Bayne v. Willard

• Decision Date: 20 May 1965
• Citation: 46 Misc.2d 1079,261 N.Y.S.2d 793
• Parties: Paternity Petition of Joan Ruth BAYNE * , Petitioner, v. Alvin WILLARD * Respondent. Family Court, Citywide Filiation Term, New York County
• Court: New York Family Court

Page 793

261 N.Y.S.2d 793

46 Misc.2d 1079

Paternity Petition of Joan Ruth BAYNE ^*, Petitioner, v. Alvin WILLARD * Respondent.

Family Court, Citywide Filiation Term, New York County.

May 20, 1965.

Sidney B. Schatkin, New York City, for petitioner.

Salvatore J. Iannucci, New York City, for respondent.

JOSEPH A. DORAN, Judge.

The petitioner charges the respondent with being the father of two children born to her out of wedlock as follows: Norma on July 22, 1957, in Aiken, S.C., and Arthur on April 29, 1962, in Morrisania Hospital, Bronx, N.Y. The proceedings were commenced on February 7, 1964, by the filing of two petitions in this court--one with respect to each child--and were jointly tried in March, 1965.

The petition in each case alleges that the petitioner had sexual intercourse with the respondent on several occasions over a period of fourteen years beginning with July 1, 1949, and ending on June 1, 1963. It may be noted that no bill of particulars appears to have been served in response to the respondent's demand.

The said children have resided with the maternal grandmother in Aiken, S.C. for some time--Norma since August, 1958, where she attends school under the surname of Bayne, and Arthur since August, 1963. The petitioner sends money to her mother for their support.

On December 22, 1940, the petitioner married one James Bayne, and had two children of this union in 1943 and 1948. There were several separations--according to the petitioner--in the course of the marriage. The petitioner and her husband separated in June, 1949--a year after birth of their second child--and remained apart until May, 1958, when they went back together again. In the interval Norma was born as aforesaid. The resumption of married life between the petitioner and James Bayne continued until March 7, 1959--so she says--when they separated once more. The birth of Arthur followed this separation by three years. The petitioner last saw her husband only two or three months before trial at the home of a married daughter who lives in the same house. It is observed that the birth certificate for Arthur names James Bayne as father of the child. There is no explanation on the record. The petitioner, as appears, retains her married name.

On October 7, 1952, the petitioner 'married' one Andrew Stone in a courthouse ceremony in Jacksonville, Florida. She was not divorced from James Bayne--as the petitioner admits--and represented herself as single at the time. This relationship lasted until May, 1955, when the petitioner returned to her mother's house in Aiken, S.C. There she remained until November, 1957, and then came to New York City. The petitioner testified that she has not seen Andrew Stone since their separation, and there are no children of that relationship.

The petitioner went to school with the respondent in Aiken, S.C. Their sexual intimacy began in 1941--so she testified--and ended in June, 1963. The first act of intercourse, therefore, took place following her marriage to James Bayne in December, 1940. It was repeated in 1944--according to the petitioner--when the respondent was on 'furlough' from military service. The petitioner further stated that she was seeing the respondent regularly after May, 1955. They occupied a room together at an address in Bronx County for some time in 1960 to January, 1961. It is also claimed that the respondent paid her rent from November, 1961 to February, 1962, during which time he used to visit the petitioner where she was then living, and the parties had sexual relations. When she informed the respondent of her pregnancies with the children involved in these proceedings, the petitioner says that he expressed the wish or hope on each occasion that it would be a boy. The respondent helped her with money once in a while--so the petitioner asserts--and last gave her $20 in June, 1963, for the children.

The petitioner produced two witnesses--following a continuance of trial in these proceedings--who testified in the same vein that the respondent said to each of them on separate and unrelated occasions, respectively, 'how do you like my son.' This kind of testimony is not unknown in this type of proceeding (see, e. g., People on Complaint of Fischer v. Jones, Child Ct., 101 N.Y.S.2d 317, 320). It need only be said that these witnesses were most unimpressive to the observing eye of the court and not deemed to be worthy of credence.

The respondent did not testify on his own behalf in this case (see Family Court Act, § 531), and such failure to testify creates no presumption against him (Matter of Fitzsimmons v. DeCicco, 44 Misc.2d 307, 310, 253 N.Y.S.2d 603). He rested and moved to dismiss the proceeding as to each child on the basis of the presumption of legitimacy--and and also in respect to Norma as barred by the statute of limitations (see Family Court Act, § 517). It is possible, as was said in Matter of 'Doe' v. 'Roe', 40 Misc.2d 148, 150, 242 N.Y.S.2d 742, to conceive of a state of facts in a filiation proceeding that could be successfully defended without testimony from the respondent. This--like People v. Jones, supra--is such as case.

The respondent may not be held to a paternal liability for support of the children involved in these proceedings unless the evidence is sufficient to create a genuine belief in the mind of the court that he is the father. (See Commissioner of Public Welfare, City of N. Y. on Complaint of Carr v. Kotel, 256 App.Div. 352, 9 N.Y.S.2d 1005.) We have only the petitioner's word that she was intimate with the respondent and no one else--not even her husband--at the time of conception of the said children. There is no corroboration in regard to any acts of...