Johannessen v. Johannessen

Kane, J. P. Appeal from a judgment of the Supreme Court (Torraca, J.) ordering, inter alia, child support, entered March 20, 1987 in Ulster County, upon a decision of the court, without a jury. Plaintiff and defendant were married in 1960. During the course of the marriage, plaintiff gave birth to four children, the two youngest of which were born in 1967 and 1969. In 1980, defendant left the marital home. Thereafter, in 1981, plaintiff commenced this action for divorce seeking, inter alia, child support. At the trial of the matter, plaintiff testified that defendant was not the natural father of the two youngest children. However, plaintiff sought support on the basis of equitable estoppel claiming that defendant knew they were not his children from the time of their births and yet continued to support them. Defendant, for his part, testified that plaintiff never told him they were not his children until the summer of 1978 or 1979. Apparently, blood tests were ordered which excluded defendant as the children’s father. After trial, Supreme Court ordered defendant to, inter alia, pay child support for the two youngest children. Defendant has appealed. In our view, the matter must be remitted for a new hearing on the question of paternity and support of the two younger children. The presumption of legitimacy, while rebuttable, is "one of the strongest and most persuasive known to the law” (Matter of Findlay, 253 NY 1, 7; see, State of New York ex rel. H. v P., 90 AD2d 434, 437). It is true that the presumption of legitimacy may be overcome by competent proof of exclusion such as a blood test (Anonymous v Anonymous, 1 AD2d 312, 318). Furthermore, in a divorce proceeding where paternity is at issue, a court has the power and may, in its discretion, order blood tests (see, Michaella M. M. v Abdel Monem El G., 98 AD2d 464, 465). In this case, however, while the testimony may have warranted the ordering of blood tests, there was no special guardian appointed to protect the interests of the children or offer initial objections to the blood tests (see, Golser v Golser, 115 AD2d 695, 697). A determination on the issue of paternity will have a profound effect on the children and meritorious reasons exist for either ordering the blood tests or disallowing them (see, Michaella M. M. v Abdel Monem El G., supra, at 465). A decision excluding defendant as the father will label the children illegitimate and such a result includes not only the loss of support but also any rights to inherit from defendant (see, supra). The issue of paternity will also remain unsettled since it would only be known that defendant was [896] not the children’s father, not who their actual father is (see, supra). Given these circumstances and concerns, it was therefore improper for Supreme Court to have made its decision without first having appointed a special guardian to protect the children’s interests. A guardian should have been appointed prior to any hearing and prior to the administration of any blood tests (see, supra). The failure to do so meant that the children’s rights were not adequately protected during the pendency of the litigation. Additionally, the question of whether the principle of equitable estoppel applies should also not be determined from the record as it now stands. This is true not only on the question of whether defendant should be estopped from refusing to pay support, as plaintiff suggests, but also on whether the doctrine would bar the administration of blood tests (see, Golser v Golser, supra, at 698). To conclude, any determination on the question of support and paternity should be made only after a special guardian is appointed to protect the children’s interests and the matter should be remitted for a full hearing (see, Matter of Ettore I. v Angela D., 127 AD2d 6; Golser v Golser, supra; Michaella M. M. v Abdel Monem El G., supra). Judgment modified, on the law, without costs, by reversing so much thereof as ordered defendant to pay child support of the two youngest children; matter remitted to the Supreme Court for appointment of a special guardian and for further proceedings not inconsistent with this court’s decision; and, as so modified, affirmed. Kane, J. P., Mikoll and Yesawich, Jr., JJ., concur.