Fitzsimmons v. DeCicco

• Decision Date: 28 September 1964
• Citation: 253 N.Y.S.2d 603,44 Misc.2d 307
• Parties: Paternity Petition of Joseph FITZSIMMONS, Commissioner, Petitioner, v. John DeCICCO, Respondent.
• Court: New York Family Court

Page 603

253 N.Y.S.2d 603

44 Misc.2d 307

Paternity Petition of Joseph FITZSIMMONS, Commissioner, Petitioner, v. John DeCICCO, Respondent.

Family Court, Ulster County.

Sept. 28, 1964.

Sherwood E. Davis, Kingston, for petitioner.

Hubert Richter, Kingston, for respondent.

HUGH ROSS ELWYN, Judge.

In this paternity suit brought by the Commissioner of Public Welfare, Clara Suto, the mother of the child, testified that she had been keeping company with the respondent for about two years prior to the baby's birth during which time she and the respondent occupied adjoining houses. Each was a frequent visitor in the other's home and, although ostensibly they occupied separate apartments, it appears that for all practical purposes they were living together during much of this time. Then in April 1963, a month before the baby was born, Mrs. Suto dropped all pretense and actually moved into the respondent's house, which was right next door. On May 18, 1963 the baby was born.

The mother, Mrs. Clara Suto, is a married woman, but she testified that she had not lived with her husband for fourteen years or more. This testimony was of course competent (Family Court Act 531). There is, however, recent authority suggesting that the effect of the repeal of Section 119 of the Domestic Relations Law defining a child born out of wedlock and the enactment of Section 512 of the Family Court Act 'has apparently been to make it impossible for a woman to question the paternity of a child which was either begotten by or born to her while she was married' (Matter of Kehn v. Mainella, 40 Misc.2d 55, 59, 242 N.Y.S.2d 732, 737). In the light of authority (Commissioner of Public Welfare of City of New York, on Complaint of Vincent v. Koehler, 284 N.Y. 260, 30 N.E.2d 587 and People v. Arcieri, 8 A.D.2d 923, 187 N.Y.S.2d 437) holding that a child born out of wedlock is one born 'out of lawful matrimony' which means one 'born to an unmarried mother' the Court in Kehn v. Mainella, supra, p. 58, 242 N.Y.S.2d pp. 735-736, felt constrained to conclude that because Section 512 of the Family Court Act now defines a 'child born out of wedlock' as 'a child who is begotten and born out of lawful matrimony' and has omitted all reference to a married mother separate from her husband (cf. Sect. 119, subd. (1)(b) Domestic Relations Law prior to repeal) that the phrase 'out of lawful matrimony' refers only to an unmarried mother. But does the elimination of the category contained in item (b) of subd. 1 of Sect. 119 of the Domestic Relations Law prior to its repeal from the definition of a 'child born out of wedlock' as contained in Section 512 of the Family Court Act really have this effect?

I am convinced that it does not. Such a construction of the statute certainly does not agree with the layman's definition of a child born out of wedlock as 'a child whose father is not the mother's husband' and it is not in accord with the realities of life as seen every day in the tragedies of the broken homes which are the daily grist for the Family Court mill. Nor is such a construction of Section 512 of the Family Court Act in accord with authority.

In Commissioner of Public Welfare of City of New York, on Complaint of Vincent v. Koehler, 284 N.Y. 260, 264-265, 30 N.E.2d 587 589-590, the Court of Appeals said: 'A 'natural child' or a 'child born out of wedlock' or a 'bastard' as defined by the statutes is in effect a child born 'out of lawful matrimony' or born to a married woman under conditions where, as stated in Matter of Findlay [253 N.Y. 1, 170 N.E. 471], supra, the presumption of legitimacy is not conclusive and has been rebutted. The statutory reference to a child born while the husband of its mother was 'separate' from her for a whole year means, it is plain, while husband and wife were living apart under conditions where there is no 'fair basis for the belief that at times they may have come together.' There is sufficient proof of that in this case and, when the court so found, it had jurisdiction to make the order appealed from'.

I conclude, therefore, that the only effect of the elimination of that part of the definition of a 'child born out of wedlock' of the phraseology contained in former subdivision 1(b) of Section 119 of the Domestic Relations Law from the definition of a 'child born out of wedlock' as contained in Section 512 of the Family Court Act is to restore the rules and conditions under which the presumption of legitimacy may be rebutted as stated in Matter of Findlay, 253 N.Y. 1, 170 N.E. 471 without the former statutory necessity for the husband to be separate from the mother for a whole year previous to its birth before the presumption of legitimacy could be overcome.

In other words, while in the case of a child born to a married mother the presumption of legitimacy still exists, and that presumption is 'one of the strongest and most persuasive known to the law', (Matter of Findlay, supra, 253 N.Y. 7, 170 N.E. 472) illegitimacy may be proved if the husband and wife are living apart under conditions where there is no 'fair basis for the belief that at times they may have come together' (Matter of Findlay, supra, 8, 170 N.E. 473). Whether the presumption of legitimacy is rebutted is now solely a question of fact in each case; legitimacy is no longer conclusively presumed in all cases where the husband has not been separate from the mother for a whole year prior to the child's birth. While the evidence to rebut the presumption of legitimacy may have to be stronger where the husband's absence has been less than a year than if his absence has been longer, the presumption is still rebuttable and not conclusive.

As was said by the Court of Appeals in Matter of Findlay, supra, 8, 170 N.E. 473, 'Whether such a basis (for the belief that at times the spouses...