DocketNumber： Appeal No. 1
Filed Date： 7/14/1995
Status： Precedential
Modified Date： 10/31/2024
Order unanimously reversed on the law without costs and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum: We dismiss the appeal from the order of filiation because no appeal lies as of right from that order (see, Family Ct Act § 1112 [a]; Matter of Jane PP. v Paul QQ., 64 NY2d 15, 17). In any event, the appeal from the final order of support brings up for review the order of filiation (see, CPLR 5501 [a]; Family Ct Act § 1118).
The record supports the determination of Family Court that petitioner met her burden of proving respondent’s paternity by clear and convincing evidence (see, Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 NY2d 137, 141-142). The testimony of petitioner and a witness called by petitioner, as well as the results of a blood test indicating a 99.59% probability that respondent is the child’s father, provide clear and convincing evidence of respondent’s paternity (see, Matter of Niagara County Dept. of Social Servs. [Kimmie W.] v Randy M., 206 AD2d 878, 878-879).
The court erred, however, in directing respondent to pay child support in the amount of $5.77 per week, the equivalent of approximately $25 per month. The record shows that, in making the support order, the Hearing Examiner stated, 'T can’t go any lower than that”, thereby concluding that the $25 minimum support order was compelled by Family Court Act § 413 (1) (g) without regard to respondent’s ability to pay. That was error (see, Matter of Rose [Clancy] v Moody, 83 NY2d 65, cert denied sub nom. Attorney General of N. Y. v Moody, — US —, 114 S Ct 1837; Matter of Reaves v Abdullah [appeal No. 2],