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Jessen v. De Bernardo

Decided: October 3, 1958.

EVELYN JESSEN, PLAINTIFF,
v.
JOSEPH DE BERNARDO, DEFENDANT



Kole, J.

Kole

Plaintiff instituted an action under N.J.S.A. 9:16-1 et seq. , charging that defendant is the father of an illegitimate child born to her on October 30, 1956. It is conceded that the child was born in New York and that neither the plaintiff nor the child has a "legal settlement" as defined by N.J.S.A. 44:8 A -3 and 44:8 A -13. However, at the time of the filing of the complaint both plaintiff and child, as well as defendant, were residents of Bergen County. Defendant has moved to dismiss the complaint on the ground that the plaintiff does not have a legal settlement and therefore cannot maintain the proceeding under N.J.S.A. 9:16-1 et seq.

Defendant argues that N.J.S.A. 9:16-3, which provides that jurisdiction of "proceedings hereunder shall be by the courts exercising jurisdiction in bastardy proceedings pursuant to chapter seventeen of this Title [ N.J.S.A. 9:17-1 et seq. ]," makes the legal settlement requirement of N.J.S.A. 9:17-1 et seq. (hereinafter referred to as chapter 17) a condition precedent to the institution of an action by the mother of the illegitimate child under N.J.S.A. 9:16-1 et seq. (hereinafter referred to as chapter 16).

There is no doubt that this court, being in the county where plaintiff resided or was at the time the complaint was filed, has jurisdiction and venue over this proceeding. N.J.S.A. 9:16-3; 9:17-1; 9:17-2; R.R. 6:3-1. Whether there would be such jurisdiction and venue merely because defendant putative father resides in this county need not be decided at this time. Cf. Fiorino v. Fiorino , 35 N.J. Super. 463 (Juv. & Dom. Rel. Ct. 1955).

The only question is whether plaintiff has standing to institute this action by reason of her lack of legal settlement here.

Defendant misconceives the nature of an action by the mother under chapter 16. Unlike an action under chapter 17, it is not a bastardy proceeding in the statutory or historical sense.

Proceedings under chapter 17 are strict bastardy actions, the purpose of which is to guard the public purse from

being used to support illegitimate children where their father may be compelled to assume that burden. With respect to actions under chapter 17 by a municipal welfare director, such proceedings are designed to relieve the municipality normally responsible for giving relief under the Poor Acts (Title 44 of the Revised Statutes) -- i.e. , the municipality of the mother's legal settlement -- of the obligation to support such a child as a public charge under the Poor Acts. Hence, the requirements, among others, in chapter 17 actions, that such proceedings are maintainable by the welfare director of the municipality in which the mother has a legal settlement; that the child must be shown to be or likely to become a public charge; and that the amount of support allowable by the court in such a proceeding is only that sufficient to prevent the child from becoming a public charge. N.J.S.A. 9:17-2; R.R. 6:5-4(a). That the legal settlement requirements for an action for the support of an illegitimate child is limited to actions by a municipal welfare director in a chapter 17 proceeding thus to be relieved of a public charge is evidenced by the fact that the definitions of "legal settlement" are to be found in the Poor Acts (N.J.S.A. 44:8 A -1 et seq.). Indeed, the definitions of "legal settlement" relied upon by defendant in the instant case are to be found in such acts. N.J.S.A. 44:8 A -3, 44:8 A -13.

Accordingly, with respect to proceedings to compel support for an illegitimate child, the concept of "legal settlement" has meaning and applicability only in an action under chapter 17, the object of which is to prevent the child from being or becoming a public charge on the municipality involved.

On the other hand, the concept of "legal settlement" has no meaning or applicability whatsoever in an action by a mother under chapter 16.

An action instituted under chapter 16 by the mother of an illegitimate child is not a bastardy proceeding in the statutory or historical sense. It is an entirely new and different kind of ...


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