Hansom v. Hansom

• Decision Date: 11 June 1973
• Parties: Lucy HANSOM * , Petitioner, v. Charlie HANSOM *, Respondent.
• Court: New York City Court

Page 996

346 N.Y.S.2d 996

75 Misc.2d 3

Lucy HANSOM ^*, Petitioner, v. Charlie HANSOM *, Respondent.

Family Court, City of New York, Richmond County.

June 11, 1973.

[75 Misc.2d 4] Norman Redlich, Corp. Counsel, New York City by Thomas J. Burns, Asst. Corp. Counsel, Brooklyn, for petitioner.

William Scheinberg, Brooklyn, for respondent.

DECISION

RALPH E. COPY, Judge:

The parties were married in Petersburg, Virginia on March 23, 1970 and in 1955 the Petitioner instituted the present support petition for herself and three children, Charlie, Carroll and Gerald. On March 13, 1961, children Margaret and Patricia were added to the petition after Respondent admitted paternity in court and on March 4, 1963 Respondent admitted paternity of child Cheryl who was then added to the petition.

The Petitioner testified that she and the Respondent separated in 1955 when they ceased living together. She stated that during the years 1954 and 1955 she had sexual relations with the Respondent three times a week and that despite the separation, the respondent visited her often at her home and she had relations with him between 1955 and 1958, which continued up until two years ago (1971). The Petitioner also claims that she never had sexual relationships with any other man between 1940 and 1973.

The Respondent, however, testified that he had no sexual relations with the Petitioner after 1952 which he claims is the year they separated, not 1955, as claimed by the Petitioner. The Respondent claims he was not the father of children Margaret, Patricia and Cheryl, who were born in 1956, 1957 and 1958, respectively, and had told this to the Petitioner. The Petitioner insists he visited these children and gave them gifts and money between 1955 and 1960. Respondent denies this and states he visited the children only and did not give them gifts and money.

The child Margaret was born to the Petitioner on July 5, 1955, the child Patricia on August 25, 1956 and the child Cheryl on May 12, 1958. The parties have never been divorced.

Since 1958, court orders were amended and modified to include support payments for these three children. It is a matter of record that Respondent has been paying money in court for these three children. The Petitioner and children have been receiving assistance from the Department of Social Services since 1968. Court records also indicate that various support orders have been enforced by requiring the posting of cash bonds, which the Respondent has paid.

On November 20, 1972, the Respondent requested a modification downward. A 50--1 was ordered to check on his reported income and the case was adjourned until January 10, 1973. The court modified the existing support order from $50. to $30. on consent of both parties, effective January 12, 1973, and all back arrears were cancelled. The Respondent appeared on January 10, 1973 with an attorney, and for the first time, denied he was the father of the three children. The court then ordered a blood grouping test on these last three children. The Respondent stipulated that if paternity was not excluded by the testing, he would no longer contest the paternity.

The blood grouping test furnished to the court on March 31, 1973 stated that the Respondent was doubly excluded from being the father of children Patricia and Cheryl since Patricia and Cheryl both belong to Group O, type RH2 rh and the Respondent could not be their father, since a mating of RH0 and RH0 cannot yield a child of type RH2, rh.

On April 23, 1973, when the parties and their attorneys next appeared in court, the Petitioner still claimed that the Respondent was the father of the three children in question, regardless of the result of the blood grouping test. The court then issued a subpoena for Dr. Brancato who had conducted the blood grouping test and had issued the above conclusions based on his findings after having examined the Petitioner and Respondent and three children in question. The case was adjourned for a hearing on May 30, 1973.

At this hearing and prior to its commencement, the Corporation Counsel, representing the Petitioner (because she was still on welfare--a public charge with three children) made two motions:

1. That the Respondent is estopped by laches from contesting paternity as more than ten years have elapsed since the birth of the children in accordance with Section 517 of the Family Court Act (Two-year Statute of Limitations).

2. That the court issue an order of filiation in view of the fact that Respondent had acknowledged the paternity of the three children in court but that no order of filiation was ever entered on the record.

The court reserved decision upon these two motions pending completion of the hearing.

The main issues in this case are thus squarely presented:

1. Does the presumption of legitimacy prevail over the findings of a blood grouping test excluding paternity, conducted in 1973, in a support petition under Article 4 of the Family Court Act despite the admission of paternity by the Respondent father ten years ago?

2. Did the two-year Statute of Limitations apply in this support proceeding in accordance with Section 517 of the Family Court Act and thus effectively bar the Respondent from disputing paternity as more than ten years have elapsed since the Respondent's admission of paternity in open court?

The two-year Statute of Limitations contained in Section 517 of the Family Court Act pertaining to paternity proceedings is inapplicable to a support proceeding under Article 4 of the Family Court Act. The parties were still married to each other at the time the three children in question were born, and the presumption of legitimacy automatically arises. Matter of Findlay, 253 N.Y. 1, 170 N.E. 471 (1930). It thus becomes the burden of the respondent to come forward with clear and convincing evidence establishing that someone other than the respondent is the father. Matter of Mannain, 33 A.D.2d 1024, 308 N.Y.S.2d 248 (2nd Dept.1970) and cases cited, aff'd, 27 N.Y.2d 690, 314 N.Y.S.2d 9, 262 N.E.2d 216 (1970); Matter of Gray v. Rose,32 A.D.2d 994, 302 N.Y.S.2d 185 (3rd Dept.1969). The court's granting of the Respondent's motion for a blood grouping test of children whose paternity Respondent claims is in doubt is fully authorized under Section 418 of the Family Court Act. Matter of Swift v. Swift, 65 Misc.2d 1014, 319 N.Y.S.2d 655 (Fam. Ct. Dutchess Cty.1971). The exclusion obtained by the blood grouping test in this case is convincing proof that the Respondent is not the father of children Patricia and Cheryl. Crouse v. Crouse, 51 Misc.2d 649, 273 N.Y.S.2d 595 (Fam. Ct. Nassau Cty.1966).

An important factor to be determined in this case is whether the Respondent held himself out as the father of the children in question. A careful analysis of the facts here reveals that the Petitioner did not request the court to add the three children in question to the petition until 1961 and 1963, some eight years after the child Margaret was born, six years after Patricia was born, five years after Cheryl was born and eight years after the support petition was started. This gap of five to eight years is critical even though the Respondent admitted paternity in court of the children in question. The credibility of the Petitioner can also seriously be questioned, because in her testimony she stated she had relations with the Respondent three times a week between 1954 and 1955 and relations with him between 1955 and 1958. It must be carefully noted that the three children in question were born in 1955, 1956 and 1958 respectively. Petitioner further contends she had relations with her husband up to 1971 despite the fact they separated in 1955. This straining to fit the facts into a preconceived pattern of conception of birth of children between 1955 and 1958 is unworthy of belief as is her statement that she had sexual relations with her separated husband three times a week between 1954 and 1955. To pinpoint with complete and unerring accuracy the number and frequency of sexual relations almost twenty years ago would strain the credulity of even a benighted backwoodsman to the breaking point.

The Respondent denied paternity in court some twelve years after his admission in court and after he had hired an attorney. His attorney contends that he did not fully comprehend the nature of his admissions.

An admission of paternity is also evidence of paternity but it is not conclusive as a matter of law. Howard v. Robinson, 32 A.D.2d 837, 302 N.Y.S.2d 347 (2nd Dept.1969). Part of the rationale stems from the fact that a Respondent may admit paternity, not because he actually recognizes the child as his own, but because of a desire to avoid litigation or potential embarrassment. In re Anonymous, deceased, 60 Misc.2d 163, 302 N.Y.S.2d 688 (Surr.Ct.1969).

In order for an estoppel to be evoked against a Respondent, there must be strong recognition of the child, such as providing for support over a number of years. Brite v. Brite, 61 Misc.2d 10, 305 N.Y.S.2d 65 (Fam. Ct. New York Cty.1969); 12 Zett-Edmonds-Buttrey-Kaufman, New York Civil Practice, Section 20.04 (1972).

The record is clear in the instant case, however, that there were no Voluntary payments of support by the Respondent but payments were made only under court order, and that several times Respondent had to post a cash bond because of default in payments.

The issue of legitimacy of a child, born to a married woman, may be raised by the Respondent-husband in an action for support. 12 Zett-Edmonds-Buttrey-Kaufman; New York Civil Practice Section 22.02 (1972). The husband may raise the issue of legitimacy at any time after the birth of a child, although a paternity action may not be commenced more than two years after the birth of a child unless there has been a written acknowledgment of support. Family Court Act, Sec. 517. There certainly is no written acknowledgment of support by Respondent in this case....