J.L. v. A.L.

205 A.3d 347

J.L.

v.A.L. and K.L., Appellants

No. 945 MDA 2018

Superior Court of Pennsylvania.

Argued January 9, 2019

Filed February 26, 2019

Todd M. Mosser, Philadelphia, for appellant.

Amy L. Owen, Carlisle, for appellee.

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

OPINION BY NICHOLS, J.:

A.L. and K.L. (Mother and Husband) (collectively, Appellants), appeal from the order granting J.L.'s (Father) complaint to establish paternity and directing that E.J.L.L. (Child), born in January 2018, be made available for genetic testing. Appellants contend that the trial court erred by concluding they did not have an intact marriage and family when Father filed his complaint. After careful review of the entire record, we affirm.

The relevant procedural and factual history are as follows. Appellants married in 2009 and are the parents of a daughter, J.L., born in October 2012. N.T. Trial, 5/7/18, at 129-30. Subsequently, between 2016 and 2017, Mother had two nonviable pregnancies. Id. at 131-32. This strained Appellants' marriage. Id. at 132, 209-10. While Appellants participated in both individual and joint counseling,¹ id. at 132, 138, 209-10, they never divorced or filed for divorce and allegedly continued to have a sexual relationship. Id. at 135, 230. Appellants continued to celebrate holidays and vacation together. Id. at 144, 227; see also Appellants' Ex. 11. Upon the advice of their counselor, they did, however, obtain a separate apartment in September 2017. N.T. Trial, 5/7/18, at 139-40; see also Appellants' Ex. 5.

Meanwhile, Mother met Father at a wedding in March 2017, and began an affair, which lasted until February 2018. N.T. Trial, 5/7/18, at 133-34. Mother informed Father that she and Husband had been separated since November 2016.² N.T. Trial, 5/4/18, at 14. Moreover, Mother and Father frequently discussed her strained relationship with Husband. Although Mother never indicated that she had filed for divorce, Mother referenced divorce on numerous occasions. N.T. Trial, 5/7/18, at 173-74; N.T. Trial, 5/4/18, at 17, 22, 24-25; see also Father's Ex. 1. Mother admitted that she lied to and concealed things from both Husband and Father throughout the course of her nearly one-year affair with Father. See, e.g. , N.T. Trial, 5/17/18, at 351; N.T. Trial, 5/7/18, at 134, 144, 148, 153, 173, 187-89, 204, 217. Mother acknowledged that during this period of time, she was essentially "living a double life." N.T. Trial, 5/7/18, at 196.

The trial court recounted the facts:

Mother learned she was pregnant in May of 2017, and all three parties participated in a prenatal paternity test, which indicated that there was a ninety-nine percent (99%) chance that Father was the [c]hild's biological father.³

Upon learning of the results of the paternity test and until the filing of [Appellants'] Answer in this matter, Mother's actions confirmed that Father was the biological father of the [c]hild.⁴ Father assumed all responsibilities of an expectant [f]ather and along with Mother, prepared for the [c]hild's birth. Mother and Father discussed naming the [c]hild, purchased clothing and other items for the [c]hild and visited potential daycare centers for the [c]hild. Father attended a pre-natal visit with Mother and attended two of the [c]hild's pediatrician visits after the [c]hild was born in January of 2018.

Throughout the pregnancy, Mother and Father continued their familial and romantic relationship. At times, Mother included her five[-]year-old daughter in their times together. The expectant couple posted photographs of themselves together on social media and went on several trips together. Mother visited Father almost weekly at his home in State College ....^[5] The couple regularly presented themselves as being in an intact relationship and often engaged in public displays of affection. Father introduced Mother to his family, colleagues and friends as his girlfriend, a fact which Mother did not dispute.

During her relationship with Father, Mother continued to maintain that she was separated from Husband and that she was working toward divorcing Husband as they worked on a shared custody arrangement for their five[-]year[-]old daughter.^[6] Mother noted that the parties maintained a second residence where the non-custodial parent could reside, allowing the [c]hild to remain in the marital home.^[7] When the lease on the second residence expired, in December of 2017, Mother rented an apartment in her name alone to facilitate separation from Husband,^[8] after which she referred to the marital residence as "[Husband]'s house." Father and a friend of his helped Mother move into the apartment, moving items from the marital home to Mother's apartment,^[9] including, but not limited to a bed for Mother, a bed for the five[ ]year[-]old daughter, Mother's nursing chair and clothes of Mother's and her daughter. By Mother's own admissions, Father assisted in decorating the apartment and furnishing it for the arrival of their [c]hild.

While Father was not at the hospital for the birth, he did leave his conference in Philadelphia when Mother notified him she was going into labor. Father did stay with Mother in the recovery room and spent at least one overnight with Mother and their newborn at the hospital. The [c]hild's birth certificate includes Father's surname ....^[10]

Trial Ct. Op., 7/31/18, at 2-4.

Following Child's birth, Father introduced Child to friends and colleagues, and attended two pediatric appointments. N.T. Trial, 5/17/18, at 305-07; N.T. Trial, 5/7/18, at 184-85, 194, 205-06; N.T. Trial, 5/4/18, at 28; see also Father's Ex. 11. At Child's first pediatric appointment, Father provided his medical insurance.¹¹ N.T. Trial, 5/4/18, at 57-59. Father additionally posted with regard to Child and her birth on social media, to which Mother openly responded. N.T. Trial, 5/7/18, 192-94; N.T. Trial, 5/4/18, at 55-56; see also Father's Ex. 11. Likewise, Appellants, with guidance from J.L.'s counselor, explained Child's parentage to J.L.¹² N.T. Trial, 5/7/18, at 222, 246.

Father regularly visited Mother and the [c]hild at Mother's apartment and in public places, as Mother and Father continued their romantic relationship until February 21, 2018. The record is clear that it was at this time that Mother notified Father that she was reconciling with Husband to allow the [c]hild and Mother and Husband's five[-]year[-]old to be together as sisters. After this date, Mother unilaterally decided to stop Father's visit[s] with the [c]hild and encouraged [Father] to commence legal action to be recognized as the [f]ather of the [c]hild.¹³

Trial Ct. Op., 7/31/18, at 4-5.

The record establishes that Husband was present in the operating room with Mother when Child was delivered and was named as Child's father on the birth certificate. N.T. Trial, 5/7/18, at 220; see also Appellants' Ex. 6. Husband testified that he was unaware until several weeks prior to trial that Mother's and Father's sexual relationship continued until February 2018. Id. at 216-17. He indicated that his relationship with Mother strengthened in particular after a trip to New Orleans in November 2017. Id. at 224. He and Mother held Child out as their own to the religious community and otherwise by having two Jewish baby naming ceremonies and posting and sending birth announcements. N.T. Trial, 5/7/18, at 157-58, 168, 228-30; see also Appellants' Exs. 4, 13. Husband testified that Father's visitation with Child became burdensome and that the situation created stress for the family. N.T. Trial, 5/7/18, at 223. Husband further stated that Father's continued involvement with Husband's family could be problematic. Id. at 251-52.

On March 9, 2018, Father filed a complaint to establish paternity and for genetic testing, to which Appellants responded, in part, that they had never separated. The court conducted a hearing on Father's complaint over the course of three days: May 4, 7, and 17, 2018. Appellants, as well as Father, were present and represented by counsel and all testified on their own behalf and submitted exhibits, which the court admitted. Father additionally presented the testimony of Isabel Dupeles, business manager at R.P. Management (the company responsible for the administration and management of the apartment complex where Appellants reside in Harrisburg), and friends, J.B.U. and J.M.P. Appellants presented the testimony of N.R.E. (Maternal Grandmother), and friends, M.C.R. and S.H.

In relevant part, Husband's testimony revealed his willingness and desire, regardless of the circumstances, to maintain his marriage with Mother:

[Husband's counsel:] ... So given this—we've got learning of an affair, learning that there's a pregnancy that may not be yours, learning that the pregnancy biologically is not yours, learning that your wife's sexual relationship continued with—and her extramarital affair longer than you thought, why are you still here?

[Husband:] Because I love my wife. And we have 14ish years of history together, and we had been through some major traumas. We were both hurting in the deepest ways. We both coped with that in extraordinarily unhealthy ways. And I knew that this woman who I was with over the course of the last couple years was not the person that I married, but I knew also that the person that I married was very much still there. And perhaps I'm sort of a hopeless romantic in some ways, but I felt almost like if I stayed there and stuck with everything and to some extent sort of waited it out and just kind of was there for her and [J.L.] and now [Child] on a daily basis, that we could get through all of this just awfulness and emerge stronger in the end.

And I mean, that's why, you know, this whole time we've been in marriage counseling despite all the lies and despite the deception and misconceptions and lack of information and then lots of information. I love [Mother] too much to give up because we—we fell in love with each other for a reason.

N.T. Trial, 5/7/18, at 218.

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