Westchester County Department of Social Services v. Robert W.R.

25 A.D.3d 62, 803 N.Y.S.2d 672
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 31, 2005
StatusPublished
Cited by142 cases

This text of 25 A.D.3d 62 (Westchester County Department of Social Services v. Robert W.R.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Westchester County Department of Social Services v. Robert W.R., 25 A.D.3d 62, 803 N.Y.S.2d 672 (N.Y. Ct. App. 2005).

Opinion

OPINION OF THE COURT

Cozier, J.

This appeal presents for our consideration two issues of first impression. First, whether Family Court Act § 516-a (b) requires the Family Court to conduct a hearing before ordering a genetic marker test (hereinafter GMT) to determine issues of fraud, duress, or material mistake of fact upon receiving a challenge to an acknowledgment of paternity brought more than 60 days after its execution. Second, where a party meets his burden of establishing fraud, duress, or material mistake of fact, whether the Family Court is then required to conduct a hearing regarding the best interests of the child before ordering a GMT. For the reasons stated herein, we answer both questions in the affirmative.

Background

On August 3, 1999, the respondent, Robert W.R. (hereinafter the respondent) and Melissa B., the mother of the subject child, Kayli R. (hereinafter the mother) born out of wedlock on August 2, 1999, executed an acknowledgment of paternity in accordance with Public Health Law § 4135-b. The acknowledgment of paternity provided, inter alia, that the parties’ signature established the paternity of the child, and would have the same force and effect as an order of filiation entered after a court hearing. Further, the acknowledgment of paternity provided, among other things, that the parties received written and oral notice of their legal rights and the consequences of signing such acknowledgment, which included the obligation to provide support for the child.

Thereafter, in June 2001, the petitioner, Westchester County Department of Social Services, commenced this support proceeding against the respondent in the Family Court, Westchester County, as the mother and the subject child were public assistance recipients.

However, the respondent failed to provide any financial disclosure, failed to comply with the petitioner’s demand for in[64]*64terrogatories, and failed to appear for scheduled hearings on July 19, 2001, August 28, 2001, and October 3, 2001. As a result of the respondent’s failure to appear on October 3, 2001, the Hearing Examiner (James, Hearing Examiner), after an inquest, determined that the respondent had substantial earnings, imputed income to the respondent, and determined that he was able to pay child support in the sum of $10,000 per month. Thereafter, on October 31, 2001, the Family Court (James, Hearing Examiner), upon the respondent’s default, entered an order directing him to pay $10,000 per month in child support, and set the amount of arrears at $190,000.

The respondent filed objections to the October 2001 order of support, arguing that he earned less than the income imputed to him. The respondent is a successful, high-profile rap artist who earned $2.5 million from the sales of his record album in 2000.

On May 1, 2002, the Family Court (Dickerson, J.), denied the respondent’s objections, finding, among other things, that the petitioner presented sufficient evidence to support the Hearing Examiner’s support order, and that the respondent failed to produce any evidence to contest the income imputed to him. Further, the Family Court concluded, inter alia, that the respondent was evasive with respect to his financial disclosure.

Thereafter, the respondent filed a notice of appeal and moved before this Court by order to show cause, inter alia, to stay enforcement of the order of support pending appeal, and to remit the matter to the Family Court for a GMT. By decision and order on motion dated June 19, 2002, this Court granted that branch of the motion which was for a stay of enforcement of the order of support on condition that, among other things, the respondent pay the sum of $2,500 per month in child support, and denied the remaining branches of the motion.

On appeal, this Court affirmed the order denying the respondent’s objections, determining, inter alia, that the respondent had failed to demonstrate a reasonable excuse for his default and had failed to provide any explanation for his failure to comply with financial disclosure.

On March 15, 2002, during the pendency of the appeal, the mother’s public assistance case was closed, and the order of support was amended, directing the respondent to make payments directly to the mother rather than to the petitioner. However, on May 22, 2003, the mother reopened her public assistance case and reassigned to the petitioner her rights to [65]*65receive child support. Thereafter, in July 2003, the mother filed a petition for violation of the support order, alleging, inter alia, that the respondent wilfully failed to obey such order, and that the respondent was approximately $140,000 in arrears for child support.

The violation petition was scheduled to be heard by the Family Court on September 3, 2003, and the petition was amended at such time to add the petitioner as a party since the mother and child had resumed receiving public assistance. The violation petition was also modified on September 3, 2003, to allege that as of August 15, 2003, the respondent owed the petitioner $280,000 in child support arrears, and had failed to pay 100% of all nonreimbursed medical expenses. However, the respondent failed to appear on September 3, 2003, and on October 1, 2003, the Family Court issued a warrant for his arrest.

The matter was adjourned to February 26, 2004, for a willfulness hearing, and the respondent again failed to appear. The Support Magistrate (Jordan, Support Mag.), determined that the petitioner established a prima facie case of willfulness based upon the respondent’s failure to pay child support. The Support Magistrate also determined that the respondent’s blatant disregard of the support order constituted contumacious conduct. After making such findings, the Support Magistrate, inter alia, awarded the mother $140,000 in support arrears, awarded the petitioner $280,000 in support arrears, and ordered the respondent to post an undertaking in the sum of $120,000, representing 12 months of child support at $10,000 per month.

The Support Magistrate also directed that the parties appear before the Family Court (Bellantoni, J.), for a confirmation hearing on March 15, 2004, and recommended, inter alia, that the respondent be incarcerated for a period of six months with a purge amount of $500,000.

On March 15, 2004, the respondent appeared for the confirmation hearing due to his arrest on the outstanding warrant and, through his attorney, made an oral application for a GMT, pursuant to Family Court Act § 418. In addition, he sought to challenge the acknowledgment of paternity on the grounds of fraud and duress. Although the respondent acknowledged that Family Court Act § 418 prohibited a court from ordering a GMT where it was not in the best interests of the child on the basis of equitable estoppel, the respondent nonetheless maintained that such doctrine should not prevent the court from ordering the subject test as he had no meaningful contact with the child after her [66]*66birth. The petitioner opposed the application, arguing, among other things, that the court should invoke the doctrine of equitable estoppel to preclude the respondent from challenging paternity. Further, the petitioner argued, inter alia, that Family Court Act § 418 required that the Family Court consider whether it was in the child’s best interests to permit the respondent to challenge paternity before ordering a GMT.

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Bluebook (online)
25 A.D.3d 62, 803 N.Y.S.2d 672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westchester-county-department-of-social-services-v-robert-wr-nyappdiv-2005.