Matter of R.O. v E.R.R.

[*1] Matter of R.O. v E.R.R. 2021 NY Slip Op 50022(U) Decided on January 14, 2021 Family Court, Bronx County Chesler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 14, 2021
Family Court, Bronx County

In the Matter of a Support Proceeding, R.O., Petitioner,

against

E.R.R., Respondent.



F-28630-19/19A



Attorney for the Child, B.O.
The Children's Law Center
820 Concourse Village West, 5th Floor
Bronx, NY 10451
By: Alexandra Roisman, Esq.

Attorney for Petitioner R.O.
Claudio & Associates, P.C.
89-36 Sutphin Blvd. Suite 301
Jamaica, N.Y. 11435
By: Desiree M. Claudio, Esq.

Attorney for Respondent E.R.R.
NYC Department of Social Services
Office of Legal Affairs, Bronx Family Court Office
By: Mini Ravindran
Ariel D. Chesler, J.

This objection raises the issue of when it is appropriate to vacate an acknowledgment of paternity based on a material mistake of fact. As a matter of law, the evidence adduced at the hearing - including that the father willingly signed the acknowledgement of paternity with knowledge that the mother had other sexual partners during the relevant time period - did not sufficiently establish a material mistake at the time the acknowledgement was signed. Additionally, for the reasons explained below, the petitioner is collaterally estopped from making this argument in this proceeding.

BACKGROUND/PROCEDURAL HISTORY

Before the Court is an objection to an order entered on or about August 31, 2020 (Paul Ryneski, Support Magistrate), finding that an acknowledgement of paternity had been executed based on a material mistake and remanding the matter to a Judge on the issue of equitable estoppel. The Children's Law Center (CLC) filed this objection seeking dismissal of the father's petition to vacate the acknowledgement of paternity as to the subject child B.O.

The parties were in an intimate, sexual relationship beginning in 2012. The subject child B.O was born on October 5, 2013. On or around that day, the parties, who were not married, executed an acknowledgment of paternity, by which they agreed that petitioner was B.O.'s father. The subject child has a sibling, G.O., who is not part of this objection before the Court.

On February 5, 2018, the Commissioner of the Department of Social Services (DSS) filed a petition in the New York County Family Court, as assignee of the mother, seeking child support from the acknowledged father for both B.O. and G.O. Petitioner appeared in that proceeding, and on June 8, 2018, the court entered an order directing him to pay child support for the benefit of both children. Petitioner never questioned or challenged his paternity in that proceeding.

On August 21, 2018, the acknowledged father filed a petition seeking downward modification of his child support obligation. In that petition, petitioner alleged that he was "the father of the child, [B.O.]," and was "the father of the child, [G.O.]" He then asserted that the child support order should be reduced or suspended because he was unemployed. On January 25, 2019, the court reduced the acknowledged father's child support obligation for both children. Once again, petitioner did not challenge his paternity of the children in that proceeding.

On October 22, 2019, F.M. filed a petition against the mother in which he alleged that he had sexual intercourse with the mother during the period between October 1, 2012, and December 11, 2012, and that she gave birth to B.O. on October 5, 2013. The petition stated that petitioner had signed an acknowledgment of paternity, admitting paternity of B.O. On November 13, 2019, F.M. failed to appear and his petition was dismissed.

Petitioner commenced this proceeding seeking to vacate the acknowledgement of paternity on September 16, 2019. In his petition, he alleged that "he might not be the biological father of the child." He then asserted that "[t]here ha[ve] been rumors about [him] not being the father [and] as she is getting older B.O. does not look like [him] and has no resemblance. B.O. looks like an ex-boyfriend her mother had way before [him]."

HEARING

1. Petitioner's Testimony

At a hearing before the Support Magistrate, petitioner testified that he began an intimate relationship with the mother in November or December 2012. The mother told him she was pregnant "around January" [2013] and their relationship became more serious in April 2013. He was "a little shocked" when he learned of the pregnancy because he was "pretty sure she had other guys at the time because [he] wasn't her boyfriend at the time. [He] was just a mess around." In fact, he had not wanted to become involved in a relationship with the mother. However, the mother cried and said that she wanted to be in a relationship with him and he felt forced. Therefore, he decided that since he was going to have a baby [i.e. B.O.] with the mother, and he would do "the relationship thing." They got an apartment together, and "everything was working out perfect." He later testified that he moved in with the mother when B.O. was three or six months old.

When B.O. was born, petitioner "had a feeling she was [his], but there were rumors," although he "never said anything." However, B.O. was "very pale and [the mother was] not light skinned." B.O. was "very white," so he "had doubts right there, but [he] never said anything." Thus, at the time B.O. was born he "absolutely" had doubts about his paternity. This was because he believed the mother had been with other men since "[s]he was always out, in the clubs with her friends," who "were not very good influences." They "were all kind of loose." He also "had trust issues." He was not "saying that she did, but there could be a possibility." Indeed, he "absolutely" was aware the whole time he was with the mother that there was "a possibility" that he was not B.O.'s biological father.

Despite of all these doubts, petitioner signed the documents to acknowledge that he was B.O.'s father. He signed despite his doubts because he "wanted to start a family" and was in love with the mother. "So [he] always had [his] doubts but [he] didn't want to let that negativity affect [him] so [he] decided to sign it . . . .[He] wanted to be there for her." The mother did not say anything to induce him to sign the acknowledgement.

After B.O. was born, the acknowledged father and the mother decided to have a DNA test. He asked for a test immediately "because there were rumors the mother was with other guys" and his mother said the baby was not his. There were also rumors were that the mother "the baby was light skinned and did not look like [him]." According to petitioner, the mother "decided to go along with the DNA because she wanted to prove [to] [his] family that they were wrong, that the baby was [his]." However, he did not know what happened to the results. The mother said that the test results "got lost or there was an error."

Initially, petitioner stated that he and the mother took two tests, but he never saw the results. However, he then testified that he was "not even sure" whether they did a second test, and then that they never took a second test.

When B.O. was around five years old, petitioner did a DNA test "on [him]self," which showed that B.O. was not his child. He did it because his "mind was going crazy." He "need[ed] to find out this baby was [his]." At that time, G.O. had been born. When G.O. was born, he thought he must be his child because he and the mother were living together and always were together, except for five or six hours per day. He still believes G.O. is his child, but he "just want[s] the proof to get it out [of his] head." He does not trust the mother and wants a DNA test for him because "who knows that the same guy is the same father of [G.O.]."

2. R.A.'s Testimony

R.A., petitioner's fiancée, testified that she often overheard the mother's phone calls with petitioner which were on speaker phone. According to Ms. A., when the petitioner had picked up [*2]B.O. from school, the mother asked "how did they give [her] to him if she was so white and he was so black?." The mother first said this in 2017. In addition, in 2017, petitioner said that he wanted a DNA test, and the mother "told him not to shame her in that way." She also claimed that "when she filed for child support" in "[a]round 2017 or '16," the mother said that "he should sign a document so she could take her out his last name for the child."

In August 2019, the mother said that she had three children with three different men, and told the acknowledged father that, "if somebody called him, they will tell him that he wasn't [B.O.'s] father and he has a mongoloid child. And that was because of all his bad deeds."

R.A. and the petitioner then decided to obtain a DNA test for B.O., and in September 2019, they obtained a test, which showed zero percent probability that he was B.O.'s biological father. Ms. A. received the results and told petitioner that "she wasn't his daughter, that it was zero percent." When she told him, he became depressed and went to the doctor for treatment.

R.A. believed that the mother knew that B.O. was not the petitioner's child. Her belief was based on the fact that "she would always confront him and tell him how do you think she's your daughter? She's too white." R.A. also opined that "One is a woman, one knows who's the father of her child." F.M. is "the supposed father of the child." Ms. A. claimed to know that because the petitioner's ex-wife and the mother were very close friends and the ex-wife had told R.A. that F.M. was B.O.'s father, and gave her his Instagram so she could communicate with him. R.A. then met F.M. at the courthouse and gave him "an order of DNA." He came to the court because he "wanted to know if [B.O.] was his daughter."

When the mother was asked whether she had any questions for R.A., she stated, "I don't know from where she got that," as, she stated, the petitioner never picked up the children from school.

3. The Mother's Testimony

B.O.'s mother, E.R.R., testified that she was the petitioner's ex-fiancée. They had an on-and-off relationship beginning in November or December 2012. At the time she began to have sexual intercourse with him she was not pregnant. She previously, and always had said that she was not pregnant when she "got with" the petitioner. She noted that she did not have a relationship with F.M. at that time. She and F.M. had ended their relationship in October 2012, and it was not possible that he was B.O.'s father.

According to the mother, she and the petitioner were serious by January 2013 and she had sex with petitioner on his birthday (which according to record evidence is December 30, 1987). She added that she "wasn't pregnant way before I got with [the petitioner] and I didn't know he was not B.O.'s father." Thus, the mother had sexual relations with the petitioner on December 30, 2012, but they also had sex in November and early December 2012. She and petitioner began to date very seriously after the mother was four months pregnant.

The mother first learned that the petitioner was not B.O.'s biological father when R.A. and petitioner told her of the DNA test outside the courtroom. She never had agreed to allow petitioner to subject B.O. to a DNA test. He did it without her permission and first told her in court.

When B.O. was born, she did not think it was possible that the petitioner was not B.O.'s father. She did "not really" have doubts as to his paternity before she learned of the DNA results from him. When B.O. was born, the mother saw that she was white, although the petitioner was "black," but G.O. was the same color as B.O. and had "the same hair, everything." Yet, she said, addressing petitioner's attorney, "according to you, G.O. is his son, right?."

While initially there were doubts, based on B.O.'s appearance, the mother did not know that petitioner was not B.O.'s father. Further, B.O. does not know that the petitioner might not be her father. Indeed, at the time of B.O.'s birth, she had no reason to believe that petitioner was not B.O.'s father. She never had believed that B.O. was anyone else's daughter until the first day of court, when petitioner told her of the DNA test, which showed that "B.O. wasn't his daughter according to him." She still is not sure, as she never was part of the DNA tests, which he conducted without her permission. The mother never saw the DNA test and still had not. When she was advised of the DNA test, she had a doubt for the first time, and thought, for the first time, that it was possible that someone else was B.O.'s father.

According to the mother, Ms. A.'s statement about the mother's having three different children with three different fathers was a lie. The texts to which she was referring stated that the mother's nephews—her sister-in-law's children—were not her brother's children, and that they had three different fathers.

The mother was aware that in his petition, F.M. had stated that their sexual relationship continued into December. The mother subsequently had spoken to F.M., who said that the petitioner and R.A. "were putting pressure on him to come [to court] and say that he was the dad." Once she reminded him that they had terminated their relationship in October 2012, he chose not to appear on the next court date. If neither the petitioner nor F.M. was B.O.'s father, she knew who the biological father could be, but did not want to reveal his name. It was someone with whom she had a one-night stand.

The mother first testified that she would not agree to DNA testing of B.O. She never had told B.O. that petitioner was not her father. However, later in her testimony she stated that, if the petitioner wanted DNA tests for both children, and did not want to be part of B.O.'s life, she was "okay with that"

Finally, the mother said that she did not understand why the father, after the years they had lived together, would decide to do a DNA test without her permission, based on rumors from his partner and ex-wife. She noted that he never had expressed doubts about the children until now. Further, petitioner had lived with the children and was present during their births. The mother did not understand "where all this [is] coming from," simply because he is dark skinned and they are light skinned. It made no sense to her at all.

FINDINGS OF FACT

The Support Magistrate concluded that "[t]he parties' testimony establishe[d] a material mistake of fact at the time that the parties signed the acknowledgment of paternity." Specifically, he relied on the fact that petitioner and the mother believed that petitioner was the father after the child was born and found that "the parties' attempts to get DNA results after the birth, and F.M.'s attempt to get a DNA test for B.O. in 2019, establishes a material mistake of fact."

The Magistrate concluded, "[e]ven if the parties believed that [the petitioner] was the biological father days after B.O. was born, the parties' actions show that they believed they might have been mistaken." He also noted that petitioner "was not aware of any specific person possibly being the father until after he signed the acknowledgment of paternity."

However, because the AFC had asserted equitable estoppel on B.O.'s behalf, the Magistrate referred the matter to a Family Court judge for a hearing regarding B.O.'s best interests.

Separately, the Magistrate dismissed the petitioner's petition to vacate his acknowledgment of paternity as to G.O., with prejudice, because the acknowledged father had [*3]"admitted that he thinks that G.O. is his child," and thus "ha[d] failed to establish a basis for vacating the acknowledgment of paternity for G.O."

DISCUSSION

The Court, in its discretion, has determined to review the objection even though it is from a nonfinal order made by a Support Magistrate. Irreparable harm would result in the denial of permission to pursue the objection (see Matter of Carmen R. v Luis I., 160 AD3d 460, 462 [1st Dept 2018]). In particular, the seven-year-old subject child's relationship with petitioner, who has acted and held himself out as her father for her entire life could be irreparably changed and harmed were the court to proceed with an equitable estoppel hearing, and were the child to learn he is not her father or even that he is denying he is her father. Notably, the hearing on equitable estoppel could involve an in camera interview with the child. In addition, review of the objection may avoid the waste of judicial resources necessary to conduct an equitable estoppel hearing. Most important, the Court chooses to review the objection in order to protect and promote the best interest of the subject child.

As a threshold matter, the petition to vacate the acknowledgment of paternity must be denied on the ground of collateral estoppel (see Susan UU. v. Scott VV., 119 AD3d 1117, 1119 [3d Dept 2014] ["To invoke the doctrine of collateral estoppel as a defense to the petitioner's paternity petition, respondent was required to establish '(1) an identical issue was necessarily decided in a prior action which is decisive of the present action, and (2) that the party to be precluded, here petitioner, must have had a full and fair opportunity to contest the prior decision said to be controlling"]).

Indeed, petitioner appeared in two child support proceedings and failed to challenge his paternity of B.O. Moreover, he affirmatively alleged his paternity of B.O. in the second downward modification proceeding which he filed. Notably, because only a parent can be ordered to pay support for a child, a proceeding in which a person is directed to pay child support necessarily made a determination that such person is the parent of the child (see Susan UU., 119 AD3d at 1119 ["[T]here can be no question that the identical issue of Olivia's paternity was decided in the prior divorce judgment .Such a finding was a necessary prerequisite to the order of support, as only a parent may be ordered to pay support for his or her child"]; see also Jeanne M. v. Richard G., 96 AD2d 549, 550 [2d Dept 1983] ["Before an order of support could be made, the court necessarily made a determination of paternity, as only a 'parent' may be ordered to support his or her child. We conclude, therefore, that respondent is collaterally estopped from now raising the issue of his paternity and that the Family Court erred in ordering the HLA blood test" [internal citation omitted]).

Accordingly, because he had previous opportunities to litigate the issue of his paternity, petitioner is estopped from challenging his paternity in this proceeding.

Even assuming arguendo that petitioner is not collaterally estopped from challenging paternity here, as a matter of law the evidence at the hearing failed to establish a mistake of fact at the time of the acknowledgment of paternity in 2013.

In order to vacate an acknowledgment of paternity more than 60 days after it is executed, a party must prove, by clear and convincing evidence, that he or she signed the acknowledgment based upon fraud, duress or material mistake of fact (FCA § 516-a [b] [ii], [iv]). To establish a material mistake of fact — the only ground raised here — a party must show that (i) enforcement would be unconscionable, (ii) the mistake is material and is made despite the exercise of ordinary care by the party in error, (iii) the innocent party had no knowledge of the error, and [*4](iv) it is possible to place the parties in status quo (Matter of Tray, 5 Misc 3d 1017 (A), 2004 WL 2656723, *4 [Surr. Ct. Nassau County 2004], aff'd, 29 AD3d 914 [2d Dept 2006]). Further, the "court must determine whether a mistake of fact was truly material - - i.e., substantial and fundamental to the nature of the contract — so as to entitle a party to void that document." (Wimberly v. Diabo, 42 AD3d 599, 600 [3d Dept 2007]).

Here, petitioner testified that he signed the acknowledgment of paternity despite his knowledge that the mother had other sexual partners at the time, his having heard rumors about her other partners, and despite "absolutely" being aware at the time that there was a possibility he was not B.O.'s biological father. He also signed despite his doubts raised by the child's appearance after she was born. Nor did the mother say anything to induce him to sign. However, at no time did he exercise the ordinary care of seeking a DNA test prior to signing the document. Ultimately, he signed despite all his doubts and concerns in order to start a family. He then proceeded to hold himself out as the father and even lived with the mother and child for a number of years.

Nor did the petitioner pursue his concerns when the mother told him that the DNA test they took was lost. Instead, he chose to continue acting as a family and to not take further action until these many years later.

The mother's testimony made clear that she believed petitioner to be the biological father and specifically that she did not have sexual relations with F.M. during the relevant time period. Accordingly, to the extent the Magistrate found that F.M. could be the biological father, this was in fact not supported by any record evidence. Further, the fact that F.M. filed a paternity petition in 2019 following pressure from petitioner and his fiancée to do so is of no moment.[FN1]

"Courts have declined to find material mistake of fact in cases where the signatory knew that the mother had another sexual partner during the relevant time period and signed the acknowledgment anyway" (see C.R. v. Y.P., 67 Misc 3d 1221(A) at *5 [Fam Ct, Bronx Cty 2020]). It is clear from the testimony that petitioner knew at the time he signed the acknowledgement of paternity that he may not have been the biological father and that the mother had other sexual partners. Further, any efforts to obtain a DNA test after a voluntary, knowing execution of the acknowledgment of paternity does not somehow create a material mistake of fact at the time it was signed. In sum, "[w]ith the knowledge that it could have been another man prior to signing the acknowledgement and still freely choosing to do so, there is no fraud, duress or material mistake of fact" (C.R., 67 Misc 3d at * 6).

Indeed, under the circumstances presented here, there is no material mistake of fact (see Jesus R.C. v. Karen J.O., 126 AD3d 445 [1st Dept. 2015]). Significantly, the facts in this case are nearly identical to those in Jesus R.C. There, the petitioner questioned whether he was the father shortly after the child's birth, and again approximately six months later when he learned that the child's mother had sexual relations with another man, but treated the child as his own and developed a parent-child relationship. It was not until the child was four years old, and a younger sibling had been born, that petitioner commenced a proceeding seeking to vacate his acknowledgment of paternity, while at the same time recognizing the younger sibling as his own child. In short, this matter cannot be significantly distinguished from Jesus R.C., which found [*5]that no material mistake of fact was established.

Petitioner's reliance on Matter of Derrick H. v. Martha J. (82 AD3d 1236 [2nd Dept. 2011]) is misplaced. In contrast with this matter, in that case the Court found a material mistake of fact where the petitioner executed the acknowledgement of paternity because the mother represented that he was the child's biological father, but later learned after signing the acknowledgement that the mother had another sexual partner during the conception period. Significantly, the holding in Derrick H. turned on the credibility findings of the Family Court which credited the petitioner's testimony that the mother had told him that he was the child's father, and that he executed the acknowledgment of paternity under that mistaken belief. This factor simply does not exist in this case; here the petitioner testified the mother said nothing to induce him to sign the acknowledgment of paternity. In any event, petitioner here was aware the mother had other sexual partners at the time of execution and was not induced to sign anything against his will or without knowing the risks he might not be the biological father.

An acknowledgment of paternity is not to be lightly vacated. If a potential father has doubts about his paternity, it his obligation to take ordinary care at the time to pursue such concerns and prior to executing an acknowledgment of paternity. When presented with these circumstances, this Court cannot countenance an attempt to vacate an acknowledgment of paternity many years later. Petitioner knowingly executed the acknowledgment and his decision to do so despite his considerable concerns and doubts at the time cannot constitute a mistake of fact. To hold otherwise would permit petitioner, and others similarly situated, to suddenly devastate a child emotionally and financially perhaps many years after their birth, something that is clearly not in service of their best interests.

Accordingly, the objection is granted, the petition to vacate the acknowledgment of paternity of the subject child B.O. is dismissed with prejudice, and the referral of the matter for a hearing on equitable estoppel is vacated as unnecessary and moot.

Dated: January 14, 2021
ENTER
__________________________________
HON. ARIEL D. CHESLER Footnotes

Footnote 1:Notably, the testimony of the father's fiancée provided little admissible proof on the issues raised and consisted primarily of various levels of hearsay.