Opinion
No. 35 EDA 2007.
Filed: September 20, 2007.
Appeal from the Order December 5, 2006, In the Court of Common Pleas of Philadelphia County, Domestic Relations Division at DR No. 0C05-02282.
¶ 1 Appellant R.W.E. appeals from an order entered on December 5, 2006, in the Court of Common Pleas of Philadelphia County, rescinding the acknowledgment of paternity executed by Appellant and A.B.K. (Appellee Mother) and adjudicating M.K. (Appellee M.K.) as the biological father of the child. Upon review, we reverse the December 5, 2006 order.
Due to the sensitive nature of this case, we have abbreviated the parties' names.
¶ 2 The trial court aptly stated the factual and procedural history as follows:
The child in this case is J.R.K. (D.O.B. 11/12/2004). Mother is A.B.K. At the hospital, within days of the child's birth, [Appellant] executed an "Acknowledgment of Paternity" form as provided by the Department of Public Welfare, Commonwealth of Pennsylvania, pursuant to 23 Pa.C.S.A. § 5103(a). This form was provided by the hospital where the child was born pursuant to 23 Pa.C.S.A. § 5103(c). At no time, either before or after the birth of this child, were [Appellee Mother] and [Appellant] married. The child at issue was born out of wedlock.
Pursuant to testimony presented at a hearing conducted by [the trial court], [Appellee Mother] and [Appellant] had an on-again/off-again sexual relationship from approximately February 2001 or 2002 through February 2005. Although at times the parties resided together, some periods are in dispute. During some period, encompassing the time of conception, the parties were separated and not sexually active with each other. During the same period of conception, [Appellee Mother] was involved with another man later identified to be [Appellee M.K.]. [Appellee Mother] and [Appellant] did get back together. Upon learning she was pregnant, [Appellee Mother] advised [Appellant]. She also advised [Appellant] that she had been sexually intimate with another man during the period of conception and there was a possibility that the other man was the father of the child. [Appellee Mother] and [Appellant], at that time, made an agreement that [Appellant] would be the father of this child and no one would question paternity. [Appellant] stated in his testimony before [the trial court] that he and [Appellee Mother] agreed that there would be no genetic testing. [Appellee Mother] and [Appellant] resided together during the pregnancy.
The child was born on November 12, 2004. The parties continued to reside together until approximately November of 2005. [Appellant] claimed that [Appellee Mother] initially let him see the child and then abruptly terminated his visits. Shortly thereafter, [Appellant] through counsel, filed a complaint for custody on December 8, 2005. [Appellant] also filed a petition for emergency relief which was scheduled for hearing on December 15, 2005. At the hearing on the emergency petition genetic testing was ordered. An interim order was entered awarding [Appellee Mother] primary physical and legal custody and [Appellant], who was referred to as putative father, was awarded partial custody every Sunday from 9:00 a.m. to 8:00 p.m. [Appellee Mother] contends that this was by agreement. [Appellant] contends he agreed to submit to genetic testing only to ensure some custodial period. In addition, a hearing was scheduled on the underlying petition for custody for April 4, 2006. The genetic test revealed that the probability of paternity for [Appellant] was 0.00%.
On January 30, 2006, [Appellee Mother] filed a petition for custody with a request for expedited relief. [Appellant] filed an answer to said motion. On February 10, 2006, the [trial court] denied the request for expedited relief. On February 13, 2006, [Appellant] again filed a motion for expedited relief and [Appellee Mother] filed an answer to said motion and a cross motion. On February 22, 2006, the Honorable Margaret T. Murphy resolved the cross motions for expedited relief by ordering [Appellee Mother] and [Appellant] to submit to drug testing and mental health assessments. Judge Murphy granted the oral motion of [Appellee Mother's] counsel to join [Appellee M.K.] as an additional defendant and directed genetic testing on [Appellee M.K.], [Appellee Mother], and child. Further, Judge Murphy cancelled the April 4, 2006 hearing and rescheduled the matter for a semi-protracted hearing on June 27, 2006. The genetic test resulted in a finding of 99.99% probability of paternity for [Appellee M.K.]. [Appellee M.K.] is the biological father of the child at issue.
On March 16, 2006[, Appellee M.K.] filed a petition for custody together with a motion for special relief, requesting that the acknowledgment of paternity signed by [Appellant] be vacated and the custodial rights of [Appellant] be suspended. On that same date, [Appellee Mother] filed an emergency petition also requesting that the custodial rights of [Appellant] be suspended. On March 16, 2006[,] a temporary order was entered in which the custodial rights of [Appellant] were suspended. A hearing was conducted on March 24, 2006[,] before Master Andreola. On the drug test previously ordered by Judge Murphy[, Appellant] tested positive for marijuana. After an extensive hearing the custodial rights of [Appellant] were suspended and he was awarded only supervised visits at the court nursery on Sundays for approximately two hours.
On March 20, 2006[,] another motion for expedited relief was filed by [Appellee M.K.]. On March 27, 2006[, Appellant] filed preliminary objections requesting that [Appellee M.K.'s] case be dismissed. Thereafter, there were numerous motions and counter motions filed by all of the parties. These motions and counter motions can be summarized as follows: [Appellant] is asking the court to confirm his paternity and his acknowledgment of paternity and thereby dismiss [Appellee M.K.'s] petitions. [Appellee M.K.] is requesting that the court vacate [Appellant's] acknowledgment of paternity and adjudicate [Appellee M.K.] the father of the child at issue. Further, [Appellee M.K.] is requesting that the custodial rights of [Appellant] be vacated. [Appellee Mother] is also requesting that the acknowledgment of paternity, which she and [Appellant] signed, be vacated and that [Appellee M.K.] be adjudicated the father of the child at issue.
Trial court order, 12/5/06, at 1-3 (capitalization omitted).
¶ 3 On December 5, 2006, the trial court ordered the acknowledgment of paternity rescinded due to fraud. Further, it adjudicated Appellee M.K. as the biological father of the child. Appellant filed a timely appeal from this order. The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. Accordingly, the trial court did not issue a Pa.R.A.P. 1925(a) opinion in response.
¶ 4 Appellant presents three issues for our review:
I. Whether the trial court erred in failing to confirm paternity and by rescinding the acknowledgment of paternity based on fraud where there is no evidence of fraud in the record.
II. Whether the trial court erred in failing to confirm paternity based on constructive paternity by statute and where rescission is precluded by statute.
III. Whether the trial court erred in failing to confirm paternity by estoppel.
We note that counsel for Appellee Mother submitted a letter in lieu of an appellate brief stating that she will join and concur with the brief submitted by Appellee M.K.
¶ 5 At the outset we note that our review is governed by an abuse of discretion standard. Warfield v. Warfield, 815 A.2d 1073, 1075 (Pa.Super. 2003) (citation omitted). An abuse of discretion is "not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence of record." Id., 815 A.2d at 1075 (citations omitted).
¶ 6 Appellant's first argument is that the trial court erred in rescinding the acknowledgment of paternity based on fraud because there is no evidence of fraud in the record.
¶ 7 We begin with the determination that because Appellant and Appellee Mother were never married, the presumption of paternity is not applicable.
The presumption that a child born during the marriage is a child of the husband is always the starting point in a contest involving the parentage of a child born during coverture. Moreover, the strength of the presumption that a child born to a married woman is a child of the marriage is grounded in the Commonwealth's interest in protecting the family unit. Although the presumption may be rebutted by clear and convincing evidence of husband's non-access, impotency, or sterility, the presumption is irrebuttable where mother, child, and husband live together as an intact family and husband assumes parental responsibility for the child.
E.W. v. T.S., 916 A.2d 1197, 1201 (Pa.Super. 2007) (citation omitted).
¶ 8 However, as the following statute details, the father of a child born to an unmarried woman may sign an acknowledgment of paternity that shall give the father all of the rights and duties as to the child that he would have received if he had been married to the mother at the time of the birth of the child, and this acknowledgment shall constitute conclusive evidence of paternity without further judicial ratification. See 23 Pa.C.S.A. § 5103. This acknowledgment of paternity is subject to rescission within the first sixty days or after the expiration of the first sixty days if there is clear and convincing evidence that the acknowledgment of paternity was obtained by fraud, duress, or material mistake of fact. See id.
¶ 9 This statute is stated, in pertinent part, as follows:
§ 5103. Acknowledgment and claim of paternity
(a) ACKNOWLEDGMENT OF PATERNITY. — The father of a child born to an unmarried woman may file with the Department of Public Welfare, on forms prescribed by the department, an acknowledgment of paternity of the child which shall include the consent of the mother of the child, supported by her witnessed statement subject to 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities). In such case, the father shall have all the rights and duties as to the child which he would have had if he had been married to the mother at the time of the birth of the child, and the child shall have all the rights and duties as to the father which the child would have had if the father had been married to the mother at the time of birth. The hospital or other person accepting an acknowledgment of paternity shall provide written and oral notice, which may be through the use of video or audio equipment, to the birth mother and birth father of the alternatives to, the legal consequences of and the rights and responsibilities that arise from, signing the acknowledgment.
* * *
(d) CONCLUSIVE EVIDENCE. — Notwithstanding any other provision of law, an acknowledgment of paternity shall constitute conclusive evidence of paternity without further judicial ratification in any action to establish support. The court shall give full faith and credit to an acknowledgment of paternity signed in another state according to its procedures.
* * *
(g) RESCISSION. —
(1) Notwithstanding any other provision of law, a signed, voluntary, witnessed acknowledgment of paternity subject to 18 Pa.C.S. § 4904 shall be considered a legal finding of paternity, subject to the right of any signatory to rescind the acknowledgment within the earlier of the following:
(i) sixty days;
* * *
(2) After the expiration of the 60 days, an acknowledgment of paternity may be challenged in court only on the basis of fraud, duress or material mistake of fact, which must be established by the challenger through clear and convincing evidence. An order for support shall not be suspended during the period of challenge except for good cause shown.
23 Pa.C.S.A. § 5103.
¶ 10 Neither party disputes that Appellant signed a voluntary acknowledgment of paternity. See N.T. Custody hearing, 8/28/06, at 6. Therefore, pursuant to 23 Pa.C.S.A. § 5103, Appellant received all of the rights and duties as to the child that he would have received if he had been married to Appellee Mother at the time of the birth of the child, and this acknowledgment constituted conclusive evidence of paternity without further judicial ratification. Thus, when Appellant signed the voluntary acknowledgment of paternity, he became the legal father of the child.
¶ 11 Section (g) of 23 Pa.C.S.A. § 5103, as applicable to this situation, allows for two avenues to rescind the acknowledgment of paternity. The first avenue provides that a signatory, either Appellant or Appellee Mother, could rescind the acknowledgment of paternity within the sixty-day time period after its issuance. Neither party attempted to rescind the acknowledgment of paternity within this time frame. The second avenue provides that a challenger, here Appellee M.K., may challenge the acknowledgement of paternity after sixty days of its issuance on the basis of fraud, duress, or material mistake of fact. Warfield, 815 A.2d at 1076; see also 23 Pa.C.S.A. § 5103(g). Fraud, duress, or material mistake of fact must be established through clear and convincing evidence. McConnell v. Berkheimer, 781 A.2d 206, 210 (Pa.Super. 2001) (citation omitted). The test for fraud is: (1) misrepresentation, (2) a fraudulent utterance, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as a proximate result. N.C. v. M.H., 923 A.2d 499, 503 (Pa.Super. 2007) (citation omitted). Further, fraud consists of "anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture." Martin v. Hale Prods., 699 A.2d 1283, 1287-88 (Pa.Super. 1997) ( citing Moser v. DeSetta, 527 Pa. 157, 163, 589 A.2d 679, 682 (1991)).
¶ 12 Appellant testified that after he was informed that Appellee Mother was pregnant, they discussed all their options including that the child may not be his because she had a prior relationship with another man. See N.T. Custody hearing, 8/28/06, at 18. Additionally, Appellant testified that he and Appellee Mother agreed that he would father the child and that they would not have a paternity test conducted to determine the biological father. Id., at 20. Appellee Mother also testified that she informed Appellant that he may not be the biological father of the child. Id., at 26, 29. Additionally, Appellee Mother testified that she and Appellant agreed that he was going to be the father of the child. Id., at 27.
¶ 13 The trial court determined that Appellee Mother's initial silence with respect to her failure to inform Appellee M.K. that he may be the biological father coupled with her agreement with Appellant that they would not have a paternity test conducted to determine if Appellant is the biological father is the equivalent of fraud. Our review of the record reveals no evidence that Appellee Mother or Appellant made a fraudulent utterance or misrepresentation to Appellee M.K. concerning whether or not he was the father of the child in order to induce Appellee M.K. to act in a certain way in reliance on this misrepresentation. Additionally, although Appellee M.K. testified that he had no contact with Appellee Mother for two years before she notified him that he may be the father of the child, we do not find Appellee Mother's silence to rise to the level of fraud.
¶ 14 Appellee M.K. testified that he is a member of the National Guard and that he was informed two or three weeks after his last contact with Appellee Mother that he was being deployed to Kuwait. See N.T. Custody hearing, 8/28/06, at 81. Appellee M.K. stated that he left for Kuwait in May of 2004, and he did not return until some time during that following fall season. Id., at 81. Further, he stated that he and Appellee Mother had no contact from February 15, 2004, until January 29, 2006, when she informed him that she had a baby. Id., at 81, 84.
¶ 15 Appellee Mother began a relationship in 2001 or 2002 with Appellant that continued on and off until 2005. See N.T. Custody hearing, 8/28/06, at 19. Appellee Mother's testimony indicates that she separated from Appellant in September of 2003 and began a relationship with Appellee M.K. in December of 2003. Id., at 23. She and Appellee M.K. remained together until February 15, 2004, and after the relationship ended Appellee Mother re-established her relationship with Appellant on February 17, 2004. Id., at 23, 59-60. Appellee Mother subsequently discovered she was pregnant in March 2004, while she was in a relationship with Appellant. Id., at 61. Appellee Mother remained in an intact relationship with Appellant until November 2005, and she then informed Appellee M.K. on January 29, 2006, that he may be the biological father. Id., at 89.
¶ 16 The reality of the situation is that Appellee Mother and Appellant reestablished their four year relationship after Appellee Mother's brief two and one-half month relationship with Appellee M.K. . At that time, they both agreed that Appellant would be the father of the child even if he was not the biological father because they were together as a couple and Appellee Mother was no longer in contact with Appellee M.K. . They agreed not to have a paternity test completed because Appellant wanted to parent the child even if it was not his biological child. However, after the relationship came to an end again, Appellee Mother decided to inform Appellee M.K. that he may be the biological father of the child.
¶ 17 Based upon the facts on the record, we cannot infer that Appellee Mother's silence, with respect to her failure to inform Appellee M.K. that he may be the biological father until two years after the birth of the child, was the result of her fraudulent intention to omit Appellee M.K. from the child's life. Nor can we infer from this situation that Appellee Mother's silence was calculated to deceive Appellee M.K. in any way. Rather, her failure to inform Appellee M.K. immediately of her pregnancy resulted from the fact that she and Appellee M.K. ended their relationship, and Appellee Mother was back together with Appellant when she discovered she was pregnant. She simply did not inform Appellee M.K. at the time of the birth because they had ended their short-term relationship and she became involved with Appellant, who volunteered to acknowledge paternity in spite of the fact that he was informed the biological father may be a different man.
¶ 18 Further, the agreement between Appellee Mother and Appellant that they would not have a paternity test conducted is additional evidence that they intended to live as an intact family in a stable relationship regardless of whether Appellant was the biological father. We do not find clear and convincing evidence to support the trial court's conclusion that Appellee Mother's silence coupled with the agreement not to establish paternity rises to the level of fraud that would require the rescission of the acknowledgment of paternity. McConnell, 781 A.2d at 210; see also 23 Pa.C.S.A. § 5103. Therefore, without any evidence of fraudulent conduct, the acknowledgment of paternity should not be rescinded. See Hamilton v. Hamilton, 795 A.2d 403, 407 (Pa.Super. 2002).
¶ 19 Additionally, although we understand the intention behind the trial court's decision to rescind the acknowledgment of paternity in favor of the biological father, the law, in this instance does not provide for that result. This is not the typical situation where a putative father attempts to revoke his previously accepted parental duties because he later discovers that he was fraudulently induced into accepting this role. This situation is unique in that both Appellant and Appellee M.K., the biological father, are attempting to claim legal responsibility for this child. As expressed by a trial court in Klingensmith v. Kuhn, 2006 Pa. Dist. Cnty. Dec. LEXIS 362:
A child's legal father is not merely a matter of biology. It is also the person who accepted parental responsibility voluntarily and early, and who, through his consistent commitment to the child, meets [the child's] basic needs. Legal parenthood is not merely based on an act of procreation. It can also be earned by an adult who meets the child's needs and is committed to the child.
Id., 2006 Pa. Dist. Cnty. Dec. LEXIS 362, 14 (citation omitted).
¶ 20 Further, the result and reasoning articulated by the trial court in its December 5, 2006 order would in effect punish parties for making a responsible choice to parent a child born outside of a marriage unless they were 100% certain that the man signing the acknowledgment of paternity was in fact the biological father of the child. In addition, it would allow a third party to disrupt at any time a stable parent-child relationship based on an allegation of fraud because he was not informed previously of his status as the potential biological father. We decline to follow this reasoning as it runs contrary to the public policy enunciated by this Court that children should be secure in knowing who their parents are, and, if a 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. Gebler v. Gatti, 895 A.2d 1, 3 (Pa.Super. 2006) (citation omitted).
¶ 21 In conclusion, we find that the trial court erred in its determination that the acknowledgment of paternity should be rescinded due to fraud because we find no evidence in the record to support this conclusion. See N.C., 923 A.2d at 504; see also 23 Pa.C.S.A. § 5103(g). Accordingly, we reverse the December 5, 2006 order rescinding the acknowledgment of paternity executed by Appellant and Appellee Mother and adjudicating Appellee M.K. as the biological father of the child.
Because of our disposition of Appellant's first issue, we will not address Appellant's second and third issues.
¶ 22 Order reversed.