D.M. v C.M.

[*1] D.M. v C.M. 2007 NY Slip Op 52180(U) [17 Misc 3d 1128(A)] Decided on November 9, 2007 Supreme Court, Bronx County Gesmer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 9, 2007
Supreme Court, Bronx County

D.M., Plaintiff,

against

C.M., Defendant.



12617/04



Howard L. Sherman, Esq., Ossining, for plaintiff-husband

Barry S. Gedan, Esq., Bronx, for defendant-wife

Ellen Gesmer, J.

Defendant C.M. (Wife) moves for an order declaring that plaintiff D.M. (Husband) is liable to support D.H., the Wife's daughter from an earlier relationship. The Husband opposes the motion.

FINDINGS OF FACT

The Wife submitted three affidavits (two of which were submitted to the Court on the earlier pendente lite motion and attached as exhibits to the current motion), an affirmation and a Memorandum of Law in support of her motion. In opposition, the Husband's attorney submitted only a Memorandum of Law, and does not dispute the facts set forth by the Wife. Accordingly, the Court finds that the facts are as stated in the Wife's affidavits, as follows.

The Husband and Wife were married on October 22, 1992. At that time, D.H., born on January 25, 1989, was two years old and lived with the parties. The parties later adopted A.M., now emancipated, and had one biological child together, B.M., now 12. D.H.'s biological father died in 1999. In 2003, the parties purchased a coop apartment, into which the Wife and children moved from the family's rental apartment, expecting the Husband to join them. He did not, and has not lived with them since. In 2004, he commenced this divorce action.

Throughout the approximately 11 years the parties lived together, they raised D.H. together. The Husband and D.H. had a father-daughter relationship. She called him "Daddy," and he contributed to her financial support. Since August 2004, the Husband has chosen to have no contact with D.H. and B.M. D.H. is now 18.

At a Family Court hearing held on June 1, 2004, the Husband acknowledged that he had [*2]supported D.H. financially throughout the parties' marriage, that he accepted her as "my child," and loved her: SUPPORT MAGISTRATE (SM): So you're gonna be responsible for stepparent liability until your divorce - (UNINTELLIGIBLE) -RESPONDENT (H): - I'm - I'm - I'm - I'm fully aware of that, and that was being done during the marriage -

SM: - alright -

H: - and - ah - as far as - ah - this child support, I didn't refuse -

SM: - okay -

H: - to - to - to - because - I accept her as my - my child.

SM: Right.

H: I - accept her as my child -

SM: - good -

H: - I -I love her just as much -

(Transcript of Trial In the Matter of Child Support and Spousal Support Before Kemp J. Reaves, Family Court Support Magistrate, Bronx Family Court, June 1, 2004 at page 16, lines 1-17). Based on the parties' testimony and documentation of their income at the time, the Family Court Support Magistrate entered an order directing the Husband to pay the Wife child support for B.M. and D.H. in the amount of $562 biweekly.

The Husband works as a registered nurse and earns in excess of $100,000 annually. The Wife was employed as a nursing assistant, but states that she has been unable to work since August 9, 2004 and currently receives Social Security Disability benefits. She also receives $939.33 per month in Social Security survivor's benefits for D.H. The Wife states she has set aside D.H.'s Social Security benefits for her college education. Both D.H. and B.M. currently receive public assistance in the form of Medicaid benefits.

ARGUMENT

The Wife makes two convincing arguments as to why the Husband should be liable for supporting D.H. First, a stepparent is statutorily liable for support of his stepchild who is, or is in danger of becoming, a recipient of public assistance (FCA § 415). Such support must be consistent with the Child Support Standards Act (Dutchess County Department of Social [*3]Services v Day et al., 96 NY2d 149, 154 [2001]). The Family Court Act does not define "stepparent" or "stepchild," but courts have held that a "step" relationship is one that exists solely by operation of marriage, such that a stepparent's support obligation under FCA § 415 ends upon his divorce from the child's biological parent (Eckhardt v. Eckhardt, 37 AD2d 629 [2d Dept 1971]). Because D.H. receives Medicaid, the Husband is statutorily liable to support her until she is 21, for so long as he remains married to the Wife and D.H. would otherwise require public assistance.

Second, the Wife argues that the Husband must support D.H. by operation of estoppel. "The courts impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship.'" (Shondel J. v Mark D., 7 NY3d 320, 327 [2006 ] [quoting Matter of Baby Boy C., 84 NY2d 91, 102 [1994]]). The Husband's embrace of D.H. as "his" child through his declaration of his love for her, his participation in raising her during 11 years of the marriage, his provision of financial support for her before and after her biological father's death, and before and after the Husband's separation from the Wife, along with his statement to the Family Court of his willingness to continue to support her, together constitute a promise to support D.H. as his own child. D.H. justifiably relied on his parent-like actions, as evidenced by her calling him "daddy." It would undoubtedly be to her detriment for the Husband not to fulfill his promise (Shondel J. v Mark D., 7 NY3d at 330). The Wife also apparently relied on the Husband's promise to her detriment, in that she did not obtain child support or life insurance securing child support from D.H.'s biological father prior to his death [FN1] (Michel del L. v Martha P., 173 AD2d 308, 309-310 [1st Dept 1991]; Lewis v Lewis, 85 Misc 2d 610, 612-613 [Sup Ct Kings Co 1976]; Yvette S. v Huey S., NYLJ Feb. 9, 1996, at 37, col 3 [Fam Ct Kings Co 1996]). Consequently, the Wife has established facts sufficient to estop the Husband from denying his obligation to support D.H.

Furthermore, under the doctrine of judicial estoppel, or estoppel against inconsistent positions, the Husband's testimony at the June 1, 2004 Family Court child support hearing prevents him from taking a contrary position in this proceeding (Lanzano v City of New York, 202 AD2d 378 [1st Dept 1994]; Perkins v Perkins, 226 AD2d 610 [2d Dept 1996]; Anonymous v Anonymous, 137 AD2d 739 [2d Dept 1988]).

Once a party establishes facts sufficient to support an estoppel, the other party has the burden to show that such a finding would not be in the child's best interests (Sharon GG v Duane HH, 95 AD2d 466, 469 [1983], affd, 63 NY2d 859 [1984]; Yvette S. v Huey S., NYLJ Feb. 9, 1996, at 37). The Husband has not done so. Therefore, the Court finds that the Husband is liable to provide child support for D.H.

Accordingly, it is [*4]

ORDERED and DECLARED that the Husband is liable for child support for D.H. retroactive to December 6, 2004, the date of the Wife's request in her Answer with Counterclaims, in an amount to be determined after trial; and it is further

ORDERED that, on or before January 8, 2008, the parties and counsel shall exchange and file with the Court Child Support Worksheets, and shall bring supporting documentation with them to the conference scheduled to take place on January 10, 2008 at 2:15 p.m.

This constitutes the decision and order of the Court.

Dated: November 9, 2007ENTER

______________________

Hon. Ellen Gesmer, J.S.C. Footnotes

Footnote 1:The fact that D.H. receives Social Security survivor's benefits indicates that her biological father had a substantial work history prior to becoming disabled or reaching retirement age. Thus, the Wife would likely have obtained child support and life insurance from D.H.'s biological father, had she sought them. Therefore, the Court may infer that the Wife never did so.