Leslie GG v. William HH

• Decision Date: 11 July 1991
• Parties: In the Matter of LESLIE "GG", 1 Appellant, v. WILLIAM "HH", 1 Respondent. Supreme Court, Appellate Division, Third Department
• Court: New York Supreme Court — Appellate Division

Page 450

572 N.Y.S.2d 450

175 A.D.2d 378

In the Matter of LESLIE "GG", ¹ Appellant, v. WILLIAM "HH", ¹ Respondent Supreme Court, Appellate Division Third Department.

July 11, 1991.

Miller, Mannix & Pratt, P.C. (John C. Mannix, of counsel), Glens Falls, for appellant.

William V. Canale (Gregory V. Canale, of counsel), Glens Falls, for respondent.

Before MIKOLL, J.P., and YESAWICH, LEVINE, MERCURE and CREW, JJ.

LEVINE, Justice.

Appeal from an order of the Family Court of Warren County (Austin, J.), entered December 3, 1990, which dismissed petitioner's application, in a proceeding pursuant to Family Court Act article 5, to adjudicate respondent as the father of a child born to petitioner.

Petitioner and respondent met in the City of Glens Falls, Warren County, in November 1989. At that time, petitioner was a New York domiciliary and respondent was a Colorado domiciliary. The following month, after respondent returned to Colorado, petitioner traveled to Colorado and stayed with respondent from December 22, 1989 until December 28, 1989. During that period, the parties engaged in sexual intercourse which allegedly resulted in petitioner becoming pregnant. In August 1990, petitioner commenced the instant paternity proceeding in Warren County Family Court. Respondent was served with the verified petition in Colorado and subsequently moved to dismiss the petition for lack of personal jurisdiction. Petitioner opposed the motion, claiming that a letter written by respondent in which he allegedly acknowledged paternity was a sufficient basis for acquiring personal jurisdiction (see, Family Ct. Act § 154[b][4]. Family Court granted respondent's motion and this appeal ensued. There should be an affirmance. In a proceeding to establish paternity or seek support, Family Court Act § 154(b) provides for long-arm jurisdiction where at least one of six enumerated "minimum contacts" criteria is satisfied (see, Mem. of Dept. of Social Servs., 1983 McKinney's Session Laws of N.Y., at 2501). One such criterion relevant herein is an "acknowledg[ment of] paternity, in writing" (Family Ct. Act § 154[b][4]. This language was apparently derived from Family Court Act § 517, and cases interpreting that provision have consistently held that an acknowledgment of paternity must be established by clear and convincing evidence (see, Matter of Vicki B. v. David H., 57 N.Y.2d 427, 430, 456 N.Y.S.2d 737, 442 N.E.2d 1248; Matter of Dorn "HH" v. Lawrence "II", 31 N.Y.2d 154, 158 n. 4, 335 N.Y.S.2d 274, 286 N.E.2d 717, appeal dismissed sub nom. Fuchs v. Silvester, 409 U.S. 1121, 93 S.Ct. 945, 35 L.Ed.2d 254), thus requiring "a clear acknowledgment about which there is no doubt or equivocation" (Schuerf v. Fowler, 2 A.D.2d 541, 542, 156 N.Y.S.2d 859, appeal dismissed 3 N.Y.2d 987, 169 N.Y.S.2d 749, 147 N.E.2d 253; see, Matter of Green v. Blue, 28 A.D.2d 628, 280 N.Y.S.2d 767). We see no reason to apply a different standard in this case (see, McKinney's Cons. Laws of N.Y., Book 1, Statutes § 236).

Respondent's letter to petitioner, dated September 27, 1990, stated, "You and I had sex. You became pregnant as a result (the tests will prove this beyond a shadow of a doubt so I can be sure I'm paying to support a child that I actually fathered) of the physical relationship we had." He also wrote, "Once the tests prove it for sure, I never intend to deny that there is a child somewhere that I helped create." In our view, these statements amount to less than an unequivocal admission by respondent and, therefore, we agree with Family Court that the letter cannot be construed as an acknowledgment of paternity sufficient to warrant the assertion of jurisdiction under Family Court Act § 154(b).

We reject petitioner's contention that CPLR 302(b) provides a basis for long-arm jurisdiction in this case independent of Family Court Act § 154(b). With respect to a Family Court proceeding involving, inter alia, a demand for support, CPLR 302(b) states that a court may exercise personal jurisdiction over the nondomiciliary or nonresident respondent "if the party seeking support is a resident of or domiciled in this state at the time [the] demand [for relief] is made, provided that * * * the claim for support * * *...