*1 сustody taken into for the purposes of an mental emergency health evaluation pursuant to this section of MHPA.15 Superior
The order of the Court is reversed.
April STAHR, Appellee. R. Stahr,
Steven Intervenor. Supreme Pennsylvania. Court 17,
Argued Nov.
1998.
Decided March
Superior
sponte
15. Appellee’s
Court also sua
determined that
due
process rights had been violated because the trial court ordered invol-
treatment,
untary
pursuant
§
§
to 50 P.S. 7303 and 50 P.S.
when
hearings
no record of the
However,
produced.
conducted
the MHRO had been
agree
Appellant
Appellee
we
that since
failed to raise
Court,
this issue
Superior
either before the trial court or the
the issue
therefore,
preserved
appellate
had been waived and was
not
for
review.
(issues
waived);
See Pa. R.A.P. 302
not raised in lower courts are
307, 311,
(1974)
Piper,
Commonwealth v.
458 Pa.
(matters not raised in lower court
appeal).
cannot be considered on
Accordingly,
improper
it was
for the
Court to raise and decide
Kuchar,
sponte.
the issue sua
See Arthur v.
Orris C. nor. Mifflin, Zagurskie, April Stahr.
Donald CAPPY, FLAHERTY, C.J, ZAPPALA, Before CASTILLE, NIGRO, SAYLOR, JJ. NEWMAN
OPINION SAYLOR, Justice. pater- is whether
The issue case Timothy seeking from nity (“Appellant”) bars Strauser claim, establish, on the of blood tests favorable to his basis Stahr, of three youngest thаt he is the of Amanda (“Mother”) marriage April during her children born Stahr (“Husband”). remain Stahr Mother and Husband to Steven they Appellant’s claim. The oppose concluded in such circumstances the Court Appellant does indeed bar from such claim. We asserting affirm. 20, 1996, May custody complaint filed Appellant
On In he against complaint, Appellant Mother. asserted father; is Amanda’s that Mother had acknowledged his pater- nity, ensured that he enjoyed Amanda, frequent visits with сare; and sometimes he, entrusted Amanda to his and that Mother, and tests, Amanda had submitted to blood the results of which disclosed a probability 99.99% that he was Amanda’s Appellant father. also alleged that since receiving the blood results, test Mother had interfered with his relationship with Amanda. view of the bond that existed between him and Amanda, asserted, Appellant it would be the child’s best if granted interests he were partial custody of her. objections Mother filed preliminary whiсh she sought dismissal of Appellant’s complaint on the pre- basis sumption that Amanda was a child of the Stahrs’ (also legitimacy, known as the or of Husband’s intervene, paternity). petition Husband filed a which was granted. preliminary objections He then filed seeking, had Mother, to Appellant’s complaint have dismissed on the based He also asserted that Appellant equitably was from estopped asserting paternity, as he had financially emotionally the child. supрorted 25, 1996, following hearing preliminary On November objections, stating the trial court entered an order “that hereby blood test results are admitted and this matter shall be hearing scheduled for a on the issue of what is best for the memorandum, subject accompanying child.” In an the trial 1) findings, recited its factual as follows: Mother and court had in sex on at least one occasion around Appellant engaged 2) conception; of Amanda’s Mother and Husband the time рeriod sex of time and were having were also *4 3) control; Mother and the method of birth using withdrawal conception of Amanda’s were married at the time Husband 4) birth, separated; had remained and never and community out to others in the had held Amanda Mother relationship a between promoted and had child Appellant’s 5) an Amanda; had exhibited and Husband and Appellant children, the which toward Mother and attitude of indifference relationship Appellant. with promoted attitude Mother’s
87 1996, 25, the trial and order of November opinion In its on the case law rely that it were to acknowledged if court Husband, be dis- the case would and by Mother submitted the missed, had failed to overcome as Appellant part on the showing impotency non-access of paternity Nevertheless, the trial court concluded of Husband. and child Mother, Appellant’s held Amanda out having for testing purpose to blood having voluntarily submitted from cоn- equitably estopped determining paternity, was of admit The then decided to court testing Amanda’s and, objection results over Husband’s the blood test results, of concluded that basis of those the court direct- Accordingly, legitimacy had been overcome. for a “on what the child.” hearing be held is best ed separate which were appeals, Mother and Husband filed consolidated, Supe- Court. The subsequently to the that, of fact that in view the the Stahr rior Court concluded intact Husband had assumed parental remained Amanda, paternity of responsibility Therefore, the court rea- Husband’s favor was irrebuttable. soned, been test results should not have admitted court’s into evidence. The court reversed trial order prejudice. granted dismissed We Appellant’s complaint allocatur to consider whether the applied present case.
The
child
to a
presumption at
issue—that a
married woman is
child of
woman’s husband—has
strongest
one of the
known
the law.1
presumptions
been
T.,
306, 312-13,
1380,
M. v. Paula
571 A.2d
John
denied,
1383(Pa.),
850, 111 S.Ct.
cert.
498 U.S.
T.,
denied,
1380(Pa.),
In John M. v. Paula
cert.
Pa.
(1990),
U.S.
S.Ct.
this Court noted
L.Ed.2d 107
Cairgle v. American Radiator & Stan
dard Sanitary
249, 255,
Corp.,
439,
(1951).
366 Pa.
77 A.2d
442
Traditionally, the presumption can be rebutted only by proof
either that the husband
physically
was
incapable of fathering a
child or that he did not have
access
his wife during the
period
conception.
McCandless,
584,
Freedman v.
539 Pa.
591,
529,
(1995);
654 A.2d
532
95, 105,
Jones v. Trojak, 535 Pa.
201,
(1993);
M.,
634 A.2d
John
Nevertheless, Appellant contends that the paternity is inapplicable. Citing this Court’s plurality opinion (1997), in Brinkley King, Appel- A.2d 176 argues lant the presumption longer applied will no automatically, only application but where such further will is, on which the policy policy is based. That view, Appellant’s the best interests of the child. According of the Appellant, application promote will not best interests of the child this instance because of the case, the asserted fact that “unique including facts” Husband, although enjoy “do not Mоther Appellant unit.” also con- marriage traditional their estopped by and Husband are own tends Mother invoking conduct from Brinkley’s daugh- of Lisa
Brinkley concerned the ter, Audrianna was conceived Although Audrianna. Lisa, according to her George Brinkley, Lisa’s testimony, having own was not sexual relations with her time, having relations but was sexual during that husband the marital Brinkley moved out of King. George Richard born, parties and the Lisa was four months before residence complaint support Lisa filed eventually divorced. and, a motion for King paternity, King after denied against *6 the assertion King responded adjudication paternity. Audrian- claiming from that he was precluded that Lisa was presumption had failed to rebut the na’s father because she agreed, The trial court husband’s her former “in granted allocatur This Court Superior the Court affirmed. paternity in which the way order to review the at at law.” Id. Pennsylvania functions omitted). (footnote (Chief Flaherty, opinion, plurality lead the Justice the law
joined set forth the fundamentals the by Cappy) Justice Among as above. these presumptive paternity, summarized “the is irre- fundamentals was the principle seeks to assert his own party buttable when third marriage.” the in an intact Id. at against husband presumption, The public policy support A.2d at 179. marriages plurality explained, was “the concern that which by disputes not be destroyed function as units should over of children cоnceived parentage “[tjhird Thus, parties at at 180. marriage.” Id. integrity functioning not to attack the of a should be allowed unit, and of that unit should not be allowed marital members (footnote omitted). Id. deny parents.” their identities as plurality controlling principles, summarized the Having those should be principles articulated a framework which applied: first, analysis in these cases is twofold: legal essential
[T]he applies of paternity one considers whether doеs, If it one then whether particular to a case. considers Second, pre- if the presumption has been rebutted. one inapplicable, has been rebutted or is then sumption may ei- questions estoppel applies. Estoppel whether bar plaintiff making ther a from the claim or a defendant from If the denying paternity. been rebutted or 90-
does not apply, and if the facts of the case include estoppel evidence, such evidencе must be considered. If the trier of fact finds that one or both of parties are estopped, no blood tests will be ordered.
Id. at
This analysis, as the plurality recognized, begs
of when the presumption was to be applied.
plurality’s
answer,
taking into account
the dramatic changes
in the
nature of male-female relationships
that had occurred since
created,
presumption was
was that “the presumption of
applies
any case
policies
where the
which underlie
the presumption [namely, the preservation
...,
of marriages]
would
be advanced
its application,
cases,
and in other
it
Id. does not apply.”
(footnote
Justice concurred in the result but the expressed view that the traditional definition of non-access was unneces- sarily restrictive. Justice Nigro, who also in concurred the result, suggested that “the better course of action in these cases is to allow the trial court to determine paternity on a basis, case-by-case by unburdened the obligatory application of a presumption Id. at estoppel or an theory.” J., (Nigro, at 182 concurring and In dissenting). Justice view, Nigro’s the trial court should be allowed to оrder blood testing alleged presumed of both the and the fathers. Justice Newman, Castille, joined by Justice concurring filed a and dissenting She concurred in the opinion. pre- view that the sumption apply purpose should not where its would not there- served, that, opined but also when the did presumption the a apply, parties blood tests should be available to as means rebutting the presumption. agreed Justice Newman plurality presumption apply the did not in the case Court, not agree presented before but did the case a estoppel. she was of Accordingly, the view that Lisa, testing Audri- be remanded the case should Audrianna’s the issue of anna, finally “to resolve King and (Newman, J., concurring A.2d at 190 father.” Id. dissenting). and Brinkley in reflect opinions
Although the several directed toward the criticism that been that decision reliance on years, Appellant’s in recent into case, marriage which present unavailing. is Indeed, the marital despite was born continues. Amanda encountered, Mother and Husband they have difficulties that Instead, preserve to they have chosen separated. have never children family and as a the three their to raise in John them, including Amanda. As this Court observed M,
ftjhere
A
is,
short,
family
here.
woman and
involved
husband and
together
man
have married
lived
who
children,
wife,
have
raising
[several]
birth to
giving
from the un-
their
protecting
obvious interests
(even
who have had
of outsiders
ones
wanted intrusions
children).
mother,
with the
relationships
serious
this
protect
recognizes
seeks
Commonwealth
family,
society,
unit of
and foundational
basic
to a woman while she is
that a child born
marriage.
child
married is a
omitted). Thus,
(citation
Id. at
Appellant argues for a different result by citing the “unique facts” of the case. He asserts that Husband and Mother’s marriage lacks intimacy love and and exists in only; name Husband and Mother have experienced conflict caused adultery; Mother represented to others that Amanda was Appellant’s child; Husband suspected that Amanda was not child; his and Husband an exhibited attitude of indifference toward Mother sum, and Amanda. Appellant asserts, Mоther and Husband enjoy “do not the traditional marriage unit.”
While Appellant’s may factual, assertions they are not unique. To the contrary, they indicate that the marriage of Husband, Mother and many, like has encountered serious difficulties. It is in precisely situation, as was suggested M., in John the presumption of paternity serves its purpose by wife, allowing husband and despite mistakes, past to strengthen and protect family. their Appellant’s argument on this point is therefore without mеrit.
Nor are Husband and Mother estopped, Appel lant suggests, from invoking the presumption.
Estoppel in merely actions is legal determina- tion that because of a person’s conduct (e.g., holding out the own, child) child as his or supporting the person, regardless status, true biological his permitted will not be to deny parentage, nor will the child’s mother who has participated this conduct be permitted to sue a third for party support, claiming that the third party is truе father.
Brinkley,
tionship any purpose, challenge should not be parentage”). husband's claim of *9 reli- Appellant’s is non-rebuttable. applies and unavailing. therefore estoppel of ance on doctrine affirmed. Order Opinion. Dissenting files a NIGRO
Justice in Dissenting a which Opinion files Justice NEWMAN joins. Justice CASTILLE
NIGRO, Justice, dissenting. that the trial court found prоperly I that the believe
Since Appel- probability a that disclosing 99.99% blood test results admissible, I dissent. respectfully Amanda’s father were lant is effect, “presumption of concludes majority of the any consideration automatically forecloses paternity” here, taken voluntarily at which were test results issue biological as Amanda’s status Appellant’s all but confirm and majority By presumption, rigidly applying father. by my concurring disturbing trend noted only perpetuates 241, 701 Brinkley King, in dissenting opinion (1997) J., (Nigro, concurring and dissent- (plurality) of the There, application I the strict ing). observed to the only acted as an obstacle presumption doctrine testing court to order use blood discretion the trial technique is “the most valuable single which parties, Id. determining parentage.” to a court available A.2d at my Brinkley advocates majority, opinion
As noted matters would be to approach the better case-by-case allоw trial courts determine pre- basis, obligatory application unburdened court to approach permits an doctrine. Id. Such sumption partic- circumstances each weigh the relevant evidence and results, situation, concerns as including ular blood test unit the interests existing family maintenance of an child, Id. at equitable in order to reach an result. A.2d at 182.
The benefits of this approach are exemplified by the circum- Here, stances of the instаnt case. test voluntary results representing virtually conclusive evidence of Appellant’s pater- nity are undeniably available and probative of who biological Amanda’s is. Additionally, though Amanda’s mother and her husband remain I do not *10 believe that their marital status should serve as a license to completely disregard a biological father’s in having interest Moreover, relationship with his child. for medical and other reasons, may very it well the be in best of interests Amanda to identity know the of her father. It biological simply is unrea- sonable, view, in my preclude trial court from consider- ing the interests of those involved and the evidence of the solely blood tests of a the basis that no longer of today’s reality. reflective social reasons,
For these I the trial believe court admit- properly ted the blood test results into evidence and directed that a hearing be held on the of what issue is best Amanda. Thus, I would reverse the Court affirm the order of the trial court. Justice,
NEWMAN, dissenting. below, For I respectfully the reasons set forth dissent. agree While I that the of “presumption paternity” attaches case, Rather, I that it disagree facts of this is irrebutable. this should be to rebuttal reliable blood open test evidence.
April April Stahr have been married since and Steven together and they 1992 and continue to be reside children, separated. couple have never The has three all been custody that underlies marriage. dispute The this these three children. youngest suit involves Stahr, time, acknowledged that at one April record indicates husband, Strauser, child’s father and not her was this Mr. April, visits with the child. frequent allowed Mr. Strauser voluntary blood even submitted to child and Mr. Strauser tests, that Mr. is the probability which show 99.9% Strauser a complaint against April child’s Mr. Strauser filed father. April after custody daughter of his seeking partial Stahr April’s with the child. with his visitation to interfere began requestеd husband, Steven, the action intervened he because of dismissed complaint Mr. Stahr’s The trial court overruled father. the child’s was and ordered a test evidence the blood admitted objections, in the was custody arrangement hearing determine what appeal filed their The Stahrs interests of child. best hold the custo- the trial court could before this determination dy hearing. are whether trial appeal involved
The core issues complaint to dismiss Mr. Strauser’s refusing erred in court in favor of Mr. Stahr paternity” on the “presumption based test admitting genetic the court erred and whether to determine order presumption. to rebut that evidence to a particular attaches whether if advances the case, properly first decide the case we must King, Brinkley presumption. purpose (1997). Here, agree I that the 185-86 *11 of the applies purpose because the of us—specifically facts before prеsumption is indicated currently, and at all relevant marriage the Stahrs’ is Id., (Newman been, concurring and intact. J. times is limited to dissenting statement)(purpose marriage). preservation of
Next, may be we must address whether case, Id. Majority posits where rebutted. intact, “public presump is that the policy” requires disagree. generally I It is not for this tion be irrebutable. unless such “public policy” Court to make such assertions of See, States, 324 Muschany v. United e.g., is clear. U.S. policy policy L.Ed. 744 is be (1945)(“publie S.Ct. legal precedents to the laws and and ascertained reference interest”); general supposed public from considerations Genoe, (1941)(“in 320, 324, 17 Mamlin pro formulate judicial system power our of courts to restricted; public policy sharply nouncements of otherwise they would judicial become legislatures rather than instrumen- talities for the interpretation law.”).
Here, the Majority’s conclusion that “public policy” requires аn irrebutable presumption in favor of Mr. Stahr is erroneous because it is in direct conflict with plain language of the Uniform Act on Blood tó (the Act). Tests Determine Paternity 5104(c). § 23 Pa.C.S.A. Instead, the legislature has codified the “public policy” of this Commonwealth clearly and and expressly provided that a court may compel interested parties to submit to blood testing, and that such blood testing can rebut the presumption of paternity. 5104(c) § Pa.C.S.A (g)1 Moreover, . Ias statеd in Brinkley:
We would be both naive and remiss to perpetuate the strength of this presumption ignore the results of tests; reliable scientific
Pennsylvania is fast becoming only one of minority states that does not accept results of blood tests disprove the husband’s paternity to rebut the presumption. Approximately of the states currently have stat- two-thirds utes permitting blood tests considered the determi- nation of paternity. CLARK, JR., HOMER H. 1 THE LAW OF DOMESTIC RELATIONS IN THE UNITED (2d ed.1987). STATES 340 join We should majority states and accept these reliable scientific tests to rebut the 5104(c) (g) Sections state as follows: (c) Authority any subject for test.—In matter to this section in which paternity, fact, parentage identity court, or of a child is a relevant upon upon suggestion its own initiative or made or on behalf of involved, or, any person may upon any- whose blood is motion of party delay to the action made at a time so as proceedings not to mother, unduly, alleged shall order the сhild and father to submit to tests, any party
blood tests. may If refuses to submit to the the court paternity, parentage identity resolve the of a child *12 against party rights its order enforce if the of others and the justice require. interests of so (g) legitimacy.-—The legiti- Effect on macy aof child born wedlock is overcome if the court finds experts that the conclusions of all the as disclosed the evidence upon based the tests show that the husband is not the child. child presumptiоn that a a married woman is her husband’s child. v. 549 Pa. at
Brinkley King, 188. Thus, for the I have set forth here and in Brinkley, reasons I trial refusing believe court did not err dismiss custody complaint solely Mr. Strauser’s on the basis of the admitting and did not err in test I Accordingly, evidence. would reverse the decision Court and reinstate the decision of the trial court so that the can conduct hearing court to determine the interests of best the child involved. joins
Justice CASTILLE this dissenting opinion.
(CH ENTERPRISES), Appellee. & D
Supreme Pennsylvania. Court of
Argued March 1999. April Decided Pentecost, Caramanna, Jr., Alexander J. B. Amiel Elizabeth Gebhardt, A. Pittsburgh, for Steve D. Ferrero. Hawkins,
David Secretary, Amber M. Kenger, Mechanics- burg, WCAB.