Jeanne M. v. Richard G.
| Decision Date | 18 July 1983 |
| Citation | 96 A.D.2d 549,465 N.Y.S.2d 60 |
| Parties | JEANNE M. (Anonymous), Appellant, v. RICHARD G. (Anonymous), Respondent; Sean M. (Anonymous), Intervenor-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Stanley Weiner, Spring Valley, for appellant.
Samuel Kowal, New York City, for respondent.
James R. Filenbaum, Nanuet, for intervenor-appellant.
Before DAMIANI, J.P., and LAZER, THOMPSON and GULOTTA, JJ.
MEMORANDUM BY THE COURT.
In a proceeding for an upward modification of child support, the petitioner mother appeals from (1) an order of the Family Court, Rockland County, dated December 9, 1982, which granted the motion of Richard G. (Anonymous), (respondent) for a human leucocyte antigen (HLA) blood test to determine the paternity of Sean M. (Anonymous), the alleged second child of the marriage; (2) stated portions of an order of the same court, dated February 3, 1983, 118 Misc.2d 45, 460 N.Y.S.2d 223, which, inter alia, reaffirmed its order dated December 9, 1982, and directed the termination of one-half of respondent's support payments in the event of noncompliance with the ordered blood test; and (3) an order of the same court dated February 16, 1983, which, inter alia, granted the respondent's application to disaffirm a hearing examiner's recommendation that the weekly support payments to be made by the respondent be increased from $60 to $140 and instead increased the payment to $90 per week. Intervenor Sean M. (Anonymous) cross-appeals from so much of the order dated February 3, 1983 as denied that part of his motion which was to vacate the order dated December 9, 1982.
Leave to appeal is hereby granted.
Order dated December 9, 1982, reversed and order dated February 3, 1983, reversed insofar as appealed from on the law, without costs or disbursements, and application for HLA blood test denied.
Order dated February 16, 1983, modified, on the facts, by increasing the award of weekly support payments to be made by the respondent from $90 to $105. As so modified, order affirmed, without costs or disbursements.
There can be no question that the issue of paternity was decided in a prior divorce action and prior child support proceedings. Before an order of support could be made, the court necessarily made a determination of paternity, as only a "parent" may be ordered to support his or her child (Domestic Relations Law, § 240; Family Ct. Act, § 413). We conclude, therefore, that respondent is collaterally estopped...
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