Opinion
June 25, 1984
Frederick A.O. Schwarz, Jr., Corporation Counsel ( Elaine Dolinsky of counsel), for petitioner.
Raymond J. Suarez for respondent.
In this Uniform Support of Dependents Law (U.S.D.L.) proceeding petitioner sues for support for the child, Lizangela Cardozzeo, born within the marriage on July 6, 1977. (Domestic Relations Law, art 3-A.) The respondent defends by denying paternity of the child.
FACTS
The parties were married on November 2, 1964 in Queens County, New York. On March 12, 1981, four years after the birth of the child, the parties entered into a separation agreement which provided for support, custody and visitation of the subject child. This agreement was duly acknowledged and filed with the Supreme Court in Monroe County, New York. In July, 1983, petitioner moved to Florida with the child.
Respondent did not raise the issue of paternity until petitioner attempted to enforce the separation agreement in this proceeding. The court notes that respondent did not raise his nonpaternity defense at his initial appearance. Instead, he agreed to a temporary order of support in the amount of $30 per week. It was not until the second hearing to determine the amount of the final order of support that respondent raised his defense.
LAW
A U.S.D.L. proceeding is a creature of statute and permits the litigation of certain limited issues. Respondent contends that by merely denying paternity he deprives this court of jurisdiction over this proceeding. However, such a holding would make the child support provisions of the U.S.D.L. meaningless. Moreover, the Family Court has jurisdiction under the U.S.D.L. to determine parental status of children born within a marriage ( Moore v Moore, 49 A.D.2d 768), and the court is statutorily bound to apply the same presumptions and rules of evidence available to litigants in any other support proceeding brought in this court. (Domestic Relations Law, § 38-a.)
One of the strongest presumptions in the law is the presumption of the legitimacy of a child born within a valid marriage. ( Matter of Findlay, 253 N.Y. 1.) This presumption can only be rebutted by clear and convincing evidence. The burden of overcoming the presumption falls to respondent. ( Matter of Erskine F., 100 A.D.2d 878.) The only evidence introduced by respondent was his own testimony that he was not the father. The court finds that respondent's assertion of nonpaternity does not sustain his burden of proof. In addition, the court finds that under the facts of this case respondent is estopped from raising the defense of nonpaternity. ( Michaella M.M. v Abdel Monem El G., 98 A.D.2d 464; Matter of Sharon GG. v Duane HH., 95 A.D.2d 466; Matter of Boyles v Boyles, 95 A.D.2d 95; Matter of Time v Time, 59 Misc.2d 912.)
DECISION
The court finds that, although the issue of paternity has not been actually litigated, it has been conceded expressly and implicitly (see Matter of Montelone v Antia, 60 A.D.2d 603) in the separation agreement and that the respondent is estopped from denying paternity in this proceeding.
Accordingly, this case will appear on the calendar on July 20, 1984 in part B at 9:30.