Melissa A. GREEN, Appellant, v. Timothy A. GOOD, Appellee, 704 A.2d 682

DEL SOLE, Judge: This appeal is from an order dismissing a complaint for support under URESA. We reverse the order and remand for further proceedings. Appellant Melissa A. Green is the natural mother of Brittany, who was born on December 28, 1991. Brittany was two months premature, having been conceived in May of 1991. Melissa was at that time married to Michael Green and living in Norfolk, Virginia. Michael was serving in the Navy and went on a six-month tour at sea beginning sometime in January 1991. While Michael was away, Melissa became involved in a sexual relationship with Appellee Timothy A. Good.

During the month of May 1991, Michael returned home unexpectedly and found Melissa and Good at the home together. Two weeks later, Melissa moved out of the marital residence and temporarily moved in with a friend where Timothy also lived. From November 1991, when her relationship with Timothy ended, until February 1992, Melissa again resided with Michael because she was unable to work and had financial problems. Melissa testified that she did not have sexual relations with anyone other than Timothy during the period of conception. Melissa ultimately moved to Minnesota and Timothy moved to Pennsylvania.

Melissa and Michael were divorced in Minnesota. The court there made a specific finding of fact that Michael is not the father of Brittany. Melissa brought this complaint for support against Timothy under the Uniform Reciprocal Enforcement of Support Act, 23 Pa. C.S.A. §§ 7101-7802, which was then forwarded to Lycoming County, Pennsylvania. The trial court determined that the presumption that a child born to a married woman is a child of the marriage and therefore of the husband was not rebutted and dismissed the complaint.

Our supreme court recently reanalyzed both the presumption of paternity and the doctrine of estoppel in a similar situation. In Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997), Lisa Brinkley was married to George Brinkley when Lisa’s daughter was conceived. Mrs. Brinkley testified that she slept in the bedroom and her husband slept on the couch and they did not have sexual relations. She also testified that she was having sexual relations with Richard King during the period when her daughter was conceived. Both the trial court and this court held that Mrs.

Brinkley had not rebutted the presumption of paternity. In the Opinion Announcing the Judgment of the Court, Mr. Chief Justice Flaherty, joined by Mr. Justice Cappy, noted that the court’s legal analysis is two-fold: the court first must consider whether the presumption of paternity applies, if it does, has it been rebutted. Second, where the presumption has been rebutted or is inapplicable, the court must determine whether estop-pel applies. However, the presumption of paternity is not to be blindly applied to all cases in which the husband and wife were married at the time.

Rather, the presumption is to be applied only where the policy which underlies the presumption would be advanced by its application. The public policy in support of the presumption is the preservation of the marriage, i.e., that a marriage which functions as a family unit should not be destroyed by a dispute over the parentage of children conceived or bom during the marriage. Thus, because wife and husband separated before the child was born and were divorced at the time of the complaint, there was no marriage to preserve and the presumption was not applicable. Madame Justice Newman, joined by Mr.

Justice Cas-tille, agreed with the Chief Justice’s determination that the presumption “does not apply where its purpose is not served.” Id. at -, 701 A.2d at 185. Their disagreement with Chief Justice Flaherty’s opinion related to the means of rebutting the presumption not on when the presumption should be applied. Thus, four justices, a clear majority, agreed that the presumption should not be applied where there is no intact marital unit to protect.

Applying the rationale of Brinkley, supra, to the facts of the present case yields the conclusion that the presumption that Michael is the father of Melissa’s child does not apply. At the time of the child’s birth, Melissa and Michael were separated and they were divorced at the time the support complaint was filed. The divorce decree stated that Michael was not Brittany’s father. Moreover, Michael has had no contact with Brittany and is not named on her birth certificate. Thus, under the BrinHey majority analysis, there is no marital unit to preserve so the presumption of paternity does not apply.

Further, the record demonstrates that paternity by estoppel is not present in this case. Therefore, we conclude that the trial court erred in failing to order appropriate scientific testing. Order reversed. Case remanded for further proceedings. Jurisdiction relinquished. OLSZEWSKI, J., joins and files a concurring opinion. TAMILIA, J., files a concurring opinion. . The remaining justices also agreed with the result but for different reasons. Mr. Justice Zap-pala found that non-access was established by Mrs. Brinkley’s testimony that she and her husband did not have sexual relations at the relevant time. Mr.

Justice Nigro would abolish the presumption of paternity altogether and thus agreed that it was no bar to the action against Richard King.