Lucille Ann D. v. David F.K.

• Decision Date: 29 September 1995
• Docket Number: No. 1,1
• Parties: Matter of LUCILLE ANN D., Respondent, v. DAVID F. K., Appellant. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 909

632 N.Y.S.2d 909

219 A.D.2d 874

Matter of LUCILLE ANN D., Respondent, v. DAVID F. K., Appellant. (Appeal No. 1.)

Supreme Court, Appellate Division Fourth Department.

Sept. 29, 1995.

Gustave J. DeTraglia, Jr., Utica, for appellant.

Keith Eisenhut, Utica, for respondent.

Before GREEN, J.P., and PINE, WESLEY, BALIO and BOEHM, JJ.

MEMORANDUM:

Petitioner met her burden of establishing paternity "by 'clear and convincing' evidence, evidence which is 'entirely satisfactory' and creates a genuine belief that respondent is the father of the child" (Matter of Commissioner of Social Servs. [Patricia A.] v. Philip De G., 59 N.Y.2d 137, 141-142, 463 N.Y.S.2d 761, 450 N.E.2d 681). The combined red cell antigen and human leucocyte antigen (HLA) test, indicating a 99.7% probability of paternity, is entitled to great weight (see, Matter of Stone [Chilinski] v. Ilardo, 191 A.D.2d 965, 595 N.Y.S.2d 265). Issues of credibility are best determined by the trial court (see, Matter of Niagara County Dept. of Social Servs. [Kimmie W.] v. Randy M., 206 A.D.2d 878, 616 N.Y.S.2d 110; Matter of Harvey-Cook [Margaret W.] v Kevin X., 204 A.D.2d 793, 794, 611 N.Y.S.2d 702), and Family Court credited the testimony of petitioner that respondent was her exclusive sexual partner for the 11 months preceding the birth of the child (see, Matter of Taiwana Y. v. Benjamin Z., 204 A.D.2d 790, 611 N.Y.S.2d 701; Fitzgerald v. Tamola, 199 A.D.2d 122, 605 N.Y.S.2d 67). In light of the proof that petitioner had sexual intercourse only with respondent, there was no need for medical testimony explaining the occurrence of regular menstrual periods after the apparent conception date (see, Matter of Kaplan [Sandra LL] v. Andrew MM, 217 A.D.2d 778, 629 N.Y.S.2d 499; Matter of Commissioner of Social Servs. of City of New York [Celia D.] v. Hector S., 216 A.D.2d 81, 628 N.Y.S.2d 270; Matter of Taiwana Y. v. Benjamin Z., supra).

The court properly granted petitioner's objection to the order of the Hearing Examiner and awarded additional support based upon the amount of combined parental income exceeding $80,000. The court fully explained the reasons for its departure from the Hearing Examiner's order, based upon its consideration of the factors set forth in Family Court Act § 413(1)(f), and we find no basis to disturb the award of additional child support (see, Family Ct. Act § 413[1][c][3]; Matter of Cassano v. Cassano, 85 N.Y.2d 649, 655, 628 N.Y.S.2d 10, 651 N.E.2d 878).

Order...