MUKURALINDA, JEAN v. KINGOMBE, JOLIE ( 2012 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1134
    CAF 11-01353
    PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.
    IN THE MATTER OF JEAN MUKURALINDA,
    PETITIONER-APPELLANT,
    V                             MEMORANDUM AND ORDER
    JOLIE KINGOMBE, RESPONDENT-RESPONDENT.
    THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
    COUNSEL), FOR PETITIONER-APPELLANT.
    TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
    COUNSEL), FOR RESPONDENT-RESPONDENT.
    MARY E. FEINDT, ATTORNEY FOR THE CHILDREN, ROCHESTER, FOR JOSHUA K.,
    RACHEL K., RUTH K. AND STEVEN K.
    Appeal from an order of the Family Court, Monroe County (Patricia
    E. Gallaher, J.), entered May 31, 2011 in a proceeding pursuant to
    Family Court Act article 6. The order, among other things, awarded
    sole legal custody of the subject children to respondent.
    It is hereby ORDERED that the order so appealed from is
    unanimously reversed on the law, the motion is denied, the petition is
    reinstated and the matter is remitted to Family Court, Monroe County,
    for further proceedings in accordance with the following Memorandum:
    Petitioner, the alleged father of the children in question, appeals
    from an order that, inter alia, dismissed his petition seeking a
    modification of visitation as set forth in the prior order granting
    the parties joint custody, granted respondent mother’s cross petition
    seeking sole custody of the children, and vacated all prior orders.
    Family Court determined that, because the parties were not married and
    there were no acknowledgments of paternity with respect to the
    children (see Family Ct Act § 516-a [a]), petitioner lacked standing
    to seek relief or to oppose the mother’s cross petition seeking sole
    custody. That was error.
    As a preliminary matter, we note that petitioner’s first language
    is Swahili and an interpreter appeared on his behalf. Although
    petitioner responded “no” to the court’s questions “so you are not
    married” and “you did not do the marriage, right,” he previously
    stated unequivocally that he and the mother were married in Africa in
    a “cultural ceremony” before they emigrated to the United States. The
    court interrupted petitioner’s explanation of the “cultural ceremony”
    to ask questions before he had completed his response to the court’s
    -2-                          1134
    CAF 11-01353
    request to describe the ceremony. In response to the court’s
    questions, the mother testified that the parties were not married in
    Africa or in the United States. Although the court’s determination
    that petitioner lacked standing should not be disturbed absent a sound
    and substantial basis in the record (see generally Matter of Garland v
    Goodwin, 13 AD3d 1059, 1059-1060), we conclude that the determination
    is not supported by the requisite sound and substantial basis in the
    record in view of petitioner’s contradictory testimony through the
    interpreter.
    In any event, based upon the doctrine of judicial estoppel, we
    conclude that the court erred in granting the mother’s motion seeking
    to dismiss the petition to modify visitation and to vacate all prior
    orders. In opposition to the motion, petitioner provided the court
    with prior sworn petitions wherein the mother asserted that petitioner
    was the father of the children. Indeed, the mother swore in one
    petition that she and petitioner were “married in Africa on 6/28/98,”
    which is in direct contravention of her sworn testimony that she and
    petitioner were never married. We conclude that judicial estoppel is
    properly applied here, where “a party to an action has secured a[n
    order] in his or her favor by adopting a certain position and then has
    sought to assume a contrary position in another action simply because
    his [or her] interests have changed” (Anonymous v Anonymous, 137 AD2d
    739, 741; see generally Secured Equities Invs. v McFarland, 300 AD2d
    1137, 1138; Abramovich v Harris, 227 AD2d 1000, 1001). In light of
    our decision, we further conclude that the court erred in granting the
    cross petition. We therefore reverse the order, deny the motion,
    reinstate the petition and remit the matter to Family Court, Monroe
    County, for further proceedings on the petition and cross petition
    before a different judge.
    Entered:   November 9, 2012                     Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CAF 11-01353

Filed Date: 11/9/2012

Precedential Status: Precedential

Modified Date: 10/8/2016