D.W. v. R.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3734-06T23734-06T2

D.W.,

Plaintiff-Respondent,

vs.

R.B.,

Defendant-Appellant.

________________________________________________________

 

Argued October 17, 2007 - Decided

Before Judges Lihotz and Simonelli.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-313-95.

Aniello D. Cerreto, argued the cause for appellant (Garces & Grabler, P.C., attorneys; Mr. Cerreto, on the brief).

Respondent did not file a brief.

PER CURIAM

Defendant R.B. appeals from two Family Part orders. The first, entered on February 10, 2006, denied his application to vacate accumulated child support arrearages, complete paternity testing, and terminate the existing child support obligation. The second, entered December 13, 2006, denied defendant's request for reconsideration. On appeal, defendant argues that, since its entry on October 15, 2003, he has repeatedly, but unsuccessfully, sought enforcement of the order for genetic testing. We are persuaded that compliance with the order for genetic testing is warranted. Accordingly, we reverse. We also note that defendant filed a motion for emancipation on June 25, 2004, which has not been heard. Depending upon the results of the genetic testing, the emancipation motion may need to be listed and finalized.

Defendant and plaintiff D.W. engaged in a "consensual sexual relationship"; they never married. On January 23, 1983 their son was born. Defendant acknowledged paternity and began to pay child support as ordered on June 26, 1985. This child was emancipated on October 17, 2002.

Plaintiff gave birth to twins on February 19, 1986, and another son on July 10, 1989. Defendant asserts he was incarcerated when the children were conceived and born. At some point, plaintiff relocated to California, where she applied for and received public assistance.

The Mercer County Board of Social Services (MCBSS), as requested by the Sacramento Department of Social Services (SDSS), initiated a complaint against defendant for the establishment of child support for plaintiff's children pursuant to the Uniform Reciprocal Enforcement of Support Act, N.J.S.A. 2A:4-30.24 to -30.64. The matter was heard on January 9, 1995.

Defendant maintains he did not appear at this hearing. However, the filed form of order includes a check in the box appearing before the pre-printed language, which states: "Paternity of child(ren) (# above)_______, is acknowledged by defendant, and an ORDER of paternity is entered." In the blank space, the numbers corresponding to plaintiff's youngest three children from a list of all four children were inserted. The order noted the oldest child was receiving child support pursuant to an order under a separate docket number (Docket No. FD-011-1478-85E). The two support cases were consolidated and defendant was ordered to pay fifty dollars per week, beginning April 21, 1994, plus ten dollars per week towards accumulated arrearages.

Over the years, the amount of child support was increased and decreased. In the fall of 2003, defendant sought paternity testing of the three younger children. Following a hearing on October 15, 2003, Judge Hayser granted the request for genetic testing. The record does not disclose whether the order was transmitted to the Sacramento Department of Social Services.

The case was again before Judge Hayser on February 4, 2004, after defendant appeared for the scheduled paternity testing. Judge Hayser ordered verification of plaintiff's failure to appear for the genetic testing and stated that if "[s]he did not appear for the test[,] defendant's child support will be vacated." The matter was continued. No further action was taken to verify the status of plaintiff's participation in paternity testing or to relist the matter for final disposition.

On March 23, 2004, defendant again sought resolution of paternity. The copy of the complaint he filed provided in the record is mostly illegible; however, it can be discerned that defendant requested to "terminate C/S [child support] & arrears" because plaintiff had not complied with "ordered DNA tests . . . ." The matter was heard on April 14, 2004, by another Family Part judge. The conforming order she entered states:

Dismiss complaint for paternity test with prejudice.

Defendant acknowledged paternity of [three children] on 1/1/95[;] see order of that date under FD-11-313-95. Paternity adjudicated on 1/9/95.

Defendant appealed that determination. In his notice of appeal, he asserted, "I have never acknowledge[d] birth of these children. I have never sign[ed] any document pertaining to their birth." He also stated that the order was entered "without presentation" from him. When defendant failed to file the transcript, the appeal was administratively dismissed.

On May 19, 2004, while the appeal was pending, defendant initiated an application for emancipation. The request was adjourned for three months, without date, pending the appeal. The record reflects no final disposition was made.

In December 2005, the Mercer County Probation Department filed a motion to enforce payment of the child support order. Defendant responded with his own motion requesting: (1) an order for paternity testing; (2) elimination of child support arrears; (3) closure of the file and termination of the child support obligation; and (4) notification to SDSS and MCBSS that the account is closed.

In his certification accompanying the motion, defendant emphatically asserted that he never appeared at the January 9, 1995 hearing, and is not the father of plaintiff's three younger children. He acknowledged he had met the twins, but has no relationship with them. He states the twins are living in Boston, Massachusetts with their biological father, who defendant identifies as J.E. Defendant has no knowledge of the whereabouts of the youngest child.

After adjournments, the motion was heard on February 10, 2006, by another Family Part judge. Defendant asserts, and we confirmed, that no written order was entered after that hearing. The hearing transcript contains no appearances and includes only the motion judge's decision.

In reciting the case history, the Family Part judge did not mention Judge Hayser's October 15, 2003 order for genetic testing of the three youngest children. The motion judge then stated:

Before ordering genetic testing to rebut this presumption of paternity, the court must find by clear and convincing evidence that such testing would be in the best interest of the child. Monmouth County Div[.] of Soc[.] Serv[.] v. R.K., 334 N.J. Super. [] 177 at 184[-85 (Ch. Div. 2000).]

Furthermore, an order avoiding the presumed father's paternity can only be issued upon a finding of fraud, duress, a material mistake or fact or genetic proof of another man being the biological father, the burden of which lie[s] on the challenger of the presumption. N.J.S.A. 9:17-41B.

The movant has had more than several opportunities since this case was opened in Mercer County to appropriately address the present issue. Besides the fact that the movant has presented in his motion no facts that would meet the statutory standards and case law precedence, he has openly admitted paternity of all of the children in court . . . .

Additionally, the movant was provided an opportunity to appeal his decision. In his notice of appeal, the movant was given the opportunity to set forth any information he felt relevant, and at that time did not present the Appellate Division with his belief that he was incarcerated during the times when the children would've been conceived, neither has he presented to this court any copies of warrants, release papers, or any other documentation that would support this claim, (2) the movant is presently over $14,000 in arrearages as a consequence for his denying this matter in its entirety.

Defendant sought reconsideration of that determination. On December 13, 2006, the Family Part judge denied the request, stating:

1. [Defendant] failed to file a timely motion for reconsideration of the order entered against him on February 10, 2006; and

2. [Defendant] had the opportunity to appropriately address the issues presented; and

3. [Defendant] failed to present any facts in his motion that meet the statutory case law precedents; and

4. [Defendant] openly admitted paternity in Court.

Reconsideration is a matter within the sound discretion of the trial court to be exercised in the interest of justice. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).

Reconsideration should only be used for those cases which fall into that narrow corridor in which either (1) the court has expressed its decision based on a palpably incorrect or irrational basis or (2) it is obvious the court either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002) (citing D'Atria, supra, 242 N.J. Super. at 401).]

Our review of an order denying a motion for reconsideration is limited and we reverse only upon a finding of an abuse of discretion. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). Equitable principles play a role in determining abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). In this case, we are satisfied that the motion judge overlooked Judge Hayser's order requiring genetic testing, necessitating reversal of the challenged orders.

Under the Parentage Act, N.J.S.A. 9:17-38 to -59, a party may rebut the presumption of paternity with clear and convincing evidence of "fraud, duress, or misrepresentation by the biological mother concerning the paternity or birth of the child." N.J.S.A. 9:17-43e. A "man alleged . . . to be the father . . . may bring or defend an action . . . for the purpose of determining the existence or nonexistence of the parent and child relationship" within five years of the child reaching the age of majority. N.J.S.A. 9:17-45a and b. The statute applies to both married and unmarried parents and it encourages paternity testing to determine the parentage of the children.

Although defendant may have previously acknowledged paternity of these children as expressed in the January 9, 1995 order, thereafter, Judge Hayser was convinced that defendant presented sufficient evidence to rebut the presumption raised by that prior admission, warranting entry of an order for genetic testing.

"Under the law-of-the-case doctrine, decisions of law made in a case should be respected by all other lower or equal courts during the pendency of that case." Lanzet v. Greenberg, 126 N.J. 168, 192 (1991). This doctrine prohibits "a second judge on the same level, in the absence of additional developments or proofs, from differing with an earlier ruling." Hart v. City of Jersey City, 308 N.J. Super. 487, 497 (App. Div. 1998).

The record fails to illuminate why the Family Part judges reviewing the matter on April 14, 2004 and February 10, 2006, gave no consideration to Judge Hayser's disposition. Instead of enforcing the October 15, 2003 order, the judges then managing the file, incorrectly reverted to the January 9, 1995 order, and denied paternity testing based on defendant's designated admission. This was error. Once the issue of whether to grant a paternity test was litigated and decided, the question was ended. See Slowinski v. Valley Nat. Bank, 264 N.J. Super. 172, 179 (App. Div. 1993) (when there is an unreversed decision of a question of law or fact made during the course of litigation, such decision settles that question for all subsequent stages of the suit).

Further, the denial of defendant's motion on procedural grounds, such as untimeliness or because "[Defendant] had the opportunity to appropriately address the issues presented," ignores the substantive request for enforcement of a previously issued order.

We determine that the motion judge mistakenly exercised her discretion in denying defendant's motions. We conclude that the October 15, 2003 judicial determination established that defendant had rebutted the initial presumption created by the January 9, 1995 order. MCBSS must arrange for paternity testing of these three children, who are now ages twenty-one and eighteen. We remand to the Family Part judge to determine the appropriate course to effectuate the necessary relief, and to provide any appropriate alternative remedy in the event plaintiff does not comply.

Once paternity is established, if defendant is not the biological father, the court must terminate his support obligation and calculate the adjustment to the accumulated arrearages. The obligation to pay support would end at least as of the date defendant first filed his motion to establish paternity. N.J.S.A. 2A:17-56.23a; J.S. v. L.S., 389 N.J. Super. 200, 207 (App. Div. 2006), certif. denied, 192 N.J. 295 (2007). On remand the Family Part judge must also address the propriety of any interim efforts to continue to collect child support pending the paternity results, in light of our determination. If defendant is the biological father, the Family Part must then address the motion for emancipation, which was not relisted following dismissal of defendant's appeal.

 
Reversed and remanded.

Support for the oldest child was established under Docket No. FD-011-1478-85E.

Defendant certifies he was incarcerated from 1985 to 1988 and then again from 1989 to October of 1992, but does not provide the specific months of incarceration during these years.

Defendant's certification filed in December 2005, states the transcript of this court date could not be obtained as the record is no longer available.

Neither the April 14, 2004 order nor the incomplete appeal of that order altered the mandate set forth in the October 15, 2003 disposition.

We cannot conclude the order establishing child support was entered by default as urged by defendant. In the prior proceedings defendant offers no explanation for the delay in filing his request for paternity eight years after the initial order establishing support. See Hall v. P.A.Q., 317 N.J. Super. 187, 198 (App. Div. 1998) certif. denied, 160 N.J. 90 (1999) (exceptional circumstances warranted defendant was not required to pay child support arrears after it was determined he was not the biological father because the Board of Social Services filed a non-verified complaint and service of the complaint was faulty).

(continued)

(continued)

11

A-3734-06T2

RECORD IMPOUNDED

November 16, 2007