Gray v. Rose

• Decision Date: 02 July 1969
• Citation: 302 N.Y.S.2d 185,32 A.D.2d 994
• Parties: In the Matter of H. GRAY * , Respondent, v. C. ROSE *, Appellant. Supreme Court, Appellate Division, Third Department
• Court: New York Supreme Court — Appellate Division

Page 185

302 N.Y.S.2d 185

32 A.D.2d 994

In the Matter of H. GRAY ^*, Respondent, v. C. ROSE *, Appellant Supreme Court, Appellate Division, Third Department.

July 2, 1969.

Govern & McDowell, Stamford, for respondent; Robert H. McDowell, County Atty., of counsel.

Frank W. Getman, Oneonta, for appellant.

Before HERLIHY, P.J., and COOKE, GREENBLOTT and REYNOLDS, JJ.

PER CURIAM.

Appeal from an order of the Family Court, Delaware County, entered October 25, 1968, which adjudged appellant to be the father of petitioner's child. Petitioner, a married woman, and mother of a child born on May 9, 1966, testified that she had intercourse with appellant over a period of four months, from May to August, 1965, and that the last act of intercourse took place on August 15, 1965. Appellant, who did not testify, contends that petitioner has failed to sustain her heavy burden of proof as to the paternity of the child. He relies on the strong presumption of legitimacy, together with the additional contention that there was lack of proof negating access, since petitioner and her husband still saw each other occasionally, though separated since October, 1961.

Petitioner produced two witnesses, one of whom testified that she obversed appellant and petition leave a restaurant, where petitioner was employed, at midnight on a Sunday in the middle of August, 1965. When they returned at 7:00 A.M. the following morning, petitioner was wearing appellant's sweater. This witness further testified that in November, 1965, when petitioner appeared obviously pregnant, she overheard appellant make an admission of intercourse with petitioner. Another witness testified appellant made further admissions in her presence.

Appellant did not take that stand, and the only witness on his behalf testified that he had seen petitioner and her husband together, in a room in back of his shop.

This is the second time this case has been before this court (Matter of Gray v. Rose, 30 A.D.2d 138, 290 N.Y.S.2d 647). On the first appeal, we reversed and ordered a new trial, holding that adequate review was not possible since there were no findings of fact.

Here we have a valid marriage existing at the time of conception. The presumption of legitimacy of the child of a married mother is 'one of the strongest and most persuasive known to the law' (Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471, 472). This presumption still obtains despite the mother's separation from her husband (Commissioner of Public Welfare of City of New York, on Complaint of Vincent v. Koehler, 284 N.Y. 260, 30 N.E.2d 587). The burden cast upon the petitioner in a case of this nature is substantial. The 'evidence of paternity must be more than preponderant and must, indeed, convince 'to the point of entire satisfaction' (Commissioner of Welfare on Behalf of Treadwell v. Rose, 283 App.Div. 781, 128 N.Y.S.2d 355; Erie County Bd. of Social Welfare v. Holiday, 14 A.D.2d 832, 220 N.Y.S.2d 679)'; (Matter of Gray v. Rose, Supra, pp. 140--141, 290 N.Y.S.2d p. 649.). Petitioner has not met this burden. She has not overcome the presumption of legitimacy.

As to the issue of access, in a somewhat similar factual situation, we found that 'the record does not negate access and petitioner's testimony does not constitute clear and convincing proof of appellant's responsibility.' (Matter of Black v. Brown, 27 A.D.2d 683, 276 N.Y.S.2d 361). Since we can perceive little to distinguish that case from the case at bar, the decision of the...