Opinion
Index No. XXXXXX/2022
04-06-2023
G.P., Plaintiff, v. S.S., Defendant.
Attorney for Plaintiff: Lois S. Campbell, Esq. Attorney for Defendant: Self-Represented. Attorney for the Child: Lisa Daniels, Esq.
Unpublished Opinion
Attorney for Plaintiff: Lois S. Campbell, Esq.
Attorney for Defendant: Self-Represented.
Attorney for the Child: Lisa Daniels, Esq.
Hon. Edmund M. Dane, J.S.C.
The following papers have been read on these motions:
Defendant's Order to Show Cause in a Civil Action dated October 25, 2022 x
Plaintiff's Notice of Cross-Motion dated January 9, 2023 x
Defendant's Opposition & Reply dated February 18, 2023 x
Plaintiff's Reply dated March 15, 2023 x
Affirmation of Attorney for the Child dated March 22, 2023 x
INTRODUCTION
The issue before the Court is whether or not this Court should grant the husband a DNA test for the subject child, born during the parties' marriage and entitled to a presumption of legitimacy, based upon an unsubstantiated and uncorroborated allegation of an extramarital affair on the part of the mother. In effect, the Court-under it's duty as parens patriae (see generally Spath v. Willis, 71 A.D.2d 489 (3d Dept. 1980)), which duty this Court will not abrogate-must intervene to determine whether or not it is in the best interests of the child (not the parents) to order such testing. Implicit in that question is a secondary question: whether or not the Court must conduct a hearing to determine whether it is in the child's best interests to order a DNA test with respect to same. For the reasons that follow in this Decision and Order, the Court answers both questions in the negative.
The Defendant.
The Plaintiff.
PRELIMINARY STATEMENT
The Defendant moves by Order to Show Cause in a Civil Action dated October 25, 2022 (Motion Sequence No.: 001) seeking an Order: in the name of God, help me tha [sic] G.P. bring N. to take a DNA Test; Let this Court assign me a lawer [sic] because I can't afford one, and dismiss this 2,000 dollars to law guardian Lisa Daniels.
The Plaintiff cross-moves by Notice of Cross-Motion dated January 9, 2023 (Motion Sequence No.: 002) seeking an Order: (1) Denying all relief requested by Defendant in his Order To Show Cause and denying Defendant's request for DNA testing because he is precluded from doing so because of the doctrine of equitable estoppel and based on the facts and relevant law of this case; and (2) Pursuant to DRL 240, compelling Defendant to pay to Plaintiff pendente lite just and suitable support for the unemancipated child of the marriage in the amount of $1,005.60/month, including but not limited to basic child support, child care, health insurance and life insurance for the benefit of the child, as well as any arrears that have accumulated since the filing of this motion; and (3) Pursuant to Domestic Relations Law Section 240(1-b), compelling Defendant to maintain during the pendency of this action suitable and just policies of medical, dental, pharmaceutical and hospitalization insurance for the benefit of the Plaintiff and the unemancipated child of the marriage, and to be responsible for any and all unreimbursed medical, dental, pharmaceutical and hospitalization expenses; and (4) Ordering Defendant to return Plaintiff the original of N.'s birth certificate pursuant to the Notice to Produce dated October 14, 2022; and (5) Ordering Defendant to forthwith pay $2,000 to the attorney representing the child pursuant to the Order of this court dated October 24, 2022 or be held in contempt of Court; and (6) Pursuant to CPLR 3126(1), directing that the financial issues to which the information demanded by Plaintiff and not supplied by Defendant, be deemed resolved for the purposes of this action in accordance with the claims of the Plaintiff upon the ground that Defendant has wilfully failed and refused to comply with the Preliminary Conference Order dated June 26, 2022, Notice for Discovery and Inspection dated September 27, 2022; Certification order dated October 14, 2022, Demand to Produce dated October 14, 2022 and Order Appointing Attorney for the Child dated October 14, 2022; and (7) Pursuant to CPLR 3126(2), directing that the Defendant be precluded from opposing Plaintiff's claims or offering evidence or testimony relevant to the financial information which Plaintiff has sought and Defendant has not supplied, upon the ground that Defendant has wilfully failed and refused to comply with the Plaintiff's demands for disclosure and willfully failed and refused to comply with the Preliminary Conference Order dated June 26, 2022, Notice for Discovery and Inspection dated September 27, 2022; Certification order dated October 14, 2022, Demand to Produce dated October 14, 2022 and Order Appointing Attorney for the Child dated October 14, 2022; and (8) Pursuant to CPLR 3126, striking Defendant's Answer due to his failure to comply with Plaintiff's demands for disclosure; and (9) Compelling Defendant to pay Plaintiff the sum of $5,000.00 as and for attorney's fees in the prosecution of this action; and (10) Pursuant to CPLR 3126 and NYCRR 130-1.1, granting the Plaintiff an additional amount of attorney's fees (i.e., $5,000) for the necessity of making this motion and for Defendant's failure to produce discovery answer and because Defendant has unnecessarily delayed this proceeding, and because conduct in this case has been willfully and unreasonably obstructionist and has unreasonably delayed this proceeding; and (11) For such other and further relief as to this Court may seem just and proper.
BACKGROUND
The parties were married on August 5, 2017. There is one (1) child, to wit: N. (hereinafter referred to as the "Child") who is the subject of litigation in this action (see infra). The Child was born on XXX, 2018, making her four (4) years of age as of the date of this Decision and Order. This matrimonial action was commenced by the filing of a Summons and Verified Compliant (hereinafter referred to as the "Complaint") with the County Clerk on May 9, 2022. The Defendant, pro se, interposed a Verified Answer May 16, 2022 (hereinafter referred to as the "Answer") containing a single Affirmative Defense. The Answer admits the truth of Paragraphs "1" through "6" of the Complaint, denies knowledge or information sufficient to form a belief as to the truth of Paragraph "7" of the Compliant, and denies the allegations of Paragraph "4" and "7" of the Complaint.
The Answer contains a Paragraph which reads:
"N. is not my biological daughter, therefore, I ask the Court to do a DNA test. I do not agree to pay anything for a minor who is not my daughter. We never brought properties nor did we have debts. I haven't seen G.P. since December, 2020."
The Affirmative Defense set forth in the Answer reads:
"November, 2020, I was called by some G.P. family saying that N. is not my biological daughter, until today G. hasn't give me any explanation."
The Answer was verified by the Defendant on May 16, 2022.
The Court held a Preliminary Conference on June 16, 2022. The Preliminary Conference Stipulation & Order, which was so ordered by this Court on June 16, 2022, was signed only by the Plaintiff and her counsel. The Defendant did not execute same.
On October 14, 2022, this Court signed a Certification Order. On October 14, 2022, this Court also issued an Order Appointing Attorney for the Child, whereby it appointed Lisa Daniels, Esq. (hereinafter referred to as the "AFC") as attorney for the child.
THE PARTIES' CONTENTIONS
Defendant's Contentions:
The Defendant contends that the Child is not his daughter. He claims that he married the Defendant on XXX, 2017, and she became pregnant in XXX of 2018 from someone else. He argues that the Plaintiff cheated on him "all this time" and made him believe that the Child was his daughter. He asks for this Court's help, and that he has been traumatized and that he does not have any peace because of this.
Plaintiff's Contentions:
The Plaintiff argues that the parties met when she was seventeen and the Defendant was thirty-two, having met at Church. She sets forth that the parties were married on XXX, 2017, when she was nineteen and the Defendant was thirty-four, and that they immediately began living together. She avers that the Child was born XXX, 2018, fifteen months after the date of marriage. She sets forth that the Child has the Defendant's last name. She argues that the Defendant was present at the Child's birth at XXX Hospital and his name is on the birth certificate. She argues that the Defendant, who was the financial breadwinner of the family, earned $1,500 per week "net" in cash. She sets forth that the parties filed a joint tax return in 2019 where the Child was listed as the daughter. She argues that the Defendant asked her to help him obtain a green card. She argues that the Defendant's immigration papers reflect that the Child is his daughter. She argues that the Defendant vacated and abandoned her and the child on XXX, 2020, and in XXX, 2021, she moved in with her parents. She argues that after the Defendant abandoned her and the Child in XXX of 2020, the Defendant has written to her, by text message and by Facebook messenger, where in he acknowledged that Child as his daughter. She argues that a prior Paternity Petition, filed in the Suffolk County Family Court by the Defendant, was dismissed on XXX, 2022, and that he thereupon filed another Paternity Petition in the Nassau County Family Court on September 12, 2022. She argues that she is in need of support, and that she earned $41,047.60 in 2021. She argues that she was admitted, recently, into a nursing program. She avers that the Child has health insurance through New York State HealthFirst and that she has a policy of insurance through New York State. She argues that the Defendant has not complied with any discovery demands, and that income should be imputed to him. She argues that the parties' bank statements demonstrate that the Defendant was earning $1,500 per week in cash. She seeks counsel fees, arguing that she only paid $1,500 retainer, and she has made total payments of $3,947.52 and that she owes her counsel $2,687.50.
These petitions were both dismissed, see infra.
Defendant's Opposition & Reply:
The Defendant argues that all lawyer fees should be dismissed because there is enough evidence that the Plaintiff committed "paternity fraud" to receive the benefits of child support. He avers that child support cannot be assigned because of a fraudulent action by the Plaintiff, and that his divorce should be signed as soon as possible. He argues that the Plaintiff should pay for all lawyer fees because she committed paternity fraud, and that he has no relationship with the Child. He lastly argues that the Plaintiff and her counsel has nothing to justify this case of paternity fraud, and he seeks that the Court "drop" this action. In an unsworn attachment to his Affidavit, he avers that God has put this Court in this place to help him, and argues that the Plaintiff deceived him. He wants a DNA test so he can prove the Child's paternity, writing that "... [f]or all the lies she was telling me I want to confirm what she say by testing N. with a DNA test..." He argues that the parties moved into an apartment in February, 2018. He argues that the Plaintiff left to go back to live with her parents, and spent all of her pregnancy with her parents. He argues that he was at the hospital when the Child was born and in his mind, the Child was his biological daughter, and he did "...what is right without knowing the real truth about N. father..." He argues that the Plaintiff filled out all of the hospital's paperwork, and he was not present at that time. He argues that he did not sign an Acknowledgment of Paternity, and that the Plaintiff added his name knowing he was not the biological father. He argues that, in New York, a person can be charged with paternity fraud if that parent purposefully misled the other parent into believing he or she is the father of the Child. He further argues that the law in New York is that if the Court determines that the person who signed the Acknowledgment of Paternity Form is not the father, the Acknowledgment of Paternity can be vacated. He argues that the hospital staff informed him that the Plaintiff signed all of the paperwork for him. He argues, in effect, that since there is no agreement on paternity, this Court should order a DNA test. He argues that he has not had a relationship with the Child since XXX, 2020. He argues that the Plaintiff perjured herself, and that she has been claiming the child on her income tax returns since 2021. He argues that he only filed joint tax returns because the Plaintiff told him that the Child was his daughter. He argues that he did not know the truth about the Child when he filled out his immigration forms. He argues that he has suffered defamation because the Plaintiff is telling people that he abandoned her.
Plaintiff's Reply:
The Plaintiff argues that the Defendant's opposition and reply contains irrelevant and nonresponsive comments, and that the Defendant refuses to submit a required Statement of Net Worth, tax returns, and refuses to respond to legitimate financial disclosure demands. She argues that he refuses to pay the AFC. She argues that the Defendant's conduct is obstructionist, and that he focuses on one thing: paternity. She seeks an Inquest so the divorce can be finalized. She argues that she is currently twenty-five years old, has a small salary, and is the sole support of the Child. She argues that the Defendant's conduct is outrageous and frivolous. She believes the Defendant used her to obtain a green card. She argues that she did not forge the Defendant's name at the hospital at the Child's birth and the Defendant never moved to correct the documents. She argues that the Defendant only raised the issue of paternity when she raised the issue of child support. She argues that the Defendant previously asked to visit with the Child and previously referred to her as his daughter.
AFC's Contentions:
The AFC argues in favor of a presumption of legitimacy of the Child, and that a child born during the marriage is presumed to be the biological product of the marriage and that this presumption is one of the strongest and most persuasive known to the law. The AFC argues that the Defendant has not interposed the required Affidavit of Non-Access, and that the genetic marker testing statute calls for a best interests analysis, where the presumption is a factor to be considered. The AFC argues that New York law is designed to prevent children from being fatherless, and that the granting of the Defendant's application would render the child fatherless, as no other putative father has been named nor has appeared. The AFC argues that the Child was born during the marriage, and fifteen months into the marriage, meaning that the parties were married at the time of not only the marriage, but conception as well. The AFC argues that the Defendant's name is on the birth certificate, he has not named any putative father, and no putative father has made any claims. The AFC argues, in addition, that the Defendant has not claimed non-access. The AFC avers that the Defendant is seeking to, in effect, avoid paternity to save himself from a support obligation. The AFC avers that he has made only generalized statements of infidelity. Lastly, the AFC sets forth that the Defendant has not paid his share of her retainer pursuant to the AFC's Order of Appointment.
DISCUSSION/ANALYSIS
Motion Sequence No.: 001:
DNA TESTING
The Law-DNA Testing
Courts have the authority pursuant to CPLR § 3121 to order blood testing where the legitimacy of a child is questioned. Vito L. v. Filomena L., 172 A.D.2d 648 (2d Dept. 1991). CPLR § 3121(a) provides:
After commencement of an action in which the mental or physical condition or the blood relationship of a party, or of an agent, employee or person in the custody or under the legal control of a party, is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician, or to produce for such examination his agent, employee or the person in his custody or under his legal control.
The Family Court Act also provides for DNA testing and the parameters with respect to such tests. § 532(a) provides:
The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the court's own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman. (emphasis added).
Additionally, § 418(a) provides similar language:
The court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman.
If paternity is in issue, the Court is required to order biological tests unless it relies upon the best interests of the child exception and, if so, it must justify its refusal to order such tests. Onorina C.T. v. Ricardo R.E., 172 A.D.3d 726 (2d Dept. 2019) (emphasis added). If the presumption of legitimacy applies, the Court must proceed to an analysis of the best interests of the child before deciding whether to order a test. Onorina C.T., 172 A.D.3d at 728; see also Mario WW. V. Kristin XX., 149 A.D.3d 1227 (3d Dept. 2017). Therefore, this Court is not required to order a DNA or genetic marker test if it is not in the best interests of the child to order such a test. Inasmuch as the Plaintiff, and the Attorney for the Child, have both interposed defense(s) to the Defendant's application for DNA testing, the Court must consider those defense(s) against the Defendant's request for DNA testing before ordering such a test (see Family Court Act §§ 418(a), 532(a)). Both the presumption of legitimacy and equitable estoppel are raised as defenses.
Presumption of Legitimacy
The Court first addresses the presumption of legitimacy. The relevant text of Domestic Relations Law § 24(1) provides:
A child heretofore or hereafter born of parents who prior or subsequent to the birth of such child shall have entered into a civil or religious marriage...is the legitimate child of both birth parents notwithstanding that such marriage is void or voidable or has been or shall hereafter be annulled or judicially declared void.
In addition, Family Court Act § 417 provides the following:
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 this article regardless of the validity of such marriage.
A child born during a marriage is presumed to be the biological product of the marriage. Matter of Beth R. v. Ronald S., 149 A.D.3d 1216 (3d Dept. 2017); see also Matter of Barbara S. v. Michael I., 24 A.D.3d 451 (2d Dept. 2005); see also Matter of Walter G. v. Isabel L.A., 179 A.D.3d 680 (2d Dept. 2020); see also Matter of Ariel G. v. Greysy C., 133 A.D.3d 749 (2d Dept. 2015). Writing on this presumption, as Chief Judge Cardozo once reasoned, "...potent, indeed, the presumption is, one of the strongest and most persuasive known to the law..." In re Findlay, 253 NY 1 (1930). The standards for overcoming the presumption, though softened over time by the sway of reason, remain high. Matter of L.M., 6 Misc.3d at 155. The presumption does not consecrate as truth the extravagantly improbable. In re Findlay, 253 NY at 8. The presumption is not intended to suppress the truth and perpetuate a falsehood, but the presumption prevails unless common sense and reason are outraged by a holding it abides. Shu Jun Zhu v. Bin Pan, 2017 NY Misc. LEXIS 1265 (Supreme Court Queens County 2017).
This presumption may be rebutted by clear and convincing evidence excluding the husband as the father or otherwise tending to disprove legitimacy. Matter of Barbara S. V. Michael I., 24 A.D.3d 451 (2d Dept. 2005); see also Walker v. Covington, 287 A.D.2d 572 (2d Dept. 2001). The evidence of illegitimacy must be more than simply preponderant; it must be clear and convincing. Irma N. v. Carlos A.F., 46 A.D.2d 893 (2d Dept. 1974). Alternatively, or in addition, the presumption may be rebutted by clear and convincing evidence of non-access by one or both of the spouses. Matter of Marilu T. v. Jose C., 31 Misc.3d 1206 (A) (Family Court Queens County 2011). Here, there is no factual dispute that the parties were married on XXX, 2017, and there is no factual dispute that the subject Child was born on XXX, 2018. Therefore, the subject Child was born during the marriage, and is entitled to the presumption of legitimacy. The Court additionally notes a fact of particular import: that there is approximately fifteen (15) months and five (5) days between the date of the parties' marriage and the date of birth of the subject Child. Meaning, of course, that not only was the subject Child born during the marriage, but the parties were married at the time of conception of the subject Child.
Since the subject Child was born during the marriage, the Court finds that the burden now shifts to the Defendant to set forth clear and convincing evidence tending to disprove legitimacy or exclude him as the father of the subject Child, which may or may not include evidence of non-access. To rebut the presumption of legitimacy, the challenger must disprove legitimacy by clear and convincing evidence. Matter of Commissioner of Social Servs. v. B.C., 147 A.D.3d 1 (1st Dept. 2016). A husband must overcome the presumption of legitimacy to obtain a paternity test of a child born during marriage. Shu Jun Zhu, 2017 NY Misc. LEXIS 1265. Here, the Defendant seeks the DNA test not to establish that he is the father; rather, as he seeks the DNA test to disprove that he is the biological father of the subject Child. Therefore, he is the challenger of paternity. The Court does not find that he has met his burden.
In finding that the Defendant has not met his burden, the Court notes that the Defendant propounds an unsubstantiated and uncorroborated allegation that the Plaintiff engaged in an extramarital affair. Even proof that a married woman has engaged in an adulterous relationship may not, without more, be sufficient to rebut the presumption of legitimacy. Consrance G. v. Herbert Lewis L., 119 A.D.2d 209 (2d Dept. 1986). Here, there is no proof at all. Incredibly, there is nothing "more" than a veiled and skeletal claim of adultery. The Second Department has held that allegations of adultery present unique issues of proof, which conduct may often be clandestine and out of public view. Agulnick v. Agulnick, 191 A.D.3d 12 (2d Dept. 2020). In this action, there is no corroborating evidence set forth in the Defendant's motion papers. Indeed, after a salient review of same, the Defendant has failed to even allege a time frame during which time the purported affair took place; he has failed to provide this Court with the identity of any alleged third-party, other than himself, who had an affair with the Plaintiff, and he has failed to provide this Court with the identify of any third-party, other than himself, who may be the biological father of the subject Child. There is no Affidavit from any family member stating that the Plaintiff had an adulterous affair. In short, the Defendant's allegation of an extramarital affair on the part of the Plaintiff is conclusory, self-serving, and nonspecific. Such unsubstantiated allegation of infidelity on the part of the Plaintiff as described aforesaid (see supra) militates against ordering a hearing, as he has not proffered or appended evidence to disprove legitimacy and exclude himself as the father. Speculation of an extramarital affair, without more, does not create a factual dispute warranting a hearing.
With respect to non-access, the Court finds that any purported "proof" is woefully deficient. Family Court Act § 531 provides:
The trial shall be by the court without a jury. The mother or the alleged father shall be competent to testify but the respondent shall not be compelled to testify. If the mother is married both she and her husband may testify to nonaccess. If the respondent shall offer testimony of access by others at or about the time charged in the complaint, such testimony shall not be competent or admissible in evidence except when corroborated by other facts and circumstances tending to prove such access. The court may exclude the general public from the room where the proceedings are heard and may admit only persons directly interested in the case, including officers of the court and witnesses. (emphasis added).
As the dissenting Justices held in Cheryl A.B. v. Michael Anthony D.:
The presumption may now be rebutted by clear and convincing evidence that the husband was physically incapable or that the husband lacked access during the relevant period, together with additional evidence, such as a medical test excluding the husband as the natural father or other convincing proof that the natural mother had sexual intercourse during the relevant period only with someone other than her husband. Cheryl A. B. v. Michael Anthony D., 209 A.D.2d 966 (4th Dept. 1994) (Balio, J., dissenting).
The Court notes that the initial moving Affidavit of the Defendant does not contain any indicia, proof or allegation that he did not have access to the Plaintiff at or around the time of conception of the subject Child, or proof, indicia or an allegation that he is physically incapable. The Court notes that in the opposition and reply, the Defendant's Affidavit again contains no indicia that he did not have access to the Plaintiff at or around the time of conception. Additionally, the Defendant has offered no facts, with any degree of specificity, that others had access to the Plaintiff at or around the time charged. Finally, even if the Defendant had (which he has not) offered-up facts lending to a conclusion that others may have had access, the moving papers are entirely devoid of any facts or indicia of corroborating facts and/or circumstances tending to even raise an issue of fact as to whether or not others had access to the Plaintiff.
While the Defendant appends an attachment to his opposition and reply, the Court notes that the attachment is not signed, nor is it sworn to before a notary public, under oath. Assuming, arguendo, that the attachment was signed and sworn to before a notary, it still fails to demonstrate that he did not have access at or about the time charged as alleged, or that others had access at or around the time charged as alleged. While he claims that the Plaintiff spent her "pregnancy" with her parents, it does not allege that the Plaintiff became pregnant or conceived the subject Child while the Defendant did not have access to her, or while others may have had access to her. In addition, the attachment, even if it was signed (which it is not), does not contain any corroboration by other facts and circumstances tending to prove such access. The Defendant has not provided this Court with any degree of specificity that the Plaintiff had sexual intercourse with anyone else other than him during the relevant time period. The Defendant's lack of specificity with respect to access also fails to rise to the level of warranting a hearing.
The Court has an additional concern: without any degree of specificity of the alleged affair, without any degree of specificity as to who alerted him about the alleged affair, and without the identity (or evidence or a suggestion lending to discovery of the identity of any third-party who had the purported affair with the Plaintiff), the Defendant seeks a DNA test. To order a DNA test merely on an unsubstantiated and nonspecific allegation of an adulterous relationship would set a dangerous precedent in matrimonial cases and paternity proceedings. An adaptation of such a concept in a vacuum would open the floodgates of litigation to obtain DNA testing merely upon an allegation by one party that the other party engaged in an extramarital affair. The Court simply cannot ascribe to that logic, nor will the Court set that precedent. Such a precedent would undoubtedly subject innocent children to randomized DNA testing on a whim. That, quite frankly, is not in any child's best interest.
New York Public Policy
The Court, on this application, has also considered New York's public policy. The Court notes that it has always been the policy of the State of New York to prevent the legal process from being used to render children fatherless. Matter of L.M. v. J.S., 6 Misc.3d 151 (Family Court Kings County 2004); see also Menard v. St. Preux, 2004 NYLJ LEXIS 4822 (Family Court Kings County 2004). The best interests of the children are generally served by maintaining their legitimacy and a father should not be permitted to bastardize children born during the marriage for his own self-interest. Hammack v. Hammack, 291 A.D.2d 718 (3d Dept. 2002); Commissioner of Social Services v. Jose M., 10 A.D.3d 498 (1st Dept. 2004).
Family Court Act article 5 does not authorize any person to originate a proceeding in Family Court to illegitimize a child. Donald FF v. Jennifer FF, 273 A.D.2d 733 (3d Dept. 2000); see also Matter of C.R. v. Y.P., 2020 NY Misc. LEXIS 2290 (Family Court Bronx County 2020). In fact, Family Court Act § 522, entitled "persons who may originate proceedings", reads, in pertinent part:
Proceedings to establish the paternity of the child and to compel support under this article may be commenced by the mother, whether a minor or not, by a person alleging to be the father, whether a minor or not, by the child or child's guardian or other person standing in a parental relation or being the next of kin of the child, or by any authorized representative of an incorporated society doing charitable or philanthropic work, or if the mother or child is or is likely to become a public charge on a county, city or town, by a public welfare official of the county, city or town where the mother resides or the child is found.
Here, under the guise of a DNA test to establish paternity, the Defendant seeks to disprove paternity of the subject Child. In this regard, the Defendant's Order to Show Cause clearly states "... N. is not my daughter..." Not only does the Defendant seek to disprove the legitimacy of the subject Child (rather than establish it), but his application seeks to, in effect, illegitimize this Child, as he asserts that the Child is not his. Coupled with that skeletal claim, he produces no evidence which would tend to disprove his status as the biological father, nor does he offer any hint of who the Child's biological father could be. Of course, an unintended consequence of the granting of the Defendant's application could possibly yield a result where this subject Child may be left fatherless and illegitimzed. That is contrary to this State's longstanding public policy of avoidance of that result, see Matter of L.M., supra, and public policy strongly favors the legitimacy of children. See Wendy G-M. v. Erin G-M., 45 Misc.3d 574 (Supreme Court Monroe County 2014); see also Humphreys v. Humphreys, 1995 NYLJ LEXIS 1748 (Supreme Court Suffolk County 1995).
Best Interests
§ 532(a) of the Family Court Act, supra, clearly provides, with respect to DNA testing, that "... no such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman..." The legal quandary for the Court, therefore, is whether or not the best interests of the child standard (see generally Matter of Ross v. Ross, 185 A.D.3d 595 (2d Dept. 2020)) which generally requires a hearing (see generally S.L. v. J.R., 27 N.Y.3d 558 (2016)) in custody and visitation cases requires the Court to conduct a hearing in cases involving applications for DNA testing. For the reasons that follow herein, the Court concludes, under the specific facts and circumstances of this case, and on this Record, that a hearing is not necessary to determine that the Defendant is not entitled to a DNA test to disprove paternity.
Even the Court of Appeals in S.L., supra, declined to adopt a hard-and-fast rule regarding hearings in custody cases, writing that the "general" right to a hearing in custody cases is not absolute. S.L., 27 N.Y.3d at 563. Indeed, the Court of Appeals explained:
Our precedent makes clear that custody determinations should generally be made only after a full and plenary hearing and inquiry. This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child. Wherever possible, custody of children should be established on a long-term basis; children should not be shuttled back and forth between divorced parents" merely because of changed circumstances so long as the custodial parent has not been shown to be unfit. Given the goals of stability and permanency, as well as the weight of the interests at stake, the societal cost of even an occasional error in a custody proceeding is sizeable. Custody determinations therefore require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child. The value of a plenary hearing is particularly pronounced in custody cases in light of the subjective factors-such as the credibility and sincerity of the witnesses, and the character and temperament of the parents-that are often critical to the court's determination. Id. at 563.
Here, the Court distinguishes the general right to a hearing in a custody and visitation proceedings from this one inasmuch as there is, here, a single and narrow issue before the Court: a DNA test. The purpose of that DNA test on this application? To disprove paternity of a child born during the parties' marriage.
The Court is cognizant of the Court of Appeals case of Matter of Juanita A. v. Kenneth Mark N., when it found that a hearing was needed where the issue was whether a biological father may assert an equitable estoppel defense in paternity and child support proceedings, where another father figure was present in that child's life. Matter of Juanita A. v. Kenneth Mark N., 15 N.Y.3d 1 (2010). The Court of Appeals noted in Matter of Juanita A., as well as in Matter of Shondel J. v. Mark D., 7 N.Y.3d 320 (2006), that the paramount concern applicable in equitable estoppel in paternity and child support proceedings "...has been and continues to be the best interests of the child..." Matter of Juanita A., 15 N.Y.3d at 5. However, in Matter of Juanita A. and Matter of Shondel J., the principle issues therein were equitable estoppel. Here, this Court need not reach the issue of equitable estoppel inasmuch as it has determined that the Defendant has not rebutted the presumption of legitimacy and, consequently, no DNA test need be ordered pursuant to the statute (see Family Court Act § 532[a]).
In fact, so much of § 532(a) reads "... [n]o such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman..." Since that portion of the text of the statute is written in the disjunctive, this Court need not have the presence of all of those factors; rather, only one of those factors (i.e., the presumption of legitimacy) is sufficient to deny an application for DNA testing.
However, here, the Court notes that it is not determining which parent should have custody of this Child; it is not determining the appropriate amount of parental access to the children; it is not determining where the Child will be residing. Additionally, it is not determining the other "factors" when it considers application for custody and parenting time, such as, inter alia, the relative fitness of either party as a parent; which parent can better provide for the child emotionally, physically, or financially; the quality of the home life of the child; or the ability of the parent to foster a relationship between the child and the other parent. Those determinations, and more, are left for another day. While the paramount concern in a paternity proceeding is the child's best interests, see Matter of Fahima A., supra, this Court must ascertain the optimal result for the child (see S.L., supra) (emphasis added). The Court bears in mind the policy to prevent children from being rendered fatherless (see Matter of L.M. supra) and that the best interests of the children are generally served by maintaining their legitimacy (see Hammack, supra). In addition, the Court does not need live testimony from these parties to ascertain their sincerity and temperament in this scenario, given what is sought: a DNA test. The optimal result for the Child is to maintain legitimacy.
This Court will not ascribe to any notion that a hard-fast rule that a hearing is necessary in every case and on every application seeking DNA testing; a better approach is, of course, to take a more measured and fact-specific approach. This Court need not hold a separate hearing to determine that the best interests of this Child-who bears the last name of the Defendant-will be better served by maintaining her legitimacy and not even opening up the door to leaving her fatherless. Further, this Court concludes that this Child's status as legitimate far outweighs any claim of prejudice that may befall the Defendant, as the focus in these types of cases is not on him; rather, the focus is on this very young child, who is the collateral consequence of this application. This is especially true in this case, based upon the facts presented on this application, where the Defendant has offered no alternative as to who could be this Child's father, and the Defendant has not provided this Court with a sufficient probability that another man is or will be named the father of this Child. The Defendant seems to be of the belief that the Plaintiff had an extramarital affair. The Court is cognizant of the Defendant's emotions. But without more than mere speculation, the Court concludes that the best interests of the child-the focal point of this application-are far better served by maintaining her legitimacy and not subjecting her to unnecessary testing. The Court has reviewed and carefully considered the Plaintiff's response to the allegation of an extramarital affair. That allegation is not only denied under the penalties of perjury, but the Plaintiff herself has sworn, under oath, that she has not engaged in sexual intercourse with any other man other than the Defendant either before, during or after the parties' marriage. The Court emphasizes here, that the focal point is not on the discord or fractured relationship between the parties, but the focus is on the legitimacy and best interests of the Child.
The Court has considered the other facts and circumstances of this matter as well in its best interests determination herein. The Court has reviewed the parties' jointly filed 2019 income tax return. It is undisputed that the parties jointly claimed the child on their tax returns, and listed the Child as their "daughter" on their jointly filed income tax return. A party to litigation may not take a position contrary to a position taken in an income tax return. Mahoney-Buntzman v. Buntzman, 12 N.Y.3d 415 (2009). IRS regulations require that a tax return contain, or be verified by, a signed declaration by the taxpayer that it is made under the penalties of perjury. Meyer v. Insurance Co. of America, 1998 U.S. Dist. LEXIS 15863 (U.S. District Court Southern District 1998). Since it is undisputed that the parties filed a joint tax return wherein the subject Child was claimed thereon as a "daughter", the Court likewise relies upon same.
The Court additionally notes that this matrimonial action was commenced on May 9, 2022 (see NYSCEF Document No.: 01), and that service was effectuated on him on May 13, 2022 (see NYSCEF Document No.: 02). The Defendant's first paternity petition was dated June 16, 2022, subsequently dismissed by Order of Dismissal dated September 7, 2022 (Jennifer Ann Mendelsohn, Support Magistrate), and his second paternity petition was dated September 12, 2022, subsequently dismissed by Order of Dismissal dated November 28, 2022 (Nadine J. Satterthwaite, Support Magistrate). The Court critically notes that both paternity petitions were filed after the service of the Summons, and there is no proof before this Court that the Defendant interposed a challenge to paternity prior to the commencement of this matrimonial action.
Suffolk County Family Court File No.: 180742, Docket No.: P-08725-22.
Nassau County Family Court, File No.: 626195, Docket No.: P-07913-22.
The Court has, additionally, reviewed the text messages and Facebook messages appended to the Plaintiff's cross-motion. The Court likewise notes that the Defendant does not deny sending any of the text messages or Facebook messages to the Plaintiff. For instance, the Defendant wrote on December 24, 2020 "...I abandoned you and my daughter..." Additionally, on December 24, 2020, he wrote "Love N. is my daughter..." On November 8, 2021, he wrote "Give a kiss to N. for me! Is she still remember me?" On November 25, 2022, he referred to N. as "... my little girl..." On December 3, 2021, he wrote "...[l]ook you know that I did my part as a dad..." On August 6, 2022, he wrote "Tell N. that I still love her badly!" The Defendant has, in writing, asserted that the subject Child is his biological child. The Defendant does not deny that he is named as the father on the Child's birth certificate, and he does not deny being present during the child's birth. Furthermore, the Child bears the surname of the Defendant as listed on her birth certificate.
As a final point, the Court does not wish to give this Child a memory, at this stage in her life, of sitting for a DNA test based upon a skeletal and speculative claim of infidelity without any degree of specificity. The emotional states of children are, often times, precious and sensitive. To subject this Child to such a test is contrary to her best interests.
In view of all of that which is set forth herein, the Court makes a finding that it is not in the child's best interests to order her to submit to DNA testing (see Family Court Act 532(a)). This best interests finding is limited to the application seeking to compel the Child to submit to a DNA test, and shall not be dispositive on the ultimate issues of custody and visitation.
Equitable Estoppel
Because the Court has found that the Defendant has failed to meet his burden disproving the presumption of legitimacy of the subject Child, the Court need not reach the issue of equitable estoppel.
Paternity Fraud
The Defendant, in effect, argues that the Plaintiff committed paternity fraud. The Court is cognizant of the Second Department's holding in Matter of Westchester County Dept. of Social Servs. v. Robert W.R., wherein that Court held that:
"... we hold that Family Court Act § 516-a (b) requires the court to conduct a hearing before ordering a GMT to determine the issues of fraud, duress, or material mistake of fact upon receiving a challenge to an acknowledgment of paternity made more than 60 days following its execution. We further hold that where a party meets his or her burden in establishing fraud, duress, or material mistake of fact, the court is then required to conduct a hearing on the best interests of the child before ordering a GMT..." Matter of Westchester County Dept. of Social Servs. v. Robert W.R., 25 A.D.3d 62 (2d Dept. 2005).
Family Court Act § 516-a(a) & (b)(i) provide:
(a) An acknowledgment of parentage executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law shall establish the parentage of and liability for the support of a child pursuant to this act. Such acknowledgment must be reduced to writing and filed pursuant to section four thousand one hundred thirty-five-b of the public health law with the registrar of the district in which the birth occurred and in which the birth certificate has been filed. No further judicial or administrative proceedings are required to ratify an unchallenged acknowledgment of parentage.
(b) (i) Where a signatory to an acknowledgment of parentage executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law had attained the age of eighteen at the time of execution of the acknowledgment, the signatory may seek to rescind the acknowledgment by filing a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial proceeding (including, but not limited to, a proceeding to establish a support order) relating to the child in which the signatory is a party. For purposes of this section, the "date of an administrative or a judicial proceeding" shall be the date by which the respondent is required to answer the petition.
In addition, Social Services Law § 111-k(1)(a) provides:
1. A social services official or his or her designated representative who confers with a potential respondent or respondent, hereinafter referred to in this section as the "respondent", the mother of a child born out of wedlock and any other interested persons, pursuant to section one hundred eleven-c of this title, may obtain:
(a) an acknowledgment of parentage of a child, as provided for in article five-B or section five hundred sixteen-a of the family court act, by a written statement, witnessed by two people not related to the signator or as provided for in section four thousand one hundred thirty-five-b of the public health law. Prior to the execution of such acknowledgment by the child's mother and the respondent, they shall be advised, orally, which may be through the use of audio or video equipment, and in writing, of the consequences of making such an acknowledgment. Upon the signing of an acknowledgment of parentage pursuant to this section, the social services official or his or her representative shall file the original acknowledgment with the registrar.
The Court distinguishes all of the aforesaid, including the holding in Robert W.R., from this matter. In Robert W.R., the subject child therein was born out of wedlock and there was an acknowledgment of paternity executed. Robert W.R., 25 A.D.3d at 63. Here, as distinguished from Robert W.R., and as distinguished from Social Services Law § 111-k(1)(a), the subject Child herein was born during the parties marriage and the parties were married to each other at the time of conception. Additionally, as the challenger of paternity of this Child, the burden is on the Defendant to prove such paternity fraud. The Court notes that the Defendant fails to produce to this Court a copy of any signed Acknowledgment of Paternity. Likewise, even if the Defendant was a signatory to an Acknowledgment of Paternity, he has not sought to vacate the Acknowledgment of Paternity pursuant to Family Ct Act § 516-a(b). Lastly, even if the Defendant had executed an Acknowledgment of Paternity, and even if he had moved, as the signatory, to vacate the Acknowledgment of Paternity, the Court finds that his conclusory and unsubstantiated allegations of fraud and infidelity are insufficient, without more specificity, to warrant a hearing on the issue.
Even in the CPLR, any alleged fraud must be plead with particularity. CPLR § 3016(b) provides:
(b) Fraud or Mistake. Where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail.Here, no such detail, and no such specificity, is plead in the Defendant's moving papers. The Court does not find that an allegation of infidelity, without particularizing, at least, the time of the alleged infidelity and the possible persons with whom the infidelity occurred, is sufficiently plead to warrant a hearing.
Conclusion
Accordingly, and for all of the foregoing reasons, it is hereby:
ORDERED, that so much of the Defendant's Order to Show Cause dated October 25, 2022 which seeks a DNA test be and is hereby DENIED.
COURT-APPOINTED COUNSEL
During this action (which was commenced on May 9, 2022), the Defendant has refused to submit any documentary evidence of his finances. He has failed to submit a tax return; a W-2 Statement, Form 1099, Schedule K-1, or any other tax reporting documents reflecting indicia of his income, or a current representative pay check stub. Additionally, and despite the Order Directing Preliminary Conference, the Preliminary Conference Stipulation & Order, and the compulsory financial disclosure provisions of DRL § 236(B)(4), he has failed to file a sworn Statement of Net Worth. For all of the foregoing reasons, this Court is unable to determine or ascertain whether or not he would otherwise qualify for court-appointed counsel. Accordingly, it is hereby:
This action has now been pending for approximately eleven (11) months.
However, and as an aside, the Court does note that the Defendant has not challenged, nor disputed, the Plaintiff's assertions that the Defendant earns $1,500.00 per week in cash. That sum, extrapolated over twelve (12) months, totals $78,000.00 per annum.
ORDERED, that so much of the Defendant's Order to Show Cause dated October 25, 2022 which seeks court-appointed counsel be and is hereby DENIED without prejudice and with leave to renew upon the submission of sufficient financial documentation.
VACATUR OF ORDER APPOINTING ATTORNEY FOR THE CHILD
The Defendant seeks, in effect, vacatur of the Order Appointing Attorney for the Child. The Court finds that the AFC is an indispensable part of the custody and parental access portions of this contested matrimonial action, as the appointment of an attorney for the child in a contested custody matter is the strongly preferred practice. O'Mahoney v. O'Mahoney, 206 A.D.3d 819 (2d Dept. 2022) (emphasis added). In addition, as the Second Department once held, "...[t]he existence of custody litigation, by itself, can create trauma and uncertainty for the child, as well as trauma, uncertainty, and expense for the parents..." Matter of Newton v McFarlane, 174 A.D.3d 67 (2d Dept. 2019). Here, and similarly to Matter of Newton, the Court finds that the application of the Defendant could have caused this Child trauma and uncertainty. In addition to the necessity for the AFC on the custodial issues of this matter, the Court also finds that the AFC is an indispensable part-and has zealously represented, advocated for and protected her client-on the Defendant's application for DNA testing. Accordingly, it is hereby:
ORDERED, that so much of the Defendant's Order to Show Cause dated October 25, 2022 which seeks vacatur of the Order Appointing Attorney for the Child be and is hereby DENIED.
Motion Sequence No.: 002:
CHILD SUPPORT
Basic Child Support
It is undisputed that the child resides with the Plaintiff. An award of child support is payable to the custodial parent by the non-custodial parent (D.R.L. §240[1-b][f]). See also Papier v. Papier, 274 A.D.2d 806 (3d Dept. 2000) (writing that "...[a]s a general rule, a custodial parent-including a "de facto" custodial parent (see, e.g., De Arakie v De Arakie, 169 A.D.2d 660 (1st Dept. 1991))-is entitled to interim child support during the pendency of a divorce action..."). The Court notes, however, that the Defendant has not submitted and has defaulted in submitting any financial documentation. He has failed to submit tax returns, tax reporting documents, a pay check stub, proof of his income, or a Statement of Net Worth. In addition, the Court notes that the Defendant does not, in his principal moving papers or in his opposition and reply, provide this Court with any indicia of his true income. Accordingly, and at this juncture, and in light of the Defendant's failure to submit compulsory financial disclosure pursuant to DRL § 236(B)(4), which renders the financial information on this application to be insufficient, the Court elects to undertake a needs-based analysis. DRL § 240(1-b)(k) provides:
(k) When a party has defaulted and/or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order child support based upon the needs or standard of living of the child, whichever is greater. Such order may be retroactively modified upward, without a showing of change in circumstances.
Where a party presents insufficient evidence to determine his or her gross income, a court may properly award child support based upon the needs and standard of living of the child. See generally Mayer.v Mayer, 291 A.D.2d 384 (2d Dept. 2002); see also Amsellem v. Amsellem, 15 A.D.3d 510 (2d Dept. 2005).
To undertake a needs-based analysis, the Court must review the Plaintiff's Affidavit, the supporting exhibits, as well as the Plaintiff's Statement of Net Worth, in order to ascertain the standard of living or the needs of the child. The Court notes that there is a paucity of information regarding the standard of living of the parties in the moving papers. The Plaintiff's Statement of Net Worth appended to her application (see NYSCEF Document No.: 26) reflects total monthly expenses of $3,151. The Court notes that the Plaintiff has no housing expenses and utilities of only $135.00, which include $35.00 for a mobile phone and $100.00 for internet expenses. The aggregate food expenses listed thereon are $550.00. The Plaintiff lists the child's clothing expenses of $75.00 per month, with an additional (and unsubstantiated) $80.00 listed as "other." There are no expenses listed under "household maintenance", only $100.00 per month listed in automotive expenses as an unexplained and unsubstantiated expense, college education costs of $938 (presumably for the Plaintiff herself and not the child), $50.00 per month listed for movies, theatre and ballet, $600.00 per month for birthday party costs, $20.00 per month listed as toiletries and non-prescription drugs, $20.00 for books and magazines, $50.00 as gifts to others, and $85.00 per month in charitable contributions.
The Court notes that shelter costs, like food and clothing, inhere in the basic child support obligation. Iacono v. Iacono, 145 A.D.3d 972 (2d Dept. 2016). The Court therefore elects, at this juncture, to award the sum of $445.00 per month as and for basic child support. This sum takes into account contribution to a portion of the internet utilities, half of the listed food expenses, the child's clothing expenses, half of the amount listed for movies, half of the amount listed for toiletries, and half of the amount for books and magazines. Any perceived inequity in this support order can be remedied at trial, at which time the parties' financial circumstances can be fully explored. Margolin v. Margolin, 117 A.D.3d 996 (2d Dept. 2014); see also Conyea v. Conyea, 81 A.D.3d 869 (2d Dept. 2011). Accordingly, it is hereby:
ORDERED, that so much of Branch (2) of the Plaintiff's Notice of Cross-Motion dated January 9, 2023 which seeks an award of basic child support be and is hereby GRANTED TO THE EXTENT that the Defendant shall pay to the Plaintiff, as and for pendente lite basic chid support on behalf of the child, the sum of $445.00 per month, commencing on the first (1st) day of the first full month following the date of this Decision and Order, and payable prospectively and continuing on the first (1st) day of each month thereafter, retroactive to the date of this application: January 9, 2023; and it is further
ORDERED, that retroactive sums due by reason of this pendente lite award shall be paid at the rate of $100.00 per month in addition to the sums awarded until all arrears have been satisfied. The Defendant is entitled to a credit for sums paid for child support incurred after the making of this cross-motion and prior to the date of this Decision and Order for which he has cancelled checks or other similar proof of payment (See Peltz v. Peltz, 56 A.D.2d 519 (1st Dept. 1977); Pascale v. Pascale, 226 A.D.2d 439 (2d Dept. 1996)).
Child Care Expenses
With respect to child care expenses, pursuant to the CSSA, where the custodial parent incurs child care expenses as a result, inter alia, of employment or vocational training, the noncustodial parent may be required to pay his or her proportionate share of such expenses as a supplement to the basic support obligation, and such expenses shall be prorated in the same proportion as each parent's income is to the combined parental income (Domestic Relations Law § 240 [1-b] [c] [4]; see McBride v McBride, 238 A.D.2d 320, 321, 656 N.Y.S.2d 290 [2d Dept. 1997]). See Matter of Wallin v. Wallin, 53 A.D.3d 663 (2d Dept. 2008).
While the Court conducted a needs-based analysis for basic support, the Court must determine how to pro rate the statutory add-on expenses set forth herein. In her cross-moving Affidavit, the Plaintiff asserts that the Defendant earns $78,000.00 per year, either predominantly, or all, in cash. The Court has carefully reviewed the Defendant's opposition and reply, and notes that he does not deny the Plaintiff's assertion with respect to his earnings, nor has he submitted any documentary evidence indicative of his income or earnings (see supra). Facts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted. Vardaros v. Zapas, 24 Misc.3d 1247 (A) (Supreme Court Queens County 2009); see also Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539 (1975). For purposes of computing add-on expenses, the Court utilizes the sum of $78,000.00 for the Defendant's income and $37,907.46 for the Plaintiff's income. The combined parental income is $115,907.46. The Plaintiff's pro rata share of the combined parental income is 33% and the Defendant's pro rata share of the combined parental income is 67%. Accordingly, it is hereby:
$41,047.60 (gross income) - $2,544.95 (FICA Social Security) - $595.19 (FICA Medicare) = $37,907.46 (gross CSSA income).
$37,907.46 + $78,000.00 = $115,907.46.
ORDERED, that so much of Branch (2) of the Plaintiff's Notice of Cross-Motion dated January 9, 2023 which seeks contribution towards child care expenses be and is hereby GRANTED TO THE EXTENT that the Defendant shall pay 67% of any child care costs and expenses and the Plaintiff shall pay 33% of any child care costs and expenses necessitated by the Plaintiff's employment or vocational training.
Uninsured/Unreimbursed Health Care Expenses
With respect to unreimbursed health care expenses, pursuant to Domestic Relations Law § 240 (1-b)(c)(5)(v), each parent's share of unreimbursed health care expenses is to be prorated in the same proportion as each parent's income is to the combined parental income. See generally Castello v. Castello, 144 A.D.3d 723 (2d Dept. 2016). Accordingly, it is hereby:
ORDERED, that so much of Branch (2) of the Plaintiff's Notice of Cross-Motion dated January 9, 2023, which seeks contribution to the child's unreimbursed health care expenses be and is hereby GRANTED TO THE EXTENT that the Defendant shall pay 67% and the Plaintiff shall pay 33% of the unemancipated child's unreimbursed health care expenses, provided either in network providers are utilized, absent an emergency, or the provider is already treating the child.
Life Insurance
The Plaintiff seeks an order directing the Defendant to obtain a life insurance policy. The Court has the authority to order a party to obtain a life insurance policy as a means of securing future support (see DRL 236(B)(8)(a)), but DRL 236 does not require the Court to make such an order. See V.Z.V. v. K.P.V., 28 Misc.3d 1215 (A) (Supreme Court Queens County 2010). See also DRL 236(B)(8)(a) ("...[i]n any matrimonial action the court may order a party to purchase, maintain or assign a policy of insurance providing benefits for...children of the marriage not to exceed such period of time as such party shall be obligated to provide...child support..."). The Court finds the application premature at this time, inasmuch as the amount of pendente lite support has been calculated on a needs-based analysis at this time based upon the lack of financial documentation before it. This portion of the application is deferred to trial. Accordingly, it is hereby:
ORDERED, so much of Branch (2) of the Plaintiff's Notice of Cross-Motion dated January 9, 2023, which seeks a directive that the Defendant obtain a life insurance policy be and is hereby REFERRED TO TRIAL.
HEALTH INSURANCE
The Plaintiff's Statement of Net Worth reflects that she has health insurance through HealthFirst Medicaid, and that the Child has health insurance through HealthFirst Child Health Plus. Neither party has presented evidence nor information to this Court if health insurance is available through either of their employers or whether or not such insurance is unavailable to them (see DRL 240(1-b)(c)(5)(ii) & (iii)). Accordingly, it is hereby:
ORDERED, that Branch (3) of the Plaintiff's Notice of Cross-Motion dated January 9, 2023 be and is hereby DENIED without prejudice and with leave to review upon the submission of proper papers with appropriate documentation.
BIRTH CERTIFICATE
The Court notes that the Defendant heretofore interposed an application for a DNA test of the subject Child, and has asserted, in effect, that the subject Child is not his daughter. The court therefore sees no legal or cognizable basis as to why the original birth certificate of the Child - who he is contesting paternity of - should not be held by the Plaintiff, the de facto residential parent. Accordingly, it is hereby:
ORDERED, that Branch (4) of the Plaintiff's Notice of Cross-Motion dated January 9, 2023 be and is hereby GRANTED, and, within seven (7) days of the date of this Decision and Order, the Defendant shall return the subject Child's original birth certificate to the Plaintiff.
COMPLIANCE WITH THE AFC ORDER
The Order Appointing Attorney for the Child remains in full force and effect and is unmodified, nor has it been vacated herein (see supra). The Court expects compliance with its orders. In addition, the Court notes that the Defendant does not dispute his noncompliance with the aforesaid Order. Accordingly, it is hereby:
ORDERED, that Branch (5) of the Plaintiff's Notice of Cross-Motion dated January 9, 2023 be and is hereby GRANTED TO THE EXTENT that the Defendant shall remit his share of the AFC's retainer payment pursuant to the Order Appointing Attorney for the Child within seven (7) days of the date of this Decision and Order; and it is further
ORDERED, that the Defendant shall provide proof of compliance with the Order Appointing Attorney for the Child within seven (7) days of the date of this Decision and Order.
DISCOVERY SANCTIONS
The Plaintiff seeks the imposition of various discovery sanctions against the Defendant. CPLR § 3126, entitled "[p]enalties for refusal to comply with order or to disclose", provides:
If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:
1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or
2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or
3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.
Case law dictates that "... the nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who refuses to comply with court-ordered discovery is a matter within the discretion of the court" (Green v Green, 32 A.D.3d 898, 899; quoting Mahopac Ophthalmology, P.C. v Tarasevich, 21 A.D.3d 351, 352; Casey v. Casey, 2007 NY Slip Op 3089, 2 [NY A.D.2d Dept. 2007]). The case-law is also clear that preclusion is a drastic remedy. See generally Pepsico, Inc. v. Winterthur Intl. Am. Ins. Co., 24 A.D.3d 742 (2d Dept. 2005); see generally Assael v. Metro. Transit Auth., 4 A.D.3d 443 (2d Dept. 2004); see generally Moog v. City of New York, 30 A.D.3d 490 (2d Dept. 2006). A preclusion order effectively results in the striking of a pleading. See Vancott v. A&P, 271 A.D.2d 438 (2d Dept. 2000); see Partterson v. NY City Health & Hosps. Corp., 284 A.D.2d 516 (2d Dept. 2001); see Goodmanm Rackower & Agiato v. Lieberman, 260 A.D.2d 599 (2d Dept. 1999). To invoke the remedy of a preclusion order, the court must determine that the party's failure to comply with a disclosure order was the result of willful, deliberate and contumacious conduct or its equivalent. See Cianciolo v. Trism Specialized Carriers, 274 A.D.2d 369 (2d Dept. 2000); see Florio v. Newmark & Lewis, 248 A.D.2d 504 (2d Dept. 1998).
The trial court is vested with broad discretion to supervise disclosure. See generally Bertalo's Restaurant v. Exchange Ins. Co., 240 A.D.2d 452 (2d Dept. 1997); see Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., 11 N.Y.3d 843 (2008); see Flynn v. City of New York, 101 A.D.3d 803 (2d Dept. 2012). Generally, there should be broad financial disclosure in matrimonial actions in which equitable distribution is sought to enable the parties to ascertain the nature and value of marital assets, as well as to uncover potential hidden assets. See generally Antreasyan v. Antreasyan, 245 A.D.2d 405 (2d Dept. 1997); see Kramer v. Kramer, 227 A.D.2d 531 (2d Dept. 1996); see Gape v. Gape, 125 A.D.2d 637 (2d Dept. 1986).
The Court notes the Plaintiff's unrefuted assertion that the Defendant has not provided any discovery responses. The Court notes that the Order Directing Preliminary Conference directed that Statements of Net Worth and other financial documents as ordered therein be produced on or before the Preliminary Conference dated of June 16, 2022. The Court further notes that pursuant to the Preliminary Conference Stipulation and Order, which was so ordered on June 16, 2022, the Defendant's Statement of Net Worth was to be filed by July 1, 2022, financial document production was to be produced not later than forty-five (45) days of the date of that order, and discovery notices were to be complied with on or before August 31, 2022. In addition, depositions were to be conducted, pursuant to that order, on or before September 20, 2022. The Court's Certification Order, issued on October 14, 2022, directed that notices for discovery and inspection be complied with by November 28, 2022, and that depositions be conducted on or before December 30, 2022. The Court additionally notes that the Plaintiff's First Notice for Discovery & Inspection was to be complied with by the Defendant on or before November 1, 2022.
Furthermore, the Court finds that the Plaintiff has demonstrated compliance with 22 NYCRR 202.7(a) & (c), as the documentary evidence appended to the Plaintiff's motion papers reflects that on July 19, 2022, August 11, 2022 and August 30, 2022, the Plaintiff's counsel attempted, in good faith, to obtain compliance with the various aforesaid orders by attempting to obtain a copy of the Defendant's Statement of Net Worth and other financial documentation. In short, no financial documentation has been produced by the Defendant, in contravention of the various orders of this Court. While the Court understands that the Defendant is a pro se litigant, such self-represented status does not abrogate or excuse his responsibility to provide (court ordered) and compulsory financial disclosure.
The Court will, in any event, fashion an appropriate remedy, and provide the Defendant with one final opportunity to cure his discovery recalcitrance. In this vein, the Court provide the Defendant with an additional sixty (60) days to provide compulsory financial documentation, court ordered documentation, and responses to the Plaintiff's discovery demands. A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order (Naiman v Fair Trade Acquisition Corp., 152 A.D.3d 779, 780, 59 N.Y.S.3d 414 [2017]). With this conditioning, the court relieves itself of the unrewarding inquiry into whether a party's resistance was wilful (Gibbs v St. Barnabas Hosp., 16 N.Y.3d 74, 82, 942 N.E.2d 277, 917 N.Y.S.2d 68 [2010], quoting Siegel, NY Prac § 367 at 608 [4th ed 2005]). When a plaintiff fails to timely comply with a conditional order of preclusion, the conditional order becomes absolute. Felice v. Metropolitan Diagnostic Imaging Grp., LLC, 170 A.D.3d 960 (2d Dept. 960). If he fails to so comply, the conditional discovery sanctions (see infra) will become absolute. The Defendant has not denied his recalcitrance with providing discovery, and the Court will not permit this matter to languish because of such recalcitrance. Accordingly, it is hereby:
ORDERED, that Branches (6), (7) and (8) of the Plaintiff's Notice of Cross-Motion dated January 9, 2023 be and are hereby GRANTED TO THE EXTENT as set forth in this Decision and Order; and it is further
ORDERED, that within sixty (60) days of this Decision and Order, the Defendant shall serve upon the Plaintiff's counsel a formal itemized discovery Response to the Preliminary Conference Stipulation and Order and the Plaintiff's First Notice for Discovery & Inspection with documents appended thereto responsive to each individual request as requested therein or, to the extent such documents do not exist, an individualized response that such documents do not exist; and it is further
ORDERED, that should the Defendant fail to produce such formal Response to the Preliminary Conference Stipulation and Order and the Plaintiff's First Notice for Discovery & Inspection within said sixty (60) day time period as set forth aforesaid, then, in that event, the financial issues to which the information demanded by the Plaintiff and not supplied by the Defendant shall be deemed resolved for the purposes of this action in accordance with the claims of the Plaintiff (see CPLR 3126(1)); and it is further
ORDERED, that should the Defendant fail to produce such formal Response to the Preliminary Conference Stipulation and Order and the Plaintiff's First Notice for Discovery & Inspection within said sixty (60) day time period as set forth aforesaid, then, in that event, the Defendant shall be precluded from offering any evidence or testimony at trial with respect to any documents not produced (see CPLR 3126(2); and it is further
ORDERED, that should the Defendant fail to produce such formal Response to the Preliminary Conference Stipulation and Order and the Plaintiff's First Notice for Discovery & Inspection within said sixty (60) day time period as set forth aforesaid, then, in that event, the portions of the Defendant's Verified Answer with respect to any financial aspect of this matrimonial action shall be deemed stricken (see CPLR 3126(3)).
COUNSEL FEES & SANCTIONS
To this Court, it is clear that the Defendant failed to provide documents, compulsory, court ordered, or separately requested by counsel, which necessitated the instant motion practice. It is also clear to this Court that the Plaintiff was forced to incur counsel fees in connection with the Defendant's application for DNA testing, which the Court finds lacked merit (see supra). An award of counsel fees is, therefore, an appropriate exercise of discretion, as the Defendant's conduct, both with respect to his discovery recalcitrance, refusal to provide compulsory financial documentation, and his application for DNA testing, have all, whether in toto or individually, caused a significant delay in these proceedings. The determination of what constitutes reasonable counsel fees is within the Court's discretion. In determination of an attorney's fee application, the trial court must consider the relative merit of the parties positions, and the tactics of a party in unnecessarily prolonging the litigation. See generally Baron v. Baron, 71 A.D.3d 807 (2d Dept. 2010). See also and see generally Matter of Brink v. Brink, 55 A.D.3d 601 (2d Dept. 2008). The Court has reviewed the Plaintiff's billing statements reflecting a total of $5,400.00 in time charges incurred to date. In addition thereto, the Court finds that the hourly rates charged by the Plaintiff's counsel to be reasonable. The Court will fashion an award of reasonable counsel fees herein in connection with this motion practice.
Accordingly, based upon the facts of this case, the Defendant's conduct, the Plaintiff's retainer agreement and billing statements, and the prevailing case-law, it is herbey:
ORDERED, that Branches (9) and (10) of the Plaintiff's Notice of Cross-Motion dated January 9, 2023 be and is hereby GRANTED TO THE EXTENT that the Defendant shall pay directly to LOIS S. CAMPBELL, ESQ., attorneys for the Plaintiff, the sum of $3,260.00, within thirty (30) days of the date of service of the within Decision and Order with Notice of Entry. The award is made without prejudice to further applications for additional sums as is necessary at the time of trial or sooner . See Ritter v. Ritter, 135 A.D.2d 421 (1st Dept. 1987); Jorgensen v. Jorgensen, 86 A.D.2d 861 (2nd Dept. 1982); and it is further
ORDERED, that upon the failure of Defendant to pay the Plaintiff's counsel as set forth herein above, the Plaintiff's attorneys may file an Affidavit of Non-Compliance with the Clerk of the County, who shall enter a judgment, with statutory interest thereon as of the date of this Decision and Order, in favor of LOIS S. CAMPBELL, ESQ., attorneys for the Plaintiff, and against the Defendant, S.S., without further proceedings.
Any other relief requested not specifically addressed herein is hereby DENIED.
This constitutes the DECISION AND ORDER of this Court.