Opinion
F-08904-07/17D
05-21-2018
In the Matter of a Support Proceeding Seetaram R., Petitioner, v. Pushpawattie M., Respondent.
For the Petitioner, Lance Grossman, Esq.; For the Respondent, Joel Budnetz, Esq.; Attorney for the Child, Steven Greenfield
For the Petitioner, Lance Grossman, Esq.; For the Respondent, Joel Budnetz, Esq.; Attorney for the Child, Steven Greenfield
This action is the latest pitiful attempt on the part of a Father to relieve his child support obligation. The parties are unmarried and have one child in common, Stephanie M. (hereinafter "child" or "Stephanie"), age 18. The parties have been engaged in litigation in family court since 2007. On April 24, 2018, the Court held a hearing on the Father, Seetaram R.'s (hereinafter "Mr. R"), modification petition. Mr. R sought to terminate his child support obligation under two theories, constructive emancipation and parental interference. Both parents were represented by counsel during the trial. Mr. R and the Mother, Pushpawattie M. (hereinafter "Ms. M"), testified. Upon consent, the child's deposition testimony was admitted into evidence. The court took judicial notice of, and received into evidence, numerous documents offered by both parties. For the reasons set forth herein, the Court dismisses Mr. R's petition for failure to meet his burden of proof.
Mr. R filed his modification petition on the date of the commencement of his willfulness hearing at which $15,000.00 of unpaid child support was at stake.
Where a party seeks to modify a child support order, the moving party has the burden to show a substantial change in circumstances. See Riendeau v. Rindeau, 95 AD3d 891, 892 (2d Dep't 2012); Kasun v. Peluso, 82 AD3d 769, 771 (2d Dep't 2011); see also Ish-Shalom v. Wittman, 81 AD3d 648, 648 (2d Dep't 2011); Aranova v. Aranova,77 AD3d 740, 740 (2d Dep't 2010).
PROCEDURAL POSTURE
On May 9, 2007, Ms. M filed a paternity petition seeking to adjudicate Mr. R as Stephanie's father and seeking child support. On June 11, 2009, upon consent, an order was entered charging Mr. R with a $200.00 weekly child support obligation. On June 17, 2008, Mr. R filed a visitation petition which he withdrew on May 23, 2011. On June 22, 2011, Mr. R filed a downward modification petition seeking to decrease his child support obligation. On February 8, 2012, he withdrew that petition.
At the time, Ms. M filed her paternity petition against Ramnaresh R. which she believed to be Mr. R's name. Upon his default, a filiation order was entered against Ramnaresh R.. Thereafter, it was learned that Mr. R's name was Seetaram R. Ms. M filed a motion to correct the filiation order. Support Magistrate Katerina Contaratos granted Ms. M's motion and a filiation order was entered adjudicating Mr. R to be Stephanie's father.
On August 19, 2015, Mr. R filed a second downward modification petition seeking to suspend his child support obligation. On August 31, 2016, he withdrew that petition. On August 5, 2016, eight years after his first visitation petition, Mr. R filed another visitation petition. On January 19, 2017, Mr. R withdrew that petition. On July 14, 2017, Ms. M filed a violation petition seeking to enforce the parties' child support order. She argued that Mr. R was willfully failing to pay child support and that he owed her $18,000 in arrears. On September 19, 2017, the same date that his willfulness hearing commenced, Mr. R filed his modification petition on the grounds of constructive emancipation and parental interference. Support Magistrate Katerina Contaratos was constrained by law to refer the matter to a judge. The matter was assigned administratively assigned to this Court.
On February 14, 2018, the matter was settled before Support Magistrate Katerina Contaratos. Mr. R agreed to pay $9,000 towards arrears owed. The parties' support order was continued at $222 weekly.
THE EVIDENCE
Mr. R testified that he is Stephanie's father. He told the Court that he met Ms. M when they were co-workers at a clothing store and he knew her name. He stated that five years had passed since they had worked together when he received a random telephone call from Ms. M. She asked Mr. R to come over and see her apartment. Mr. R testified that he accepted her invitation with no expectation other than a friendly visit. He told the Court that he did not remember where Ms. M lived, but remembered that she resided in a basement. He testified that within 15 minutes of his arrival, he and Ms. M engaged in sexual intercourse. Mr. R conceded that at the time that he was intimate with Ms. M, he was married, that he had two children and that he never provided his real name to Ms. M. He stated that he never told Ms. M his name because she never asked.
Mr. R testified that after they had sexual relations, he did not hear from Ms. M for a period of time and did not know that Ms. M was pregnant or that she had a baby. He told the Court that in 2000, Ms. M contacted him to ask him to take a private paternity test. Although he agreed to do so, Mr. R presented his brother Ramnaresh's identification at the time of the test in order to conceal his true identity from Ms. M. He said that he was ashamed, that he did not want his wife to find out and that he never told his brother, Ramnaresh, that he had taken his identification. Mr. R stated that he did not pay for any portion of the paternity test. He testified that after the test was completed, Ms. M told him that she would let him know the results, but he never heard back from her. Mr. R told the Court that for years afterwards, Ms. M never contacted him for child support, or to visit with his daughter.
Mr. R testified that in 2007, while he was in Florida, he learned that his brother, Ramnaresh, was served with Ms. M's paternity and child support petition. He stated that Ramnaresh did not tell him that he was going to court. However, after appearing there, his brother told him that he had been to court to answer a child support petition with a woman whom he did not know. Mr. R testified that he did not realize that the petition was meant for him because he figured that his brother may have had sexual relations with Ms. M too.
Mr. R testified that he did not see Ms. M from the date they took the paternity test until he came to court on her child support petition in 2007. He acknowledged that the police had to come to his job in order to secure his appearance in Court. Mr. R conceded that it was in court when Ms. M found out that his name was Seetaram, not Ramnaresh. Mr. R told the Court that after Ms. M found out his real name, she filed against him for child support. He stated that he was surprised because Ms. M never told him that Stephanie was his child. Mr. R admitted that he came to court after the police came to his job in regards to Ms. M's family court petition. He testified that after he appeared on Ms. M's child support petition, he filed a visitation petition. He told the Court that he learned Ms. M's address because it was listed on her paternity and child support petition. Mr. R stated that after Ms. M filed her petition, he went to Ms. M's residence several times because he wanted to see what Stephanie looked like, but he never knocked on the door or rang the bell. He told the Court that his attorney advised him against going to Ms. M's home because if he kept coming around, Ms. M might file for an order of protection against him.
As a result of his deliberate effort to thwart the child support proceedings, on December 20, 2007, a warrant was issued for Seetaram R. Nearly three weeks later, on January 9, 2008, Mr. R finally returned on the warrant.
Mr. R testified that in 2008, he spoke with Ms. M's sister, who told him that they needed his child support monies, but to leave them alone in all other respects. He told the Court that Ms. M opposed his visitation petition and that three years later, he had to withdraw his petition because he could not afford his attorney anymore. He stated that the judge in the matter told him that if he waited a while, he could file another petition when Stephanie was older. Mr. R testified that years later, shortly before the child turned 17, he filed another visitation petition. He told the Court that he withdrew that second petition after Stephanie's attorney told a family court referee that Stephanie wanted nothing to do with him.
Mr. R testified that he is upset because he has no relationship with his daughter and he would like to begin one. He acknowledged that he has only seen Stephanie twice, once at the private paternity test and once at the deposition. He admitted that he never sent Stephanie cards, letters or gifts. Mr. R stated that he has been paying child support since it was ordered against him. He denied refusing to sign for a passport for Stephanie unless Ms. M terminated his child support obligation.
Ms. M testified that she met Mr. R while they were working together at a clothing store in Jamaica. She told the Court that Mr. R worked there before she was hired. She stated that the first time they met each other, they exchanged telephone numbers. Mr. R told her that his name was Ramnaresh and she believed him. Ms. M testified that the two of them lived on the same block so they would go to work together and come home together. She told the Court that they would go out together with other co-workers and then started dating each other. Ms. M stated that they had sexual relations on numerous occasions.
Ms. M testified that approximately one year from the time she started working at the clothing store, she became pregnant. She telephoned Mr. R to let him know that it was his child, and his response was that he did not want to have anything to do with the child and he did not want his wife to find out. She told the Court that Mr. R never called her during the time she was pregnant. Ms. M telephoned Mr. R to let him know that she had gone to the hospital to give birth, but his response was the same - he did not want anything to do with the child and he did not want his wife to know. Ms. M testified that Mr. R did not come to the hospital. She telephoned Mr. R while she was at the hospital and told him that she needed to complete paperwork relating to Stephanie. Mr. R told her that he did not want anything to do with the child and that he did not want his wife to know. Ms. M stated that she felt that she needed to put a father's name on Stephanie's birth certificate. Her friend, who had accompanied her to the hospital, offered to put his name on Stephanie's birth certificate. Ms. M testified that she informed Mr. R that her friend volunteered to put his name on Stephanie's birth certificate, but that did not change his position. She told the Court that she telephoned Mr. R to let him know that she was back from the hospital.
Ms. M testified that in April, 2000, she gave Mr. R her address and he came to her house where she had been living with her mother, her brother and her sister since Stephanie's birth. He brought Stephanie a McDonald's "happy meal" even though she was not old enough to eat anything other than baby food. Ms. M told the Court that when Mr. R came over, her mother, her brother and her sister were home. She stated that while Mr. R sat in her living room and ate the food he brought for the child, he told her that he wanted to take a paternity test to find out if Stephanie was his child.
Ms. M testified that in November, 2000, they both took a private paternity test. While there, they were told that the results could be mailed to both parents. Ms. M stated that Mr. R said that he did not want the results sent to his address because he did not want his wife to find out. Ms. M testified that after the results were mailed to her, she telephoned Mr. R. He came over, and they sat in his car together. She told the Court that after she showed him the results, Mr. R said that he did not want anything to do with the child and that he did not want his wife to know.
Ms. M testified hat she contacted Mr. R on a fairly regular basis for help financially. Ms. M stated that being a single mother was hard and she needed the money to help raise Stephanie. Mr. R would not help monetarily. She told the Court that in 2007, she finally filed for child support. Ms. M stated that she was surprised that the man who appeared was not Mr. R. She informed her attorney that the person who showed in court was not Stephanie's father. Ms. M stated that until she filed for paternity and child support, she never knew Mr. R's real name. She told the Court that when the parties went for a court-ordered paternity test, Mr. R did not speak to her or Stephanie. She stated that after she filed for paternity and child support, Mr. R filed for visitation.
Ms. M testified despite giving Mr. R an open door policy to see Stephanie, he never opted to exercise his right to see her. Stephanie. She told the Court that Mr. R never sent money, gifts, cards, or letters to Stephanie, and never asked to see her. She stated that in 2013, she needed Mr. R's signature in order to apply for a passport for Stephanie. Ms. M testified that she telephoned Mr. R about the situation, but he said that the only way he would sign for Stephanie's passport was if Ms. M had his child support obligation terminated. Ms. M had to write to the passport office and tell them that Mr. R refused to sign, and ultimately Stephanie got her passport. .
Ms. M testified that she told Stephanie that she had a father and that when Stephanie wanted to know about him, she would answer all of her questions. She told the Court that Stephanie never asked her about her father because she considered him to be a stranger to her. She stated that Stephanie refers to her sister's fiancé as "dad."
Stephanie testified under oath at her deposition. She testified that she had never seen Mr. R prior to the deposition date. She told Mr. R's attorney that she attends Forest Hills High School and has applied for college. She stated that she is working part-time at Pandora. Stephanie testified at the deposition that she resides with her mother, and that her aunt's fiancé, Paul P, is like a father to her. She told Mr. R's attorney that is because Paul P does everything with her as though he were her father. She stated that she has been calling him "dad" since she could speak.
Stephanie testified at her deposition that her mother never spoke much about Mr. R. She told Mr. R's attorney that her mother did tell her that she had a father and that when Stephanie was interested in knowing about him, she would answer all of Stephanie's questions. Stephanie stated that she never cared to know because she never felt that Mr. R wanted to be in her life. Stephanie testified at the deposition that her mother told her that Mr. R was paying child support for her. She acknowledged that she told her attorney that she did not wish to have contact with Mr. R. Stephanie testified at her deposition that she continues not to want contact with Mr. R. She stated that he is a stranger to her and she sees no need to have him in her life at this point in time.
DISCUSSION
In New York State, a parent has a legal obligation to support his or her child until that child is twenty-one (21) years old. See NY Fam. Ct. Act § 413 (McKinney's 2018); see also Addimando v. Huerta, 147 AD3d 750, 752 (2d Dep't 2017). Child support may be forfeited under the theory of constructive emancipation. See Addimando v. Huerta, 147 AD3d at 752. Constructive emancipation is where a child of employable child actively abandons their non-custodial parent by refusing all contact and visitation. See Addimando, 147 AD3d at 752; see also McCarthy v. McCarthy, 129 AD3d 970, 971-72 (2d Dep't 2015); Barlow v. Barlow, 112 AD3d 817, 818 (2d Dep't 2013). However, where a non-custodial parent is the one who causes the breakdown in communication, or fails to make a serious effort to contact their child or visit with them, that parent's constructive emancipation claim will not lie. See Addimando, 147 AD3d at 72; see also McCarthy, 129 AD3d at 972; Barlow v. Barlow, 112 AD3d at 818. Likewise, under the theory of parental interference with visitation or parental alienation, child support payments may be suspended. See Addimando, 147 AD3d at 753. Parental alienation is where a custodial parent actively interferes with, or deliberately and unjustifiably frustrates, the non-custodial parent's right of reasonable access. See Addimando, 147 AD3d at 753; see also Vasquez v. Powell, 111 AD3d 754, 754-55 (2d Dep't 2013); Ledgin v. Ledgin, 36 AD3d 669, 670 (2d Dep't 2007).
The Court considered the evidence during the trial, and finds that Mr. R failed to meet his burden of proving that a change of circumstances exists sufficient to terminate his child support obligation. Mr. R did not establish that Ms. M has frustrated his relationship with Stephanie, or that Stephanie is constructively emancipated. Rather, the proof showed that Mr. R made every effort to avoid responsibility for, and made no effort to formulate a relationship with, his daughter, who is now 18 years old.
The Court found Ms. M to be a credible witness, while the Court found Mr. R to be totally incredible. Mr. R's tailored version of the events was diametrically opposite to Ms. M's, and Ms. M's version was more logical and believable. While Mr. R could not remember many of the details of this years-long saga, Ms. M's testimony was replete with specific facts, including dates. Mr. R's testimony was largely self-serving.
Mr. R maintained that Ms. M, after having not worked with him for approximately five years, suddenly called him with an invitation to her apartment. He asserted that one short intimate encounter resulted in the birth of a daughter whom Ms. M systematically attempted to keep a secret from him because she wanted to raise their daughter on her own. Conversely, Ms. M maintained that she had an ongoing sexual relationship with Mr. R, a married man. She asserted that though she tried to involve Mr. R in Stephanie's life from the point where she became pregnant, he wanted no part of Stephanie since he was fearful that his wife would find out.
Although Ms. M testified that the two exchanged numbers when they met while working, Mr. R claimed that he does not know how Ms. M had his number to contact him to come to her apartment. It is inconceivable to this Court that Ms. M would have acquired Mr. R's number in any other way than Mr. R. providing it to her in light of his testimony that he never gave her his real name.
Mr. R's argument that Ms. M wanted to get pregnant and raise a child alone is unpersuasive. If that were so, then why - according to Mr. R's version of the events - would Ms. M have bothered to ask him to take a paternity test? The Court found Ms. M's testimony to be more realistic and consistent; in that, that she contacted Mr. R - about her pregnancy, the birth of the baby, the paperwork at the hospital, helping her financially and being a part of Stephanie's life - and Mr. R's mantra was that he wanted nothing to do with the child and he did not want his wife to find out. Mr. R admitted during his testimony that he disguised his identity when taking the paternity test. He conceded that he was ashamed and did not want his wife to find out about Stephanie. Ms. M testified that it was actually Mr. R who wanted to take the paternity test to find out if he was Stephanie's father, and that he did not want the results mailed to him even though offered the opportunity. Consistent with Ms. M's testimony, Mr. R conceded at trial that he never contacted Ms. M to find out about the results of the paternity test and that no news was good news as far as he was concerned in regards to the test results.
Moreover, consistent with Ms. M's testimony that Mr. R told her that his name was Ramnaresh, which is his brother's name, Mr. R acknowledged that he never gave Ms. M his real name the entire time they knew each other. The Court finds that giving Ms. M a false name makes sense since Mr. R was terrified that his wife would discover his marital transgression. The evidence showed that, as a result of Ms. M believing that Mr. R's first name was Ramnaresh, she filed a petition to determine paternity and child support against Mr. R's brother. The evidence also showed that subpoenas and a warrant in Mr. R's brother's name were issued, not in his name. Mr. R acknowledged at trial that he was upset when he was ultimately served with Ms. M's paternity and child support petition, and the police had to come to his job prior to him appearing on Ms. M's petition in court.
The Court finds that Mr. R's two visitation petitions were a feeble strategic effort to make a record. The proof established that other than filing those two visitations petitions, which were suspiciously timed with Ms. M's child support petitions, Mr. R never sought to contact Ms. M to see Stephanie. Moreover, Mr. R never contacted Stephanie directly, and never sent money, letters, cards or presents to her. This is a prime example of a frivolous proceeding in the midst of unabashed dysfunction. Sadly, this is not an isolated occurrence in family court. There are many cases of individuals who abandon their children for a variety of reasons and then seek fiscal relief instead of taking responsibility for their actions. The Court can not permit Mr. R to benefit from the distance he alone created from Stephanie.
Over the last nearly 7 years, Mr. R has attempted to undo his child support obligation. He filed his first downward modification petition on June 22, 2011 just after he withdrew his first visitation petition on May 23, 2011.
Mr. R claims he went to see Stephanie "to see what the kid looks like," but he admitted that he never knocked on the door or rang the bell. --------
Assuming arguendo that there was any truth to Mr. R's allegations, his petition would surely be dismissed under the laches doctrine. The laches doctrine is an equitable defense which may be invoked when a party's delay in their assertion of rights causes prejudice. See Stein v. Doukas, 98 AD3d 1026, 1028 (2d Dep't 2012). The elements of the laches doctrine are: (1) an opposing party's conduct giving rise to the situation about which a party complains and is now asserting a right or claim; (2) a party's delay in asserting that right or claim despite the opportunity to do so; (3) lack of knowledge or notice on the opposing party that the party would assert his or her claim for relief; and, (3) prejudice or injury to the opposing party as a result of said delay. See Stein v. Doukas, 98 AD3d 1026, 1028 (2d Dep't 2012); see also Meding v. Receptopharm, Inc., 84 AD3d 896, 897 (2d Dep't 2011); Cohen v. Krantz, 227 AD2d 581, 582 (2d Dep't 1996). In light of Mr. R's unreasonable and inexcusable decade-long delay in pursuing his remedies, Ms. M has been prejudiced. There was no way that she could have foreseen Mr. R's assertion of these claims so many years after Stephanie's birth, and 10 years after she filed her first petition for child support. Laches is a doctrine that is almost never applied in Family Court and, in cases such as these, warrants a broader application. The Court applies it here.
For all of these reasons, the Court dismisses Mr. R's petition.
This constitutes the decision, opinion, and order of the Court. ENTER: Dated: May 21, 2018 Jamaica, New York /JM _____________________________________ JOHN M. HUNT, JUDGE FAMILY COURT - QUEENS COUNTY