M.B. v. J.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.B.,

Plaintiff-Respondent,

v.

J.H.,

Defendant-Appellant.

______________________________

November 20, 2014

Submitted August 27, 2014 Decided

Before Judges Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1711-09.

Adinolfi and Lieberman, P.A., attorneys for appellant (Kelli M. Martone and Alexandra K. Ridgen, on the briefs).

Robert J. Wittmann, attorney for respondent.

PER CURIAM

Plaintiff M.B. (Mark)1 and defendant J.H. (Jane) were divorced on January 25, 2010, after seven years of marriage. Three years later, Mark obtained a post-judgment order from the Family Part compelling the parties and the two children born during the marriage, R.B. (Randi) and K.B. (Kim), to submit to genetic testing to determine whether Mark was the girls' natural father. Jane appeals. She argues that, in entering into the parties' property settlement agreement (PSA), Mark waived his right to contest paternity. Also, no compelling equitable consideration justifies modifying the judgment under Rule 4:50-1. We agree, and therefore reverse.

I.

The record reflects that long before the divorce, Mark harbored doubts about his parentage of his daughters. He raised the issue in the context of the parties' divorce litigation, and then waived any denial of parentage in the property settlement agreement.

Randi was born in the spring 2004, and Kim was born roughly three years later. Mark admitted that throughout his marriage, he was "always suspicious of a certain relationship" Jane had with his former workmate, J.H. (Jake). Mark stated that Jake assisted Mark in securing jobs that resulted in Mark's absence from the marital home for extended periods. According to Mark, Jane appeared to spend more time with Jake than with him. She often talked to Jake privately on the phone. Mark and Jane rarely had sexual relations, and Mark often slept on the couch.

He stated, "These things always struck me as odd, but I never had proof that she was having an affair." He added, "I still thought it was strange that she became pregnant during times when we had very limited, if practically non-existent sexual relations." Mark asserted that he often accused Jane of infidelity with Jake, and questioned his parentage of the girls. He and Jane argued; then he accepted, at least temporarily, her assurances that he was wrong.

Jake died in an automobile accident in May 2007. But, marital difficulties between Mark and Jane continued. Mark filed his complaint for divorce on June 8, 2009. He said he did so because he felt he could not trust his wife, and he still had "deep suspicions regarding her prior relationship with [Jake]." Notwithstanding those suspicions, Mark initially sought joint custody of the girls. He did not address Jane's suspected infidelity, or his doubts about parentage.

However, that soon changed. Jane moved out with her daughters at the end of June 2009. In August, she sought pendente lite spousal and child support. Mark opposed the motion. He referred to new evidence that he was not the children's father

I have reason to believe that the defendant fraudulently deceived me about my status as the father of these children in that she was in possession of reliable scientific evidence proving either that an individual with whom she had an affair during our marriage was the father (now deceased) or that I was not the father. It is my belief that she obtained this evidence because of her own doubts about my status which she never conveyed to me. This is an issue that was obtained by me following the filing of the Complaint for divorce.

Mark stated that he intended to seek leave to amend his complaint to assert a denial of paternity. He filed a case information statement that expressly denied paternity of any children of the marriage. The parties ultimately entered into a consent order resolving pendente lite support without addressing the paternity issue.

On December 1, 2009, the court entered an order granting Mark leave to file, by December 15, a "notice of motion for leave to amend complaint and for order to compel a paternity test." Trial was set for March 3, 2010. However, Mark never filed this motion. Instead, the parties resolved their differences in the PSA dated January 8, 2010.

In the PSA, Jane implicitly acknowledged her infidelity and the possibility that Mark was not the father of Randi and Kim. The parties cited the uncertainty regarding parentage as a basis for Mark's waiver of parenting time. The PSA states, "Husband has expressed his belief that the children are not biologically his, and wife, has admitted that there is a possibility that they are not, and thus the Husband has waived his rights to parenting time and has not seen the minor children since August 2009."

Balancing Mark's assumption of the parental role with the uncertainty regarding his actual parentage, the parties agreed that Mark would be liable for child support at a level below that authorized by the Child Support Guidelines

Although Wife acknowledges that Husband may not be the biological father, in recognition of the fact that Husband has assumed the role of the biological father since the children were born, and has stood in loco parentis to the two minor children, Husband shall pay Child Support in the amount of $100.00 per week, which, is a deviation from the current Child Support Guidelines attached hereto as Exhibit A [which set child support at $222 a week].

The PSA also provided that the child support order was "non-modifiable[,]" except upon Jane's showing of a change in circumstances. Mark also agreed to obtain life insurance to secure his obligation.

A name change provision also recognized that Mark was not pursuing a paternity determination. It provided that Jane was "permitted to remove Husband's surname from the children's birth certificates, should the State of New Jersey permit same absent a judicial determination of paternity."

The PSA included waivers of any claims not addressed. It stated that the Agreement was "in full and complete satisfaction of all claims each may have against the other under any law." It also stated, "Each party expressly understands that they had the right to have [c]ourt determination on all of the issues contained herein, but expressly waives said right in lieu of entering into this agreement which d[is]poses of all the issues which have divided the parties during the course of their divorce." The dual final judgment of divorce incorporating the parties' PSA was entered January 25, 2010 (DFJOD).

In December 2012, Mark filed his motion for post-judgment relief, seeking among other forms of relief an order compelling genetic testing, vacating his child support obligation, and reimbursing him for all past child support payments. He also sought Jane's cooperation should Mark file a complaint against Jake's estate. Mark cited our Supreme Court's then-recent decision in D.W. v. R.W., 212 N.J. 232 (2012).

In support of his motion, Mark recounted the suspicions he harbored during the marriage, and noted the provisions in the PSA in which Jane acknowledged that Mark may not be the biological father of the two girls. He expressed concerns that the children may have been receiving Social Security or private insurance benefits. He claimed a "right to know, once and for all, if the children are biologically mine." He did not address why he was raising the issue anew, or why he did not seek a determination of paternity in the context of the divorce.

Jane opposed the motion, stating that Mark had waived his opportunity to challenge paternity, and failed to provide a change in circumstances or other grounds to reopen the parties' divorce judgment. She denied that the children received any public or private financial benefits through Jake.

In his response, Mark offered as new evidence that he remarried in 2011, and fathered two boys. He claimed that his sons look nothing like the two girls, who resemble Jake. He also recalled that Jake's mother attended Kim's birthday party in 2008. He claimed that he only recently viewed the woman's presence as proof that Jake and his mother knew Jake was the girls' father. Mark also disclosed that he had become disabled as a result of a workplace accident and his income was significantly and permanently reduced. However, he did not seek modification of child support on that ground.2

After oral argument, the trial court granted Mark's motion for genetic testing. The court found grounds for relief from the DFJOD based on Rule 4:50-1. Although the court rejected Mark's argument that there was newly discovered evidence satisfying Rule 4:50-1(b), the court found that Mark satisfied subsection (e) it was "no longer equitable that the judgment . . . have prospective application." The court also based relief on subsection (f) referring to "any other reason justifying relief" because it was "in the interest of justice, and it is equitable, for the children to eventually know" the identity of their father.

The court found that Jane had failed to establish good cause to deny genetic testing under N.J.S.A. 9:17-48, according to the standards recently enunciated in D.W., supra, 212 N.J. at 257 (setting forth eleven factors for "good cause" determination). Pending the results of the genetic testing, the court denied without prejudice Mark's request for other relief related to child support payments and reimbursement, as well as life insurance. Although the order compelling genetic testing was not stayed, the court granted Jane's motion to seal the results pending appeal.

On appeal, Jane argues that principles of waiver and estoppel bar Mark from seeking genetic testing. Alternatively, she argues that the court misapplied the D.W. factors in finding that she had failed to establish good cause to deny testing.

II.

As a threshold matter, we are persuaded that Mark waived his parentage claim in the divorce action. "Waiver" is "the intentional relinquishment of a known right." W. Jersey Title & Guar. Co. v. Indus. Trust Co., 27 N.J.144, 152 (1958). "[T]o be operative, [it] must be supported by an agreement founded on a valuable consideration." Id.at 152-53 (internal quotation marks and citation omitted). "The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference." Knorr v. Smeal, 178 N.J.169, 177 (2003). Nonetheless, "[t]he party waiving a known right must do so clearly, unequivocally, and decisively." Ibid. Whether someone has waived a right requires a "fact-sensitive analysis." Cole v. Jersey City Med. Ctr., 215 N.J.265, 277 (2013). However, an evidentiary hearing is not required if the material facts are undisputed.

Applying these principles, Mark waived his right to seek genetic testing. He set forth at length the reasonable basis for questioning his paternity. He was unquestionably aware of his rights, as he raised the issue of genetic testimony before the trial court in 2009, and secured leave to seek an amendment of his complaint in order to obtain that relief. However, he decided not to pursue the claim. Instead, he entered into the PSA. Jane acknowledged the possibility that Mark was not the father of the two girls. Mark agreed to pay child support in an amount that deviated from the guidelines. He waived parenting time, which he had previously sought. He also consented to a name change absent a paternity determination. He expressly waived the right to secure the court's determination of the issues addressed in the PSA, and acknowledged that the PSA disposed of the issues that divided the parties which necessarily included the issue of paternity.

Mark is also barred by the entire controversy doctrine from seeking genetic testing, absent relief under Rule4:50-1 to reopen the judgment. The Parentage Act, N.J.S.A.9:17-46(a), requires a party to join the issue of parentage to a divorce action if the paternity issue is known at the time, as it was here. SeeB.P. v. G.P., 222 N.J. Super.101, 106 (App. Div.) (barring Parentage Act claim under entire controversy doctrine where plaintiff "unquestionably knew she disputed the parentage of her son" during divorce proceedings, but declined to raise the issue), certif. denied, 108 N.J.579 (1987); see alsoN.M. v. J.G., 255 N.J. Super.423, 428-29 (App. Div. 1992) (stating that failing joinder of paternity action with divorce action, "entire controversy principles bar the later action").

We also conclude that the court erred in granting relief under Rule4:50-1. First, Mark presented no persuasive grounds for his delay. Although relief under Rule4:50-1(e) and -1(f) are not subject to the one-year deadline, a party must still seek relief "within a reasonable time." R.4:50-2. Mark did not explain why he waited almost three years after entry of the divorce judgment to satisfy the same alleged "right to know" that motivated him to raise the issue in the divorce proceedings. Cf.Moore v. Hafeeza, 212 N.J. Super.399 (Ch. Div. 1986) (finding that application to reconsider paternity decision was not brought within a reasonable time), overruled in part on other grounds by L.V. v. R.S., 347 N.J. Super. 33, 43 (App. Div. 2002). Mark's reference to the different appearance of his sons and daughters falls far short.

The trial court also misconstrued Rule4:50-1(e) as granting it general authority to award relief from a judgment that it deems inequitable. Rather, "the rule is rooted in changed circumstances that call the fairness of the judgment into question." DEG, LLC v. Twp. of Fairfield, 198 N.J.242, 265-66 (2009). Relief is granted to avoid "extreme and unexpected hardship" that outweighs the court's interest in finality of judgments. F.B. v. A.L.G., 176 N.J.201, 208 (2003) (denying relief under Rule4:50-1(e) and 1(f) to vacate support order based on newly contested paternity) (internal quotation marks and citation omitted). Mark points to no significant change in circumstances since entry of the DFJOD, nor does he establish the requisite hardship. He declined to press the issue of paternity in the divorce action, and accepted the PSA as a fair resolution of the issues in dispute with Jane.

Subsection (f) affords the court power to grant relief in exceptional circumstances, with "boundaries . . . as expansive as the need to achieve equity and justice." Ibid.(internal quotation marks and citation omitted). However, relief is granted sparingly. Id.at 207. The circumstances justifying relief must be "truly exceptional." Housing Auth. of Morristown v. Little, 135 N.J.274, 286 (1994) (internal quotation marks and citation omitted). In deciding whether to grant relief, the court must consider "the extent of the delay in making the application for relief, the underlying reason or cause, fault or blamelessness of the litigant, and any prejudice that would accrue to the other party." F.B., supra, 176 N.J.at 208-09 (internal quotation marks and citation omitted).

Against this demanding standard, we discern an insufficient basis for the court's grant of relief. Mark's delay was unexplained. Jane relied upon the finality of the judgment. Moreover, there is nothing inherently inequitable about the compromise Mark reached. Although he unquestionably is required to pay support for children who may not be his, he accepted a deviation from the child support guidelines. Fully aware of the possibility that he was not the girls' biological father, Mark decided not to pursue the issue of paternity.

Although the court held that granting Mark relief was equitable to allow the children to learn the identity of their father, the children have independent standing to raise the issue, until they are twenty-three. N.J.S.A.9:17-45(b). Granting relief to Mark was not necessary to vindicate the rights of the children.

Having determined that Mark is bound by his waiver in the PSA, we need not reach the question whether the court properly applied the D.W.factors in determining whether Jane demonstrated good cause not to permit genetic testing. We nonetheless part company with the court's rejection, out-of-hand, Jane's certification that a determination Mark was not the girls' father would have a significant detrimental impact on them. Jane certified that Randi was receiving mental health treatment arising out of Mark's decision to cease all contact with her.

We also find unsupported the court's conclusion that the girls would have formed no attachment or bond with their father, because he absented from their lives when they were just five- and two-years old. The court's assumptions are at odds with the findings in countless guardianship cases that young children may form significant bonds with parents, or resource parents, in a matter of months, the termination of which can cause lasting psychological harm. See, e.g., N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super.451, 492-94 (App. Div. 2012).

Reversed.

1 We use pseudonyms for the convenience of the reader. We also order that the caption of this matter, originally filed as a divorce action, be amended to refer to the parties by their initials, and all papers related to the post-judgment motion and appeal be impounded. See N.J.S.A. 9:17-42 (stating that records pertaining to actions under the Uniform Parentage Act, N.J.S.A. 9:17-38 to -59, shall be confidential).

2 Mark stated that his attorney informed him that he could file a motion based on change of circumstances, but he "do[es] not wish to do so at this time."