Opinion
F-17291-19
10-11-2019
B.S., Petitioner, v. S.A., Respondent.
Petitioner — Pro Se Respondent — Israel Fried
Petitioner — Pro Se Respondent — Israel Fried Judith Waksberg, J.
Petitioner B.A. filed an objection to Support Magistrate Gabriella F. Richman's order dismissing her support petition. The Court finds after review of the objection, the court file, and the digital recordings of the proceedings, that the objection has merit.
The record reflects that the parties appeared in connection with this case on July 25, 2019. The petitioner appeared pro se and the respondent appeared with counsel. The Magistrate requested that the petitioner produce a marriage certificate and the petitioner stated that she did not have one. The Magistrate asked an additional question, the answer to which was inaudible. The Magistrate then asked if the respondent's name is listed on the subject children's birth certificates and counsel for the respondent stated that it was not. The Magistrate addressed the petitioner and informed her that before an order of support could be entered, paternity needed to be established. The petitioner advised the Magistrate that there was a pending visitation proceeding before a judge in Kings County (Hon. Javier Vargas) and that the respondent had been granted a temporary order of visitation in that case. When the Magistrate inquired whether or not an order of filiation had ever been entered, the petitioner stated that she did not know and handed various documents to the Magistrate. Support Magistrate Richman stated that none of these documents was an order of filiation. The Magistrate continued, "I understand that the Judge has made . . . a temporary order of visitation because the gentleman has I assumed filed a petition in which he swore he was the father. . . . I can't establish support, however, until I establish paternity, all right?"
The Magistrate inquired of the respondent whether he would admit paternity. Respondent's counsel admitted that there was a case pending before a judge of the same family court but stated that he would not permit his client to do anything to facilitate moving the support case forward. Counsel then attempted to engage the court in an ex parte communication. When the court declined to go off the record, counsel conceded that the parties were in a proceeding before Judge Vargas. Counsel for respondent also noted that a gentleman currently sitting in the back of the courtroom was the petitioner's father and "my client's father-in-law." Respondent's counsel then requested that the support petition be dismissed. Support Magistrate Richman granted this application and dismissed the petition.
In the Findings of Fact dated July 25, 2019, the Magistrate stated: "Petitioner avers that the parties were married at the time of the conception and birth of each of the child. However, she further avers that the parties did not enter into a civil marriage, but a religious one. She is unable to produce proof of a valid marriage. Accordingly, petitioner must first establish paternity before she may seek child support."
The petitioner's statement that there was a religious marriage between the parties does not appear in the transcript of the proceeding; presumably this statement was made in the section of the transcript that is "inaudible." Although the Support Magistrate did not mention it, it is telling that the respondent's counsel referred to the petitioner's father as his client's "father-in-law."
In her objection, the petitioner argues that she and the respondent were married in a religious ceremony prior to the birth of the children, but because they were not civilly married, she could not produce a marriage certificate. Petitioner further argues that the respondent should be judicially estopped from denying paternity in view of the pendency of a custody matter involving these children before the Honorable Javier Vargas. The Respondent has not filed a rebuttal.
The Family Court Act, provides, "[A] child born of parents who at any time prior or subsequent to the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both parents for all purposes of [support proceedings] regardless of the validity of such marriage" (Family Court Act § 417). Domestic Relations Law § 12 defines a ceremonial marriage and states that it need not take any particular form, provided that the parties solemnly declare in the presence of a clergyman or magistrate, and at least one witness, that they intend to be married. Domestic Relations Law § 24 further provides that children born either before or after the marriage of parents who have entered into a civil or religious marriage are the legitimate children of both natural parents.
The Magistrate's dismissal of the petition was therefore an error of law. At the very least, an adjournment should have been granted for the petitioner to provide proof of her religious marriage. There is a strong preference for disposition of matters on their merits, especially with regard to support. Lockitt v. Booker, 80 AD3d 700, 700 (2d Dept 2011); Helen T. v. Roosevelt B., 256 AD2d 583, 584, (2d Dept. 1998). The preference for a disposition on the merits is particularly strong in the absence of demonstrable prejudice to the other party. Stephenson v. Hotel Employees, Rest. Employees Union Local 100, 293 AD2d 324, 325, (1st Dept. 2002). The respondent would not have been prejudiced by allowing the mother an adjournment to produce evidence of their religious marriage. The dismissal of the support proceeding only serves to deprive the children of support from the petitioner's initial day of filing.
Moreover, the application of judicial estoppel precludes dismissal of the petition in this case. Judicial estoppel exists to protect the integrity of the judicial process by avoiding the risk of inconsistent results in two different proceedings. See Davis v. Citibank, N.A., 116 AD3d 819, 821 (2d Dept 2014) and because the court cannot tolerate litigants "playing fast and loose with the courts." Envtl. Concern, Inc. v. Larchwood Const. Corp., 101 AD2d 591, 594 (2d Dept 1984).
In this case, counsel for the respondent conceded that in a visitation proceeding in the same family court, respondent was seeking visitation with the same children for whom he was denying paternity in the instant support proceeding. Judicial estoppel precludes a party who assumed a certain position in a prior legal proceeding and has secured a favorable judgment in that proceeding "from assuming a contrary position in another action simply because his or her interests have changed." Paese v. Paese, 144 AD3d 770, 771-72 (2d Dept. 2016) quoting Matter of Brooke S.B. v. Elizabeth A.C.C., 28 NY3d 1, 17 (2016). Here, the respondent had to assert that he was the father of the children in order to have standing to seek visitation with them before Judge Vargas. He cannot at the same time be permitted to deny his parenthood for purposes of a support proceeding. See Paese v. Paese, 144 AD3d 770 (holding that judicial estoppel precluded the mother from arguing that the plaintiff was not a parent for purposes of visitation where she had previously obtained an order of child support against him).
Therefore, the petitioner's objection is granted, the petition is reinstated and adjourned to and the matter is remanded to the Support Magistrate on November 22, 2019 and 2pm for further hearing.
Notify parties and counsel. Dated: October 11, 2019 __________ Honorable Judith Waksberg Judge, Family Court