Linda I. V. v. Gil R. C.
| Decision Date | 27 March 1998 |
| Citation | 176 Misc.2d 573,673 N.Y.S.2d 290 |
| Parties | , 1998 N.Y. Slip Op. 98,250 In the Matter of LINDA I.V. Petitioner, v. GIL R.C., Respondent. |
| Court | New York Family Court |
Veronica Shea, Goshen, for respondent.
Richard B. Golden, County Attorney of Orange County, Goshen (Jonathan Sax of counsel), for petitioner.
The petitioner mother brought a petition against respondent for support of the child born to petitioner out of wedlock on September 7, 1995. The petition alleges, inter alia, that pursuant to PHL 4135-b respondent acknowledged paternity of the child in a written acknowledgment dated September 11, 1995. A copy of the front side of the acknowledgment is annexed to the petition. The face of the acknowledgment indicates the signatures of both parties were duly notarized and that a copy of the acknowledgment was recorded with the registrar of the City of Middletown.
The support petition was returnable before the Hearing Examiner on January 27, 1998. On the return of the petition respondent, appearing with counsel, sought to contest paternity. The Hearing Examiner granted respondent's request for an order directing the parties and child submit to HLA/DNA blood generic grouping tests to determine the paternity of the child. Subsequent thereto the mother obtained legal representation and by order to show cause returnable before the undersigned on March 6, 1998 sought to vacate the Hearing Examiner's order for HLA testing. This Court granted a temporary stay of the HLA testing.
The motion before the Court is now fully submitted with the filing of respondent's opposition papers and a reply memorandum filed by the petitioner mother.
In his papers respondent does not challenge the authenticity of the acknowledgment of paternity but, essentially, seeks to vacate the acknowledgment on the basis that for periods of time before, during, and after signing the acknowledgment he was overworked, under great emotional distress because of the terminal illness of his wife, depressed by her death, that he was defrauded into signing the acknowledgment, and that he did not read the acknowledgment when he signed it.
There are two statutes, Social Services Law 111-k and Public Health Law 4135-b, which set forth the procedures for the voluntary execution of an acknowledgment of paternity. Under Social Services Law 111-k the acknowledgment is executed under the supervision of a social services official. Under Public Health Law 4135-b the acknowledgment is executed on papers furnished by a hospital immediately preceding or following the in-hospital birth of a child to an unmarried woman. The statute which is relevant to this case is the Public Health Law statute as the affidavits of the parties disclose they executed the acknowledgment at the hospital four days after the birth of the child. There is no allegation that any social services official was involved in supervising the execution of the acknowledgment.
Public Health Law 4135-b was amended. The amendment became effective on November 11, 1997, 90 days after its enactment (L.1997, c. 398, sec. 149c). The amendment changed, among other things, the procedures for advising the signatories of their rights. The amendment requires oral as well as written advisements where the original required only written advisements and opportunity to speak to hospital staff to obtain clarifying information. The amendment also changed the time period in which a signatory could seek to rescind the acknowledgment. Under the Public Health Law as it existed when the acknowledgment was signed the parties had one year from the date of signing to bring a motion to be relieved from the legal effects of the acknowledgment. Under the amended law the signatories have 60 days in which to seek rescission from the earlier of the signing of the acknowledgment or the date of an administrative or judicial proceeding relating to the child in which either signatory is a party. Under the amended law, after the 60-day period either party may challenge the acknowledgment in court only on the basis of fraud, duress, or material mistake of fact. At the time the statute was amended approximately two years had passed from the date the parties signed the acknowledgment.
The first question which must be addressed is whether the November 11, 1997 amendment to the statute has any effect upon the rights and obligations of the parties arising from their execution of the acknowledgment on September 11, 1995.
It does not appear that it was the intention of the legislature that the amendment is to be applied retroactively to undo any jural rights and obligations with respect to paternity which may have matured and become vested under the operation of the statute as it existed prior to the amendment. The legislative findings which accompanied the 1997 amendment state it is essential that the state's child support enforcement program meet the needs of children including providing for the timely and efficient establishment of paternity and child support orders (L.1997, c. 398, sec. 1). Thus, while the amendment may have included changes to further safeguard the legal rights of persons making acknowledgment of paternity, the primary intent of the amended law is to promote the timely and efficient establishment of paternity and child support orders. In Matter of Meegan S. v. Donald T., 64 N.Y.2d 751, 485 N.Y.S.2d 982, 475 N.E.2d 449, the Court retroactively applied an amendment to FCA 517(a) which enlarged the Statute of Limitations for bringing a paternity proceeding. As noted, the purpose of PHL 4135-b is to promote the timely and efficient establishment of paternity and child support orders. It is consistent with the holding in Matter of Meegan S. v. Donald T., supra, which facilitated the bringing of paternity petitions by retroactively applying a more generous Statute of Limitations that the amendment to PHL 4135-b not be applied retroactively to undo the finality of the establishment of paternity based on the execution of the acknowledgment where the one year period had already run. The application of the one year period would apply equally to protect respondent's claim to paternity by operation of the acknowledgment if it was petitioner who was seeking to vacate the acknowledgment instead of respondent.
In the case of Matter of Cady v. County of Broome, 87 A.D.2d 964, 451 N.Y.S.2d 206, mot. for lv. to app. den. 57 N.Y.2d 602, 454 N.Y.S.2d 1027, 440 N.E.2d 798, the Court held:
"Legislation is generally construed as prospective only unless the language of the statute, either expressly or by necessary implication, requires retroactive application" (Matter of Parkchester Apts. Co. v. Lefkowitz, 51 A.D.2d 277, 281, 381 N.Y.S.2d 230, affd. 41 N.Y.2d 987, 395 N.Y.S.2d 162, 363 N.E.2d 712). There is an exception to this general rule for remedial statutes, which can be given retrospective application to the extent that it does not impair vested rights (Cook v. City of Binghamton, 67 A.D.2d 469, 471, 472, 416 N.Y.S.2d 349, mod. on other grounds 48 N.Y.2d 323, 422 N.Y.S.2d 919, 398 N.E.2d 525). "Remedial statutes are those 'designed to correct imperfections in prior law, by generally giving relief to the aggrieved party' * * *" (Coffman v. Coffman, 60 A.D.2d 181, 188, 400 N.Y.S.2d 833). While this exception does not apply to statutes creating new rights and remedies where none previously existed (Jacobus v. Colgate, 217 N.Y. 235, 111 N.E. 837), where, as here, the amendment is enacted to rectify an inequity by extending existing benefits to a class of persons arbitrarily denied those benefits by the original legislation, the amendment is remedial and should be applied retrospectively (Matter of Busch v. Austin Co., 37 A.D.2d 648, 322 N.Y.S.2d 416). We also note that chapter 727 of the Laws of 1980 was made effective immediately, rather than having a postponed effective date which would have furnished "critical and clear indicia of [legislative] intent" that the statute was to have prospective effect only (Matter of Deutsch v. Catherwood, 31 N.Y.2d 487, 341 N.Y.S.2d 600, 294 N.E.2d 193).
As noted, the amendment to PHL 4135-b had a postponed effective date of 90 days indicating legislative intent that the amendment was to have prospective effect. The amendment also was not concerned with extending existing benefits to any class of persons arbitrarily denied those benefits by the original legislation. To apply the amendment retroactively would impair the vested rights of the child, as well as petitioner and respondent, resulting from the acknowledgment of paternity.
Accordingly, in this proceeding, the one year period of limitation to move for judicial relief from the acknowledgment shall apply as was set forth in PHL 4135-b at the time the acknowledgment was executed. Unless there exists some reason for extending or tolling the running of the one year period, respondent is time barred from seeking to rescind the acknowledgment.
In June 1993 respondent's wife died after a two-year bout with brain cancer. Respondent had a child with her in 1991. Respondent stated he was constantly nervous and distressed, and became depressed, over his wife's illness and death. Respondent acknowledges that he and petitioner had a sexual relationship, which he described as sporadic and limited, commencing in December 1994. Respondent states that almost immediately after their sexual relationship began petitioner told him he was the father of the subject child of this proceeding. Respondent states he was in no psychological condition to dispute petitioner's assertions. From December 1994 through April 1995 petitioner continued to tell respondent that he was responsible for the unborn child. In May 1995, petitioner moved in with respondent. In July 1995, petitioner moved out. Respondent states that contributing to the couple's inability to reside together were their different philosophies concerning the...
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In the Matter of Estate of Santiago, 2004 NY Slip Op 51372(U) (NY 11/12/2004)
...duress, or mutual mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment" (see Linda I.V. v. Gill R.C., 176 Misc 2d 573 [1998]). Here, the documents submitted by the movants make a prima facie showing entitling them to judgment as a matter of law. Th......