Aa v. BB

• Decision Date: 22 October 2015
• Parties: In the Matter of JOSHUA AA., Appellant, v. JESSICA BB., Respondent.
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 1107

19 N.Y.S.3d 116

2015 N.Y. Slip Op. 07718

In the Matter of JOSHUA AA., Appellant,

v.JESSICA BB., Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 22, 2015.

John M. Scanlon, Binghamton, for appellant.

A.L. Beth O'Connor, Cortland, for respondent.

Carman Garufi, Binghamton, attorney for the child.

Opinion

CLARK, J.

Appeal from an order of the Family Court of Broome County (Pines, J.), entered June 25, 2014, which dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 5, to vacate a prior acknowledgment of paternity.

In June 2013, two days after the birth of respondent's child, petitioner and respondent executed an acknowledgment of paternity naming petitioner as the child's father. In January 2014, both parties filed separate petitions requesting custody of the child. However, in March 2014, petitioner commenced the instant proceeding to vacate the acknowledgment of paternity. After the issue of equitable estoppel was raised in a hearing before a Support Magistrate, the matter was referred to Family Court (seeFamily Ct. Act § 439[b]). Without holding a hearing, Family Court sua sponte dismissed the petition on the basis that the pleadings alone demonstrated that petitioner was equitably estopped from denying paternity. Petitioner now appeals.

“Once 60 days have elapsed following the execution of an acknowledgment of paternity, the mother or acknowledged father may challenge that document in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment” (Matter of Wimberly v. Diabo,42 A.D.3d 599, 599, 839 N.Y.S.2d 822 [2007][internal quotation marks omitted]; seeFamily Ct. Act § 516–a[b][iv]; Matter of Jeannette GG. v. Lamont HH.,77 A.D.3d 1076, 1077, 909 N.Y.S.2d 222 [2010]). To establish material mistake of fact, a party must demonstrate that such mistake “was truly material—i.e., substantial and fundamental to the nature of the [acknowledgment]—so as to entitle a party to void that document” (Matter of Wimberly v. Diabo,42 A.D.3d at 600, 839 N.Y.S.2d 822). To establish fraud, a petitioner must show that he or she justifiably relied on the respondent's fraudulent statements or representations at the time the acknowledgment of paternity was signed (see Matter of Demetrius H. v. Mikhaila C.M.,35 A.D.3d 1215, 1216, 827 N.Y.S.2d 810 [2006]).

Here, in his petition to vacate the acknowledgment of paternity, petitioner alleged that his signature was procured either by material mistake of fact or fraud based upon respondent's history of infidelity. However, the petition also explained that petitioner put his name on the birth certificate of the child “despite all parties acknowledging that it was [another man's] child.” Because petitioner's claim that he knew that he was not the father of the child negates a finding of fraud or material mistake of fact, as such findings are necessarily predicated on a lack of knowledge (see Matter of Felton R. v. Gloria P.,63 A.D.3d 515, 515, 880 N.Y.S.2d 475 [2009]), petitioner failed to plead sufficient facts constituting fraud or material mistake of fact (see Matter of Wimberly v. Diabo,42 A.D.3d at 601, 839 N.Y.S.2d 822). Therefore, Family Court properly sua sponte dismissed petitioner's petition because, even “[a]ssuming the truth of the allegations in the petition, and...