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Kowalski v. Wojtkowski

Decided: June 27, 1955.


On appeal from the Juvenile and Domestic Relations Court of Union County to the Appellate Division of the Superior Court.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant and Burling. For reversal in part -- Justices Wachenfeld, Jacobs and Brennan. The opinion of the court was delivered by Heher, J. William J. Brennan, Jr., J. (dissenting). Mr. Justice Wachenfeld and Mr. Justice Jacobs join in this dissent.


The basic issue here concerns the status before the law of minor children conceived during wedlock but born (in Florida) shortly after the entry of a decree divorcing the children's mother and her spouse in a court of competent jurisdiction of Florida, of which state the parties were domiciliaries.

The mother of the children, now claiming "residence" in the City of Elizabeth, New Jersey, brought this action in the Juvenile and Domestic Relations Court of the county as within the jurisdiction conferred by R.S. 9:16-1 et seq., as amended by L. 1953, c. 9; R.S. 9:17-1 et seq., as amended by L. 1945, c. 183, L. 1949, c. 141, and L. 1953, c. 9; and R.S. 9:18-1 et seq., even though she "has no legal settlement in Union County as defined in" R.S. 44:8 A -3.

The complaint is in two counts: The first alleges that the children, twins, Richard and Christine, "born to the plaintiff, of which the defendant is the father, were conceived in the State of Florida, and were born to the plaintiff" there on July 30, 1953, and are now in her custody; and the prayer is for damages in reimbursement for lost "earnings from her employment" and the cost of medical care and hospitalization during pregnancy and convalescence, and a "reasonable attorney's fee," for which, it is said, she has an action under chapter 742 of the statutes of Florida. And the second count seeks a "determination" that the defendant is the father of the children and an order under the cited New Jersey statutes directing the "defendant father to support his children born out of wedlock."

The complaint was dismissed for want of jurisdiction; and plaintiff's appeal to the Appellate Division of the Superior Court is here for decision on our own motion.

The children were born in Florida on the day given, 36 days after the mother had obtained a divorce for extreme

cruelty from Stefan Z. Kowalski in Florida, then and ever since 1946 the place of their domicile. They were married November 8, 1943. Conforming to information supplied by the plaintiff-mother, the birth certificates, issued in Florida, give the children's surname as Kowalski and Stefan Z. Kowalski as their father. The defendant is a physician, practicing his profession in Union County, New Jersey. The child Christine is living with her mother in Elizabeth, New Jersey, where the mother is employed; Richard lives with his maternal grandmother in Passaic, New Jersey. Plaintiff testified that she had lived in Elizabeth since "Palm Sunday, the first or second Sunday in April, 1954." On February 3, 1954, some two months before, she had presented a similar petition for the selfsame relief alleging her residence to be in Florida; and the action was dismissed for lack of jurisdiction of the subject matter.

Judge Sachar directed a dismissal of the second suit now before us: the first count, for want of jurisdiction to "enforce the Bastardy laws" of Florida; and the second, for failure of proof of plaintiff's "legal settlement" in New Jersey, deemed a condition prerequisite to jurisdiction under R.S. 9:16-1 et seq. and R.S. 9:17-1 et seq. It was reasoned that the lower court was not empowered by statute to "enforce the remedy" provided by the Florida statute and, until the enactment of R.S. 9:16-1, only the overseer of the poor, representing the public, "could bring an action in connection with the establishment of the paternity of children," but under that act the mother of illegitimate children "who did not choose to make them a public charge" may bring an action for their support "in her own name and in a capacity not representative in any regard," yet R.S. 9:16 "did not change the basic requirement of the establishment of paternity under R.S. 9:17, and, in turn, the jurisdictional requirements and safeguards of the latter," and the plaintiff-mother here "must first establish * * * with all of the safeguards available to the defendant that he is 'the father,' 'the parent.'" These cases are cited: Borawick v. Barba, 7 N.J. 393 (1951); State v. Weiss, 11 N.J. Super. 250

(App. Div. 1951); Hall v. Centolanza, 28 N.J. Super. 391 (App. Div. 1953).

The argument contra is that under Article IV, section 2 of the Federal Constitution and the Fourteenth Amendment plaintiff, a citizen of the United States now resident in New Jersey, may sue in New Jersey to enforce the "right of action," termed a "property right," given a "natural mother" by the Florida statute, chapter 742, to require a "natural father" to support his children conceived and born in Florida but now in New Jersey, citing Chambers v. Baltimore & Ohio Railroad Co., 207 U.S. 142, 28 S. Ct. 34, 52 L. Ed. 143 (1907); and at all events, as the mother having the exclusive custody of the "illegitimate" children under R.S. 9:16-1, she may enforce by action in New Jersey the obligation laid upon the natural father by R.S. 9:16-2 to support and educate children "born out of wedlock" to the same extent as if born in lawful wedlock.

On the original presentation of the cause, we asked for a reargument directed to the question of whether, under the substantive law of Florida, the children bear a status of legitimacy not open to attack in New Jersey by the action under review; and the reargument was had in due season. And now the basic insistence is that under the law of Florida "legitimacy is a mere presumption and may be overcome by contrary and overriding evidence as is the law of New Jersey."

We have no occasion to consider whether an action would lie in New Jersey to enforce the remedy provided by chapter 742 of the laws of Florida, were the claim pleaded within the statute. Whether the proceeding be deemed civil or criminal in nature, or one having the characteristics of both, the generally accepted rule is that no action is maintainable on a foreign bastardy statute. Such is ordinarily an exercise of the police power to denounce misconduct or to shift the burden of support from society to the child's natural parent. Graham v. Monsergh, 22 Vt. 543 (Sup. Ct. 1850); State of Indiana ex rel. Stone v. Helmer, 21 Iowa 370 (Sup. Ct. 1866). See People of State of New York v. Coe Mfg. Co., 112 N.J.L. 536 (E. & A. 1934). Cases of this class

are within the general rule that there cannot be extra-territorial enforcement of a right created by the law of a foreign state as a means of furthering its own governmental interests, of which a statute placing the burden of maintenance of a potential pauper on an individual, to the relief of the public, is also an example. Restatement, Conflict of Laws, sections 454, 455, 610. See also Wharton's Conflict of Laws (3 d ed.), section 257 a. We need not pause to deliberate the question whether the particular statute has different attributes, giving rise to personal rights of action not related to the indemnification of the public. The pleaded cause of action is not within the statutory category.

The children here, begotten as they were during wedlock, are deemed legitimate by the law of Florida. Chapter 742 is by its very terms inapplicable; and by Florida law the mother is precluded from repudiating the children's legitimacy.

As originally enacted in 1828, chapter 742, section 1 of the laws of Florida provided for certain relief concerned with the issue of paternity, the allowance of limited support and reimbursement for expenses attending birth, and so on, at the instance of any "single woman who shall be pregnant or delivered of a child, who by law would be deemed and held a bastard." By the Laws of 1951, c. 26949, this section was replaced by a provision, c. 742.011, that any "unmarried woman who shall be pregnant or delivered of a bastard child" may bring proceedings "to determine the paternity of such child," and have the relief prescribed by chapter 742.031, support for the child and confinement expenses, if there be a finding against the defendant putative father on the issue of paternity. And it was also provided, section 742.10, that "This chapter shall be in lieu of any other proceedings provided by law for the determination of paternity and support of bastard children."

The 1828 statute provided for an award "not exceeding $50 yearly" for the support of a bastard child, hardly more than a token contribution; the 1951 act, section 742.041, removed the limitation and authorized an allowance more in keeping

with the need. And when the later statute was considered by the Florida Supreme Court, Justice Terrell said there was "no reason for the new act except to provide a reasonable living scale for bastard children." Wagner v. Baron, 64 So. 2 d 267, 37 A.L.R. 2 d 831 (Fla. Sup. Ct. 1953).

Save as inconsistent with the Constitution and laws of the United States and the state legislative acts, the common and statute laws of England, "of a general and not a local nature, down to" July 4, 1776, are in force in Florida. Florida Stat. Ann., chapter 2. See Coleman v. State ex rel. Race, 118 Fla. 201, 159 So. 504 (Sup. Ct. 1935); Knapp v. Fredricksen, 148 Fla. 311, 4 So. 2 d 251 (Sup. Ct. 1941).

At common law, the putative father was under no obligation to maintain his illegitimate offspring. The duty of support came by statute: first, on the motion of the overseer of the poor or other local representative to exonerate the municipality, and then at the instance of the mother or other interested person on behalf of the child itself, the latter a measure of relief conforming with others of the same pattern to a more enlightened concept of social justice as against the harsh medieval doctrine of nullius filius that, for the moral sin of the parents, set the unfortunate and innocent victim adrift with no standing whatever before the law.

In 1777 Lord Mansfield made his historic pronouncement: The law of England "is clear," he said, "that the declarations of a father or mother cannot be admitted to bastardize the issue born after marriage. * * * As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule, founded in decency, morality, and policy, that they shall not be permitted to say after marriage, that they have had no connection, and therefore that the offspring is spurious; more especially the mother, who is the offending party. That point was solemnly determined at the Delegates," who, prior to the Act 2 & 3, Will. 4, c. 92, constituted the Supreme Ecclesiastical Court of Appeal. Goodright v. Moss, Cowp. pt. 2, pp. 591, 592, 594, 98 Eng. Reprint 1257; 11 Eng. Rul. Cas. 518 (1777).

The principle was reaffirmed by the House of Lords in Russell v. Russell (1924) A.C. 687, 13 BRC 246. There, the Earl of Birkenhead said:

"We find the rule living and authoritative. We find its application to legitimacy proceedings everywhere conceded. * * * The rule as laid down is not limited to any special class of case. It is absolutely general in the comprehensiveness of its expression. It has no geographical qualification. It does not, for instance, lay down that where husband and wife are present in the same bed; the same bedroom; the same house; or the same town, the evidence must be repelled; but that it may on the other hand be received if the husband has (for instance) been absent from the country for twelve months before the birth of the child. It says, upon the contrary, that such evidence shall not be given at all; and the reason given is that it would tend, if given, to bastardize the issue and to invade the very special sanctity inherent in the conjugal relation; and the reason is assigned which led first the Delegates and then the ordinary Courts to a conclusion so widely expressed. It is a reason founded upon 'decency, morality, and policy.' This passage from the judgment of Lord Mansfield has not ...

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