Elizabeth A.P. v. Paul T.P.

• Decision Date: 29 December 1993
• Citation: 605 N.Y.S.2d 614,199 A.D.2d 1030
• Parties: ELIZABETH A.P., Respondent, v. PAUL T.P., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 614

605 N.Y.S.2d 614

199 A.D.2d 1030

ELIZABETH A.P., Respondent, v. PAUL T.P., Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 29, 1993.

Hall, Rickets, Marky & Gurbacki by Elizabeth O'Connor, East Aurora, for appellant.

Neighborhood Legal Services by Diane Straube, Buffalo, for respondent.

Before GREEN, J.P., and BALIO, LAWTON, FALLON and DAVIS, JJ.

MEMORANDUM:

Defendant appeals from an order denying his application to modify a 1990 judgment of divorce. He sought the modification to eliminate the statement in the divorce decree that the child, Matthew, is a child born of the marriage between the parties. Defendant presented HLA test results excluding him as Matthew's father, as well as plaintiff's admission that she may have had another sexual partner at the approximate time of Matthew's conception.

While it is presumed that a child born during a marriage is the biological product of the marital union, the presumption may be rebutted by clear and convincing proof excluding the husband as the father or otherwise tending to disprove legitimacy (see, Queal v. Queal, 179 A.D.2d 1070, 579 N.Y.S.2d 527). Neither public policy considerations nor equitable estoppel bars defendant from challenging paternity (see, Queal v. Queal, supra ).

We conclude, therefore, that Supreme Court erred in denying the application without conducting a hearing. We remit the matter for that purpose and direct that a Law Guardian be appointed to represent the interests of the child. If defendant can establish by clear and convincing proof that he is not the child's father, the application to modify the divorce judgment should be granted.

Order reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following

All concur except BALIO, J., who dissents and votes to affirm in the following MEMORANDUM:

The controlling issue in this case is not whether submission of the results of an HLA test might be sufficient to rebut the strong presumption of legitimacy. The pertinent issue is whether Supreme Court's denial of defendant's application to modify the judgment of divorce constituted an abuse of discretion. I am of the view that denial of that application was not an abuse of discretion, and thus, I respectfully dissent.

Prior to the birth of the child, plaintiff petitioned Family Court for an order of support. Defendant "acquiesced" in his "designation" as the father and did not appeal from an order directing him to support the parties' two children and the unborn child. In 1990, when the child was two years old, a judgment of divorce was granted to plaintiff, directing defendant to support the three children of the marriage, including the subject child. Defendant did not appeal from that judgment. Two years later, based upon rumors floating around his hometown, defendant, with the assistance of counsel, obtained plaintiff's consent for the performance of blood tests upon herself and the child. Neither plaintiff nor the child was represented by counsel. A report of those tests excludes defendant as the father. Defendant petitioned Erie County Family Court for a declaration that he was not the father and for a modification of support. The Family Court Hearing...