Opinion
No. 50690/07.
06-19-2014
J.A., Plaintiff, v. L.A., Defendant.
Stuart J. Moskovitz, Esq., New York, Attorney for Plaintiff. Ursula A. Gangemi Esq., Brooklyn, Attorney for Defendant. Christopher Robles, Esq., Brooklyn, Attorney for the Subject Child.
Stuart J. Moskovitz, Esq., New York, Attorney for Plaintiff.
Ursula A. Gangemi Esq., Brooklyn, Attorney for Defendant.
Christopher Robles, Esq., Brooklyn, Attorney for the Subject Child.
Opinion
CATHERINE M. DiDOMENICO, J.
By Order to Show Cause dated May 29, 2013, the Movant, Ms. L.A.R.M. (“Former Wife” or “Ms. A.”) seeks an Order of Child Support for the child at issue R.V. a/k/a M.A. (d.o.b.1/26/2002). At the time the present application was initially filed in this Court, ex parte, Former Wife was directed to file a paternity petition in Family Court to establish Mr. J.A. (“Former Husband” or “Mr. A.”) as the child's father as required by Article 5 of the Family Court Act. Only after paternity was established could this Court properly address the issue of child support. See P. v. S., 88 A.D.2d 865 (1st Dept.1982). The required paternity petition was filed by Former Wife on or about May 30, 2013 in Family Court. *
In Former Wife's sworn paternity petition she affirmatively states under oath that Mr. Christopher V. is R. V.'s father.
After reviewing an alleged forum selection clause contained in the parties' Stipulation of Settlement, the Family Court determined that the proper forum to decide the issue of paternity was Supreme Court. Accordingly, Family Court dismissed Former Wife's petition, without prejudice, for further proceedings in Supreme Court. As Former Wife's application for child support was already pending before this Court, her request for a determination of paternity was scheduled for a hearing to be held on March 20, 2014.
Former Wife now seeks to establish paternity through equitable estoppel and seeks an award of child support once paternity is established. Former Husband denies that he is the putative father of R.V. and cross moves for recoupment of $750.00 representing one month of overpayment in maintenance following what he argues was Former Wife's “ceremonial remarriage” to her current husband, Mr. John W. M.The present matter was tried on March 20, 2014. Former Wife testified on her own behalf and called the following witnesses: 1) Ms. Maaryon Shravendeel (Director of Family Court Services on Staten Island); 2) Mr. Christopher V. (the man alleged to be R. V.'s biological father); and 3) Ms. Erma L. (family friend). Former Husband testified on his own behalf and called Ms. Jennifer R. (family friend) as a witness. Both parties offered documents into evidence (Pl 1–5); (Def A–H). Judicial Notice was taken of certain documents on consent. (Judicial Notice 1–4 ). An in camera examination of the subject child was held on April 8, 2014.
Factual Findings
On March 5, 2003, in an action entitled “In the Matter of the Application of an Instrument Concerning R.S. V.”, Ms. C. and Mr. V. swore under oath to the Family Court that they were the biological parents of R. V., and voluntarily and temporarily surrendered their parental rights to permit R.V. to be placed into foster care. (See L85/03 & L979/02 Family Ct. New York County). That sworn Family Court docket is replete with Mr. V.'s representation that he is the biological father of R. V., and further, that should he not complete the ordered parenting service plan, his parental rights could be terminated in a later proceeding. Mr. V. and Ms. C. were both represented by counsel at the time those representations were made. While the identification of a child's biological father is not necessarily dispositive to a paternity by estoppel argument, for the purposes of the present action, Mr. Christopher V. is equitably and judicially estopped from denying he is R. V.'s biological father. See Matter of Mukuralinda v. Kingombe, 100 AD3d 1431 (4th Dept.2012) ; see also, Davis v. Citibank, N.A., 2014 NY. Slip Op 2557 (2d Dept.2014) ; Anonymous v. Anonymous, 137 A.D.2d 739 (2d Dept.1988). The Court notes that Mr. V. was successful in the prior proceeding insofar as he sought to voluntarily surrender his child, and such surrender was approved by the Family Court. This result satisfies the “favorable judgment” requirement of judicial estoppel. See GECMC 2007–C1 Burnett St. LLC v. Hoti Enters., L.P ., 115 AD3d 642 (2d Dept.2014).
It is further not disputed that the Movant here, (Former Wife, Ms. A.) is not R.V.'s biological mother, nor is Mr. A. R.V.'s biological father. Both parties credibly testified that they jointly served as paid foster parents during the course of their marriage. Moreover, as a component of their paid foster care, they brought R.V. to the Seaman's Society to visit with her biological parents. In addition to R.V., the parties hosted a number of other children in their Staten Island home from 1999 to 2003, two of which they subsequently adopted (Daniel. A. and John. A.). The parties never adopted R. V., and R.V. has had considerable contact with her biological parents. During at least a portion of the foster care period, Mr. Christopher V. and Ms. Emily C. also lived in the A. home.* * In fact, Mr. V. resides with Former Wife and R.V. to this date. Former Wife credibly testified that R.V. believes Mr. V., who is her biological father, to be her brother.
Ms. A. claimed that Emily and Christopher were (16 and 15, respectively) when R.V. was conceived. They were shunned by their families and living in a shack when Ms. A. took them into her home in or around 2003 after already fostering R. V.
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At trial Former Wife credibility testified that on or about March 5, 2003, the A. home was “closed” as a foster care facility. Former Wife explained that the home was “closed” after she was accused of endangering the welfare of a child entrusted to her care by not taking the child to the hospital for treatment during the course of a respiratory attack. Former Wife testified that the wait at the emergency room was long, the child appeared fine, and that she had secured a nebulizer from a drug store which addressed any immediate danger to the child. Following this event, Former Wife lost her ability to be paid as a foster care parent. However, Former Wife testified that after a year of administrative hearings she was successful in expunging her name from the NYS Child Abuse and Maltreatment Registry.
As she was no longer a paid foster parent, Former Wife petitioned for custody of R.V. On or about March 6, 2003 Former Wife commenced a custody proceeding in Family Court wherein she swore that Emily C. and Mr. Christopher V. were the biological parents of R.V. Both biological parents appeared in Family Court as necessary Respondents to that petition. On consent of both biological parents, an Order of Final Custody was granted to Ms. A. As Former Wife swore in this prior custody proceeding that Mr. V. was the biological father of R. V., and based upon that representation she was awarded custody, she is hereby judicially and equitably estopped from now arguing that Mr. V. is not the biological father of R.V. See Estrellita A.V. Jennifer D., 40 Misc.3d 219 (Sup.Ct.Suff.Cty.2013) ; see also, Prudential Home Mortgage Co. v. Nieldan Constr. Corp., 209 A.D.2d 394 (2d Dept.1994). While at the time that custody was awarded the parties were still married, Mr. A. credibly testified that Ms. A never told him that she was seeking legal custody of R.V. The Court notes that Mr. A's name does not appear anywhere in Ms. A.'s custody petition, and that the Order granting custody to Ms. A. only was issued on the same date as the petition, March 6, 2003.
Around the time that Former Wife obtained custody of R. V., the parties' marriage deteriorated. By Summons dated January 9, 2008, Former Husband filed for divorce. He moved out of the home he shared with Ms. A, R. V., and Christopher V. By Judgment entered November 16, 2009, a divorce was granted to Former Husband on the ground of Constructive Abandonment. The Judgment of Divorce incorporated, but did not merge, the parties' Stipulation of Settlement dated January 9, 2009. That Stipulation obligated Former Husband to pay child support for the two foster children that the parties jointly adopted, namely Daniel A. (d.o.b 6/05/92) and John A. (d.o.b 5/14/95). Specifically, child support was payable directly to Former Wife in the sum of $3,250.00 per month on the 1st day of each month. This amount of child support was an upward deviation from the CSSA guidelines. Former Husband paid this sum faithfully until Daniel turned 21 years old. He continues to pay $1,450 per month for the child John A. The stipulation further provided for maintenance payments to Former Wife in the amount of $750.00 per month.
The parties' Stipulation of Settlement does address the issue of child support for R.V. In their agreement Former Wife reserves the right to make an application for child support in the future, and Former Husband states that he believes said application to be unsustainable under New York State law. The parties' Stipulation of Settlement provides as follows:
“The Defendant [Ms. A.] has legal custody of a child, R.V. but said child was never legally adopted by either the Plaintiff or the Defendant and no provision is made for the custody, support, or maintenance of said child ... No provision has been made in the Agreement for the support of R. V ...”
Former Wife admits that Former Husband paid child support for his adopted sons John and Daniel until July 2013 when the support for Daniel ended as a matter of law. Since that time the child support obligation paid directly to Former Wife, now only for the support of John, has been reduced to $1,450. Only after her monthly amount of child support was reduced did Former Wife bring this application for child support for R.V. The parties do not dispute that Former Husband has had no contact with R.V. since 2007 when the parties separated. To this day, R.V. believes Mr. Christopher V. (her biological father) is her brother. R.V. further believes that Former Husband is her absent Father. No one has ever told the child anything to the contrary.
Applicable Law
a. Equitable Estoppel
“The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted”. Matter of Shondel J. v. Mark D., 7 NY3d 320 (2006). The law imposes the doctrine of equitable estoppel on a basis of “fairness”. See Augustin v. Augustin, 79 AD3d 651 (1st Dept.2010). The New York courts have applied the doctrine of estoppel in paternity and support proceedings to enjoin a party from denying paternity where a man holds himself out to be a child's father, there is a justifiable reliance on that representation of paternity, and a parent-child relationship has developed. See Matter of Andre Asim M. v. Madeline N., 103 AD3d 500 (1st Dept.2013). The Courts are reluctant to order genetic marker tests when the result would possibly disrupt an established father child relationship and leave a child fatherless. See Hammack v. Hammack, 291 A.D.2d 718 (3rd Dept.2002). The theory of paternity by estoppel is secured by statute. See Family Ct Act §§ 418[a] ; 532[a]. The paramount concern in applying equitable estoppel in paternity cases is the best interests of the subject child. See Matter of Felix O. v. Janette M., 89 AD3d 1089 (2d Dept.2011). The party seeking to establish paternity by estoppel must do so by clear and convincing evidence. See Matter of Commissioner of Social Serv. v. Julio J., 20 NY3d 995 (2013).
Here, after considering the totality of the circumstances, including the testimony and evidence offered at trial, together with the detailed in camera examination of the child at issue, the Court finds that the Movant, Ms. A., has failed to prove that Mr. A. should be equitably estopped from denying that he is R. V.'s father for the reasons set forth below.
First, there is no doubt that Mr. Christopher V. (not Mr. A.) is R. V.'s biological father. Mr. V. established his paternity based on his own admissions and repeated representations when he surrendered his rights to R.V. Former Wife has also, on more than one occasion, acknowledged in sworn petitions that Mr. V. is the child's biological father. Indeed, Mr. V. has resided in the same household with R.V. since 2003 when R.V. was 10 months old. Mr. V is active in R. V.'s care on a daily basis and is a consistent source of emotional support for her. Accordingly, this is not a case where the biological father is unknown. See Matter of Shondel J. v. Mark D., 7 NY3d 320 (2006). The Appellate Courts have held that even in cases where equitable estoppel is raised, it is still primarily the responsibility of a biological father to support his children. See Charles v. Charles, 296 A.D.2d 547 (2d Dept.2002) ; See also Harvey–Cook v. Neil, 118 A.D.2d 109 (2d Dept 1986). Here Christopher V. testified that he works a full time job. He is therefore in a position to provide financial support for his child should such support ever be sought by Former Wife. Thus, the subject child is not left without a means of support.
Second, the parties began their relationship with R.V. as paid foster parents through the Seaman's Society for Children. Former Husband credibly testified that throughout his relationship with R.V. he was unaware that she was anything other than a foster child. Mr. A. only became aware that Ms. A. obtained legal custody over R.V. after he left the marital home. While Mr. A. may have acted in a loving way toward R.V. while she was in the parties' professional care, including performing the tasks of a father figure, and allowing her to call him “Daddy,” this fact, alone, does not give rise to the level of reliance necessary to establish paternity by estoppel. Indeed, any other result would have a chilling effect on the willingness of foster parents to serve in this critical capacity.
The sole reason R.V. believes Former Husband to be her “father” is because Former Wife has made the personal choice not to inform her that her biological father is Mr. Christopher V.R. V.'s subjective belief regarding the identity of her father has been fostered by Former Wife, not by the actions of Former Husband. The Court notes that many of the factors traditionally considered in support of the paternity by estoppel doctrine are not present here. The child was born outside of the marriage, maintains her biological father's surname, and Former Husband has not set a precedent of providing financial support. Moreover, any relationship between Mr. A. and the child that may have once existed has been abated by the passage of over seven years without meaningful contact. See Matter of Karen G. v. Thomas G., 109 AD3d 915 (2d Dept.2013). In addition, while the Court will not divulge details regarding the in camera examination of the child, it is fair to say that the child's use and understanding of the term “Daddy” is more expansive than the Former Wife would like the Court to believe.
After considering the totality of the circumstances, including the fact that it is undisputed that Former Husband is not the biological father, that Former Wife is aware of who the biological father is, and that the biological father lives with, and has a relationship with the child at issue, the Court concludes that the application of the doctrine of equitable estoppel to prevent Former Husband from denying paternity is not supported by the record, and will not further the child's best interests. See Cleophous P. v. Latrice M.R., 299 A.D.2d 936 (4th Dept.2002) ; see also, Matter of D.S.S. v. Timothy C., 114 AD3d 860 (2d Dept.2014) ; Matter of Todd S. v. Lauri B., 110 AD3d 526 (1st Dept.2013) ; Matter of Starla D. v. Jeremy E., 95 AD3d 1605 (3rd Dept.2012). To grant the Former Wife's application would be tantamount to endorsing the continuing fraud perpetrated on the child that she has an absent, uncaring father, rather than supporting the truth that her father, Mr. V., lives with her, and cares for her deeply. This is contrary to the purpose of the doctrine of paternity by estoppel which is rooted in fairness. See Janis C. v. Christine T., 294 A.D.2d 496 (2d Dept.2002).
Finally, as pointed out by Former Husband, he has had absolutely no contact with R.V. since 2007. It was not until the child support paid by Former Husband decreased from $3,250 to $1,450, that Former Wife commenced this action against Former Husband for R. V.'s support.
As Former Wife has failed to prove by clear and convincing evidence that Former Husband should be equitably estopped from denying he is R. V.'s father, her motion seeking child support is hereby denied.
Failure to include a necessary party
In light of the foregoing ruling denying a finding of estoppel this Court need not reach the issue of Former Wife's failure to include R. V.'s biological father as a necessary party to this action. However, this omission, in and of itself may well have required dismissal of the application. See CPLR '1001 ; See also, Charles v. Charles, Supra; Multari v. Sorrell, 287 A.D.2d 764 (3rd Dept.2001) ; Matter of Isaiah A.C. v. Faith T. 43 AD3d 1048 (2d Dept.2007) ; Matter of Edward WW. v. Diana XX., 79 AD3d 1181 (3rd Dept.2010).
Maintenance
Former Husband cross moves to recoup $750 representing an alleged overpayment of maintenance following the ceremonial remarriage of Former Wife in July of 2009. Former Wife, in opposition, argues that she was not remarried until March 25, 2010 and that Former Husband actually owes her approximately $12,000 in maintenance as he stopped paying after August of 2009.
Former Husband credibly testified at trial, and submitted compelling evidence, that Former Wife ceremonially married Mr. Jack M. in Borough Hall on July 29, 2009 and then again at a reception held on August 2, 2009. Amongst the evidence offered by Former Husband was a copy of an invitation which clearly defines the event as a “marriage”. Former Husband also provided pictures from the event which clearly show that a “Disney's Shrek” themed wedding reception was held. Former Wife did not credibly challenge the validity of the pictures, or the invitation, at trial. Former Wife credibility testified that Former Husband did not inform him she was ceremonially remarried.
The Judgment of Divorce provides or follows on the subject of maintenance:
“The HUSBAND, during his lifetime, shall pay to his WIFE for her support and maintenance the sum of $750.00 per month ... continuing until the happening of any of the following events: (I) the death of the WIFE; (ii) the death of the HUSBAND, of (iii) the ceremonial remarriage of the WIFE, whichever shall first occur.”
Ms. A.'s testimony that she was not ceremonially remarried in July of 2009 is patently incredible. While “ceremonial remarriage” is not defined in the parties' Stipulation it is fair to say that they intended it to mean something other than an actual, legal remarriage. See Gaines v. Jacobsen, 308 N.Y. 218 (1954) ; see also, Denberg v. Frischman, 17 N.Y.2d 778 (1966). The parties' Stipulation does define “remarriage” and that definition includes a remarriage that is “void or voidable”. While Former Wife attempts to minimize the ceremony, indicating that it was the equivalent of a “Halloween party” she admits that she intended to legally marry Mr. M. in July of 2009. Former Wife's attempt at remarriage only failed because the presiding Justice of the Peace inadvertently used the wrong name (Martin M.). The evidence offered by Former Husband, together with his credible testimony, establishes that Former Wife was ceremonially remarried in July of 2009.
Despite the compelling evidence that Former Wife was ceremonially remarried in July of 2009, Former Husband's application for recoupment must be denied. As Former Husband acknowledges in his written summation, public policy generally prohibits the recoupment of overpayments in maintenance absent “affirmative concealment” of the condition which would trigger the termination of payments. See Viglotti v. Viglotti, 260 A.D.2d 470 (2d Dept.1999) ; see also, Stimmel v. Stimmel, 163 A.D.2d 381 (2d Dept.1990). While Former Wife's failure to inform Former Husband that she was “ceremonially remarried” resulted in one month's overpayment of maintenance, the parties' Stipulation of Settlement does not include a clause wherein Former Wife was obligated to inform Former Husband of a triggering event. As Former Wife had no contractual obligation to inform Former Husband of her ceremonial remarriage it cannot be said that she “affirmatively concealed” the event. See Arcabascio v. Arcabascio, 48 AD3d 606 (2d Dept.2008). For this reason the Court is constrained to deny recoupment. See Rader v. Rader, 54 AD3d 919 (2d Dept.2008).
Former Wife's reciprocal application for $12,000 in unpaid maintenance is hereby denied. The Court notes that Former Wife's application was improperly raised as a request for affirmative relief in opposition papers. See Thomas v. Drifters, Inc., 219 A.D.2d 639 (2d Dept.1995) ; see also Knopp v. Slater, 258 A.D.2d 624 (2d Dept.1999). Moreover, even if the Court were to consider her request for affirmative relief, it would be denied as completely unsupported by the record which indicates that she was “ceremonially remarried” to Mr. Jack M. in July of 2009. This ceremonial remarriage terminated Former Husband's obligation to pay maintenance.
Conclusion
For the reasons set forth above, Former Wife's application for Former Husband to pay child support for the child R.V. is denied. Former Husband's application for recoupment of his overpayment of maintenance in the amount of $750 is denied. Former Wife's improperly raised application for $12,000 in allegedly unpaid maintenance is also denied.
This constitutes the Decision and Order of the Court.
All matters not specifically addressed herein are denied.