Maria B. v. Joseph F.

26 Family Law Review 2 (June 1994) p.26

We represented: Petitioner

Gloria Sosa-Lintner, J.

DECISION and ORDER After several lengthy adjournments, the trial was commenced on Monday, September 28, 1992 and continued daily through and including Monday, September 28, 1992. On Petitioner's direct case, the court heard three witnesses and received eleven (11) exhibits into evidence. Respondent's case included his own testimony and seven (7) exhibits. The Petitioner testified as a rebuttal witness. At the conclusion of the trial, the court heard oral arguments and the attorneys submitted written Post-trial Memoranda of Law.

Clearly, the court has had the unique opportunity of observing the demeanor of the witnesses and assessing their creditability, as well as reviewing and weighing the probative value of the documentary evidence adduced at trial. After careful review and deliberation of the record and relevant law, the court finds that the Petitioner has met her burden of proof by clear, convincing and entirely satisfactory evidence that the Respondent Joseph J.F. is the father of her child, J.J.B. While said standard of proof does not mean beyond a reasonable doubt, in this case the Petitioner has almost met that higher burden. See Epsin v. Pierce, 85 A.D. 503 (1st Dept. 1981); Matter of Commissioner of Welfare of the City of New York v. Wendtland, 25 A.D.2d 640. Clearly the Petitioner herein has presented "evidence sufficient to create a genuine belief that the Respondent is the father of the child, a belief which is supported by more than a mere preponderance of the evidence, though not necessarily sufficient to overcome any reasonable doubt." See Matter of Piccola v. Hibbard, 51 A.D.2d 674, at 674, (aff'd, 40 N.Y.2d 1035). Further, the court finds that the Respondent's testimony was incredible, self-serving and patently tailored, as in Epsin v. Pierce, in an attempt to overcome the very convincing evidence against him.

FINDINGS OF FACT BASED ON ANALYSIS & REVIEW OF THE TESTIMONY

Testimony of Petitioner

While the findings of fact can be simply stated, the court cannot ignore the seemingly unique aspects of this case, whether real or perceived. The court will explain. The Petitioner testified that when she met the Respondent in late 1970 or early 1971, when she was working as a school teacher by day, and, as a night student, she was seeking to transfer from the New School to the school where the Respondent was teaching and was the foreign student advisor. (He is currently a professor at the same college.) Since she was teaching by day, she arranged to meet the Respondent at her apartment to discuss her admission to his college. She testified that she knew that the Respondent was a married man, and that when he asked her to see him in other than a professional basis, she rebuffed his advances. She admitted to the attraction, but refused to see him until a few months later, when he told her he had physically separated from his wife.

According to the Petitioner's testimony, after about three dates, a total of six hours of dating, she had sexual intercourse with the Respondent in her apartment. So far, there is nothing unusual about this scenario. However, at the time, Petitioner was approximately 35 years old (three years older than the Respondent), and she was still a virgin. She denied having been kissed in a romantic or sexual way by any other man. The Petitioner was born in Mexico, and at the age of about 17, she joined a religious order as a missionary, wherein she took vows of celibacy and chastity. In or about 1967, she left the religious order and came to work in the United States under a Visa as a social worker. From 1971-1974 the Respondent was an assistant instructor or professor in religious and peace studies. He too had been in religious training as a seminarian studying for the priesthood. He too had taken vows of celibacy and chastity. He too had left that calling in or about 1966, when he started a secular life, dating and eventually marrying his now-former wife in or about June 1967. He had been married only about four years when he started his adulterous affair with the Petitioner. Both parties were intelligent and attractive, and drawn to each other. It was a totally consensual relationship. It would seem that they had a lot in common, both intellectually and in life decisions. In fact, it would seem from the Petitioner's then-inexperienced vantage point to be a "God-sent" or match "made in heaven", if one can make that analogy.

Respondent's counsel would have the court discredit Petitioner's testimony as totally unbelievable, arguing, quite sarcastically:

And she, after all of this 35 years of resistance or five years of [sic] whatever number of years she had to resist whatever temptation it was to keep her, this pristine virgin she was at 35, she managed to surrender after this six hour campaign.

The court finds nothing incredible about the Petitioner's presentation of the facts. She was forthright, unequivocal and consistent. Her demeanor bespeaks legions. She was calm and exuded confidence and belief in her very specific recollection of the events that transpired between 17 and 21 years ago. To her, these events were very important matters and memories, which were not just passing fancies or common everyday occurrences in her life. This man was her first love, her first lover and the father-to-be of her one and only child. She testified as to having a sexual as well as an intellectual relationship with the Respondent, which lasted from 1971-1976. There was regular sexual intercourse 2-3 times a month with the Respondent through about April of 1974 and then less frequent intercourse through the date of conception and subsequently thereto.

The Petitioner kept mementos of her relationship, some of which have been admitted as evidence of all aspects of the affair. Throughout their relationship, the Petitioner promised the Respondent that she would not divulge their adulterous relationship to anyone nor did she intend to hurt him. The record clearly shows that she had ample opportunity to disclose the relationship throughout the time it was occurring, up until the filing of this petition. However, she did not. The court notes that although the Petitioner was residing in New Jersey, and the Respondent in Westchester County, she chose to file the petition using the Respondent's place of employment as the venue, in order not to disrupt his life at home . . . she was not aware that he had been divorced since 1987.

The evidence established that in early 1974, the Respondent attempted to break off with the Petitioner, informing her that he had returned to his wife for the benefit of his two young children of whom the Petitioner had not been aware until then. However, her resolve as well as his were not very strong. He continued to have both sexual as well as intellectual contact with her. He dedicated a copy of his doctoral thesis to her in June 1974. He attended her graduation from the Masters Program at Manhattan College that same year. They went out to dinner after the graduation. The Petitioner stated almost regretfully and ashamedly that she continued to have sexual a relationship with the Respondent, although less frequently, because she was in love with him. All sexual contact with him occurred in her apartment, where he sometimes spent the night.

Through her testimony and documentary evidence, the Petitioner established the date of conception to be on the evening of November 19, 1974. The child was born on August 9, 1975. The Petitioner submitted as Pet.'s Exhibit 1 the original telephone bill she received in December 1974, which listed a long distance call admittedly made by the Respondent from her phone at 7:46 a.m. on November 20, 1974. In addition, she submitted the copy of the pregnancy test results from the Eastern Women's Center dated December 23, 1974, stating clearly that her last menstrual period (in gynecology, known as L.M.P.), was on November 9, 1974. See Pet.'s Exhibit 2. This Exhibit appeared to be unaltered and yellowed from age as it had been in her child's album since at least 1975. Although no medical records for this particular pregnancy were submitted, a review of any medical reference book will reveal that:

[t]he average length of gestation (from conception to delivery) is 266 days, or thirty-eight weeks. Traditionally used as a convenient starting point from which to measure gestation. On this basis, the total length of pregnancy is approximately 280 days, or forty completed weeks. The due date can be determined easily by first subtracting three months from the date of the last menstrual period and adding seven days. See Your Pregnancy, Geoffrey Sher, M.D. & Victor Knutzen, M.D. A complete, comprehensive approach to the joy of pregnancy and childbirth, 1983, page 39.

Babies born before the 38th week are pre-term, and those born after are post-date or post-maturity, Between 38 and 42 weeks is considered normal. (See Your Pregnancy, Is the Baby Healthy and Mature?, pages 48-57; see also In the Matter of Apuzzo v. Slesinski, 97 A.D.2d 615 [3rd Dept. 1983]). Clearly, the subject child was medically a full-term baby, with an estimated due date of August 16 (40 weeks from the L.M.P.), but born at 39 weeks on August 9, 1975. The court will draw no adverse inference from the failure to submit medical records, since the record will reflect that there were no motions to compel or preclude prior to trial, and the Petitioner's counsel gave a plausible explanation for her understanding or misunderstanding of the Respondent's notice to produce at deposition the records as they related to confinement expenses, of which there were none chargeable to the Respondent.

The Petitioner and Respondent both agree that the Respondent was notified by the Petitioner of her pregnancy during the Christmas 1974 holiday season. Both agreed that he had asked her or encouraged her to abort the fetus, Petitioner testified that he repeatedly asked her through her first trimester to abort the pregnancy, and that when he finally realized that the pregnancy would go to full term, he stopped making that request. She even told him that she would name the child after him, which she in fact did. (See Pet.'s Exhibit 3, Child's Birth Certificate.) Since she had no relatives in the United States, Joan P., one of her closest friends, whom she had met when both were serving as missionaries in Japan, invited her to stay with her in Albany, New York, after the school term was over in June 1975. The child was born in Albany after a very difficult labor and delivery through Cesarean section. The child was revived at birth and was seriously ill for his first week of life. The child was eventually diagnosed as having cerebral palsy.

Testimony of the Respondent

In his testimony, the Respondent admitted to having had an adulterous affair with the Petitioner from early 1971 through only 1973. He denied having any sexual intercourse with her during the critical period in 1974. The Respondent then departed from reality into a highly provocative and scandalous, if not slanderous, portrayal of their encounters, in an attempt to cast doubts on her veracity and rebut the burden she had already met on her prima facie case. Specifically, he testified that on their first meeting in her apartment she offered him a drink and almost immediately, to his surprise, proceeded to perform oral sex on him. He further alleged that she admitted to him that she had engaged in numerous sexual encounters with priests while she was a missionary in Japan, and that she purportedly told him with great amusement how on one occasion in Japan, she had engaged in sex with several men in one day; whether it was together or one at a time, he was not clear. He alleged that they engaged in sadomasochistic behavior, i.e., she liked to be "tied up" and "spanked" and that he complied. He also alleged that when she became pregnant she told him it could be any one of three men, of which he was not one.

Further, the Respondent portrayed her as a user and abuser, who used this younger (only 3 years), married man for a whim and sex. He alleged that Joan P., Petitioner's best friend, had told him that she was sick and tired of helping the Petitioner. He depicted the Petitioner as generally a pest. Respondent denied ever being physically separated from his wife during the period in question. He testified about a letter he wrote in 1974 (coincidentally around the time Petitioner alleged she received the letter informing her of his reconciliation and his two children), in which he allegedly told her in words or substance to stop pestering him with calls to his home and urging her to get married (if she could) to one of her numerous boyfriends she was then seeing, while expressing concern that her promiscuous sexual conduct might result in her catching some disease. While the testimony of alleged access by others during the critical period was heard over some objections, the court finds that it can give no weight to his testimony on this point or on the issue of whether or not she was as virginal as she depicted herself, not simply because it is incredible, but also because it is uncorroborated. Section 531 of the Family Court Act provides in relevant part that,

[I]f the respondent shall offer testimony of access by others at or about the time charged in the complaint, such testimony shall not be competent or admissible in evidence except when corroborated by other facts or circumstances tending to prove such access.

Since the Respondent did not adduce any additional testimony in support of his claim, his testimony was inadmissible. In the Matter of Westchester County Department of Social Services o/b/o Jean T. v. Alfred H., (NYLJ 10/14/92, p. 26, col. 2-3), the Second Department discarded the uncorroborated access testimony by that Respondent, and stated that:

Moreover in view of the strong scientific, documentary and testimonial proof adduced by the petitioner, we conclude that paternity was established by clear and convincing evidence. (See e.g., Matter of Nancy M.G. v. James M., 148 A.D.2d 714; Matter of Moon v. Roscoe CC., 105 A.D.2d 485).

In another Second Department case, Stacie O. v. Luciano B., the court found that the mother had met her burden of proof by clear and convincing evidence, that the respondent was the father of her child where the Human Leukocyte Antigen test showed a 95.1 per cent probability of paternity, and there was no evidence that any man other than the Respondent has sexual intercourse with her during the critical period. 122 A.D.2d 881, 506 11, app. dism'd, 69 N.Y.2d 805,505 N.E.2d 952,513 N.Y.S.2d 387 (1986). Also see the myriad of cases cited in the case notes following Section 531 of the Family Court Act.

In the case before this court, the Respondent could not deny he was in Petitioner's apartment on the morning after which she allegedly conceived the child. He was faced with the telephone bill (Pet.'s Exhibit 1) together with the scrap envelope with his handwriting indicating "Maria – I had to make a call to Philadelphia. I hope you don't mind." On the same envelope, he had written the name Tom M. and his telephone number, which clearly matched the call made at 7:46 a.m. on November 20, 1974. His explanation of his presence in her apartment on that morning is contradictory and inconsistent with his other testimony that he did not consider her his friend, that she was a user an abuser and generally a pest. That is, he claimed to have gone to her apartment on his way to work at 7 a.m. to help her with some immigration problems she had, and that after she left for work, presumably before 7:46 a.m., he stayed in her apartment alone to review the documents and that the call was made on her behalf. The Petitioner on rebuttal denied having any immigration problems with which the Respondent helped her, and that the Respondent never explained to whom the call was made, other than writing the person's name and number. Why would she have minded if it were for her benefit? The scenario that Respondent described was a fairly friendly, intimate relationship in which the Petitioner allowed this man to stay in her apartment, presumably with the intention that he lock up after she left.

It must be noted that from its unique perspective, the court was able to observe the demeanor of the parties not only while each testified, but also as each party heard the testimony of other witnesses. If color changes are any indication of a person's emotional state as it relates to veracity, the multitude of shades of red, pink and even purple exhibited on Respondent's face as he testified and as he reacted to the testimony of the witnesses for the Petitioner, gave the court an additional barometer of his credibility. If the Petitioner and Respondent had been the only witnesses, and considering the documentary evidence submitted by both, the court would have made the same finding.

Testimony of Witnesses & Issues of Missing Witnesses

However, the court had the benefit of additional witnesses, whose testimony supported the Petitioner's version of the facts as they existed during the relevant period. Specifically, both Joan P., the friend for now over 20 years, who allowed the Petitioner to stay with her during the last weeks of the pregnancy and post-partum period, and William O., a long-time friend of Petitioner and an attorney since 1975, described the relationship of Petitioner and Respondent as one of which they did not fully approve, but one which was exclusive from the Petitioner's perspective. That is, both testified that Petitioner spoke only about the Respondent, no other man was ever mentioned or even seen by these two friends, and that although they tried to encourage her, the Petitioner refused to see any other man.

Both the Respondent and Joan P. testified that Joan P. was the one who informed the Respondent of the birth of the child. At the time, the Petitioner has instructed her to contact the Respondent through an intermediary, Brother Luke, which she did. Respondent went to Joan P.'s apartment in Albany within days of the birth. Both the Petitioner and Joan P.. state that the mother and child were still in the hospital, and that after an intense conversation, the Respondent went to the hospital to visit. During the meeting in Albany, Joan P. and the Respondent discussed the difficult delivery, the complications and what can be labeled as the "pro and cons" of his written acknowledgment of paternity from the standpoint of catastrophic medical expenses incurred at delivery and post-partum care for the child. There was never any real issue about whether he was the father, it was whether it would be wise to legally acknowledge it. The witness credibly testified of an emotional scene, wherein the Respondent put his head into his cupped hands and lamented, "we should never have had this child!" This is a very realistic presentation of events. In contrast, the Respondent would have us believe that he went to Albany to visit the new mother, his former lover, because Joan P. was calling all her friends to see her during these stressful post-partum days. He alleged that he complied since it was on his was to visit his sister and he, fortuitously, had to go to the NYS Department of Education in Albany on business. This is a man who testified that the Petitioner was a thorn on his side, a pest, a user and abuser. If that was really the way he felt, why did he even have to visit? In addition, he testified that he specifically remembers that he had been traveling with Brother Luke and that Brother Luke was out of town on August 9, 1975. Query, how would Joan P., a virtual stranger, know of the existence of Brother Luke? Indeed, the Respondent has been traveling. He had sent a postcard to Petitioner from Ireland, postmarked "26 VI 75" or June 26, 1975. Said postcard states: "Maria – I've been traveling for the past month. I'll call you when I come back. Hope you are well. J." See Pet.'s Exhibit 5.

The Respondent's counsel argues that the Petitioner had a missing witness, i.e., Respondent's ex-wife to confirm that he was separated prior to 1974. However, it is clear that Petitioner's contention is only that Respondent told her he was separated from his wife and living at religious quarters on campus. It is the Respondent who has missing witnesses. His ex-wife could have verified whether or not he had ever spent nights away from the marital residence at any time from 1971-1974, whether or not he really was living with her during the entire period and that suspicious phone calls were received by her as the Respondent asserted. Testimony from his sister could have verified whether or not he had visited her or even whether she lived in Albany 1975, or whether her brother had visited a sick friend in Albany or whether he in fact had a sister. Finally, where was Brother Luke, the ideal witness to rebut the Petitioner's witness, if not her entire case? And what about Tom M., the person he supposedly called from Petitioner's apartment on November 20, 1974 at 7:46a.m., allegedly for her benefit. There is a pregnant gap in Respondent's case, with many missing witnesses and documents that were more clearly under his control, and, if his testimony were true, could have supported his contentions. The court draws unfavorable inferences against the Respondent.

Both witnesses testified of admissions of paternity made by the Respondent shortly after the birth of the child. This long-time friend, Joan P., who has been living in Dublin for many years, traveled to New York to testify at the expense of the Petitioner. Joan P. sometimes uses her maiden name, other times her married name and a "stage" name since she is a radio announcer in Dublin. Her recollection of events was detailed, reliable and in no way self-serving. The court believes that this witness had no conceivable reason to perjure herself. The Respondent's counsel argues that her admitted use of three names should be viewed as evidence of her evasiveness and should impact on this court's assessment of her veracity. This is a futile effort to cloud the real issues before this court. William O. also traveled from outside the jurisdiction, i.e., Ohio, to testify on Petitioner's behalf regarding his efforts to get the Respondent to accept his responsibility as a father. His original efforts were in 1975 and then recently in 1991. Ironically, in evidence as Respondent's exhibits are blank "Affidavits to Amend Birth Certificate" (Resp.'s Exhibit G), which William O. mailed to the Petitioner while he was still working in New York City. While the year on the postmark is not clear, it was mailed in October from New York City to the Petitioner in her Yonkers address, from which she moved shortly after child's birth. In addition, the form is an official form pursuant to New York Public Health Law, VS 210a-6/68, i.e., issued in 1968. The Respondent again attempted to becloud the issue, i.e., alleging that because it was sent in blank by the witness to the Petitioner, it was to be used by the Petitioner to fill in any one of the many men with whom the Respondent alleged she was intimate during the critical period. What this piece of evidence does support is the Petitioner's contentions as well as those of the witnesses, that although there was no doubt he was the father, the Respondent had a way of manipulating the Petitioner, and influencing and dissuading her from her decision to have him to sign.

Respondent submitted as Resp. Exh. A, a letter written on July 24, 1991, by William O. to the Respondent stating:

I am an attorney and a member of the New York Bar, though I am currently practicing in Cleveland, Ohio. I am also a long time friend of Maria B. She has asked me to represent her and to take the necessary steps to obtain help from you in raising your son, J.B. . . . Ms. B. intends to settle this matter with the minimum possible anxiety and embarrassment to you. For your part, we strongly urge you not to contact Maria directly, but deal solely through me.

In response, Respondent's counsel wrote in Resp.'s Exhibit B dated August 9, 1991:

Aside from the bizarre (and rather telling) aspect of our client's 17-year wait, you might consider that some prior communication shortly after the birth was met with an invitation to do a blood test, which she refused (as, I assume, she would also do today). As to anything else she might do at this point in time — and the perils to her of launching any proceedings that are really designed as a mere holdup device – I invite you to look over the New York authorities on both paternity matters and sanctions for frivolous litigation.

While there was no direct testimony or documentary evidence as to when the Petitioner allegedly refused to submit to blood tests, in his summation, the Respondent's counsel pinpointed the year, and, therefore, he must have been privy to the information and, for whatever reasons, did not provide the same. The court refers to Post-trial Memorandum of Law by Respondent, wherein he speculates as to the content of letter written by the Petitioner to William O. discussing this case's possible initiation. The Petitioner has testified on her direct case that she had inquired of Mr. O., whether it was too late to take any action against the Respondent given the child's age. She expressed a genuine concern that her child would need protection and have greater medical needs given his cerebral palsy and given her age of approximately 56. In his Memorandum, page 6, counsel states in a very unpersuasive manner:

That letter undoubtedly expressed fear of taking the blood test or other court scrutiny this Petitioner was invited to undertake in one prior lawyer contact in 1982 . . . or else it discussed the fact that there were multiple "suspects" as to the baby's actual father – and Respondent was not even among them – as both Respondent and lawyer (Mr. O.) knew full well . . . or perhaps both points, and perhaps other points even more damning to Petitioner. [Emphasis is in the original.]

This argument by the Respondent's counsel is specious and clearly ignores the realities of this case. The Petitioner did submit herself and her 17-year-old disabled child to blood tests, which were accepted in evidence without objection or offer of admissible evidence to affect or rebut the great weight the courts bestow upon them. Not only this, but Petitioner's counsel made a motion to compel DNA testing to remove any reasonable doubt the Respondent may have had. Since the courts do give great weight to the HLA results and no expert testimony was anticipated, the motion for the additional testing was denied. This additional expense for DNA testing is considered unnecessary. In retrospect, maybe such testing may have resulted in a saving in trial time. However, the Petitioner certainly had no fear of proceeding on this matter. Within less than three months of the correspondence with the Respondent's counsel, the paternity petition was filed and the Petitioner took the proverbial kid gloves off. In addition, the Respondent's own admissions show that the Petitioner did try to get him to acknowledge paternity throughout the years. Assuming that she did refuse to submit to blood testing, the court could interpret that the Petitioner construed the requests for testing in 1982 as an insult, as a refusal on the Respondent's part to accept his legal responsibility. The Petitioner may have felt powerless at that point since legally she had no recourse since the statute in 1982 did not permit the filing of a paternity suit for a child over 2 years of age. The statute was amended in 1985 to allow for paternity suits until the child was 21 years of age. The child's age is only one factor in such a case. The Petitioner's delay in bringing this matter to court is not unexplained. Repeated efforts had been made throughout the years to obtain an acknowledgment of paternity. There is absolutely no evidence that anyone other than the Respondent has ever been identified by the Petitioner or by Respondent as the father of the child.

One of the most persuasive pieces of evidence was the letter written by the Respondent to the Petitioner shortly after the birth of the child (Pet.'s Exhibit 4). In this letter, he detailed his true feelings about the child, the Petitioner, himself and the situation they had created. This letter is viewed by this court as an admission of paternity and a refusal by the Respondent to accept the responsibility that goes with it. To paraphrase the letter would be a disservice to the parties. Specifically, the Respondent wrote:

You have the child you had earlier told me you wanted and I wish you much happiness for this. I do not consider myself the father since I never desired or knew anything of this. Please do not continue to agonize me – you have what you want – why not give both of us a chance for happiness.

Naturally, I'm very happy the child is healthy and this is good for you too. But he is your child & you must care for him – you and you alone. It won't do any good to claim I'm the father – for you or him. Even if you want to do this through the courts – what will it accomplish? – more bitterness and unhappiness for everyone.

Maria, I beg you, do not continue this. Any further involvement will be detrimental to all of us. Even if you want to continue this, I don't and can't handle this.

I have agonized over the right thing to do & now see what it is. For this I feel better in that I think it is just for you & your child. I wish you & him much happiness, but it is happiness that you must find on your own. As painful as that is to say, I know it is true. I wish I could say I could help you but honestly feel that this position is the most helpful one I can take . . .

While the court can almost feel his anguish in his words, at the same time his selfishness surfaced fully, when he ended the letter:

– I do suggest that you destroy these letters – they may well come back to haunt all of us. I have none of yours. Please, I have nothing to give you – it's best for all of us . . . I hope we all have some peace soon.

It seems that for 17 years, there was no peace or resolution without the "war" that was waged in this Judge's courtroom.

CONCLUSIONS OF LAW

Based on the foregoing, the court hereby finds that the Respondent Joseph J.F., is the father of the subject child J.J.B., born to Maria B. on August 9, 1975. An Order of Filiation will be duly entered this day. Issues as to legal fees and sanctions are still undecided.

Further, this matter is referred to the Hearing Examiner 2 for a full support hearing on January 25, 1993. All discovery and financial disclosure must be completed before trial.

This constitutes the decision and Order of the court.