Vargo v. Schwartz

940 A.2d 459

Victoria L. VARGO, Appellee v. Richard K. SCHWARTZ, Appellant.

No. 42 WDA 2007.

Superior Court of Pennsylvania.

Argued July 11, 2007.

Filed December 31, 2007.

Hilary A. Spatz, Pittsburgh, for appellant.

Alida J. Kornreich, Pittsburgh, for appellee.

BEFORE: HUDOCK, STEVENS, and McCAFFERY, JJ.

OPINION BY McCAFFERY, J.:

¶ 1 Appellant, Richard K. Schwartz, appeals from the trial court order directing him to provide support for two children. Specifically, Appellant asks us to determine whether the trial court committed reversible error by failing to conclude that the children were born of the marriage between Appellee (Victoria L. Vargo, the children's mother) and her husband. Following careful review, we affirm.

¶ 2 The facts and procedural history underlying this case are as follows. Appellee (hereinafter "Mother") married Kevin Vargo in 1989 and remained married to him at all times relevant to this case; however, the marriage was troubled and the couple separated on several occasions. Mother has four children: two boys, T.V. and J.J., born December 31, 1989, and July 27, 1991, respectively, and two girls, K.V. and S.V., born January 14, 2002, and May 28, 2003, respectively. Mr. Vargo is the biological father of T.V., and Hugh Johnston is the biological father of J.J. The identity of the girls' father is at issue in the instant case.

¶ 3 In February 2004, Mother filed a complaint against Appellant, seeking support for the two girls. Following consensual genetic testing of Mother, Appellant, and the two children, the court issued an order directing Appellant to pay child support on an interim basis while proceedings to address his defense to paternity were conducted. During these proceedings, Appellant made two arguments: (1) the presumption of paternity should apply, which would make Mr. Vargo, as Mother's husband, the presumptive father of the children; and (2) Mother was estopped from proceeding against Appellant for child support because Mother and Mr. Vargo had held the girls out as children of their marriage.

¶ 4 In September 2004, the hearing officer recommended that the presumption of paternity not be applied because the Vargo family was not intact, and also that paternity by estoppel not be applied because Mr. Vargo had held himself out as the father of the girls for only a short time, until Mother revealed her deception and informed him that he was not the girls' biological father. The court accepted the hearing officer's recommendations and denied the exceptions Appellant had filed.¹ Appellant then filed a motion seeking recusal of the trial judge, which, following a hearing, the trial court denied on April 8, 2005.

¶ 5 After being continued three times, a final support hearing was held on October 17, 2006. A court order followed on November 29, 2006, adopting the officer's recommendations that Appellant pay $1050 per month for support of the girls. Appellant filed a timely appeal in which he raises the following five issues for our review:

I. The trial court erred as a matter of law and abused its discretion in failing to apply the presumption of paternity doctrine to Mother's claim for child support.

II. The trial court erred as a matter of law in failing to apply the doctrine of paternity by estoppel to Mother's claim for child support.

III. The trial court erred as a matter of law and abused its discretion in failing to appropriately consider and weight [sic] Mother's judicial admissions which should preclude her support action.

IV. The trial court abused its discretion and erred as a matter of law when it failed to assign any significance to Mother's voluntary dismissal of the child support complaint filed against her husband, for the subject children.

V. The trial court erred as a matter of law and abused its discretion in failing to recuse itself from this matter.

(Appellant's Brief at 5).

¶ 6 In reviewing matters involving child support, we as an appellate court will not disturb a trial court order absent an abuse of discretion. Doran v. Doran, 820 A.2d 1279, 1282 (Pa.Super.2003) (applying this standard of review to a case involving a question of paternity).

An abuse of discretion exists if the trial court has overridden or misapplied the law, or if there is insufficient evidence to sustain the order. Moreover, resolution of factual issues is for the trial court, and a reviewing court will not disturb the trial court's findings if they are supported by competent evidence. It is not enough [for reversal] that we, if sitting as a trial court, may have made a different finding.

Id. (citations omitted).

¶ 7 "The finder of fact is entitled to weigh the evidence presented and assess its credibility." Smith v. Smith, 904 A.2d 15, 20 (Pa.Super.2006). In so doing, the finder of fact "is free to believe all, part, or none of the evidence and [we as an appellate court] will not disturb the credibility determinations of the court below." Id. (citation omitted).

¶ 8 Our Supreme Court has summarized the analysis required for legal determination of the paternity of a child conceived or born during a marriage:

[F]irst, one considers whether the presumption of paternity applies to [the] 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.

Strauser v. Stahr, 556 Pa. 83, 89, 726 A.2d 1052, 1055 (1999) (quoting Brinkley v. King, 549 Pa. 241, 250, 701 A.2d 176, 180 (1997) (plurality opinion)); N.C. v. M.H., 923 A.2d 499, 502-03 (Pa.Super.2007) (same). We consider each of these steps in detail in the paragraphs below.

¶ 9 The presumption of paternity, i.e., the presumption that a child conceived or born during a marriage is a child of the marriage, has been described by our Supreme Court as "one of the strongest presumptions known to the law." Strauser, supra at 87, 726 A.2d at 1053-54. The policy underlying the presumption is the preservation of marriages. Fish v. Behers, 559 Pa. 523, 528, 741 A.2d 721, 723 (1999). Accordingly, our Supreme Court has held that the presumption of paternity applies only where the underlying policy to preserve marriages would be advanced by application of the presumption. Id.; Brinkley v. King, 549 Pa. 241, 250-51, 701 A.2d 176, 181 (1997) (plurality opinion). When there is no longer an intact family or a marriage to preserve, then the presumption of paternity is not applicable. Fish, supra at 528, 741 A.2d at 723; Brinkley, supra at 250-51, 701 A.2d at 181;² Barr v. Bartolo, 927 A.2d 635, 643 (Pa.Super.2007) (declining to apply the presumption of paternity in a case where, although the mother and her husband remained married and had not sought a divorce at the time of the paternity hearing, they had been separated for several years and there was no intact family to preserve); Doran, supra at 1283 (concluding that the presumption of paternity did not apply to a case in which the mother and her husband had separated and a divorce action was pending prior to the support hearing); Sekol v. Delsantro, 763 A.2d 405, 409 (Pa.Super.2000) (same); cf. Strauser, supra at 91, 726 A.2d at 1055-56 (concluding that the presumption of paternity did apply in a case where the mother and her husband had never separated and, despite their marital difficulties and the mother's infidelity, had chosen to preserve their marriage); E.W. v. T.S., 916 A.2d 1197, 1204 (Pa.Super.2007) (affirming the trial court's application of the presumption of paternity in a case where the mother and her husband had not lived apart at any time after their marriage and had never filed a divorce complaint, and the husband had fulfilled the duties of a father in the family).

¶ 10 The presumption of paternity is unrebuttable when, at the time the husband's paternity is challenged, mother, her husband, and the child comprise an intact family wherein the husband has assumed parental responsibilities for the child. Id. at 1201. Under other circumstances, the presumption may be overcome by clear and convincing evidence that either of the following circumstances was true at the time of conception: the presumptive father, i.e., the husband, was physically incapable of procreation because of impotency or sterility, or the presumptive father had no access to his wife, i.e., the spouses were physically separated and thus were unable to have had sexual relations. Strauser, supra at 88, 726 A.2d at 1054; Brinkley, supra at 248, 701 A.2d at 179; Barnard v. Anderson, 767 A.2d 592, 594 (Pa.Super.2001). In Pennsylvania, impotency/sterility and non-access constitute the only ways to rebut the presumption of paternity. Brinkley, supra at 248, 701 A.2d at 179; Barnard, supra at 594; see also Brinkley, supra at 260-61, 701 A.2d at 185-86 (Newman, J., dissenting). Notably, blood tests cannot be offered to rebut the presumption of paternity. Jones v. Trojak, 535 Pa. 95, 105, 634 A.2d 201, 206 (1993) ("A court may order blood tests to determine paternity only when the presumption of paternity has been overcome ... by proof of facts establishing nonaccess or impotency."); E.W., supra at 1202-03, 1204; Barnard, supra at 594 (quoting Strauser, supra at 88, 726 A.2d at 1054); see also Brinkley, supra at 261-65, 701 A.2d at 186-88 (Newman, J., dissenting) ("Pennsylvania is fast becoming one of only a minority of states that does not accept the results of blood tests that disprove the husband's paternity to rebut the presumption [of paternity]."); Strauser, supra at 93, 726 A.2d at 1056 (Nigro, J., dissenting) (observing that "the strict application of the presumption [of paternity] doctrine has only acted as an obstacle to the discretion of the trial court to order and use blood testing of the parties" to determine paternity). A number of dissenting voices notwithstanding, it remains the law of this Commonwealth that "[a] court may order blood tests to determine...