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Leonard v. Werger

May 14, 1956

ROSE MARIE LEONARD, PLAINTIFF-RESPONDENT,
v.
FRANK WERGER, DEFENDANT-APPELLANT



On appeal from Passaic County Court, Law Division, certified to this court on its own motion.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by William J. Brennan, Jr., J. Heher, J., concurring in result.

Brennan

[21 NJ Page 540] In this filiation proceeding the Magistrate of the Clifton Municipal Court dismissed the complaint of the plaintiff mother filed in her own name against the defendant putative father. She appealed to the Passaic County Court. There was a trial de novo in the County Court before a jury and the jury returned a verdict that the defendant was the father of plaintiff's child born out of wedlock. An order of filiation in usual form was thereupon entered against the defendant. Defendant sought by motion heard by the Assignment Judge of Passaic County

to vacate the order upon the ground, asserted for the first time, that the plaintiff mother had no right of appeal to the County Court as no statute expressly allows the mother who brings a filiation proceeding in a municipal court the right of appeal to a County Court from a determination adverse to her. The motion was denied, and defendant appealed to the Appellate Division. We certified the appeal here on our own motion.

The instant action by the mother is not the conventional bastardy proceeding provided for under chapter 17, found in N.J.S.A. 9:17-1 et seq. That chapter is the current version in the unbroken line of bastardy statutes which originated with the enactment of the act of February 26, 1795 (Rev. 1821, p. 171), Borawick v. Barba, 7 N.J. 393 (1951); State v. Weiss, 11 N.J. Super. 250 (App. Div. 1951). Those statutes have been consistently purposed to protect the public against becoming charged with the support of a child born out of wedlock and for that reason a proceeding under chapter 17 is maintainable only by a duly authorized representative of the State Board of Child Welfare or by the appropriate municipal director of welfare upon a showing that the child is or is likely to become a public charge, State v. Weiss, supra.

But in 1929 the Legislature enacted chapter 153 of the Laws of that year, now N.J.S.A. 9:16-2 to 4, inclusive (which we shall here refer to as chapter 16) and created a right of action by either parent against the other, or by the person having physical custody of the child against either or both parents, to enforce the obligation of the parents, provided by the statute, to support and educate the child to the same extent as if the child was born in lawful wedlock. Such remedies are expressly made cumulative of the remedies contained in chapter 17, N.J.S.A. 9:16-4. An action by the State Board of Child Welfare or a municipal director of welfare under chapter 17 is significantly different from an action under chapter 16 in that the parent, or person having physical custody of the child, who proceeds under chapter 16 may maintain the action whether or not the child

is or is likely to become a public charge. Kopack v. Polzer, 4 N.J. 327 (1950). (Chapter 16 also allows an action thereunder by a municipal director of welfare, although not by the State Board of Child Welfare, maintainable, however, only upon a showing that the child is or is likely to become a public charge. N.J.S.A. 9:16-3.)

Express provision is made in chapter 16 that proceedings under it "shall be had by the courts exercising jurisdiction in bastardy proceedings pursuant to chapter seventeen." The courts in which the action may be initiated are specified in N.J.S.A. 9:17-1 and include the municipal courts.

But chapter 16 says nothing expressly upon the matter of appeals by any party aggrieved by the action of the court of first instance. Even if in fact no legislative right of appeal was provided, this would not, of course, mean that the party aggrieved would be entitled to no appellate review in any court. Under our former judicial system, when the Legislature provided no other form of appeal, review was accomplished by the writ of certiorari out of the Supreme Court within the power granted to or inherent in that court to supervise lower tribunals and to review their acts. Bradner, New Jersey Law Practice (Marsh ed. 1940), sec, 529, p. 492. Such review would now be sought in the Superior Court by procedure in lieu of prerogative writ under R.R. 4:88.

But we are of the view that the Legislature has provided a right of appeal to and de novo review by the County Court for any party to a chapter 16 proceeding aggrieved by the action of the inferior court. We reach this conclusion as a matter of the construction of N.J.S.A. 9:17-20, which reads:

"Any person charged as the reputed father of an illegitimate child or of a child likely to be born illegitimate or the State Board of Child Welfare or any municipality aggrieved by the finding of the court or jury or by the order of the court may appeal to the County Court. Upon request of either party the appeal shall be tried before a jury."

True, the terms of that section mention only an appeal to the County Court in chapter 17 ...


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