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T.E.B. v. C.A.B.

Superior Court of Pennsylvania

July 13, 2013

T.E.B., Appellant
v.
C.A.B.
v.
P.D.K., Jr.

Appeal from the Order entered October 5, 2012, in the Court of Common Pleas of Cambria County, Domestic Relations, at No: 2008-3702

BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J. [*]

OPINION

STRASSBURGER, J.

T.E.B. (Husband) appeals from the October 5, 2012 order which ordered that he have shared legal and physical custody of T.E.B., Jr. (Child) with C.A.B. (Mother) and P.D.K., Jr. (P.D.K.). Husband also appeals the December 2, 2009 order which allowed P.D.K. to intervene in the child custody matter. After careful review, we affirm.

The trial court summarized the underlying facts and procedural history as follows.

[Husband] and [Mother] married on August 29, 1992. [Husband] and Mother experienced marital difficulties in 2004. Around the same time, Mother began having a sexual relationship with a co-worker [P.D.K.].
In August of 2006, Mother became pregnant with the youngest of her four children. [Mother and Husband have three older daughters.] Mother immediately concluded that [P.D.K.] was the father of the [unborn] child. Mother knew [Husband] was not the father as he had undergone a vasectomy [which had not been reversed] and Mother and [Husband] were not intimate at the time of conception. Mother told [P.D.K.] that he was the child's father.
[Husband] was made aware that Mother was pregnant upon discovering that Mother was taking prenatal vitamins. When [Husband] confronted Mother, Mother advised [Husband] that she was pregnant with [P.D.K.]'s child. Mother testified that upon learning of the pregnancy, [Husband] coerced Mother into terminating contact with [P.D.K., ] stating to Mother that [Husband] "would do everything in his power, lie, whatever he had to do, to keep the girls and take the girls away from [Mother]."
[In May 2007], Mother gave birth to a son, [Child]. Two weeks after [Child's] birth [P.D.K.] … accompanied Mother and [C]hild to a doctor's appointment. At that time [P.D.K.] informed Mother of his desire to be in [C]hild's life and his willingness to pursue legal recourse. Mother… became upset and Mother and [P.D.K.] "parted ways."
[P.D.K.] hired an attorney who requested Mother and [Husband] agree to DNA testing[;] the requests were denied. On December 8, 2007, [P.D.K.] filed a Complaint for Partial Custody [hereafter Custody Complaint] against Mother. In response, preliminary objections were filed [by Husband] alleging Mother was "shocked" to have received the Custody Complaint "as she has asserted since the birth of [Child] that her husband, [Husband], is the natural father of said child."4 On January 25, 2008, the preliminary objections were granted and the Custody Complaint was dismissed with prejudice. [P.D.K. did not pursue further legal action, fearing retaliation.]
4 It is clear, from Mother and [Husband]'s testimony, that the allegations in the Preliminary Objections were false, as both Mother and [Husband] knew [P.D.K.] was the biological father of [Child].
[On July 29, 2008, Husband initiated the instant action by filing a Complaint for Custody seeking shared custody of Child and the couple's three daughters, although both of the parties continued to reside in the marital residence.] On April 2, 2009, after unsuccessful attempts at reconciliation, Mother filed for divorce. Mother and [P.D.K.] resumed their relationship sometime in the spring of 2009. In June of 2009 Mother and [P.D.K.] agreed to have a DNA test performed.
… On August 13, 2009, the Petition to Intervene in Custody Matter [hereafter Petition to Intervene] was filed on behalf of [P.D.K.]. On September 2, 2009, [Husband]'s Preliminary Objections to Petition to Intervene [hereafter Preliminary Objections to Petition] were filed … seeking dismissal on the basis that [Child] was born into an intact family and thus the presumption of paternity barred the Petition to Intervene. Additionally, it was argued that dismissal of the Petition to Intervene was proper as [P.D.K.]'s Custody Complaint had been dismissed with prejudice.
On November 17, 2009 and November 19, 2009, the [trial c]ourt held an evidentiary hearing on the Petition to Intervene. Subsequently, on December 2, 2009, the [trial c]ourt entered an Order dismissing the Preliminary Objections and granting the Petition to Intervene. On January 4, 2010, [Husband] filed a Notice of Appeal of the [trial c]ourt's Order. By Order of the Superior Court dated March 10, 2010, the appeal was quashed as interlocutory.
On February 17, 2012, a custody hearing took place before [a Hearing Officer] and the Hearing Officer Summary was filed with the [c]ourt on March 8, 2012. The summary and attached proposed order referred to Mother and [P.D.K.] collectively as "Defendant" as the couple had been engaged and living together at the time of the hearing. The summary proposed that the parties have shared legal and physical custody of [Child, with Mother and P.D.K. jointly exercising physical custody of Child each Sunday afternoon through Wednesday afternoon, as well as the last Friday and Saturday of each month; and with Husband enjoying physical custody of Child at all other times]. On March 21, 2012, Mother filed Defendant's Exceptions to Master's Report. On ...

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