Jane PP. v. Paul QQ.

Appeal from an order of the Family Court of Cortland County (Mullen, J.), entered May 11,1983, which directed respondent to pay $60 per week for the support of his infant child, $1,450 in support arrears and $750 for petitioner’s counsel fees. 11 Preliminarily, we note that the permanent order of support filed May 11, 1983, from which respondent appeals, did not incorporate the filiation order entered on January 12, 1983. Having failed to file a timely notice of appeal from the filiation order (see Family Ct Act, § 1113), respondent is collaterally estopped from obtaining review of the finding of paternity by way of the instant appeal. H In reaching this conclusion, we are not unmindful that the Appellate Division, Second Department, has determined that an order of filiation is not an order of disposition (see Family Ct Act, § 1112) and is reviewable on appeal from an order of support (see Matter of Karen K. v Christopher D., 86 AD2d 633; Matter of Susan W. v Amhad Q., 65 AD2d 594, mot for lv to app den 46 NY2d 1037). In our view, such a theory ignores the recent trend of legal development away from the view that Family Court’s paternity jurisdiction is solely a vehicle to identify persons liable for the support of children born out of wedlock and not to decide parental status. Notably, in 1976 the Family Court Act was amended to give putative fathers the right to initiate paternity proceedings. We and other courts have recognized that paternity proceedings cannot now be viewed simply as incidental to an application for support (see Matter of Sharon GG. v Duane HH., 95 AD2d 466; Matter of Leromain v Venduro, 95 AD2d 80; Matter of Kordek v Wood, 90 AD2d 209). To hold otherwise would render totally uncertain when an appeal must be commenced in a case where an order of filiation has been made without any accompanying order fixing support, f The only remaining issue is whether Family Court abused its discretion in awarding counsel fees to petitioner (see Pfeiffer v Byrne, 74 AD2d 791, affd 53 NY2d 1021). We think not. Petitioner made specific application for counsel fees after the granting of the filiation order (Family Ct Act, § 536; Matter of John J. S. v Theresa L., 99 Misc 2d 578, 582) and adequately established her inability to pay counsel fees (see Badenhop v Badenhop, 84 AD2d 773). A review of the parties’ financial affidavits and testimony confirms a disparity in income justifying the award. 11 Order affirmed, without costs. Main, Weiss and Levine, JJ., concur.