The Return of Dissent to the Court of Appeals

A Much Needed Reform

by

Elliot D. Samuelson,

Editor

When the Court of Appeals decided in the matter of Shondel  J. v. Mark D^[i].  early in July of this year I was shocked to see that not only was there one dissent but two, both made by the judges who bear the Smith name.  It was the first time in recent memory that the Court of Appeals rendered a decision in a matrimonial appeal that resulted in a 5-2 split decision^[ii].  If this harbors a movement for the return of dissent in the appellate courts of this state, our system of justice will certainly be elevated and hopefully encourage the Appellate courts below to follow in the footsteps of the Smith dissents.

Earlier  in this column we criticized the lack of dissent in matrimonial appeals and suggested that justice could not be done with rubber stamp procedures.  We pointed out that it was remarkable that in all the appellate divisions in the past five years there were fewer than a handful of  dissents and in the Court of Appeals but two, both by Judge Smith.  This statistic is especially perplexing when one considers that any set of facts in a matrimonial case can be decided differently at the trial level depending upon the judge who hears it. 

Some have argued that the lack of dissent at the appellate levels appears to be an easy way out to alleviate the crushing burden of calendar congestion, and  makes dissent an untenable option.  This indeed is an obtuse rationalization, because the lack of dissent equates to a lack of justice.

Whether our column criticizing the paucity of dissent, had anything to do with the recent holding in Shondel J. v. Mark D., is really of no moment.  What is important is that our highest court composed of seven jurists, actually rendered a split decision with two dissents.  Hopefully, it will be the precursor for more learned disagreement. 

Judge Rosenblatt writing for the majority was joined in his opinion by Judges Kaye Ciparick, Graffeo, and Read.  The dissent was written by Judge G.B. Smith, in which Judge R.S. Smith concurred. 

This split decision was a case of importance in the field of child custody and support.  It was one of the few times that the issue of equitable estoppel in a child support matter reached the high court, and the majority cleared up any question of whether it should be applied in these types of cases.

The rationale of the majority was summed up by Judge Rosenblatt in the last paragraph of his decision wherein he explained: 

Given the statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make.  He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship.  A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman.  It is not an easy choice, but at time, the law intersects with the province of personal relationships and some strain is inevitable.  This should not be allowed to distract the Family Court from its principal purpose in paternity and support proceeding - to serve the best interests of the child.

To fully understand this result it is necessary to review some of the salient facts.  In 1996 the Mother Shondel  gave birth to a daughter in Guyana where she then resided naming Mark as the father.  The couple had dated one another in Guyana and had sexual intercourse with one another.  After the child's birth, Mark declared that he was convinced he was the father of the child and accepted all responsibilities including support.  Three years later he signed a Guyana registry stating that he was the father and authorized a name change of the child to his own.  The father also named the child primary beneficiary on his life insurance policy identifying her as his daughter.  Additionally he sent support monies between the child's birth and June of 1999 a period of over three years. 

It was not until August of 2000 that the mother brought a Family Court proceeding under Article V alleging Mark to be the father of her child and seeking a filiation and a support order. Mark did not contest paternity and cross moved for visitation, alleging he was the child's father.  A hearing was held before the Family Court in October of that year.  Mark requested DNA testing, which determined that he was not the father.  Shondel 's petition was then dismissed and the father abandoned his petition for visitation.  The mother objected to the Hearing Examiner's Order dismissing her petition and the Family Court Judge sustained her objections and appointed a Law Guardian.  A year later in October, 2001 the Law Guardian reported that Mark had acted as the child's father and she considered him to be her father.  The matter was set down for trial to determine whether the doctrine of equitable estoppel could prevent Mark from denying paternity, a new blood genetic marking test ordered by the Family Court Judge confirmed that Mark was not the biological father. At the trial the parties' credibility was at issue, each giving divergent views of the facts.  According to the mother's version, the father spent time with her and the child during the short trips they traveled to the United States in 1996 and 1997 seeing them every day for about six weeks in the summer of 1997.  Mark continued his relationship with the child after he and the mother no longer continued their own relationship, and bought toys and other presents for the child, the child met his parents and Mark told them that she was his daughter, he spoke to the child by telephone and referred to himself as daddy when he did so, and in August, 1999 and January, 2000 he visited the child almost every other day prior to the commencement of the litigation.  

As would be expected Mark denied all of the assertions of the mother and claimed he had seen the child only four times since her birth, he  never acknowledged the child as his own, he never introduced the child to his family members or friends as his own, and he never visited her nor furnished her with gifts.  Mark also asserted that he requested that Shondel submit to a blood test to determine paternity, which she refused.  Shondel denied that he did so. 

The Family Court Judge hearing the matter believed Shondel's testimony to be credible and Mark's incredible, and determined that in fact Mark held himself out as the father.  The Court then entered  an order of filiation and awarded child support retroactive to the commencement of the Family Court proceeding.  The Appellate Division affirmed holding that it was in the best interests of the child to equitably estop the father from denying paternity.  The Court of Appeals explained further why the majority invoked the doctrine of equitable estoppel. 

In the best interests of the child, Family Court properly applied estoppel, to impose support obligations on Mark, after he left the child with the detrimental effects of a relationship in which she was misled into believing that he was her father.  A Mother who had perfect foresight and knew that her child's relationship with a Father figure would be severed when the child was four and a half might well choose never to inform him of her child's birth.   

Initially, the majority explained that the purpose of the equitable estoppel defense was to prevent a litigant from pressing a right that would be unjust to the other party who justifiably relied on that party's actions and had been misled.  The majority also noted that the lower appellate courts had long applied the doctrine of equitable estoppel in paternity and support proceedings, and cited its own decision in Popamela P. v. Frank S.^[iii], as further support for its ruling.  It observed that although the doctrine was first recognized in the common law, the recent enactment of Family Court Act Sections 418(A) and 532(A) created a statutory predicate for such treatment.  It then went on to remark that the Court could not change the statutory provision which must await legislative repeal, or a determination of its unconstitutionality.  Apparently, Mark failed to raise the issue of unconstitutionality at the trial level but did so in his brief, but the Court of Appeals refused to entertain it.

Parenthetically it should be observed, that not to do so invites further litigation.  The rule that proffers an issue cannot be decided by an appellate court unless it is raised in the court below seems to have outlived its usefulness.

What purpose is to be served by failing to consider an issue that would be of importance to the matrimonial bar and the litigants who must move through the judicial process?  Apart from the untold expense that bringing a new action would incur, it also denies litigants a prompt determination of such issues.   To permit the Court of Appeals to determine the constitutionality of any statute whether raised in the court below or not, would seem to be more realistic and actually reduce litigation and its concomitant expense.  An issue that is raised for the first time on appeal, and does not require the taking of evidence in the court below, as would a declaration of the constitutionality of a statute, should be heard and determined at the appellate level.  Refusing to do so would not be in appropriate nor in anyone's best interest. 

That aside, we now turn to the dissenting opinion written by Judge G.B. Smith, and concurred in by Judge R.S. Smith.  The issue seen by the minority was tersely set forth in the opinion to be whether a non-spouse falsely informed that he was the biological father of a child, and whose DNA tests prove that he is not the biological father, can be equitably estopped from denying paternity.  In acknowledging that a man or woman should be responsible for the financial support of an offspring, it nevertheless held that such responsibility, although it may be placed upon a non-biological parent, could not be done at bar "because the best interests of a child requires more than financial support and equitable estoppel should be applicable only to someone who engages in false conduct ..."  Recitation of the facts by the dissenting opinion differed somewhat from that reported by the majority.  As to the signing of a document by Mark that was submitted to the Guyanese counsel that declared him to be the father, they found that he did so solely to permit Shondel to travel to the United States and submit to a paternity test. 

The dissent then tersely stated its disagreement with the majority:

The question here is not, as the majority suggests, whether equitable estoppel "has a rightful place in New York law" (majority op at 6) or in paternity proceedings.  The statute makes clears that it does.  The question is whether the elements of estoppel are present in this case.

and went on to reflect:

...Once a party makes a prima facie showing of facts sufficient to support equitable estoppel in the paternity context, the opponent of equitable estoppel must demonstrate why estoppel should not be applied in the best interests of the child (see Matter of Sharon GG. v.  Duane HH., 95 AD2d 466 [3d Dept 1983], affd 63 NY2d 859).

Which essentially shifts the burden from the proponent, to the other party.  The dissent disagreed with the majority position that it was respondent's burden to show that equitable estoppel should not apply because that would be in the best interests of a child.  Commenting further, the court noted that Mark did not take unfair advantage, nor had been guilty of other misconduct, including fraud or misrepresentation.  As such, the defense of equitable estoppel cannot be raised.  It  then concluded that the majority's decision applies the defense of equitable estoppel against a completely innocent litigant who gained no benefit, concluding that such result was a holding without precedent, at least in the research undertaken by the dissent.  It also noted that Mark was being ordered to divert $12,828 (in arrears) as well as $78 a week in lieu of providing that amount of support to his own wife and children.  Siding with Mark, the dissent held that equities in the case favored the putative Father's position, explaining:

...Contrary to the majority's view (majority at 13), [*12] there is strong evidence of "fraud or wilful misrepresentation" by Shondel J.  She not only told Mark D.  that the child was his, she swore in Family Court that she had sexual relations with no other man during the relevant time period - testimony proven by DNA tests to be false.  Perhaps more important, this is not a case where a child lived for years with, and was brought up by, a man she had always thought was her father (cf.  In re Diana E.  v Angel M., 20 AD3d 370 [2005]).  At the time of the paternity proceeding, the child had lived most of her life in a different country from Mark D., and their relationship was primarily on the telephone.  This is a case in which this Court should remember "the rightful reluctance of courts in a society valuing freedom of association to impose a personal relationship upon an unwilling party," a consideration that applied with special force to "the power of the State to force a parent-child relationship" (Matter of Baby Boy C., 84 NY2d 91, 101-102 [1994]).

In concluding its opinion, the dissent felt that it was not in the best interests of the child to affirm the order of filiation since the only contribution to the child's life would be financial because Mark had no contact with the child since March of 2000, nor would he have in the future, concluding that "... it should not be said here that it is in the best interests of a child to have an order of filiation declare Respondent to be her father, a man, who in addition to having no biological tie, has no interest in continuing a relationship with her or her mother. 

Neither the dissent nor the majority suggested that the child would be negatively impacted by the fact that the biological father's identity would be kept from her and she would be unable to ever receive support from him or obtain medical records concerning any health issues that might arise in the future.