CLARA C. v. William L.

Jay R. Butterman, New York City, for petitioner. Cohen Hennessey & Bienstock, P. C., New York City (Bonnie Rabin of counsel), for respondent. Children's Law Center, Brooklyn (Rochelle H. Yankwitt of counsel), Law Guardian.

OPINION OF THE COURT

of Agreement and Compromise", by which he requested that the Agreement "be approved and confirmed pursuant to Section 516 of the Family Court Act." On May 8, 1987, the application for approval was heard in open court and on the record at a brief proceeding at which the parties, their counsel, and a representative of the Department of Social Services appeared. On July 10, 1987, the presiding Judge approved the settlement.

B. The Parties' Positions

Respondent's dismissal motion is predicated upon the language of the Agreement quoted above which, if operative, plainly bars prosecution of the instant proceeding.^[3] Specifically, he asserts that limiting language must be given effect under Family Court Act § 516, which provides: "Agreement or compromise "(a) An agreement or compromise made by the mother or by some authorized person on behalf of either the mother or child concerning the support of either is binding upon the mother and child only when the court determines that adequate provision has been made and is fully secured and approves said agreement or compromise. "(b) No agreement or compromise under this section shall be approved until notice and opportunity to be heard are given to the public welfare official of the county, city or town where the mother resides or the child is found. "(c) The complete performance of the agreement or compromise, when so approved, bars other remedies of the mother or child for the support and education of the child." (Emphasis added.) Respondent contends that all the preconditions set forth in the statute have been satisfied: the Agreement did indeed compromise the prior paternity proceeding in which support was Finally, but perhaps most significantly, petitioner and the Law Guardian note that under Family Court Act § 461, any agreements concerning support entered into by parents of a child born in wedlock are always subject to modification by the court based upon the child's needs. (See, Matter of Brescia v Fitts, 56 NY2d 132 [1982].) To the extent section 516 permits the support entitlement of a child born out of wedlock to be fixed forever by contract, as it purports to do here, it is unconstitutional in that it authorizes disparate treatment of such illegitimate children in violation of the Equal Protection Clause of the Fourteenth Amendment.

C. Discussion

Before turning to the merits of the instant controversy it is important to place our discussion in context. It cannot be gainsaid that resolution of this suit will, of necessity, likely impact upon Thomas. However, while he has the independent right to bring a claim for paternity and support (Family Ct Act § 522), the only dispute before the court is one brought by the petitioner mother against the putative father. This distinction is critical, since the mother's rights and the child's rights may not be identical. (See, e.g., Matter of Marytherese M. v Lee W., 213 AD2d 647, 648 [2d Dept 1995] [Court enforces section 516 agreement to bar paternity or support claim by mother, but holds that illegitimate child may "pursue her substantial other rights", including those inheritance rights set forth in EPTL 4-1.2 which are predicated upon establishment of paternity]; see also, Matter of Brescia v Fitts, supra, 56 NY2d, at 139 [1982] [discusses distinction between mother "asserting her own interest in having the father contribute more to the financial burden of raising the child" and "the child's right to receive adequate support"].) Accordingly, while the parties have briefed the difficult issue whether Thomas may be bound by the Agreement under In the end, therefore, the only case cited by the Law Guardian that can be fairly viewed as addressing the issue presented here is Crego v Coleman (supra). And there the finding of unconstitutionality was ultimately made by a divided Special Panel of the Michigan Court of Appeals, which had been convened to resolve prior conflicting decisions by two different panels of that court. (See, Crego v Coleman, 232 Mich App 284, 591 NW2d 277, supra.) Suffice it to say, on this close issue, for the reasons stated, we decline to adopt the reasoning of the Crego majority.

Conclusion

Petitioner's objections to the order of the Hearing Examiner are denied. The petition is dismissed. [1] The facts concerning the prior litigation are not seriously in dispute. They are culled in the main from the November 17, 1997 affirmation of Bonnie Rabin, Esq. (respondent's counsel), and the exhibits thereto, and petitioner's affidavit of December 1, 1997, and the exhibits thereto, all of which were submitted to the Hearing Examiner. [2] By paragraph 9 of the Agreement, petitioner "represent[ed] that she has been well and ably represented by capable counsel of her own choice in the negotiation, consideration and execution of this agreement." Respondent made an identical representation. [3] Formally, respondent has framed his motion as one seeking relief upon several distinct bases. He thus seeks dismissal "based on the existence of a fully executed Agreement made pursuant to Family Court Act § 516." In addition, dismissal is sought under CPLR 3211 (a) (1) (defense founded upon documentary evidence); 3211 (a) (2) (lack of subject matter jurisdiction); 3211 (a) (5) (defense based upon collateral estoppel and res judicata); and 3211 (a) (7) (failure to state a cause of action). All of these arguments, however, are permutations of the fundamental hypothesis that the proceeding is barred by operation of the Agreement. Accordingly, they will not be separately addressed. [4] In addition, as reflected by the record of the approval hearing, the notice provision of section 516 (b) was also satisfied. [5] The minutes are annexed as exhibit A to the July 24, 1998 affirmation of the Law Guardian, Rochelle H. Yankwitt, Esq. [6] Section 413 (1) (a) provides, in pertinent part: "[T]he parents of a child under the age of twenty-one years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine." Section 513, in turn, provides: "[E]ach parent of a child born out of wedlock is chargeable with the support of such child including the child's funeral expenses and, if possessed of sufficient means or able to earn such means, shall be required to pay child support. A court shall make an award for child support pursuant to subdivision one of section four hundred thirteen of this act." The fact that there are two such provisions is in keeping with the statutory scheme under which Family Court Act article 4 deals with support of marital children and article 5 deals with children born out of wedlock. (See, Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 413; see, Matter of Kathy G. J. v Arnold D., 116 AD2d 247 [2d Dept 1986], lv dismissed 68 NY2d 713, cert denied 479 US 1054 [1987].) [7] Compare, Matter of Jason H. v John C. (226 AD2d 638 [2d Dept 1996] [child bound by mother's unsuccessful paternity suit], with Matter of Elacqua v James EE. (203 AD2d 688, 689 [3d Dept 1994] [child not bound by results of prior proceedings which "were not fully litigated by the mother"]). [8] In its entirety, the relevant provision (¶ 6) of the Agreement provides: "Respondent shall maintain, in full force and effect, as long as support is payable under this agreement, term life insurance in the initial amount of $50,000, which coverage shall be reduced to $40,000 on January 1, 1991, to $30,000 on January 1, 1995, and to $20,000 on January 1, 1999. In the event of his death prior to the completion of the payments under the terms of this agreement, the payment of the aforementioned life insurance shall be the sole benefit to the child upon his death. In the event of his failure to maintain said policy in full force and effect, a claim may be made against his estate for the balance due the child under this agreement." Respondent maintained the policy in the required amounts but apparently was prohibited by his insurance company from naming Thomas his beneficiary, notwithstanding the request in his insurance application that it be done. His estate was thus named the beneficiary. [9] See, n 6, supra. [10] An acknowledgment of paternity may serve in the stead of an order of filiation. (See, Family Ct Act § 516-a.) [11] As used herein, the term "blood test" encompasses the blood genetic marker or DNA tests referred to in Family Court Act § 532.