Schneider v. Schneider

• Decision Date: 06 October 1972
• Citation: 72 Misc.2d 423,339 N.Y.S.2d 52
• Parties: In the Matter of a Proceeding Under the Uniform Support of Dependent Law M. E. SCHNEIDER, * Petitioner, v. M. L. SCHNEIDER, * Respondent. Family Court, City of New York, Kings County
• Court: New York Family Court

Page 52

339 N.Y.S.2d 52

72 Misc.2d 423

In the Matter of a Proceeding Under the Uniform Support of Dependent Law M. E. SCHNEIDER, ^* Petitioner, v. M. L. SCHNEIDER, ^* Respondent Family Court, City of New York, Kings County.

Oct. 6, 1972.

Norman Redlich, Corp. Counsel, for petitioner.

Jacob Firester, Brooklyn, for respondent.

DECISION AND ORDER

I. LEO GLASSER, Judge.

The petitioner instituted a proceeding under the Uniform Support of Dependents Law (Domestic Relations Law Art. 3--A) in which she alleges that she is the wife of the respondent, that he is the father of the four children named in the petition and in which she seeks an order of support for herself and her children. She is a resident of Niagara County and the respondent is a resident of Kings County, New York.

Summoned to appear in the Family Court of Kings County, the respondent filed a verified answer to the petition in which he acknowledged his marriage to the petitioner but avers that the marriage was procured by duress and he denies paternity of the children. In addition, the respondent requested an examination before trial pursuant to Articles 4 and 31 of the C.P.L.R. and D.R.L. § 37(9) to be held at the Family Court of Niagara County and the respondent also requested a blood grouping test. The Corporation Counsel of City of New York appeared on behalf of the petitioner pursuant to D.R.L. § 37(5) and opposed the respondent's request for a blood grouping test upon the sole ground that there is no authority in the Uniform Support of Dependents Law (hereafter referred to as U.S.D.L.) for granting such request.

The avowed purpose of the U.S.D.L. is to compel support of dependent wives and children within and without the State and to provide a procedure for enforcement of support against persons residing in other counties of the State or in other States and Territories of the United States having substantially similar reciprocal laws. D.R.L. §§ 30, 35; Landes v. Landes, 1 N.Y.2d 358, 363, 153 N.Y.S.2d 14, 17, 135 N.E.2d 562, 564 (1956). The issue presented to the court is whether the provisions of Article 3--A of the D.R.L. and Article 4 of the Family Court Act are mutually exclusive. Stated differently, may the more detailed provisions of the F.C.A. be resorted to where no provision governing the specific issue is to be found in the U.S.D.L.?

In 'Vincenza' v. 'Vincenza', 197 Misc. 1027, 98 N.Y.S.2d 470 (Dom.Rel.Ct., N.Y.Co.1950) the court said: 'The boundaries of the New York Uniform Support of Dependents Law cannot be enlarged by the implications of other statutes but are fixed by the four corners of Chapter 807 of the Laws of 1949, as amended.' 197 Misc. 1027, 1032, 98 N.Y.S.2d 470, 476; Matter of Dannheim v. Babbitt, 48 Misc.2d 310, 264 N.Y.S.2d 639 (Fam.Ct., Alleg.Co.1965) declined to interpolate F.C.A. § 438 in a U.S.D.L. proceeding and denied an application for counsel fees. That case may be deemed to be overruled by Murdock v. Settembrini, 21 N.Y.2d 759, 288 N.Y.S.2d 234, 235 N.E.2d 220 (1968) in which the Court of Appeals affirmed the award of counsel fees by the Family Court which applied F.C.A. Sect. 438 in a proceeding under the U.S.D.L. which contains no provision for counsel fees. In Fleischer v. Fleischer, 25 A.D.2d 901, 269 N.Y.S.2d 270 (3rd Dept. 1966), motion for leave to appeal denied, 18 N.Y.2d 577, 272 N.Y.S.2d 1025, 219 N.E.2d 299 (1966) and Lewis v. Lewis, 55 Misc.2d 1092, 288 N.Y.S.2d 1 (Fam.Ct.Queens Co.1967) F.C.A. Sect. 447, relating to visitation, was applied in proceeding under the U.S.D.L. which makes no provision for orders of visitation.

The broad question has thus been raised before. In Martin v. Martin, 58 Misc.2d 459, 296 N.Y.S.2d 453 (Fam.Ct. Ulster Co.1968), which declined to interpolate F.C.A. § 466(c) in a U.S.D.L. proceeding, the cases were comprehensively analyzed and in the course of his opinion, Judge Elwyn observed that the later decisions 'seem to point in the direction of fully interpolating Article 4 of the Family Court Act into the Uniform Support of Dependents Law.' 58 Misc.2d 459, 467, 296 N.Y.S.2d 453, 461. The specific question raised by the facts in this case has not, so far as this court's research has revealed, been previously considered. The only case the court has found in which a blood grouping test was applied for and granted in a U.S.D.L. proceeding was In re Miller, 114 N.Y.S.2d 304 (Children's Court, Westchester Co.1952) in which the respondent, a resident of Connecticut, personally appeared in the New York Court and his request for a blood grouping test was granted without discussion.

Were the parties to this proceeding residents of or domiciled in different states perhaps the simple answer to the question of paternity raised by the respondent's denial and to his request for a blood grouping test would be the response given in People ex rel. Johnson v. Johnson, 35 Ill.App.2d 106, 181 N.E.2d 820 (1962). In that case a proceeding was instituted against a husband under the Uniform Reciprocal Enforcement of Support Act for the support of a minor child. The husband-respondent filed an answer stating that he had no knowledge sufficient to form a belief that he was the father of the child. The court held that his answer did not place upon the state the duty to substantiate, by proof, the charge in the complaint before an order could be entered for support. The court reasoned that the presumption of legitimacy arising from the fact that the child was born while the parties were married placed upon the husband the burden of going forward with evidence to make out a Prima facie rebuttal.

That answer is a simple but a disquieting one for several reasons. Section 38--a of the D.R.L. provides: 'In any hearing under this act (D.R.L. Sections 30--43) in either an initiating state court or a responding state court, there shall be applicable the same presumptions and other rules of evidence, whether statutory, decisional, or under court rules, as are available to the parties in other civil proceedings or actions brought in that same court'. There are several statutes in New York which authorize an order for a blood grouping test. F.C.A. §§ 418, 532; C.P.L.R. § 3121. The rule of evidence with regard to such tests which is recognized in this state is that the results of such test may be received in evidence where definite exclusion is established. F.C.A. § 532. Such evidence of exclusion is conclusive and rebuts the presumption of legitimacy which would otherwise obtain. Anonymous v. Anonymous, 1 A.D.2d 312, 150 N.Y.S.2d 344 (2nd Dept. 1956). That rule of evidence would be unavailable to the respondent if his request for a blood grouping test were rejected because the U.S.D.L. makes no provision for granting it. In a paternity suit, the respondent's motion for a blood grouping test must be granted. F.C.A. § 532; People on Complaint of Van Epps v. Doherty, 261 App.Div. 86, 24 N.Y.S.2d 821 (3rd Dept. 1941). In a support proceeding under Article 4 of the F.C.A. the granting of a motion by the respondent for a blood grouping test is discretionary. F.C.A. § 418; Time v. Time, 59 Misc.2d 912, 300 N.Y.S.2d 925 (Fam.Ct.N.Y.Co.1969). Before denying such a motion careful consideration should be given to the astute observation made in Beach v. Beach, 72 U.S.App.D.C. 318, 114 F.2d 479 (1940). In that case a husband denied paternity in his wife's suit for maintenance and requested a blood grouping test. In granting his request the court said, at p. 482: 'If the child is appellee's, the tests will prove nothing and harm no one. If the child is not his, It would be unjust to prevent him from proving the fact.' (emphasis added). The U.S.D.L. makes a rule of evidence available to the respondent but being silent as to blood grouping tests is perhaps unjust in preventing him from implementing that rule.

The decision in Johnson is disquieting for an additional reason. If a husband might obtain a blood grouping test were he sued for support under Article 4 of the F.C.A. and thus be able to disprove paternity and avoid an order of support for a child who is not his, he might be denied that opportunity by the simple expedient of the petitioner moving to another...