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K.E.M v. P.C.S

February 21, 2012


Appeal from the Order of the Superior Court at No. 1566 MDA 2010, dated 4/21/11 affirming the Order of the Court of Common Pleas of York County at No. 1174 SA 2010, dated 8/25/10 and exited 8/26/10

The opinion of the court was delivered by: Mr. Justice Saylor


SUBMITTED: September 2, 2011


In this appeal arising in the child support setting, we consider the application of paternity by estoppel.

Appellant, the mother of G.L.M., filed a complaint seeking support from Appellee, whom she believes to be G.L.M.'s biological father. Appellee responded with a motion to dismiss, relying upon Mother's intact marriage to H.M.M. at the time of G.L.M.'s birth as establishing a presumption of paternity, see Brinkley v. King, 549 Pa. 241, 248-50, 701 A.2d 176, 179-80 (1997) (plurality) (explaining that, "generally, a child conceived or born during the marriage is presumed to be the child of the marriage"), and on H.M.M.'s assumption of parental responsibilities as implicating paternity by estoppel, see Fish v. Behers, 559 Pa. 523, 528, 741 A.2d 721, 723 (1999) ("A party may be estopped from denying the husband's paternity of a child born during a marriage if either the husband or the wife holds the child out to be the child of the marriage."). See generally Brinkley, 549 Pa. at 249, 701 A.2d at 180 ("The presumption of paternity and the doctrine of estoppel . . . 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 common pleas court conducted a hearing on the motion. Appellee offered evidence that, although H.M.M. is not identified as the father on G.L.M.'s birth certificate, baptismal records so indicate. See N.T., Aug. 5, 2010, at 6-7. Furthermore, Appellee's counsel adduced brief testimony from Appellant to the effect that, while she and H.M.M. were separated as of the time of the hearing, neither had commenced divorce proceedings; their last tax returns were filed jointly, with G.L.M. claimed as a dependent; and both contributed to G.L.M.'s upbringing. See id. at 9-10.

On her own attorney's examination, Appellant testified that she married H.M.M. in 1997, and the couple had two daughters. See id. at 11. Appellant discussed her intimate, extramarital affair with Appellee during her marriage and at the point in time at which G.L.M. was conceived. See id. at 12-14. Appellant stated that she eventually advised H.M.M. of her conduct, and H.M.M. did not wish to be identified as the father on the birth certificate. See id. at 15, 19-20. According to Appellant's evidence, genetic testing was performed, which excluded H.M.M. as the biological father. See id. at 16-17 & Ex. R-1. After she received the results, Appellant testified, she also asked Appellee to submit to testing, but he refused, although he acknowledged G.L.M. as his son. See id. at 18, 29. Appellant explained that, throughout the four years of G.L.M.'s life, Appellee had periodically undertaken some degree of involvement in his life, giving Appellant money to buy Christmas presents; providing unsigned cards and some gifts of his own; visiting parks and playgrounds; and supplying a cell phone to assure Appellant's and G.L.M.'s safety. See id. at 20-24, 28. She also testified that G.L.M. referred to both H.M.M. and Appellee as "Daddy," although Appellee discouraged the latter from doing so. See id. at 30, 34. She and Appellee, Appellant related, discussed plans to establish a household together, but eventually Appellee ended the relationship. See id. at 25-27. In roughly the same time period, H.M.M. separated himself from Appellant. See id. at 9-10, 24.

On redirect examination, Appellee's attorney elicited additional testimony concerning H.M.M.'s pre-separation involvement in G.L.M.'s life, including his performance of a fatherly role and residence with the family until June of 2010. See id. at 33-34.

After taking the matter under advisement, the common pleas court granted Appellee's motion to dismiss the support action against Appellee, finding that the presumption of paternity was controlling and, alternatively, that H.M.M. should be regarded as G.L.M.'s father via paternity by estoppel. See K.E.M. v. P.C.S., No. 01174SA2010, slip op. at 6, 9 (C.P. York, Aug. 25, 2010). As to the former theory, the court observed that the presumption of paternity is considered to be "one of the strongest presumptions within our law." Brinkley, 549 Pa. at 246, 701 A.2d at 179 (quoting John M. v. Paula T., 524 Pa. 306, 322, 571 A.2d 1380, 1388 (1990) (Nix, C.J., concurring)). The court elaborated that, under the presumption, a party who denies paternity of a child born during an intact marriage has the burden to show by clear and convincing evidence that the presumptive father lacked access to the mother or was incapable of procreation. See id. at 248, 701 A.2d at 179. Additionally, the court explained that the policy rationale supporting the presumption is the concern that intact marriages should not be undermined by disputes over parentage. See id. at 249, 701 A.2d at 180.

The common pleas court recognized that such policy justification does not pertain where there is no intact marriage. See K.E.M., No. 01174SA2010, slip op. at 4-5 ("Where the family unit no longer exists, it defies both logic and fairness to apply equitable principles to perpetuate a pretense." (citing, inter alia, Doran v. Doran, 820 A.2d 1279, 1283 (Pa. Super. 2003)). Nevertheless, the court highlighted, this determination is one of fact, see Vargo v. Schwartz, 940 A.2d 459, 467 (Pa. Super. 2007), and, in the circumstances, it considered Appellant's and H.M.M.'s marriage to be an intact one. Its rationale, in this respect, was as follows:

Over the course of the extensive testimony by [Appellant], we observed that she possesses a great deal of indecision regarding her marriage. We are not convinced that the marriage between [Appellant] and [H.M.M.] is irretrievably broken. We believe reconciliation is possible, particularly in light of the fact there is no divorce proceeding pending. Because the couple is merely separated, the family remains somewhat intact and equitable principles are applicable.

While still applicable, the presumption of paternity has been destroyed in the minds of the parties by the knowledge of the true biological father. There is no dispute that [H.M.M.] did not father the child. [Appellant] testified at hearing that during the pregnancy, she suspected the child was not her husband's, as she was intimate with [Appellee] around the time of conception. Subsequently, she had a DNA test done. The DNA test showed unequivocally, that husband was not the child's father. While presumption of paternity is applicable, we also determine that [Appellant] is equitably estopped from pursuing support/paternity against [Appellee], the biological father. K.E.M., No. 01174SA2010, slip op. at 5-6.

As to paternity by estoppel, the common pleas court explained that the doctrine embodies a legal determination that one may be deemed a parent based on his holding himself out as such. See Jones v. Trojak, 535 Pa. 95, 105, 634 A.2d 201, 206 (1993) (indicating that "the law will not permit a person in these situations to challenge the status which he or she has previously accepted"); see also Fish, 559 Pa. at 530, 741 A.2d at 724 (stating 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." (quoting Brinkley, 549 Pa. at 249-50, 701 A.2d at 180)). The court also sought to give effect to the decisions of this Court setting up the presumption of paternity and paternity by estoppel as thresholds to a court directive for genetic testing. See Jones, 535 Pa. at 104-05, 634 A.2d at 206 ("We adopt the approach taken by the Superior Court in Christianson v. Ely, [390 Pa. Super. 398, 568 A.2d 961 (1990),] which mandates that before an order for a blood test is appropriate to determine paternity the actual relationship of the presumptive father and natural mother must be determined."); id. at 105, 634 A.2d at 206 ("These estoppel cases indicate that where the principle is operative, blood tests may well be irrelevant[.]").*fn1

Based on the hearing record, the common pleas court determined that H.M.M. had held himself out as G.L.M.'s father. It continued:

Even after learning that he was not the biological father, [H.M.M.] continued to provide emotional and financial support for the child as well as perform all familial duties as a father would. [H.M.M.] also claimed the child as a dependent every year for tax purposes and was presented at the child's baptism as the child's father. Although the two older daughters from the marriage were well aware that he had not fathered the child, [H.M.M.] declared the child to be his own to the general public. K.E.M., No. 01174SA2010, slip op. at 9.

Appellant filed a notice of appeal, and the Superior Court affirmed in a divided, memorandum opinion. Initially, the majority differed with the common pleas court's conclusion that the presumption of paternity applied, reasoning that it is inapplicable in circumstances in which it would not protect a marriage "from the effects of disputed paternity." K.E.M. v. P.C.S., No. 1566 MDA 2010, slip op. at 5 (Pa. Super. Apr. 21, 2011 (quoting B.S. v. T.M., 782 A.2d 1031, 1036 (Pa. Super. 2001) (determining that the presumption did not apply where a married couple had reconciled "with full knowledge of all the facts")); accord Lynn v. Powell, 809 A.2d 927, 930 (Pa. Super. 2002) (holding that the presumption did not apply where the husband knew the child had been conceived as a result of his wife's extramarital affair but remained married to her). Based on these decisions, the majority concluded that "the presumption is not applicable because it would not serve to protect the marriage where [H.M.M.] has full knowledge that he is not the child's biological father. Therefore, should the marriage survive, it will do so in spite of the parentage issue." K.E.M., No. 1566 MDA 2010, slip op. at 6 (footnote omitted). The majority, however, deemed the error it found in the common pleas court's application of the presumption of paternity to be harmless, since it agreed with that court that paternity by estoppel applied. Quoting from Lynn, the majority explained:

We do not allow a person to deny "parentage" of a child, regardless of biological status, if that person holds the child out as his own and provides support. When such circumstances exist, we will also not allow a child's mother to sue a third party for support based on biological status. Plainly, the law does not allow a person to challenge his role as a parent once he has accepted it, even with contrary DNA and blood tests.

Id. at 7 (quoting Lynn, 809 A.2d at 929-30 (citations omitted)). In barring Appellant from pursuing support against Appellee, the Superior Court majority relied on the factual circumstances reflected above.

President Judge Emeritus McEwen dissented, taking the position that the matter was controlled by Vargo, 940 A.2d at 470-71 (upholding a trial court determination that paternity by estoppel did not apply). The dissent also echoed the sentiments of the Vargo panel, as reflected in the majority opinion authored by Judge (now-Justice) McCaffery, to the effect that the common law legal fictions being applied in this sensitive area of the law should be modified to allow for fully informed judicial decision making grounded in the best interests of the child. See K.E.M., No. 1566 MDA 2010, slip op. at 1-2 (McEwen, P.J.E., dissenting) ("A caring and just society should not be seen to condone or even permit the fathering of a child without the presumptive responsibility to contribute to the care of that child, and where the application of the doctrine of paternity by estoppel interferes with that responsibility, it would wisely be abrogated."); cf. Vargo, 940 A.2d at 467-68 n.6 ("The difficulty in determining the status of the Vargo marriage -- and the enormous ramifications of that factual determination for the parties as well as for the young children involved in this case -- prompt us to add our voice to earlier calls for modification of Pennsylvania law to permit DNA testing as an alternative avenue for rebutting the presumption of paternity." (citing, inter alia, Brinkley, 549 Pa. at 258-67, 701 A.2d at 185-89 (Newman, J., dissenting)).

We allowed appeal to consider the application of the doctrine of paternity by estoppel in this case, and, more broadly, its continuing application as a common law principle. In terms of the narrower (former) question, our review focuses on whether the common pleas court abused its discretion. See Maher v. Maher, 575 Pa. 181, 184, 835 A.2d 1281, 1283 (2003) (quoting Humphreys v. DeRoss, 567 Pa. 614, 617, 790 A.2d 281, 283 (2002)). The broader (latter) question is one of law, as to which our review is plenary.

Appellant argues that paternity by estoppel should not have been applied to defeat her child support claim, because G.L.M. already knows Appellee as his father and, therefore, there is no concern over deleterious impact from a judicial determination to such effect. Accord Wieland v. Wieland, 948 A.2d 863, 870 (Pa. Super. 2008) ("Because evidence has proven that [a man] is [a child's] biological father, but, most important, because [the child] has been informed of this fact, this Court must bear in mind that the best interests of the child is the overriding policy."). Appellant directly questions the application of a legal fiction in a circumstance in which all parties involved fully apprehend the true state of affairs, a circumstance which is becoming increasingly common. See Brief for Appellant at 27 ("Mothers and putative fathers in today's society are free to conduct genetic testing outside of any judicial proceeding and are doing so based on increased availability and decrease in cost.").

It is also her position that Appellee acted as G.L.M.'s parent based upon the evidence of periodic visits, gifts, and cards. Furthermore, Appellant asserts, Appellee does not have clean hands, since he encouraged and participated in the relationship as the father of G.L.M. and Appellant's paramour. In this regard, she references Kohler v. Bleem, 439 Pa. Super. 385, 399-400, 654 A.2d 569, 577 (1995) (holding that a biological father was "precluded from utilizing equitable principles," inter alia, in light of his participation in a subterfuge). Appellant distinguishes Fish, in which paternity by estoppel applied to the advantage of a biological father defending against a support claim, see Fish, 559 Pa. at 529-30, 741 A.2d at 723-24, on the basis that she felt she had no choice in continuing to reside with her husband. Brief for Appellant at 17 (stating that "[Appellee] refused to commit to a relationship with [Appellant] and the child and she had no means of supporting herself and the child, independently"). According to Appellant, application of paternity by estoppel in the present case would result in the child being left fatherless and no father being responsible for the support of the child.*fn2

Further, Appellant specifically asks that Pennsylvania law be modified to consider genetic testing, along with other factors, in determining paternity on a case-by-case basis. She explains that an inflexible rule perpetuating a non-factual portrayal of paternity will not always best serve the best interests of children. See, e.g., id. at 10 ("In today's society, there is no assurance that past conduct as a parental figure to a child will continue into the future based upon a judicial finding that is know[n] to be a fiction by the parties and eventually the child."). Additionally, Appellant expresses concern that a husband should not be punished for acting responsibly in relation to his wife's children, see id. at 16 (citing Vargo, 940 A.2d at 470 ("We do not read our law to require acts that place children at risk or in need of life's basic necessities in order to reinforce the legal point that one is not financially responsible for those children."), and contends that estoppel should not serve as a shield for biological fathers to insulate themselves from the responsibility to support their children, financially at the very least, see id. at 18 (citing Fish, 559 Pa. at 531, 741 A.2d at 725 (Nigro, J., dissenting)); accord Dipaolo v. Cugini, 811 A.2d 1053, 1057 (Pa. Super. 2002) (Hudock, J., dissenting). According to Appellant, placing the responsibility for financial support upon biological fathers would provide a consistent, readily identifiable source of sustenance, regardless of the relationship a child may enjoy with others.

Appellant also observes that important medical information accompanies knowledge of one's biological origins. More generally, she urges that legal theories which have arisen in very different temporal and social contexts should not perpetually impede the law's adaptation to modern conditions, relying on the able expressions of former Justices Nigro and Newman to the effect that the Court should move to the more flexible, case specific approach to paternity issues. See Brief for Appellant at 22-24 (citing Fish, 559 Pa. at 530-32, 741 A.2d at 724-25 (Nigro, J., and Newman, J., dissenting separately), Strauser v. Stahr, 556 Pa. 83, 93-97, 726 A.2d 1052, 1056-58 (1999) (Nigro, J., and Newman, J., dissenting separately), and Brinkley, 549 Pa. at 252-69, 701 A.2d at 182-90 (Nigro, J., and Newman, J., dissenting separately). Appellant concludes with the expression that this Court should, at a minimum, modify paternity by estoppel to permit the admission and consideration of genetic testing in disputed ...

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