PASSAIC COUNTY BOARD OF SOCIAL SERVICES and K.W v. E.T

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3326-08T23326-08T2

PASSAIC COUNTY BOARD OF

SOCIAL SERVICES,

Plaintiff-Respondent,

and

K.W.,

Plaintiff,

v.

E.T.,

Defendant-Appellant.

______________________________________________

 

Submitted May 24, 2010 - Decided

Before Judges Rodr guez and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-0594-97.

E.T., appellant pro se.

Passaic County Board of Social Services, attorneys for respondent (Frank J. Sciro, Jr., Chief Counsel, of counsel; Liana L. Allen, on the brief).

PER CURIAM

On July 15, 1996, appellant E.T. signed a consent order with the Passaic County Board of Social Services (PCBSS) and the birth mother K.W., acknowledging his paternity of S.T., a boy born on November 5, 1994. On the same date, he signed another consent order with the same parties agreeing to submit to genetic testing with respect to E.T., Jr., a boy born on November 20, 1993. The genetic testing excluded appellant as the biological father of E.T., Jr. As a result, appellant was relieved of all financial obligations to E.T., Jr. Based on the order acknowledging paternity of S.T., the court set a temporary support order of $25 per week, payable to the PCBSS because K.W. and S.T. were recipients of Temporary Aid to Needy Families (TANF). A permanent order of $85 per week in support was entered following an income verification investigation.

Eight years later, in November 2004, appellant moved to: (1) disestablish his paternity of S.T.; (2) obtain genetic testing regarding S.T.; and (3) vacate all support orders and arrears for S.T. PCBSS opposed the motion. K.W. certified that E.T. was the birth father of S.T. and held himself out as such and maintained a close relationship with the boy. K.W.'s mother and sister submitted certifications corroborating this evidence.

On January 23, 2009, after several procedural mishaps, Judge George F. Rohde, Jr., denied appellant's motion. E.T. now appeals from the denial of his motion. We affirm.

On appeal, appellant seeks "enforcement of [his] right for DNA testing of paternity of [S.T.], [and] based upon law and good cause and [this] should not be denied." We are not persuaded by this argument.

At the outset, we reject appellant's assertion that he was genetically excluded as S.T.'s father at the same time that he was so excluded as E.T., Jr.'s father. The assertion is belied by the record. Appellant did not seek genetic testing of S.T. Instead, he did the opposite by acknowledging paternity. This acknowledgement meets the requirements set by 42 U.S.C.A. 666. The statute requires that a notice be given orally and the writing which shows the obligations, rights and consequences of the acknowledgement of paternity. 42 U.S.C.A. 666 (a)(5)(c). Once paternity is acknowledged, the consent order addresses the obligations of paying child support. The transcript shows that appellant did not question paternity for S.T. The record makes clear that appellant understood that he was not the father of E.T., Jr., and paternity of that boy was being excluded.

We reject appellant's contention that the order acknowledging paternity was invalid because K.W. did not sign it. 42 U.S.C.A. 666 does not require the signature of the biological mother to establish paternity in a consent order.

Moreover, appellant has not offered any evidence why his acknowledgment should be invalidated. A motion pursuant to Rule 4:50-1 is addressed to the sound discretion of the court, whose determination will be left undisturbed unless it results from a clear abuse of discretion. Housing Authority of Morristown v. Little, 135 N.J. 274, 283-84 (1994). Finality of judgments is an important goal, as well as judicial efficiency. Hodgson v. Applegate, 31 N.J. 29, 35 (1959).

Here, appellant has failed to demonstrate any abuse of discretion by the trial court in denying his motion. Indeed, in subsequent motions, appellant has not demonstrated any abuse of discretion by the trial court, nor expressed a valid reason, pursuant to Rule 4:50-1 to set aside the judgment.

Furthermore, appellant's motion was not timely. Rule 4:50-2 provides that a motion to seek relief from a judgment or order must be made within a reasonable time, and for reasons (a), (b) and (c) of Rule 4:50-1 not more than one year after the judgment was entered. Once again, the goal is finality and reliance on the party be allowed to rely inviolability of judgments. Capanear v. Salzano, 222 N.J. Super. 403, 408 (App. Div. 1988) (citing Hodgson v. Applegate, supra, 31 N.J. at 43). See also F.B. v. A.L.G., 176 N.J. 201, 214 (2003) (refusing to permit a man to challenge a paternity order where he had appeared in court and voluntarily admitted paternity, which resulted in the paternity and child support order entered against him). In re Adoption of a Child of Indian Heritage, 111 N.J. 155 (1988) (refusing to vacate a three-year-old judgment of adoption); Conforti v. Guliadis, 245 N.J. Super. 561 (App. Div. 1991) (concluding that an application to vacate a provision of a five-year-old judgment of divorce was not brought within a reasonable time).

Here, we perceive no reason to depart from these authorities. In fact, appellant has provided none. Moreover, he had the opportunity to request genetic testing of S.T. and E.T., Jr. A party who has received a fair and complete opportunity to litigate an issue has received all to that which he is entitled. Moore v. Hafeeza, 212 N.J. Super. 399, 403 (Ch. Div. 1986). S.T., K.W. and PCBSS have the right to rely upon the paternity order entered in 1996.

Pursuant to the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59, "an adjudication of paternity shall only be voided upon a finding that there exists clear and convincing evidence of fraud, duress[,] or a material mistake of fact." N.J.S.A. 9:17-41(b). The burden of proof is upon the challenger. Ibid.

Finally, we note that even if appellant is not S.T.'s biological father, pursuant to the doctrines of in loco parentis and equitable estoppel, he is still obligated to pay support. The adjudication of parentage is determinative for all purposes. Thus, appellant is the lawful father pursuant to the doctrine of in loco parentis. The proper definition of a person in loco parentis to a child is "a person who means to put himself in the situation of the lawful father of the child, with reference to the father's office and duty of making provision for the child." F.B. v. A.L.G., supra, 176 N.J. at 211. The doctrine of equitable estoppel has been used to obligate parties who act in loco parentis to continue support. Ibid.

Here, the record is contested on the issue of appellant's relationship with S.T. K.W., her mother, and her sister certified that appellant had a close relationship with S.T. and held himself out to be S.T.'s father. According to K.W. and her relatives, appellant spent overnight visits with S.T., took him on trips, bought him school clothes, participated in planning birthday parties for him, and spent holidays with him. Appellant denies such a relationship. Nonetheless, we need not reach the in loco parentis/equitable estoppel issue because the binding nature of the order acknowledging paternity, the provision of the New Jersey Parentage Act, and the untimeliness of appellant's attempt to disestablish paternity compel affirmance of the denial of appellant's motion.

Affirmed.

 

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A-3326-08T2

RECORD IMPOUNDED

July 28, 2010