Kordek v. Wood

• Decision Date: 17 December 1982
• Citation: 457 N.Y.S.2d 156,90 A.D.2d 209
• Parties: In the Matter of Anthony KORDEK, Appellant, v. Kathleen WOOD, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 156

457 N.Y.S.2d 156

90 A.D.2d 209

In the Matter of Anthony KORDEK, Appellant, v. Kathleen WOOD, Respondent.

Supreme Court, Appellate Division Fourth Department.

Dec. 17, 1982.

Gerald T. Barth, Syracuse, for appellant; James Greenwald, Syracuse, of counsel.

Mary Beth Fleck, Syracuse, for respondent.

William Yeomans, Syracuse, law guardian.

Before DILLON, P.J., and CALLAHAN, DENMAN, BOOMER and SCHNEPP, JJ.

SCHNEPP, Justice.

The issue which must be determined is whether Family Court has jurisdiction to establish paternity in a proceeding where child support is neither sought nor ordered. On November 7, 1979 petitioner was declared the father of a child born out-of-wedlock on February 3, 1977, an order of filiation was entered and visitation rights were awarded. On June 23, 1980 he sought modification of the visitation rights, claiming that because of a change of circumstances the visitation plan was "impossible". Thereafter, Family Court ruled that the filiation order never became final because support had not been fixed or determined, and, following a hearing on the issue of support, concluded that the child was neither in need of support from the petitioner nor likely to become a public charge. Family Court then, citing its decision in Matter of Czajak v. Vavonese, 104 Misc.2d 601, 428 N.Y.S.2d 986, held that because the child was not in need of support it was without jurisdiction to determine paternity (see Matter of Kordek v. Wood, 108 Misc.2d 434, 437 N.Y.S.2d 631). It, therefore, dismissed the original petition which sought entry of a declaration of paternity, abrogated its order of filiation and vacated the order of visitation. The petitioner appeals from this order.

As a threshold matter we note respondent's contention that since entry of the order the appeal has become moot and should be dismissed because petitioner has obtained a default judgment of paternity in a Supreme Court declaratory judgment action. There is, of course, a difference between paternity proceedings commenced in Family Court and declaratory judgment actions to establish paternity commenced in Supreme Court. Undoubtedly the basic purpose of a paternity proceeding is to insure support for the child born out-of-wedlock and to provide a procedure for the government to obtain indemnification for the expense of supporting the child (see Commissioner of Public Welfare v. Koehler, 284 N.Y. 260, 266, 30 N.E.2d 587; Jaynes v. Tulla, 70 A.D.2d 680, 681, 416 N.Y.S.2d 357; Matter of Salvatore S. v. Anthony S., 58 A.D.2d 867, 396 N.Y.S.2d 872; Matter of J. [Anonymous], 50 A.D.2d 890, 377 N.Y.S.2d 530; Matter of Melis v. Department of Health of City of N.Y., 260 App.Div. 772, 24 N.Y.S.2d 51; see, also, Schatkin, Disputed Paternity Proceedings [Fourth Edition, 1980], October 1982 Supp, § 16.01, p 221). The declaratory judgment action, on the other hand, is the appropriate method to determine the status of the child, to determine the rights of all interested parties and to confer the status of legitimacy (Matter of Salvatore S. v. Anthony S., supra). In addition to declaratory relief, Supreme Court may also award any other category of legal or equitable relief to which the plaintiff is entitled (see CPLR 3017, subd. [b]; see, also, Siegel, New York Practice, § 436, p. 579).

Consequently, if petitioner has, in fact, obtained a default judgment of paternity in a declaratory judgment action brought in Supreme Court, his appeal is subject to dismissal since there would be no justiciable controversy before this court (see 10 Carmody-Wait 2d, N.Y.Prac., § 70:262, p. 532). The record, however, does not permit us to conclude that petitioner has obtained such relief since a copy of the order is not part of the record, petitioner did not address respondent's claim in his brief and petitioner did not appear at oral argument. In any event, the Family Court determination that it is without jurisdiction to determine paternity absent a support order is very likely to affect a large number of cases on a continuing basis and for that reason the appeal should be retained and determined (see Matter of Oliver v. Postel, 30 N.Y.2d 171, 177-178, 331 N.Y.S.2d 407, 282 N.E.2d 306; cf. Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-718, 431 N.Y.S.2d 400, 409 N.E.2d 876).

Turning to the merits, we disagree with Family Court that relief is not available to a putative father in a paternity proceeding when the child is not in need of support. Section 511 of the Family Court Act provides that "[t]he family court has exclusive original jurisdiction in proceedings to establish paternity and, in any such proceedings in which it makes a finding of paternity, to order support and to make orders of custody or of visitation ..." (see, also, N.Y.Const., art. VI, § 13, par. b, cl. [5].) By its plain language the statute does not condition jurisdiction upon a finding of financial need on the part of the child and it empowers Family Court, once it makes a finding of paternity, to not only grant a support order but also to make orders of custody and visitation (see, also, Family Ct.Act, § 549). Family Court has been so empowered since 1971 (L.1971, ch. 952, § 1), and since 1976 a person alleging to be a child's father has been authorized to originate a paternity proceeding (Family Ct.Act, § 522, as amd L.1976, ch. 665, § 6) and to file a verified petition requiring the respondent to show cause "why the court should not enter a declaration of paternity, an order of support, and such other and further relief as may be appropriate under the circumstances." (Family Ct.Act, § 523).

Further support for our interpretation of Family Court's jurisdiction can be found in section 564 of the Family Court Act which empowers it to make an order of filiation in any proceeding where it is alleged in a "petition" that a person is the father of an out-of-wedlock child who is a party to, or the subject of, the proceeding. This would certainly include a delinquency or PINS proceeding in which support is not an issue along with, for example, a proceeding in which the putative father wishes to insure his parental rights. It also includes many other proceedings since subdivision (e) of the section provides that "For the purposes of this section the term 'petition' shall include a complaint in a civil action, an accusatory instrument under the criminal procedure law, a writ of habeas corpus, a petition for supplemental relief, and any amendment in writing of any of the foregoing." It is also noted that a related section of the Domestic Relations Law empowers the surrogate in an adoption proceeding to determine any...