J-S28018-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

P.W.A.

v.

R.L.T. AND R.O.T. 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 131 MDA 2019

Appeal from the Order Entered January 4, 2019

In the Court of Common Pleas of Huntingdon County Civil Division at 

No(s): 2018-00047

BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 15, 2019

R.L.T. and R.O.T. (collectively, “Appellants”) appeal from the order 

awarding R.L.T. primary custody of M.L.T. (“Child”) and awarding P.W.A. 

partial custody and from the order denying R.L.T.’s preliminary objection. 

Appellants claim the trial court erred when it found the doctrine of 

presumption of paternity did not apply. We affirm.

In January 2018, P.W.A. filed a Complaint to Establish Paternity and for 

Genetic Testing. R.L.T. did not file a response. In August 2018, P.W.A. filed a 

Custody Complaint. R.L.T. filed a Preliminary Objection, claiming P.W.A. 

lacked standing because, under the doctrine of presumption of paternity, 

R.O.T. was Child’s father. The trial court held a hearing on the Preliminary 

Objection.

At the hearing, R.L.T. presented four stipulations: (1) R.L.T. and R.O.T. 

were married on February 24, 2007; (2) R.L.T. and R.O.T. were still married;
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(3) Child was born in January 2018, (4) and R.L.T. and R.O.T. reside together 

and live as a family. R.L.T. presented no additional evidence at the hearing. 

P.W.A. testified that he began a relationship with R.L.T. on March 17, 

2017. He knew she was married, but she said she was going through a divorce. 

R.L.T. and P.W.A. continued the relationship until sometime after mid-June 

2017, when R.L.T. reunited with R.O.T. During their relationship, R.L.T. lived 

with her mother and, when she did not have her children with her, would stay 

with P.W.A. About a month after their relationship began, R.L.T. informed 

P.W.A. that she was pregnant and that he was the father. He went to eight to 

ten doctor appointments with her. R.L.T. never told P.W.A. she was reuniting 

with R.O.T. Rather, P.W.A. testified that he and R.L.T. were engaged and that 

she had told him that “if the attorney would get the paperwork done they’d 

be[] divorced by now.” N.T., 10/30/2018, at 12.

P.W.A. was not at the hospital for Child’s birth. After he requested DNA 

testing, but before the results, R.L.T. brought Child to P.W.A.’s house for “two 

to three hours a day.” Id. at 13. He would also visit Child at R.L.T.’s aunt’s 

house, with R.L.T.’s consent. The visitation, where he would see Child a couple 

times a week, continued until he filed the custody petition. 

The trial court concluded the doctrine of presumption of paternity did 

not apply, and P.W.A. had standing. It further ordered that pending a custody 

hearing, R.L.T. would have primary custody and P.W.A. would have weekly 

visitation. 

R.O.T. filed a Petition to Intervene, which the trial court granted.
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In January 2019, the trial court held a custody hearing. Appellants 

presented additional evidence in support of their claim that P.W.A. lacked 

standing due to the doctrine of presumption of paternity.

R.L.T. testified that from the middle of March 2017 to the middle of July 

2017 she and R.O.T. were not living together. N.T., 1/4/2019, at 15, 18. At 

that time she had a relationship with P.W.A. Id. at 16. She became pregnant 

in April 2017. Id. at 15. From July 2017 through the date of the custody 

hearing, R.L.T. and R.O.T. resided together, with their two older children, and, 

after his birth in January 2018, with Child. Id. 18. R.O.T. is listed as the father 

on the birth certificate. Id. R.L.T. also testified that she resided with P.W.A. 

“for a couple weeks with [her] older two children,” but moved back with her 

parents after one of her children said he did not want to be there. Id. at 21. 

R.L.T. did not have sexual relations with R.O.T. while they were separated. 

Id. at 22. R.L.T. testified that she told P.W.A. that either he or R.O.T. was the 

father, and that P.W.A. attended five doctor appointments with her. Id. at 23.

P.W.A. asked the court to take judicial notice of the divorce proceeding 

filed by R.O.T. in July 2017, which the court did. Id. at 23-24. In the divorce 

complaint, R.O.T. alleged the marriage was irretrievably broken. A property 

settlement agreement executed by R.O.T. and R.L.T. was attached to the 

complaint. The divorce action still was pending at the time of the January 2019 

custody hearing. R.L.T. stated the divorce matter was not finalized because 

she and R.O.T. decided “to make [their] marriage work.” Id. at 25. 
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The trial court entered a custody order providing R.L.T. shall have 

primary legal and physical custody of Child and P.W.A. shall have visitation. 

Appellants filed a timely Notice of Appeal.

Appellants raise the following issue:

Whether the trial court abused its discretion in concluding 

that Appellants did not present with an intact marriage and 

therefore protected by the doctrine of presumption of 

paternity[?]

Appellants’ Br. at 4 (unnecessary capitalization omitted).

P.W.A. argues that we may consider only the evidence presented at the 

hearing on the Preliminary Objections. Although Appellants do not explicitly 

argue that we may consider the evidence as to the presumption entered at 

the custody hearing, in their brief they rely on the evidence presented at both 

the hearing on the Preliminary Objection and the custody hearing. We decline 

to address whether Appellants waived their opportunity to present additional 

evidence as to the presumption of paternity when they failed to present such 

evidence at the hearing on the Preliminary Objections. See In re Adoption 

of Z.S.H.G., 34 A.3d 1283, 1289 (Pa.Super. 2011) (finding standing not 

intertwined with subject matter jurisdiction when statute designates who may 

sue and finding appellant waived claim that appellee lacked standing where 

not raised until four years after decree became final); Kuwait & Gulf Link 

Transp. Co. v. Doe, 92 A.3d 41, 45 (Pa.Super. 2014) (party waives issue of 

standing if not raised at earliest opportunity). Rather, as outlined below, we 

determine that, even considering the evidence presented at the custody 
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hearing, the trial court did not abuse its discretion in finding the presumption 

of paternity did not apply.

We review orders relating to paternity for an abuse of discretion or an 

error of law. J.L. v. A.L., 205 A.3d 347, 353 (Pa.Super. 2019). “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.” Id. (quoting Vargo v. 

Schwartz, 940 A.2d 459, 462 (Pa.Super. 2007)). We “will not disturb the trial 

court’s findings if they are supported by competent evidence.” Id. (quoting

Vargo, 940 A.2d at 462). Courts apply the following analysis to questions of 

paternity:

[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.

Vargo, 940 A.2d at 462 (quoting Strauser v. Stahr, 726 A.2d 1052, 1055 

(Pa. 1999)) (alterations in original).

The doctrine of presumption of paternity provides that “generally, a child 

conceived or born during the marriage is presumed to be the child of the 

marriage[.]” J.L., 205 A.3d at 354 (quoting Brinkley v. King, 701 A.2d 176,

180 (Pa. 1997) (op. announcing judgment of ct.)). The presumption “applies 

only where the underlying policy of the presumption, i.e., to preserve 

marriages, would be advanced by its application.” Id.; accord Vargo, 940 

A.2d at 463 (citing Brinkley, 701 A.2d at 181). Therefore, where there is no 
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“intact family or a marriage to preserve, then the presumption of paternity is 

not applicable.” Vargo, 940 A.2d at 463.

The doctrine of paternity by estoppel provides:

Estoppel in paternity actions is merely the legal 

determination that because of a person’s conduct (e.g., 

holding out the child as his own, or supporting the child) 

that person, regardless of his true biological status, will not 

be permitted to deny parentage, nor will the child’s mother 

who has participated in this conduct be permitted to sue a 

third party for support, claiming that the third party is the 

true father. 

J.L., 205 A.3d at 353 (quoting Freedman v. McCandless, 654 A.2d 529, 

532-33 (Pa. 1995)).

In B.S. v. T.M., we affirmed a trial court’s finding that the doctrine of 

presumption of paternity did not apply. 782 A.2d 1031, 1036-37 (Pa.Super. 

2001). In B.S., B.S. had an affair with T.M., and, upon learning she was 

pregnant, left the marital home she shared with R.S. and looked for a house 

with T.M. Id. at 1032-33. B.S. filed for divorce from R.S. Id. T.M. was present 

for the birth of the child and named as the father on the hospital’s 

acknowledgement of paternity form. Id. T.M. added the child to his health 

insurance and participated in the child’s baptism ceremony. Id. at 1033. R.S. 

reunited with B.S. approximately one year after they separated. Id. at 1036.

In concluding the court did not abuse its discretion in finding no intact 

marriage, we noted that for a period of approximately one year, “B.S. acted 

as if the separation would be permanent and she would be with T.M. 

indefinitely [and] T.M. undertook the role of father.” Id. at 1036. We 
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concluded the trial court correctly found that the presumption should not apply 

because “the preservation of R.S. and B.S.’s marriage from a paternity dispute 

would not be advanced by application of the presumption.” Id. We noted that 

the trial court relied on the fact that there was no dispute about the identity 

of the child’s biological father. We further noted the trial court’s reasoning that 

“there would be no harm to R.S. and B.S.’s relationship, as this hellish marital 

situation ha[d] already occurred,” and that “[t]he parties in this marriage have 

already acknowledged the affair and subsequent birth of [the child], the public 

separation, and B.S.’s holding T.M. out has the father of [the child].” Id. at 

1037. It found “[t]his marriage will succeed or perhaps fail with or without the 

application of the presumption.” Id. Further, the trial court noted that applying 

the presumption could be harmful to the child—“[i]f R.S.’s biological 

fatherhood is a fiction, it will not be maintained. If [the child] eventually finds 

out that the truth is different from what she has been led to believe for a 

period of years, she may suffer greater trauma than if she knows it from the

outset.” Id. We concluded:

Cases such as this fall on their unique set of facts. B.S. and 

R.S. voluntarily gave up the benefit of the presumption for 

approximately one year after which they claimed the 

benefits of its existence for the first time. The damage to 

their marriage is “water under the bridge.” R.S. and B.S. 

reconciled with full knowledge of all the facts. T.M. assumed 

the responsibilities he believed were his as [the child’s]

father until he was no longer permitted to do so. At that 

point, he took immediate steps to assert his rights in court.

Id. at 1037.
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In E.W. v. T.S., we affirmed a trial court’s finding that the presumption 

of paternity applied. 916 A.2d 1197, 1204 (Pa.Super. 2007). There, while T.S. 

was married to C.S., she had an affair with E.W. from May 2003 through 

August 2005. Id. at 1199. T.S. gave birth to a child in March 2004. Id. She 

and C.S. continued to reside together, and no divorce proceedings were filed. 

Id. at 1199-1200. C.S. was named as the father on the child’s birth certificate. 

Id. at 1200. C.S. was unaware of the affair until August 2005. Id. at 1199. 

Without C.S.’s knowledge, T.S. sometimes took the child to visit with E.W. Id.

at 1200. T.S. represented to both C.S. and E.W. that they were the biological 

father of the child. Id.

There, we first addressed whether the trial court erred in finding that 

T.S. and C.S. had an intact marriage. We noted that the trial court as fact 

finder was to weigh the evidence and assess the witnesses’ credibility and 

found, “[h]aving reviewed the extensive record, . . . the trial court’s findings 

are supported by the evidence presented.” Id. at 1202. We also addressed 

E.W.’s claim that the trial court erred in finding the policy underlying the 

presumption of paternity supported denying him standing. We noted that, 

unlike in B.S., T.S. did not move from the marital home and no divorce 

complaint was pending, C.S. fulfilled all duties of a father with connection to 

birth and religious rites, and C.S. and T.S. did not separate. Id. at 1204. 

Here, the trial court found the doctrine of presumption of paternity did 

not apply because R.L.T. was not in an intact marriage. The trial court found

“[t]he marriage of R.L.T. and R.O.T. is hardly an intact family considering the 
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facts before this court.” Trial Court Opinion, filed Feb. 7, 2019, at 4 (“1925(a) 

Op.”). The trial court based its determination on the evidence presented at 

the hearing on the Preliminary Objection, but, in its Rule 1925(a) Opinion also

considered evidence from the custody hearing, such as the divorce complaint.

The court found:

P.W.A. was the only witness to testify at the Preliminary 

Objection proceeding and we found his unrebutted 

testimony to be credible. Prior to the birth of the child, R.L.T. 

advised P.W.A. that he was the child’s father because she 

had not been with anyone else, and that she was willing to 

take a D.N.A. test. Also telling is that after the child was 

born, R.L.T. permitted visits between P.W.A. and the child, 

even before paternity testing was requested. Although 

R.L.T. named her husband as the father on the certificate of 

birth, her actions and words made it clear that she was well 

aware that P.W.A. was the father of her child.

Most significant to our determination that this is not an 

intact family is that R.O.T. filed a divorce action against 

R.L.T. on July 5, 2017. In the divorce Complaint, R.O.T. 

alleged that his marriage to R.L.T. was irretrievably broken. 

Additionally, the parties remain subject to an executed and 

filed Property Settlement Agreement which outlines the 

terms of their separation.2 This divorce action remains 

pending in this Court.

2 The May 18, 2017, executed Property and 

Separation agreement which is attached to the 

Divorce Complaint outlines that “diverse unhappy 

differences, disputes and difficulties have arisen 

between the parties and it is the intention of Wife and 

Husband to live separate and apart . . . , and “[t]his 

Agreement shall remain in full force and [e]ffect . . . 

unless the parties, in writing signed by both parties, 

execute a statement declaring this Agreement to be 

null and void.”

Id. (citations to record omitted).
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To this, we add that R.L.T. testified at the custody hearing that she and 

R.O.T. were married prior to Child’s birth, that they remain married as of the 

date of the hearing, and that she and R.O.T. live together as a family. Such 

testimony was consistent with the stipulations at the hearing on the 

Preliminary Objection. She further testified that she and R.O.T. were 

separated from March 2017 through July 2017, that she resided with P.W.A. 

for a period of time, and that she did not have sexual relations with R.O.T. 

during the separation. R.L.T. also testified that R.O.T. was named on Child’s

birth certificate and that she and R.O.T. reunited in July 2017, prior to Child’s 

birth. 

The trial court concluded that “[t]he clear and convincing evidence in 

this case dictates that the presumption of paternity cannot be advanced in an 

effort to preserve a fractured marriage between R.L.T. and R.O.T.” 1925(a) 

Op. at 4. It further found that “the Commonwealth’s interest in protecting the 

family unit should not take precedence over the biological father’s paternal 

rights to his child in this factual circumstance.” Id. at 4-5.

The trial court’s findings are supported by the record, and the court did 

not abuse its discretion in finding the doctrine did not apply. R.L.T. and R.O.T. 

did not present with an intact marriage. R.L.T. and R.O.T. were separated

from March 2017 through July 2017, and R.O.T. filed a divorce complaint. 

Although they reunited and currently live together, the divorce action remains 

pending. Further, application of the doctrine of presumption of paternity in 

this case would not further the purpose underlying the doctrine. As in B.S.,
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Appellants have acknowledged the affair and public separation, and have held 

P.W.A. out as the father of Child by facilitating visitation, and their marriage

will “succeed or perhaps fail with or without the application of the 

presumption.” See B.S., 782 A.2d at 1037. Further, as we did in E.W., we 

defer to the credibility determinations and factual findings of the trial court. 

916 A.2d at 1202. Here, the trial court reached a different conclusion than the 

court in E.W., but its findings are entitled to the same amount of deference. 

Based on the facts presented to it, the court did not err in finding the doctrine 

of presumption of paternity did not apply.

Under the test applicable to paternity actions, because we affirmed a 

finding that the presumption of paternity did not apply, we are next supposed 

to determine whether estoppel applies. However, we need not do so here, as 

the parties do not contend that estoppel applies.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/15/2019