J. A01015/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

D.J.C., :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. : No. 1370 WDA 2014

:

K.E. :

Appeal from the Order, July 18, 2014,

in the Court of Common Pleas of Potter County

Civil Division at No. 2014-140

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 6, 2015

Appellant, D.J.C., appeals the order of the Court of Common Pleas of 

Potter County that denied his petition for genetic testing to establish 

paternity of D.L.V. (“Child”) born in December of 2013. We affirm.

The trial court set forth the pertinent facts as follows:

[D.J.C.] is 53 years of age and is a resident of 

419 State Route 19 South, Wellsville, New York. The 

Defendant [K.E-V., hereafter “Mother”] is 21 years of 

age and presently resides at 1501 State Route 54 

South, Shinglehouse, Pennsylvania.

On or before January 25, of 2013, [Mother] 

was residing with her then fiancé [E.V.] in 

Shinglehouse, Potter County, Pennsylvania. 

Apparently a disagreement arose between [E.V.] and 

[Mother] to the point that she desired to leave 

[E.V.]. [D.J.C.] had performed some excavating 

work for [E.V.] and had met [Mother] at that time. 

[Mother] was also a friend of [D.J.C.]’s daughter. 

Accordingly after discussion with [E.V.], [D.J.C.] and 
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[Mother], it was agreed that on January 25, 2013, 

[Mother] would come to reside with [D.J.C.] and his 

children. Approximately four days after [Mother] 

moved to [D.J.C.’s] residence, [D.J.C.] and [Mother] 

engaged in sexual relations including intercourse. 

They continued to have regular sexual relations up to 

two times a day (excluding 5 days) through April 15, 

2013. [D.J.C.] testified that they never used 

condoms or any other birth control device during the 

period of time he was having sexual relations with 

[Mother]. From the evidence presented, from the 

date that [Mother] moved into [D.J.C.’s] residence 

on January 25, 2013, through April 1, 2013, 

[Mother] had sexual relations only with [D.J.C.]. 

However, [Mother] had vacated their residence for 

approximately five days near the end of the month of 

March of 2013. After five days[,] she returned to the 

residence and back into the bed of [D.J.C.].

On or about April 1 through April 15, 2013, 

[E.V.] began to regularly visit [Mother] at [D.J.C.’s] 

residence. During this period of time[,] [E.V.] would 

often take [Mother] for drives in his vehicle where 

they would ingest substances and engage in sexual 

relations. This apparently continued through about 

April 15, 2013 when [Mother] finally removed herself 

from [D.J.C.]’s residence with the aid of [E.V.] and 

his friends.

[D.J.C.] noticed in April, 2013 that [Mother] 

was pregnant. She had previously indicated her 

desire to become pregnant but advised [D.J.C.] that 

she had been taking her birth control pills. [D.J.C.] 

had discovered that in fact she had not been taking 

the pills.

[Mother] denies that she was residing 

exclusively with [D.J.C.] and suggests that she 

regular[ly] had sexual relations with [E.V.], including 

at the time the child was conceived. As proof that 

[Mother] was residing with [D.J.C.][,] he testified 

that on March 30 of 2013, while [Mother] was at 

[D.J.C.’s] residence the local dog warden appeared 

and served her with a summons due to the fact that 
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her dog was running loose. As to [Mother’s] claims 

she was not residing at the residence on March 30, 

2013, the Court finds her to not be credible in this 

regard.

[Mother] conceived the minor child on or about 

March 17, 2013. The Court finds that on or about 

March 17, 2013 that [Mother]’s sexual relations were 

with [D.J.C.] alone and that she did not resume 

sexual relations with [E.V.] until the end of March 

when she moved out for 4-5 days and then after 

April 1, 2013.

According to [D.J.C.]’s daughter, [K.C.] who is 

18 years of age[,] she recalls [Mother] moving into 

the residence on or about January 25, 2013, and 

remembers that [Mother] did leave for 

approximately five days near the end of March, 

2013, to reside with [E.V.]. After the aforesaid five 

days[,] [Mother] returned to [D.J.C.’s] residence and 

continued [to] reside there until approximately 

April 15, 2013, when she vacated the premises 

returning to [E.V.].

[E.V.] and [Mother] are now married, having 

been married on December 4, 2013 and presently 

have an intact family. [Mother] gave birth to the 

[Child] on or about December [of] 2013. [Mother] 

listed her present husband [E.V.] as the father of the 

minor child on the birth certificate. [E.V.] has also 

executed an acknowledgment of paternity. [E.V.] 

has been together (excluding the time [Mother] 

resided with [D.J.C.]) with [Mother] for 

approximately three and one half years. [E.V.] 

testified that he loves his daughter, holds the child 

out as his own, and financially supports her.

According to [Mother] she moved to [D.J.C.]’s 

residence on February 15, 2013, and not on 

January 25, 2013. She claims that during the period 

of time that the child was conceived that [E.V.] 

would come to the residence and they took at least 

three rides together where they would have sexual 

relations. She does acknowledge that on or about 
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March 7, 2013, she had left her residence for 

approximately four days and was residing with 

[E.V.’s] sister. The Court finds [Mother] is not 

credible in her account as to when she had sexual 

relations with [E.V.].

[Mother] claims that she was at [D.J.C.’s] 

residence for only four weeks and that she had left 

on March 7, 2013 and never returned to the 

residence. This testimony is inconsistent with that of 

[D.J.C.] and his daughter [K.C.]. [Mother] is visually 

impaired and has no driver[’s] license. When 

residing with [D.J.C.] all transportation for [Mother] 

was provided by [D.J.C.]’s children and other th[a]n 

the limited times when [Mother] had access to [E.V.] 

she was always with [D.J.C.] and h[is] children. 

[D.J.C.] recalls that when [Mother] finally left the 

residence he had discovered that she had been 

smoking marijuana with [E.V.] during the times 

when she would take vehicle rides with him and 

therefore [D.J.C.] had given her [an] ultimatum. On 

the day she finally left the residence, [Mother] was 

found with cuts on her legs and [E.V.] told [D.J.C.] 

that [Mother] had attempted to harm herself.

Trial court opinion, 7/21/14 at 1-4.

D.J.C. filed a complaint to establish paternity and for genetic testing of 

Child. A trial was held on July 3, 2014, and on July 18, 2014, the trial court 

issued an order along with findings of fact denying D.J.C.’s petition. The 

aforesaid order was docketed on July 21, 2014, and this timely appeal 

followed.

D.J.C. argues the trial court erred when it applied the presumption of 

paternity. We disagree.

Our standard of review of a trial court’s order related to paternity is 

whether the trial court abused its discretion. D.M. v. V.B., 87 A.3d 323, 
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327 (Pa.Super. 2014), citing T.E.B. v. C.A.B., 74 A.3d 170, 173 n.1 

(Pa.Super. 2013).

In cases where a child is conceived or born during the marriage, that 

child is presumed to be the offspring of his or her mother’s husband. Vargo 

v. Schwartz, 940 A.2d 459, 463 (Pa.Super. 2007). This is referred to as 

the “presumption of paternity.” Id. In Brinkley v. King, 701 A.2d 176, 

179 (Pa. 1997) (plurality opinion), our supreme court explained the 

presumption of paternity as follows:

[G]enerally, a child conceived or born during the 

marriage is presumed to be the child of the 

marriage; this presumption is one of the strongest 

presumptions of the law of Pennsylvania; and the 

presumption may be overcome by clear and 

convincing evidence that the presumptive father had 

no access to the mother or the presumptive father 

was physically incapable of procreation at the time of 

conception. However, the presumption is 

irrebutable when a third party seeks to assert 

his own paternity as against the husband in an 

intact marriage. [Emphasis added.]

The preservation of marriages is the purpose of the presumption of 

paternity. See Fish v. Behers, 741 A.2d 721, 723 (Pa. 1999). The 

presumption renders blood test results irrelevant unless and until the 

presumption is overcome. See Strauser v. Stahr, 726 A.2d 1052, 1054 

(Pa. 1999). “[T]he presumption is irrebuttable when a third party seeks to 

assert his own paternity as against the husband in an intact marriage.” 

CW v. LV, 788 A.2d 1002, 1005 (Pa.Super. 2001).
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The relevant time to examine whether the marriage is intact is at the 

time of the challenge to a husband’s paternity. Vargo, 940 A.2d at 463 

(Pa.Super. 2007). This is a question for the fact-finder. Id. at 467 

(“Whether the family is intact and there is a marriage to preserve are 

questions of fact, which, like all questions of fact, fall squarely within the 

realm of the fact-finder.”).

The disposition of this matter turns on whether Mother and E.V. had 

an intact marriage at the time of the challenge to E.V.’s paternity. The trial 

court found that Mother and E.V. were married before the birth of Child and 

have remained married. Following the birth of Child, E.V. held himself out 

as Child’s father and continues in his role as Child’s father. (Trial court 

opinion, 7/21/14 at 10-11.) D.J.C. does not claim, nor has he ever claimed, 

that Mother, E.V., and Child do not live together as an intact family, or that 

E.V. has not assumed parental responsibility for Child. As a result, the 

presumption of paternity is irrebuttable. Vargo, 940 A.2d at 463.

Even if the presumption were rebuttable, D.J.C. failed to rebut the 

presumption. 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 was physically incapable of procreation 

because of impotency or sterility or the presumptive father had no access to 

wife. The trial court pointed out that when Child was conceived, Mother was 

living with D.J.C. and having sexual relations with him, however, Mother also 
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had “limited contact” with E.V. (Trial court opinion, 7/21/14 at 5.) The 

record supports the fact that E.V. was capable of having children at all times 

and was in no way sterile. (Notes of testimony, 7/3/14 at 93-95.) The law 

is clear that, absent such circumstances, the presumption of paternity 

continues to apply. Vargo, supra.

D.J.C. also argues that the trial court erred by failing to apply the 

doctrine of paternity by estoppel. In R.W.E. v. A.B.K., 961 A.2d 161, 169 

(Pa.Super. 2008) (en banc), this court stated, “[t]he doctrine of paternity 

by estoppel has been applied by courts to prevent putative fathers who hold 

themselves out as the fathers of their children from subsequently denying 

their parentage.” Given the circumstances of the instant case, this court has 

no occasion to analyze paternity by estoppel.

Accordingly, for the foregoing reasons, we conclude the trial court 

properly applied the presumption of paternity to this matter when it denied 

D.J.C.’s petition for genetic testing. See 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).

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/6/2015