N.S.M. v. J.R.M.

J-S37032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

N.S.M., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

J.R.M.,

Appellee No. 298 MDA 2014

Appeal from the Order entered December 16, 2013, in the Court of Common Pleas of Dauphin County, Domestic Relations Division, at No(s): 0498-DR-00

BEFORE: LAZARUS, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 28, 2014

appeals from the Order dismissing her Complaint in and ordering a refund of any funds held in escrow. We reverse and remand for further proceedings.

The parties, who were previously married, have been involved in lengthy child support proceedings with regard to Child since 2000. On October 2, 2012, Former Husband filed a Petition for Genetic Testing. On November 6, 2012, the trial court entered an Order directing Former Husband, Mother, and Child to participate in genetic testing. The Order further directed that all funds for Child be placed in escrow pending the

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results of the genetic testing. The trial court also scheduled a hearing on the issue of paternity by estoppel for May 23, 2013.

The trial court set forth the relevant testimony presented at the hearing:

[Mother] and [Former Husband] were married on March 22, 1997 and divorced on July 24, 2003. [Paternity Hearing, Notes of Testimony, May 23, 2013, p. 6]. One child was born during the marriage [Child,] and another [male] child was born -__-96). [N.T., 5- 23-13, pp. 6-7]. [Former Husband] testified that at the time of

Germany and was serving in the United States Army. [Id. at 7].

[Id.] [Former Husband] testified that he came back from

[Id. at 8]. Initially, [Former Husband] did not question

put any thought into the actual time period of conception Id. at 8-9]. The parties separated in October or November of 1999. [Id. at 10]. At one point before the separation, [Former Husband] questioned whether the baby was his, and [Mother] Id. at 9-10]. [Former Husban Id. at 9]. When asked about his relationship with [Child], [Former Husband] responded that

sic Id. at 10]. [Former Husband] also testified that, outside of visitations and weekends, [] he has not had consistent custodial

custody [O]rder was adhered to in the beginning, but slowly tapered off. [Id. at 10-11]. When asked at the May [2013] hearing when he last saw [Child], [Former Husband] answered that he had spoken to her for four or five minutes three days ago when he took his other daughter to see a friend and, before that, it had been sometime last November. [Id. at 11].

In 2011, during a custody dispute between the parties, the parties discussed whether they should go for paternity testing. [Mother] claimed it was the first time that they spoke of the situation in thirteen years. [Id. at 11, 20]. The testimony

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actually [S.C.], a long-time family friend. [Id. at 11-13, 20-22]. [Former Husband] stated that once the subject came to light, he became aware that both children talked about [S.C.]. When asked if [Former Husband] knew if [S.C.] had a relationship with

good guy from what I understand, as far as stepping in and being there for her in the situation. I know in October of this past year, 2012, I actually had a scheduled visitation, and [Child] was not there . . . because she went with [S.C. to] one of Id. at 13-14].

[Mother] testified that she and [S.C.] were childhood

father, and [that] he has a relationship with [Child]. [Id. at 17, 20- relationship with [Child], and averred that [S.C.] has taken a

Id. at 17-18]. When asked if the result of the genetic testing has affected his ability to have a parental relationship with [Child], [Former Husband] answered yes. He also testified that, at the time of the hearing, he had no parental relationship with [Child]. [Id. at 28].

[Mother] stated that [Former Husband] did not fraudulently enter into the parental situation, that he was aware at the time of the pregnancy that he may not have been the biological father, that he acted as her father, continued to raise her, and supported her. [Id. at 26].

At the close of the hearing, [the trial court] found in favor of [Former Husband]. [Id. at 30]. It was agreed that both parties be scheduled for genetic testing. [Id.] See Order to Appear for Genetic Testing, dated 6-10-13. The genetic[] test results, dated July 10, 2013, reflect that [Former Husband] was excluded as the father of [Child]. The DNA Test Report indicated

Trial Court Opinion, 3/24/14, at 1-3 (footnote omitted).

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Subsequently, on July 29, 2013, Former Husband filed a Petition to Dismiss the Complaint in Support against him. The trial court entered a Rule to Show Cause with regard to the Petition on July 30, 2013. On August 14, 2013, Mother filed an Answer to the Rule. On December 16, 2013, the trial not take any testimony. Thereafter, the trial court entered an Order

, and dismissed the Complaint in Support. The trial court directed that all arrearages owing for Child were to be cancelled, and any funds on hold in escrow were to be refunded to Former Husband.

On January 8, 2014, Mother filed a Notice of Appeal, but she failed to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Mother also included a request for a transcript of the hearing from December 16, 2013, and a Petition for Leave to Proceed in forma pauperis.

in forma pauperis exceeded the guidelines of the United States Department of Health and Human Services. Following the denial, Mother paid $73.50 for filing her Notice of Appeal, but she did not pay for the preparation of a transcript. Accordingly, the certified record does not include a certified copy of the

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notes of testimony from the hearing held on December 16, 2013.1 On March appearance, and filed a Concise Statement on behalf of Mother.2

In her brief on appeal, Mother raises the following issues:

I. Did the trial court abuse its discretion in dismissing the [C]omplaint for support and canceling the arrears/refunding the escrow?

II. Did the trial court exercise manifestly unreasonable judgment in failing to hear testimony on the best interest of the [C]hild when [Mother] argued that paternity by estoppel applied under the circumstances?

III. Did the trial court abuse its discretion and/or misapply the law in determining that a DNA test alone was dispositive of the issue of paternity and support?

1 Although Mother requested the notes of testimony from the December 16, 2013 hearing, she did not pay for the transcript, so it is not included in the certified record. See Pa.R.A.P. 1911(a) (requiring an appellant to order and pay for any transcript necessary to permit resolution of the issues raised on appeal). As a reviewing Court, we are limited to a review of the certified record. See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc -appellant fails to conform to the requirements of Rule 1911, any claims that cannot be resolved in the absence of the necessary transcript or transcripts must be However, as there is no dispute regarding what occurred at the hearing on December 16, 2013, eview her issues on appeal. 2

Notice of Appeal is not fatal to her appeal. We can discern no prejudice to -filed Concise Statement, and neither this Court nor the trial court directed Mother to file a Concise Statement. See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) (finding that the

result in waiver of all issues for appeal where the appellant later filed the statement, and there was no allegation of prejudice from the late filing). -5-

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Our standard of review in this child support matter is as follows:

In matters involving support, a reviewing court will not disturb an order of the trial court unless there has been an abuse of discretion. An abuse of discretion exists if the trial court misapplied the law, or if there is insufficient evidence to sustain the order. Moreover, resolution of factual issues is for the trial

findings if they are supported by competent evidence. It is not enough that we, if sitting as a trial court, may have made a different finding.

Doran v. Doran, 820 A.2d 1279, 1282 (Pa. Super. 2003) (quotations omitted). When evaluating a support order, this Court may only reverse the ground. R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa. Super. 2013). together. Mother contends that the trial court abused its discretion in dismissing the Complaint in Support, canceling the arrears, and refunding the escrow to Former Husband because it refused to apply the doctrine of

-19. Mother argues that the facts developed at the hearing on May 23, 2013, were not sufficient for the trial

3 We observe that Mother stated her issues somewhat differently in her Concise Statement. This Court could conclude that Mother waived her second and third arguments on appeal in that she set forth her issues differently in her Concise Statement and her brief. second and third issues are suggested by her Concise Statement and, therefore, we will review them on appeal. See Krebs v. United Ref. Co. of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating that any issue not set forth in or suggested by a concise statement of errors complained of on appeal and the statement of questions involved section in the appellate brief is deemed waived); see also Pa.R.A.P. 2116. -6-

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court to render a decision on paternity by estoppel, as the May 2013 hearing focused on whether to order genetic testing, and that the trial court should have taken further testimony at the hearing on December 16, 2013. Id. at 19-22. Mother asserts that even with the minimal record, it was not in Former Husband acknowledged that he may not have been the biological father when Child was born, but continued to hold himself out to Child and

rs; he agreed to pay child support for numerous years following the separation; he asked for additional time with Child in the custody proceedings; he recently told Child that he a relationship with her; and Child has an insignificant relationship with S.C. Id. at 17, 18, 22-23. Mother further claims that the trial court erred in testing results. Id. at 19, 24-25.

Recently, our Supreme Court addressed the application of paternity by estoppel in K.E.M. v. P.C.S., 38 A.3d 798 (Pa. 2012).4 In K.E.M., the K.E.M., 38 A.3d at 799. The tri

4 The presumption of paternity is inapplicable in this case as there was no intact marriage to preserve. See K.E.M., 38 A.3d at 806-07.

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father for purposes of child support via the doctrine of paternity by estoppel. Id. at 800, 803. On appeal, the Superior Court affirmed the application of the doctrine of paternity by estoppel. Id. at 802-03. The application of the doctrine of paternity by estoppel in this case, and, more broadly, its co Id. at 803.

In discussing the continued viability of the paternity by estoppel doctrine, the K.E.M. Court acknowledged that a role remains for the doctrine

definitive legislative

Id. at 807. The Supreme Court stated the following:

Absent any overriding equities in favor of the putative father, such as fraud, the law cannot permit a party to renounce even an assumed duty of parentage when by doing so, the innocent child would be victimized. Relying upon the representation of the parental relationship, a child naturally and normally extends his love and affection to the putative parent. The representation of parentage inevitably obscures the identity and whereabouts of the natural father, so that the child will be denied the love, affection and support of the natural father. As time wears on, the fiction of parentage reduces the likelihood that the child will ever have the opportunity of knowing or receiving the love of his natural father. While the law cannot prohibit the putative father from informing the child of their true relationship, it can prohibit him from employing the sanctions of the law to avoid the obligations which their assumed relationship would otherwise impose.

Id. at 807-08 (citation omitted). The K.E.M. operative language of this passage centers on the best interests of the child, and we are of the firm belief in terms of common law decision making that

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this remains the proper, overarching litmus, at least in the wider range of

Id. at 808.

The K.E.M. reasons. Id. at 809. In light of that, the Court stated that a determination best interests of the child, rather than by rote pronouncements grounded

Id. However, the Court further stated that if there is no difference in the supportive the responsibility for fatherhood should lie with the biological fa Id. at 810.

The Supreme Court indicated that the record in

Id. Further, the Supre

Id. The Supreme Court concluded that paternity by estoppel

t will apply only where it can be shown, on a developed record, that it is in the best interests of the involved

Id. at 810. The K.E.M. Court accordingly remanded the case to the

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trial court for further proceedings to determine whether the dismissal of the support claim was proper. Id.

This Court addressed the applicability of paternity by estoppel, as explained in K.E.M., in R.K.J., supra. In R.K.J., S.P.K., and the subject six-year-another man. R.K.J., 77 A.3d at 35. husband and subsequent divorce, S.P.K. lived with R.K.J. and child for six

Id. S.P.K., while acknowledging child was not his biological child, held child out as his own and claimed child as a dependent on his tax returns. Id. After S.P.K. and R.K.J. broke up, R.K.J. then sought support for the child from S.P.K. Id. The trial court found that S.P.K. was the father of the child by the doctrine of paternity by estoppel and, subsequently, ordered S.P.K. to pay child support. Id. at 35-36.

On appeal, this Court recognized the five factors set forth in K.E.M. as of paternity by estoppel:

(1) a party cannot renounce an assumed duty of parentage when the innocent child would be victimized; (2) the law can prohibit a putative father from employing sanctions of the law to avoid the obligations that his assumed relationship with the child

putative father; (4) the harm that would befall the child if the

(5) the need for continuity, financial support, and potential psychological security arising out of an established parent-child relationship.

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R.K.J., 77 A.3d at 38. This Court concluded that the trial court did not err in applying the doctrine of paternity by estoppel, as S.P.K. had functioned as the six-year-and interacted with the child for nearly six years; told the child he was the had no relationship with the child and had never lived with the child. Id. at 39-42.

Here, the trial court disagreed that the paternity by estoppel doctrine should be applied to Former Husband and made the following determination based on its factual findings:

to not apply paternity by estoppel and to dismiss the [C]omplaint [in S]upport. Th[e trial c]ourt found the testimony of [Former Husband] credible. While [Former Husband] acted as -daughter relationship, he did not enjoy consistent custodial time with [Child], and has not had a parental relationship with her for some time. Although

close family friend. [Child] has a relationship with [S.C.], as she s] children and family. The testimony reflects that [S.C.] has taken [Child] to sporting events and dinners, and has made a great effort in taking further steps in getting to know

actions r

Consequently, t[he trial c]ourt finds no difference in the

As such, there was no abuse of discretion in the determination to Trial Court Opinion, 3/24/14, at 5-6.

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It appears from the record that the trial court made efforts to consider the best interests of Child, and determined that the application of paternity by estoppel to hold Former Husband responsible for further support of Child re

5 See

R.K.J., 77 A.3d at 38 (setting forth the factors relevant in determining the best interests of child in matters involving paternity by estoppel). As a result, we have no sense of the harm that would befall Child if Former

See K.E.M., 38 A.3d at 810. Accordingly, as in K.E.M., we will not dismiss Former interests.

Order reversed. Case remanded for further proceedings consistent with this Memorandum. Jurisdiction relinquished.

5 We note that neither Child nor S.C. testified at the May 23, 2013 hearing. - 12 -

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/28/2014

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