Horn v. Horton

• Decision Date: 11 April 1977
• Citation: 90 Misc.2d 159,393 N.Y.S.2d 537
• Parties: Diane HORN, Petitioner, v. Dan HORTON, Respondent. * Family Court, Steuben County
• Court: New York Family Court

Page 537

393 N.Y.S.2d 537

90 Misc.2d 159

Diane HORN, Petitioner, v. Dan HORTON, Respondent. ^* Family Court, Steuben County.

April 11, 1977.

Knapp & Kuhl, Bath (John R. Kuhl, Jr., Bath, of counsel), for petitioner.

Henry J. Scudder, Bath, for respondent.

MEMORANDUM--DECISION

FREDERICK D. DUGAN, Judge.

In this paternity proceeding, the mother's petition was filed in the Family Court within two years of the child's birth. ( § 517(a) Family Court Act.) Respondent moves to dismiss the petition for lack of jurisdiction since the summons was not issued or served until more than three years later, after the child's fifth birthday. ( §§ 523, 524 Family Court Act.)

The mother's petition, dated and verified March 15, 1973, alleges that respondent is the father of the child born to her on March 30, 1971. It was filed with the Family Court on March 15, 1973, two weeks before the child's second birthday.

Stricken from the face of the printed petition is the allegation '* * * 5. Respondent has acknowledged paternity of said child (in writing) (by furnishing support)'. ( § 517(a) Family Court Act.)

Upon the argument of pre-trial motions and in the briefs filed with the court thereafter, respondent's counsel states that petitioner told her mother, a court employee, it would not be necessary to have respondent brought into court. This is indicated in a portion of the examination before trial of the mother on February 15, 1977 read by respondent's counsel upon the argument of these motions (p. 19).

Petitioner's counsel candidly advises in his brief and argument that there were discussions between the parties about possible settlement outside of court concerning the support and paternity of her child and that petitioner indicated on more than one occasion to her mother than she did not believe a paternity trial and support hearing would be necessary in order to reach a settlement of the matter.

Whatever the reason, three years and some two and a half months after the filing of the petition, the court issued a summons on May 27, 1976, which was forwarded with a copy of the petition to the Steuben County Sheriff for personal service on respondent who resided in that county. Personal service was made on June 3, 1976. The matter was returnable before the court on June 17, 1976.

Respondent filed a written answer denying the allegations of the petition and alleging that petitioner had in effect withdrawn her petition us the basis for his affirmative defense of the two year limitation of time for instituting such proceedings ( § 517(a) Family Court Act).

The factual issues of whether petitioner withdrew the petitioner or acted to suspend the issuance of the summons cannot be determined upon this motion on the law.

In 1958, the Appellate Division, First Department, reversed a trial court's dismissal of a paternity proceeding under similar circumstances. (Duerr v. Wittman, 5 A.D.2d 326, 171 N.Y.S.2d 444.) There the mother filed the written complaint a week before the child's second birthday, April 4, 1956. The applicable statute ( § 64 New York City Criminal Courts Act) provided that upon the filing of the complaint the court shall issue a warrant or, in its discretion, it may issue a summons which shall be personally served.

The summons issued by the court could not be served. On May 25, 1956, some fifty-eight days after the complaint was filed, a bench warrant was issued; thereupon defendant appeared voluntarily, denied the charges and moved to dismiss the complaint under the two year limitation of time from the birth of the child. ( § 64(1) New York City Criminal Courts Act.)

Defendant there argued that the proceeding was not commenced until the issuance of the warrant. The trial court dismissed the paternity complaint on that ground.

The appellate court examined the then controlling statutes ( § 122(1, 3) Domestic Relations Law; § 64(2) New York City Criminal Courts Act, each now repealed) which provided that the filing of the complaint instituted the proceeding and noted that when the mother filed the complaint she invoked the court machinery directly and could exercise no further control. That court reversed the dismissal order, holding that the form of the process, warrant or summons, was immaterial and that the mother's act of filing the complaint effectively commences the action.

The Duerr court defined a paternity proceeding to be a creature Sui generis for which special rules apply; that a paternity proceeding under the law then existing was not readily categorized as either a civil or a criminal action.

Under Article 5 of the Family Court Act, the paternity proceeding is civil in nature under the 'exclusive original jurisdiction' of the Family Court ( § 511 Family Court Act) without limiting the jurisdiction of the Supreme Court ( § 114 Family Court Act; Serralles v. Viader, 3 Misc.2d 683, 148 N.Y.S.2d 272). At common law there was no paternity proceeding; it is a statutory proceeding.

The Family Court Act specifically provides that paternity proceedings are Commenced by the filing of a verified petition requesting the court to issue a summons or warrant. ( § 523 Family Court Act.) The court shall then cause a summons to be issued. ( § 524 Family Court Act.)

When the summons cannot be personally served the court is authorized to use substituted service ( § 525 Family Court Act) or to issue a warrant ( § 526 Family Court Act) in discharging the responsibility to give notice to the respondent and to obtain jurisdiction over respondent. ( §§ 524, 525 Family Court Act.)

Under the Civil Practice Law and Rules in reference to limitations of time to commence civil proceedings, a claim is asserted when the summons is served. ( § 203(b--1) CPLR). However, the provisions of the CPLR only apply in the Family Court when the method of procedure is not prescribed in the Family Court Act. ( § 165 Family Court Act; Anonymous v. Anonymous 70 Misc.2d 584, at 586, 333 N.Y.S.2d 897, at 899.)

Family Court Act § 517 is a special statute of limitations applicable to a unique proceeding as distinguished from a general statute of limitations (Art. 2 CPLR). It limits the time for instituting paternity proceedings in four separate situations: (1) a proceeding by the mother within two years of the child's birth (Mendes v. Pennyfeather, 11 Misc.2d 546, 174 N.Y.S.2d 766); (2) her proceeding after two year limitation on the allegation that respondent has acknowledged paternity in writing or by furnishing support at any time either during or after the two year limitation (Dolores D. v. Mario N. D., 69 Misc.2d 689, 330 N.Y.S.2d 907); (3) a proceeding by a welfare official within...