R.S. v. P.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5782-10T4

R.S.,

Plaintiff-Appellant,

v.

P.H.,

Defendant-Respondent.

__________________________________

February 13, 2013

Argued August 27, 2012 - Decided

Before Judges Nugent and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FD-01-679-08.

Jonathan J. Sobel argued the cause for appellant.

Respondent has not filed a brief.

PER CURIAM

R.S. appeals from the trial court's May 27, 2011 and July 20, 2011 orders denying, without a hearing, her application for a second paternity test in connection with her minor child K.H.1 She alleges that defendant is the father, and that an initial paternity test is in error. We affirm.

Our review is hampered by the state of the record. However, we rely on Judge Light's undisputed, comprehensive description of the history of plaintiff's paternity applications following the birth of her child on October 10, 2007:

Plaintiff filed an application on November 1, 2007, stating that Defendant was denying paternity and she would like to prove he was the biological father of her child, born October 10, 2007. By an order of January 7, 2008, the parties were ordered to appear for paternity testing on January 18, 2008. Both parties appeared for testing on that date, where a photograph was taken of both parties with the minor child. Parties showed two forms of identification and had their fingerprints taken. The testing was done by buccal swab in the Atlantic County Courthouse by an outside contractor, Orchid Cellmark, which has been hired by the State of New Jersey to perform this function.

On January 22, 2008, Orchid Cellmark sent the results of the paternity test to the Atlantic County Courthouse, indicating that Defendant was not the biological father of plaintiff's child. On February 22, 2008, this court entered an order indicating the results of the paternity testing and denying paternity of the Defendant.

On March 2, 2008, Plaintiff filed another application for paternity testing, indicating that she believed that the results were inaccurate because Defendant was the only man she had been with and because he allegedly gave her money for an abortion when she found out she was pregnant. She also believes that the paperwork she received (presumably the test results) did not look official. This application for another paternity test was denied after a hearing on the matter on April 14, 2008.

. . . .

Almost simultaneously, Plaintiff again filed on October 17, 2008, checking off "modify a paternity order" and stating that she was in a "conflict case". . . .

On December 8, 2008, the court, pursuant to N.J.S.A. 9:17-41(h)(2), granted Plaintiff's request for a second paternity test of the minor child. Parties were again ordered on January 2, 2009 to appear for testing. On January 2, 2009, Plaintiff failed to appear for the testing and was accordingly given a second opportunity to appear on January 20, 2009. Plaintiff indicated to court personnel that she declined this second opportunity to take a paternity test. On February 11, 2009, Plaintiff's application for a second paternity test was dismissed.

On November 10, 2010, the Atlantic County Board of Social Services [ACBSS] filed on Plaintiff's behalf for an order of paternity, child support and medical coverage. Again, the matter was listed before the court. The matter was then dismissed on January 26, 2011 as Plaintiff indicated to the court that she would not cooperate relating to paternity testing. Plaintiff refused to take a paternity test in the Atlantic County Courthouse.

On March 23, 2011, Plaintiff filed again, stating "conflict with system people [P.H.] knew had some kind of paper work that been miss lead & tempered with through the court. I'll like the judge to hear my slyed [sic] before this matter take case of an another paternity testing for me and my 3 yr old daughter saftey [sic]". Plaintiff then failed to appear for the scheduled hearing on April 27, 2011, leading to her application being dismissed.

On April 27, 2011, Plaintiff filed yet again, explaining she had missed her scheduled court date because she wrote the wrong time down. She would like another hearing. A hearing was scheduled for May 31, 2011. On May 5, 2011, Defendant [P.H.] filed a response to Plaintiff's application. He stated that he had complied with the original testing and results indicated that he was not the father. Further, the order denying paternity indicated that Plaintiff was to remove his last name from the child's name, something she still had not done. He further stated that he had appeared for each of the scheduled court hearings and paternity testings and Plaintiff did not appear or refused to be tested. He also attached a copy of the Final Restraining Order that he obtained against Plaintiff on May 30, 2007.

The court, considering both parties' filings, on May 27, 2011, dismissed Plaintiff's application for a paternity test without conducting a hearing on the matter.

On June 1, 2011, Plaintiff again filed stating "Due to my constitutional rights by law I have the right to a second paternity". On July 20, 2011, the court again dismissed Plaintiff's application, briefly reciting the history above in the order. The order indicates that no testing will be ordered until Plaintiff brings new evidence to the court that would allow the court to reconsider the matter.

Judge Light explained that plaintiff had failed to appear on multiple occasions for a second paternity test. He noted that plaintiff had indicated to court personnel that she would not appear for a test in the courthouse, she believed court staff were biased against her and tampered with previous results, and she requested a test elsewhere.

The judge wrote that a domestic violence restraining order, in place before the child's birth, prevented plaintiff from contacting defendant, but plaintiff's repeated filings enabled her to have contact with defendant. Judge Light noted, "[T]here comes a point where the purpose of the litigation crosses the line into harassment."

Plaintiff appeals, claiming the trial court erred in denying her motion for a second paternity test.

Plaintiff's appeal is governed by the New Jersey Parentage Act (Act), N.J.S.A. 9:17-38 to -59, and general principles of law governing the finality of judgments. The Act states that a natural mother, among others, "may bring . . . an action . . . at any time for the purpose of determining the existence . . . of the parent and child relationship." N.J.S.A. 9:17-45(a) (emphasis added). But "[n]o action shall be brought . . . more than 5 years after the child attains the age of majority." N.J.S.A. 9:17-45(b). A mother may establish a father's paternity by obtaining a genetic test. See N.J.S.A. 9:17-41(b) (stating that a natural father's paternity may be established by, among other means, "an order of the court based on a blood test or genetic test that meets or exceeds the specific threshold probability as set by [N.J.S.A. 9:17-48(i)] creating a rebuttable presumption of paternity"); see also N.J.S.A. 9:17-48(d) (authorizing the court to order a party to submit to a genetic test upon the requesting parties' sworn statement "set[ting] forth the facts establishing a reasonable possibility" of paternity, among other grounds).

The law also provides for the taking of a second test, if the results of the first test are contested:

In a contested paternity case in which the State IV-D agency requires or the court orders genetic testing, the State IV-D agency shall:

. . . .

 
(2) obtain additional testing if the initial test results are contested, and upon the request and advance payment for the additional test by the contestant.

[N.J.S.A. 9:17-41(h).]

See also N.J.S.A. 9:17-48(d) ("In actions based on allegations of fraud or inaccurate analysis, the court or the county welfare agency shall require that additional blood or genetic tests be scheduled within 10 days of the request and be performed by qualified experts.").2

Plaintiff argues that her statutory right to a second test, coupled with the authority of a parent to seek paternity "at any time," N.J.S.A. 9:17-45, means that she was entitled to compel defendant to submit to a second test, notwithstanding her repeated failure to appear for previously scheduled re-tests. We disagree.

Plaintiff was not entitled to repeatedly file an application for a second paternity test, fail to appear, and then initiate the process again. Cf. State v. Volk, 280 N.J. Super. 57, 60-61 (App. Div. 1995) (barring on theory of laches plaintiff-mother's effort to obtain paternity test of father when the court had previously ordered test upon plaintiff's request, and then plaintiff failed to appear and the case was dismissed). Both the putative father and courts have an interest in finality. Cf. E.I.B. v. J.R.B., 259 N.J. Super. 99, 108 (App. Div.) (precluding on collateral estoppel grounds action by child's grandmother on grandchild's behalf to establish parentage, where prior paternity action by motion resulted in a judgment of non-paternity), certif. denied, 130 N.J. 602 (1992).3

The court entered final orders on February 11, 2009, January 26, 2011, and April 27, 2011 dismissing plaintiff's and the ACBSS's applications for a second test because of plaintiff's failure to appear. Inasmuch as plaintiff has not provided us with copies of these orders, we shall deem them for the purposes of this appeal to have the effect of a judgment entered by default. See N.J.S.A. 9:17-52.1 ("A default order shall be entered in a contested paternity action upon a showing that proper notice has been served upon the party and the party has failed to appear at a hearing or trial; or has failed to respond to a notice or order that required a response within a specific period of time.");4 see also R. 1:2-4(a) (stating that when a party without just excuse fails to appear at a "proceeding scheduled by the court" the court may enter an order of dismissal and the entry of judgment by default). Consequently, any motion for relief from the final judgment or order must satisfy Rule 4:50-1. As Judge Light observed, plaintiff has provided the court with no compelling justification for her repeated failure to appear that would justify relief.

We recognize that "[a] mother cannot defeat the interests of the child and the welfare agency by simply not showing up for a blood test or for trial." Essex Cnty. Div. of Welfare v. J.S., 205 N.J. Super. 244, 247 (App. Div. 1985). In J.S., we found it was error for the trial court to dismiss with prejudice a paternity action brought by the county welfare agency where the mother-plaintiff failed to appear. Id. at 246-47. In several respects, J.S. is distinguishable from the case before us. First, here, the defaulting mother, not the welfare agency, seeks the test. Second, here, unlike in J.S., an initial test was performed pursuant to the Act, and the results indicated non-paternity. Nonetheless, we do not intend by our opinion to address the right of the ACBSS, or of the child, by a guardian ad litem or after the child reaches the age of majority, to pursue an independent action for paternity. See N.J.S.A. 9:17-47 (stating that a child may be made a party to the action, a guardian ad litem may be appointed if the child is a minor, and the child's mother may not represent the child).

A

1 Plaintiff's notice of appeal, filed August 2, 2011, references orders entered May 27 and August 1, 2011, but the second order appears to have been entered on July 20, 2011.

2 We note that plaintiff's first request for a second test was filed within ten days after entry of the February 22, 2008 order of non-paternity.

3 We express no opinion on the collateral estoppel effect of any orders in this case.

4 This provision was prompted by 42 U.S.C.A. 666(a)(5)(H), which requires, among the procedures concerning paternity that a state must have in place to improve effectiveness of child support, "[p]rocedures requiring a default order to be entered in a paternity case upon a showing of service of process on the defendant and any additional showing required by State law." (emphasis added). See Senate Women's Issues, Children and Family Servs. Comm. Statement to S. 1306 (1994). However, the plain language of the state provision is not limited to default by a defendant.