Pamela P. v. Frank S.

• Decision Date: 01 October 1981
• Citation: 443 N.Y.S.2d 343,110 Misc.2d 978
• Parties: In the Matter of PAMELA P., Petitioner, v. FRANK S., Respondent.
• Court: New York Family Court

Page 343

443 N.Y.S.2d 343

110 Misc.2d 978

In the Matter of PAMELA P., Petitioner, v. FRANK S., Respondent.

Family Court, New York City New York County.

Oct. 1, 1981.

Stephen M. Harnik, Wachtell, Manheim & Grouf, New York City, for petitioner.

Alan H. Levine, Clark, Wulf & Levine, New York City, Karen DeCrow, Syracuse, N.Y., for respondent.

OPINION

NANETTE DEMBITZ, Judge:

The question in the instant paternity suit is whether a father should be liable for the support of his out-of-wedlock child, even though the mother accomplished her plan to have a baby by deliberately and falsely representing to him that she was using contraception.

Petitioner mother contends that the evidence as to her purposeful deceit, even if credited, is irrelevant to a father's statutory duty to support his progeny. Respondent father, on the other hand, emphasizes that the Constitution as interpreted by the United States Supreme Court guarantees to men as well as to women the freedom to choose whether or not to beget a child. He therefore argues that a support order burdening him with an attribute of parenthood despite petitioner's interference with his right to avoid procreation, would violate the Constitution.

Research has disclosed no New York case involving the question at bar, and no out-of-state decision except one by an intermediate California court. ¹ While that court upheld a mother's contention that her alleged deception of the father was irrelevant, the decision ignored both the law of fraud and deceit and the Constitutional issue. Both common law and constitutional principle must in this court's opinion influence the construction of the paternity statute, and they require curtailment of respondent's support obligation because of petitioner's purposeful misrepresentation. However, the court must, for reasons concerning the welfare of the child, reject respondent's argument that his duty of support can be entirely eliminated.

Before discussing the legal issues the findings as to respondent's paternity and petitioner's intentional deceit will be summarized.

FINDINGS AS TO RESPONDENT'S PATERNITY AND PETITIONER'S DECEIT

Respondent's paternity was clearly and convincingly established by credible and uncontroverted evidence. Petitioner, who is an unmarried airline flight attendant based in New York City, lived with respondent in 1973-74 in Switzerland and thereafter saw him approximately once a year when he came from Europe to New York. Besides her testimony that she had sexual intercourse only with respondent during the period for conception of the child born on March 15, 1980, the Human Leukocyte Antigen bloodmatching test showed the high probability of respondent's paternity. ²

As to petitioner's deception, respondent testified that on the crucial night, which followed a long separation, he asked petitioner before they had sexual intercourse what she was doing in regard to contraception, and she replied that she was "on the pill". Petitioner conceded in her testimony that she was not using birth control pills or any other contraception, and that her sexual intercourse with respondent occurred during the most fertile phase of her monthly reproductive cycle. However, she denied recollection of any question by respondent about contraception.

A witness who under the circumstances of his appearance seemed completely credible, ³ testified that he had broken off a sexual relationship with petitioner approximately two months before the date of the child's conception, because she told him she was no longer taking birth control pills and wanted to have a baby. When he said he was unwilling to father her child, she replied, according to his testimony, that she would have a child with S, the respondent, whether he wanted her to or not, and that she would refrain from telling him she was off of birth control pills. In the context of this testimony as well as the total testimony as to petitioner and respondent's relationship and conversations, the evidence is entirely clear and convincing that petitioner falsely told respondent she was "on the pill" and thereby purposely deceived him with regard to contraception; the court so finds.

LEGAL CONSEQUENCES OF PETITIONER'S DECEIT

A. Exceptions to Absolute Rule of Parental Responsibility

As petitioner argues, the paternity statute, like provisions for support of legitimate children, states a father's duty of support in terms of an unequivocal obligation (Fam.Ct.Act, sec. 545). Nevertheless, respondent is correct in his contention that the courts have grafted some exceptions onto the statutes; and the question at bar is whether a deception such as petitioner's should, like a few other circumstances unmentioned by the legislative draftsmen, ground an exception. The statutory silence on this point is unpersuasive either way. At the time the paternity statute was written, "modern methods of contraception" ⁴ were unknown; their free discussion was far in the future; conduct like petitioner's could hardly have been visualized. And the law of support has accommodated itself to achieve equitable results in the light of scientific progress. ⁵

Pertinent to respondent's claim to exemption from the support obligation, are the rulings suspending a father's duty of payment when the custodial mother wrongfully deprives him of visitation with the child. ⁶ There the courts, recognizing the practical benefit to the custodial mother of a child support order against the father, apply common law precepts as to reciprocal rights and duties between the parties. Those precepts and the underlying principle that the father's statutory support obligation can be drastically affected by the custodial mother, are also reflected in the landmark decision in Boden v. Boden, 42 N.Y.2d 210, 213, 397 N.Y.S.2d 701, 366 N.E.2d 791, emphasizing the effect of a separation agreement on the father's basic duty to the child. ⁷

Common law concepts as to fraud and deceit likewise warrant weight, in this court's opinion, in determining support obligations. These standards, embodying enduring ethical values, apply throughout the domestic relations law. Thus, despite the sanctity of an adoption in establishing a parental relationship and obligation, an adoption has always been voidable for fraud. ⁸

The chief ingredient of fraud and deceit was here clearly and convincingly established by petitioner's premeditated, deliberate and intentional misrepresentation for the purpose of influencing respondent to act for her benefit. ⁹ It is true that one factor in a suit for fraud action in reliance on the misrepresentation--has not been convincingly proved. Though petitioner probably estimated respondent correctly when she decided to deceive him to gain her goal, he apparently realized the possible ineffectiveness of birth control pills; and it cannot be concluded with certainty that her misrepresentation was the "but-for" cause of respondent's risking sexual intercourse with her without himself using contraception. However, the requirement of proximate causation seems pertinent only to the justification for damages for a deception; it is inapposite in considering the relevant question here: the law's accepted standards for right conduct between individuals.

Petitioner's planned and intentional deceit bars her, in this court's opinion, from financial benefit at respondent's expense. The usual rule in apportioning support, that parents must make equivalent financial sacrifices to support their child, ¹⁰ is therefore held inapplicable in the instant case (see Point C below as to appropriate standard for support order). Petitioner's wrong towards respondent precludes her transfer to him of her financial burden for the child she alone chose to have. Consistent with the judicial function of following an equitable approach in support cases, ¹¹ this court must consider "the inequitable conduct of one who invokes its relief..." See McGrath v. Hilding, 41 N.Y.2d 625, 627, 394 N.Y.S.2d 603, 363 N.E.2d 328. The question suggested by the attorneys as to whether this ruling would apply to a married couple need not be answered here; but it may be noted that marriage is ordinarily deemed to represent a willingness to procreate. (See Aghnides v. Aghnides, 308 N.Y. 530, 533, 127 N.E.2d 323). ¹²

B. Constitutional Impact of Petitioner's Deceit

In construing support statutes, the courts must be alert not only to common law but to Constitutional principles. See Carter v. Carter, 58 A.D.2d 438, 397 N.Y.S.2d 88 (2nd Dept.), interpreting Family Court Act's support provisions to eliminate gender discrimination; followed in Tessler v. Siegel, 59 A.D.2d 846, 399 N.Y.S.2d 218 (1st Dept.).

Constitutional doctrine as to procreative freedom has developed mainly in the context of women's rights. There can be no question, however, that the Fourteenth Amendment to the Constitution guarantees to a man equally with a woman freedom of choice to use contraception and avoid procreation. See Eisenstadt v. Baird, 405 U.S. 438, 448-9, 453, 92 S.Ct. 1029, 1035-6, 1038, 31 L.Ed.2d 349 (1972); Carey v. Population Services, 431 U.S. 678, 684-691, 97 S.Ct. 2010, 2015-19, 52 L.Ed.2d 675 (1977). It is likewise established constitutional doctrine that "The prohibitions of the Fourteenth Amendment * * * includes action of state courts...", and that a court order sanctioning a private individual's act violates the Constitution whenever official action having by itself a similar impact would be unconstitutional (see Shelley v. Kraemer, 334 U.S. 1, 18, 68 S.Ct. 836, 844, 92 L.Ed. 1161, 1948). And see Bowman v. Davis, 48 Ohio St.2d 41, 46, 356 N.E.2d 496, 499 (1976), holding that the court would impermissibly infringe on a Constitutional right if it denied liability for medical malpractice regarding a patient's "choice not to procreate;" see also Rivera v. State, 94 Misc.2d 157, 162, 404 N.Y.S.2d 950 (Ct.Cl.).

Under the Shelley principle the question is whether petitioner's...