presented clear and convincing evidence that her former husband had no access to her during the period of conception. Nonetheless, two of three Judges on the Superior Court panel, in a memorandum opinion, expressed reservations that considerations of impotence or lack of access should be the exclusive considerations sufficient to rebut the presumption of paternity. They suggested that this court consider whether additional factors, such as the identity of the father named on the child's birth certificate, whether the putative father has established a relationship with the child, whether the putative father provided support for the child, and whether the putative father provided medical insurance for the child should be also considered in rebuttal of the presumption.

We granted allocatur in order to review the way in which the presumption of paternity functions in Pennsylvania law. *fn3

In John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), a third party sued to establish his own paternity as against that of the presumptive father. The child was conceived before the mother married, but was born while the mother was married to and living with her husband. Husband and wife cared for the child and remained together at the time the lawsuit was filed. The third party sought to compel the presumptive father to submit to blood tests. Former Chief Justice Nix, Concurring in John M., wrote:

It should remain clear that a child born to a married couple will be presumed to be the issue of the husband. That presumption can be overcome only by proof of facts establishing non-access or impotency. Cairgle v. American Radiator and Standard Sanitary Corp.. 366 Pa. 249, 77 A.2d 439 (1951). It continues to be one of the strongest presumptions within our law. Commonwealth ex rel. Leider v. Leider, 434 Pa. 293, 254 A.2d 306 (1969); Cairgle, supra ; Commonwealth, ex rel. O'Brien v. O'Brien, 390 Pa. 551, 136 A.2d 451 (1958).

[The Uniform Act on Blood Tests to Determine Paternity] cannot be used by a third party, seeking to rebut the presumption, to compel a presumed father to submit to a blood test. Whatever interests the putative father may claim, they pale in comparison to the overriding interests of the presumed father, the marital institution and the interests of this Commonwealth in the family unit. These interests are the cornerstone of the age-old presumption and remain protected by the Commonwealth today.

Thus a third party who stands outside the marital relationship should not be allowed, for any purpose, to challenge the husband's claim of parentage. I believe the presumption in this situation is irrebuttable. . . .

524 Pa. at 322-23, 571 A.2d at 1388-89 (concurring opinion joined by four other members of the court).

In John M. a third party was attempting to defeat the paternity of the presumed father, but three years later, in Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993), we addressed a different fact situation. In Trojak the mother sued the third party for child support, claiming that he, rather than her husband, was the father. The child was born while she was married to and living with her husband. Trojak denied paternity and objected to the trial court's order for blood tests on the grounds that the mother had not rebutted the presumption that the child was the child of the marriage. We stated:

A court may order blood tests to determine paternity only when the presumption of paternity has been overcome. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380, cert. denied, 498 U.S. 850, 111 S. Ct. 140, 112 L. Ed. 2d 107 (1990). This Court has held that the presumption can be overcome by proof of facts establishing non-access or impotency. Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951). However, under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child.

535 Pa. at 105, 634 A.2d at 206. In Trojak the mother established that she and her husband did not live together as an intact family; her husband had not accepted the child; the husband and wife had repudiated their marriage vows long ago; the husband never supported the child; and when the child was conceived, the husband was physically incapable of procreation.

These cases set forth the fundamentals of the law of presumptive paternity: generally, a child conceived or born during the marriage is presumed to be the child of the marriage; this presumption is one of the strongest presumptions of the law of Pennsylvania; and the presumption may be overcome by clear and convincing evidence either that the presumptive father had no access *fn4 to the mother or the presumptive father was physically incapable of procreation at the time of conception. However, the presumption is irrebuttable when a third party seeks to assert his own paternity as against the husband in an intact marriage. John M., 524 Pa. at 323, 571 A.2d at 1388-89.

The legal identification of a father, however, even in a case involving the presumption of paternity, may also involve the question of estoppel. One or both of the parties may be prevented from making a claim based on biological paternity because they have held themselves out or acquiesced in the holding out of a particular person as the father. *fn5 In Trojak this court stated that:

under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child. . . . The doctrine of estoppel will not apply when evidence establishes that the father failed to accept the child as his own by holding it out and/or supporting the child. . . . Only when the doctrine of estoppel does not apply will the mother be permitted to proceed with a paternity claim against a putative father with the aid of a blood test.

Trojak, 535 Pa. at 105-06, 634 A.2d at 206. *fn6

The presumption of paternity and the doctrine of estoppel, therefore, embody the two great fictions of the law of paternity: the presumption of paternity embodies the fiction that regardless of biology, the married people to whom the child was born are the parents; and the doctrine of estoppel embodies the fiction that, regardless of biology, in the absence of a marriage, the person who has cared for the child is the parent.

The public policy in support of the presumption of paternity is the concern that marriages which function as family units should not be destroyed by disputes over the parentage of children conceived or born during the marriage. Third parties should not be allowed to attack the integrity of a functioning marital unit, and members of that unit should not be allowed to deny their identities as parents. *fn7 Estoppel is based on the public policy that children should be secure in knowing who their parents are. If a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all his life is not in fact his father.

Thus, the essential legal analysis in these cases is twofold: first, one considers whether the presumption of paternity applies to a particular case. If it does, one then considers whether the presumption has been rebutted. Second, if the presumption has been rebutted or is inapplicable, one then questions whether estoppel applies. Estoppel may bar either a plaintiff from making the claim or a defendant from denying paternity. If the presumption has been rebutted or does not apply, and if the facts of the case include estoppel evidence, such evidence must be considered. If the trier of fact finds that one or both of the parties are estopped, no blood tests will be ordered.

It remains to consider how one knows whether the presumption applies in any given case. Traditionally, the answer to this question has been that the presumption applies if the child was conceived or born during the marriage. We now question the wisdom of this application of the presumption because the nature of male-female relationships appears to have changed dramatically since the presumption was created. There was a time when divorce was relatively uncommon and marriages tended to remain intact. Applying the presumption whenever the child was conceived or born during the marriage, therefore, tended to promote the policy behind the presumption: the preservation of marriages. Today, however, separation, divorce, and children born during marriage to third party fathers is relatively common, and it is considerably less apparent that application of the presumption to all cases in which the child was conceived or born during the marriage is fair. Accordingly, consistent with the ever-present guiding principle of our law, cessante ratione legis cessat et ipsa lex, we hold that the presumption of paternity applies in any case where the policies which underlie the presumption, stated above, would be advanced by its application, and in other cases, it does not apply. *fn8

In the case at bar, at the time of the complaint for support, there was no marriage. Lisa and George Brinkley had separated before the birth of the child and were divorced at the time of the complaint. The presumption of paternity, therefore, has no application to this case, for the purpose of the presumption, to protect the institution of marriage, cannot be fulfilled. It was error, therefore, to fail to ...


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