| Matter of Mukuralinda v Kingombe |
| 2012 NY Slip Op 07499 [100 AD3d 1431] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Jean Mukuralinda, Appellant, v Jolie Kingombe,Respondent. |
—[*1] Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), forrespondent-respondent. Mary E. Feindt, Attorney for the Children, Rochester, for Joshua K., Rachel K., Ruth K. andSteven K.
Appeal from an order of the Family Court, Monroe County (Patricia E. Gallaher, J.), enteredMay 31, 2011 in a proceeding pursuant to Family Court Act article 6. The order, among otherthings, 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, themotion is denied, the petition is reinstated and the matter is remitted to Family Court, MonroeCounty, for further proceedings in accordance with the following memorandum: Petitioner, thealleged father of the children in question, appeals from an order that, inter alia, dismissed hispetition seeking a modification of visitation as set forth in the prior order granting the partiesjoint 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 marriedand there were no acknowledgments of paternity with respect to the children (see FamilyCt Act § 516-a [a]), petitioner lacked standing to seek relief or to oppose the mother's crosspetition seeking sole custody. That was error.
As a preliminary matter, we note that petitioner's first language is Swahili and an interpreterappeared on his behalf. Although petitioner responded "no" to the court's questions "so you arenot married" and "you did not do the marriage, right," he previously stated unequivocally that heand the mother were married in Africa in a "cultural ceremony" before they emigrated to theUnited States. The court interrupted petitioner's explanation of the "cultural ceremony" to askquestions before he had completed his response to the court's request to describe the ceremony.In response to the court's questions, the mother testified that the parties were not married inAfrica or in the United States. Although the court's determination that petitioner lacked standingshould not be disturbed absent a sound and substantial basis in the record (see generally Matter of Garland vGoodwin, 13 AD3d 1059, 1059-1060 [2004]), we conclude that the determination is notsupported by the requisite sound and substantial basis in the record [*2]in view of petitioner's contradictory testimony through theinterpreter.
In any event, based upon the doctrine of judicial estoppel, we conclude that the court erred ingranting the mother's motion seeking to dismiss the petition to modify visitation and to vacate allprior orders. In opposition to the motion, petitioner provided the court with prior sworn petitionswherein the mother asserted that petitioner was the father of the children. Indeed, the motherswore in one petition that she and petitioner were "married in Africa on 6/28/98," which is indirect contravention of her sworn testimony that she and petitioner were never married. Weconclude that judicial estoppel is properly applied here, where "a party to an action has secureda[n order] in his or her favor by adopting a certain position and then has sought to assume acontrary position in another action simply because his [or her] interests have changed"(Anonymous v Anonymous, 137 AD2d 739, 741 [1988]; see generally SecuredEquities Invs. v McFarland, 300 AD2d 1137, 1138 [2002]; Abramovich v Harris,227 AD2d 1000, 1001 [1996]). In light of our decision, we further conclude that the court erredin granting the cross petition. We therefore reverse the order, deny the motion, reinstate thepetition and remit the matter to Family Court, Monroe County, for further proceedings on thepetition and cross petition before a different judge. Present—Scudder, P.J., Smith, Fahey,Carni and Valentino, JJ.