On appeal from Municipal Court of the Borough of Kenilworth.
On September 9, 1957, in the Municipal Court of the Borough of Kenilworth, the defendant was found guilty of being the father of a bastard child about to be born to one W. An order of filiation was duly signed by the municipal court relating to the medical and hospital expenses incidental to the birth of the child and providing for the maintenance and support of the child after birth. The order also provided for a bond in the sum of $750, which was filed by the defendant. On September 16, 1957 the defendant filed his appeal to this court. A female child was born to W on November 13, 1957. Pending the appeal filed in this court, the defendant and W were lawfully married on February 2, 1958.
The defendant, by motion duly served upon the plaintiff, now moves for an order vacating the order of filiation and discharging the bond filed pursuant thereto, and for a judgment of dismissal upon the ground that the marriage results in an abatement of these proceedings and all action heretofore taken thereunder.
The legal question to be determined by the court is whether, as a result of the marriage of the defendant and the mother of the child concerned, which results in the legitimatizing of the child, there has been an abatement of the proceedings warranting the entry of the judgment mentioned.
The statute involved, N.J.S.A. 9:17-1 et seq. , was not enacted for the purpose of punishment of the person determined to be the male parent of the child concerned. Rather, this legislation was enacted for the purpose of providing financial protection to the municipality which would be liable for and chargeable with the expenses surrounding the birth of the child and the maintenance and support of the child thereafter. Garwood v. Overseers of Poor of Township
of Waterford , 27 N.J.L. 436 (Sup. Ct. 1859); Tuohy v. Boynton , 5 N.J. Super. 265 (App. Div. 1949). The proceedings presuppose an illegitimate child. 7 Am. Jur., Bastards , § 101, p. 692.
This appeal, of course, will result in a trial de novo , and the issue in that trial would be the status of this defendant as to the male parentage of the child concerned. Gaskill v. Overseer of Poor of Downe Tp. , 36 N.J.L. 356 (Sup. Ct. 1873). As a result of the marriage of this defendant to the mother of the child the parties have now settled this issue, so that there is no issue remaining to be submitted to a jury in the trial de novo.
N.J.S.A. 9:15-1 provides that a child born out of wedlock shall be legitimated by the intermarriage of his natural parents. The child here is no longer illegitimate and will never be in any such status again; it cannot be a charge, under the provisions of N.J.S.A. 9:17-1 et seq. , upon the municipality. In order for the defendant to be found guilty of being the father of the child on the trial de novo , it would be necessary to show that the child concerned was a bastard child. This is an impossibility under the admitted facts and circumstances because the child has now been made legitimate as a result of the marriage of the mother and the defendant. To hold otherwise, and permit further prosecution of this appeal, would be contrary to the whole basic policy of the law of this State as to the legitimacy of children, as expressed in our statutes and decisions. N.J.S.A. 9:15-1; Jackson v. Jackson , 94 N.J. Eq. 233 (E. & A. 1922). This is true even though the marriage may later be determined to be void. N.J.S.A. 9:15-2; Endres v. Grove , 34 N.J. Super. 146 (Ch. Div. 1955).
Let us presume, for the purpose of argument, that the trial de novo proceeded and there was a not guilty verdict. Such a verdict would be totally contrary and repugnant to the present and future legal status of the child concerned. In effect, the jury would be undoing what the law has accomplished for the protection of the child. This would
result in a mockery of our moral and legal concepts and principles, and the verdict would clearly be in direct conflict with the provisions of N.J.S.A. 9:15-1. That statute indicates that it is clear and basic policy of the law properly to protect the child by removing, wherever it be possible ...