Lorie F v. Raymond F

• Decision Date: 08 May 1997
• Citation: 657 N.Y.S.2d 235,239 A.D.2d 659
• Parties: In the Matter of LORIE "F", 1 Appellant, v. RAYMOND "F", Respondent. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

Page 235

657 N.Y.S.2d 235

239 A.D.2d 659

In the Matter of LORIE "F", ¹ Appellant, v. RAYMOND "F", Respondent (And Another Related Proceeding.)

Supreme Court, Appellate Division Third Department.

May 8, 1997.

John Hudanich, Law Guardian, Johnson City, for Ashley "F".

James J. Killela Jr., Waverly, for appellant.

Keene & Keene (Gerald A. Keene, of counsel), Waverly, for respondent.

Before CARDONA, P.J., and CASEY, PETERS, SPAIN and CARPINELLO, JJ.

SPAIN, Justice.

Appeal from an order of the Family Court of Tioga County (Callanan Sr., J.), entered May 12, 1994, which, inter alia, dismissed petitioner's application, in a proceeding pursuant to Family Court Act article 6, to compel respondent to submit to a blood test.

Petitioner and respondent were married in November 1985. Petitioner gave birth to a daughter in April 1986; respondent was named as the father on the child's birth certificate. The parties separated in 1991 and in March 1992, by order entered upon stipulation of the parties, Family Court awarded joint custody to the parties with physical custody to respondent and visitation to petitioner. In June 1993 Supreme Court granted respondent an uncontested divorce wherein respondent was awarded custody of the child; all legal documents in prior court proceedings referred to respondent as the father of the child. Petitioner also referred to respondent as the father of the child when she was requesting physical custody in a prior custody modification petition. The child has continuously resided with respondent since her birth except for a short period following the separation of the parties in 1991, when petitioner left with the child. Shortly thereafter petitioner returned the child to respondent.

Petitioner commenced the instant custody proceeding by filing an amended modification petition seeking legal and physical custody of the child based on an alleged change in circumstances and requesting that respondent be required to undergo blood-grouping tests in order to conclusively determine that he was not the father of the child. Petitioner also commenced a separate paternity proceeding against respondent and a former boyfriend, contending that the former boyfriend is the actual father of the child and requesting that Family Court compel both respondent and the former boyfriend to submit to blood-grouping tests in order to determine whether either of them could be excluded as being the father. Petitioner also made a written motion for such relief. In addition to denying the material allegations in petitioner's amended custody petition and paternity petition, respondent interposed the affirmative defense of equitable estoppel claiming that petitioner was precluded from either demanding blood-grouping tests or requesting that the fact of respondent's paternity be set aside. Family Court determined that the evidence was sufficient to establish a prima facie defense of equitable estoppel for respondent, denied petitioner's motion to compel respondent to submit to a blood-grouping test and dismissed the paternity petition. Petitioner appeals.

We affirm. It is settled law that the doctrine of equitable estoppel may be raised as a defense to preclude a party from being compelled to submit to a blood-grouping test (see, David L. v. Cindy Pearl L., 208 A.D.2d 502, 503, 617 N.Y.S.2d 57; see also, Matter of Sharon GG. v. Duane HH., 95 A.D.2d 466, 467 N.Y.S.2d 941, affd. 63 N.Y.2d 859, 482 N.Y.S.2d 270, 472 N.E.2d 46). "It is well established that estoppel applies to prevent the...