D'Elia on Behalf of Maggie M. v. Douglas B.

• Citation: 138 Misc.2d 370,524 N.Y.S.2d 616
• Parties: In the Matter of a Paternity Proceeding Joseph A. D'ELIA on Behalf of MAGGIE M., Petitioner, v. DOUGLAS B., Respondent.
• Decision Date: 13 January 1988
• Court: New York Family Court

Page 616

524 N.Y.S.2d 616

138 Misc.2d 370

In the Matter of a Paternity Proceeding Joseph A. D'ELIA on Behalf of MAGGIE M., Petitioner, v. DOUGLAS B., Respondent.

Family Court, Nassau County.

Jan. 13, 1988.

Edward T. O'Brien, Co. Atty. by Patricia M. Mackreth, Deputy Co. Atty., Westbury, for petitioner.

Legal Aid Soc. of Nassau County, Civil Bureau by Debra Greenberg, Hempstead, for respondent.

JOHN D. CAPILLI, Judge.

This motion raises unanswered questions of procedure when a respondent decides to dispute an Order of Filiation made under Section 439(b) of the Family Court Act after his time to object under Section 439(e) has expired. In this case, respondent made a motion pursuant to CPLR Section 5015 to vacate the Order of Filiation made and entered after respondent's undisputed admission of paternity before a hearing examiner.

The paternity petition was filed by the Nassau County Department of Social Services, as assignee of support rights of Maggie M., pursuant to Section 571 of the Family Court Act. A hearing was held on the petition to enforce such support rights pursuant to Article Four and to establish paternity of the child pursuant to Article Five. An affidavit, annexed to and made a part of the petition, alleged that upon information and belief, petitioner-mother, Maggie M. had sexual intercourse with the respondent, Douglas B., on several occasions from January, 1986 through March, 1987, and as a result, she became pregnant. Subsequently, and on October 29, 1986, Maggie M. gave birth to an out-of-wedlock child, Kendra L.M. The petition alleged that Douglas B. was the father of said child.

The matter, which first came on to be heard before a hearing examiner on June 1, 1987, was adjourned to June 15, 1987 to give the respondent time to get an attorney to represent him.

On June 15, 1987, the adjourn date, the respondent appeared for the second time without an attorney. Respondent was again advised by the hearing examiner of his right to appear with counsel. At that time, respondent waived his right to an attorney and elected to proceed. The hearing examiner then advised Mr. B. of his right to request a blood grouping test and its cost. He further advised respondent that in the event he was unable to pay the cost of the blood grouping test in advance, systematic payments could be worked out. Mr. B. was then asked if he wished to have a blood grouping test. He said he did not. The hearing examiner asked Mr. B. if he was the father of Kendra L.M., born to Maggie M. on October 29, 1986. Mr. B. replied "Yes, Sir."

The hearing examiner then stated there was an admission of paternity and the fact-finding and disposition as to the establishment of paternity was completed. He advised respondent that the Court would now proceed to the support hearing. Mr. B. was advised of his right to be represented by an attorney in the support part of the proceeding and that he could have an adjournment to get a lawyer. Otherwise, he could proceed at that time on the support issue without a lawyer. At that point, Mr. B. requested a lawyer and the matter was adjourned to July 13, 1987.

On July 13, 1987, the respondent appeared and the matter was adjourned to July 27, 1987. On July 27, 1987, the adjourn date for the support hearing, the respondent was screened by the Family Court Screening Bureau and was assigned a Legal Aid attorney. The matter was adjourned to August 31, 1987.

On August 31, 1987, Mr. B. stated that he did not previously request that the Order of Filiation be vacated because when he indicated to the hearing examiner on July 27, 1987 (39 days after the order was entered) that he wanted to deny paternity, he was assigned an attorney. This would infer that the respondent, being uneducated in the rules of court procedure, must have assumed that after he obtained an attorney, the attorney could take the necessary steps to withdraw his admission.

At the August hearing, respondent's attorney argued that the hearing examiner in the instant case questioned Mr. B. about paternity without first advising him of his right to refuse to testify. It was further stated that the circumstances under which Mr. B. admitted paternity and the sole evidence on which the Order of Filiation was based, raise questions as to whether substantial justice was done when the Order of Filiation was made.

At the request of respondent's attorney, the matter was adjourned to October 5, 1987.

On October 5, 1987, respondent submitted an Order to Show Cause, requiring the Department of Social Services, on behalf of Maggie M., to show cause before a judge of this Court, why the Order of Filiation made on June 15, 1987 should not be vacated, or, in the alternative, ordering that a blood grouping test be administered and that respondent's admission be stricken from the record.

In support of the relief requested, the respondent, by and through his attorney, argued that:

1) Respondent was not represented by an attorney;

2) Although he was advised of his right to an attorney and a blood grouping test, he was not aware of the support obligations that could arise as a result of an admission; therefore, the admission was not knowingly made;

3) Respondent was not told prior to making the admission that he had a right to refuse to testify at the hearing; and

4) No other evidence of paternity was produced.

An Affirmation in Opposition was submitted by the County Attorney of Nassau County, asking that respondent's motion be denied in all respects and that the Order of Filiation of June 15, 1987, made by the hearing examiner remain in full force and effect. The County attorney argued that:

1) An Order to Show Cause is an improper vehicle by which to request the relief sought by respondent because Section 439(e) of the Family Court Act specifically provides the method by which a party may object to an order of a hearing examiner. That method is to file written objections "... within thirty days after entry of the order, upon notice to the opposing party, who shall have eight days to serve and file a written rebuttal to such objections."

In this case, written objections were not filed within thirty days after the order of filiation was made pursuant to Sec. 439(e). Thus, the County Attorney concludes that the respondent is now procedurally barred from seeking relief from the order because Family Court Act Sec. 439(e) prescribes a method of procedure and F.C.A. Sec. 165 states that where a method of procedure is prescribed in the Family Court Act, the C.P.L.R. is not applicable;

2) The facts of the case do not warrant the relief the respondent seeks because respondent knowingly and voluntarily waived his right to counsel and a blood grouping test;

3) Section 439(b) of the Family Court Act only requires that the hearing examiner "advise the mother and putative father of the right to be represented by counsel" and "advise the mother and putative father of their right to blood grouping tests." There is no requirement that respondent be advised that he had a right to refuse to testify at the hearing; and

4) Section 531 of the Family Court Act simply states that a respondent may not be compelled to testify at trial. There is no mandate that respondent be so advised and there is no reference in the Family Court Act to respondent's right to be informed of this privilege.

Respondent, in a Reply to the arguments made by the County Attorney, countered that an Order to Show Cause is an appropriate vehicle by which to seek the vacatur of an Order of Filiation. Filing written objections, as provided for under Section 439(e) of the Family Court Act, is not the sole method by which a party can object to an Order of a hearing examiner. Respondents who want to object to decisions made by hearing examiners are also afforded the protection of the C.P.L.R.

Respondent further argues that Section 5015(a) of the C.P.L.R. provides that a Court which renders a judgment or order may relieve a party from it upon motion of any interested person and a motion to vacate an Order of Filiation is well within the scope of C.P.L.R. Sec. 5015(a).

The first issue for the Court to resolve is whether the respondent is time-barred from seeking a vacatur, modification or reversal of the hearing examiner's decision because he failed to timely object within the thirty days after the entry of the order of the hearing examiner pursuant to Sec. 439(e) F.C.A. Is a motion under Section 5015 of the C.P.L.R. available to the respondent as an alternative method of seeking relief from the order or should Section 165(a) F.C.A. be read in this case to mean that because a method for objecting is prescribed in Section 439(e) the C.P.L.R. is not applicable?

This court finds that a respondent making an undisputed admission incident to a support proceeding under article four is not limited to the thirty-day objecting rule prescribed in Sec. 439(e), but in addition, the C.P.L.R. rules apply and motions under the C.P.L.R., Sec. 5015, can be submitted to a judge as an alternative method of seeking relief from the order of a hearing examiner establishing paternity pursuant to Sec. 439(b).

Moreover, there is no stated time limit on a vacatur motion under CPLR Sec. 5015 upon such terms as the court in its discretion deems necessary.

In this case, the Department of Social Services brought an article four proceeding pursuant to Sec. 571 of the Family Court Act to enforce support rights and the establishment of paternity was "necessarily" made thereunder.

Article Five of the Family Court Act gives Family Court jurisdiction in proceedings to establish paternity. Section 564(a) provides that orders of filiation declaring the paternity of a child can be made in accordance with the provisions of article 5 "in any proceeding in Family Court ..." no matter what its statutory basis where support may be sought by the Commissioner of Social Services from the putative father.

The underlying goal in a...