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M. v. F.

Decided: February 10, 1960.

M., PLAINTIFF-APPELLANT,
v.
F., DEFENDANT-RESPONDENT



Price, Gaulkin and Foley. The opinion of the court was delivered by Foley, J.A.D.

Foley

This is an appeal from a judgment of the Camden County Court reported sub nom. M. v. F. , 55 N.J. Super. 548 (Cty. Ct. 1959).

On December 3, 1958 defendant was adjudged the father of a child born to plaintiff on February 12, 1958 and ordered to pay $7.50 weekly for the support of the child. The action was brought by the Director of Welfare in the Municipal Court of the City of Camden under N.J.S.A. 9:17-1 et seq. (hereinafter referred to as chapter 17) which provides in part:

"If a woman is delivered of an illegitimate child or declares herself to be pregnant of a child likely to be born illegitimate, which is or is likely to become a public charge, * * * a director of welfare of the municipality where the woman is, or of the municipality wherein she has a legal settlement, may institute a bastardy proceeding before a court in the same county wherein the woman is; * * *." N.J.S.A. 9:17-2.

On January 4, 1959, while the defendant was in compliance with said order, the mother instituted another action against the defendant charging him with nonsupport of the child under N.J.S.A. 9:16-1 et seq. (hereinafter referred to as chapter 16) which provides in part:

"A child born out of wedlock shall be entitled to support and education from its father and mother to the same extent as if born in lawful wedlock." R.S. 9:16-2.

"Proceedings to enforce the obligations imposed by section 9:16-2 of this title may be maintained by one parent against the other, or by the person having physical custody of the child, or, if the child is or is likely to become a public charge, the proceedings may be instituted by the director of welfare of the municipality or municipalities where the father and mother, or either of them, reside. In such proceedings consideration shall be given to the age of the child and the ability and financial condition of the parent or parents." N.J.S.A. 9:16-3.

The Magistrate dismissed the complaint and an appeal was taken to the County Court. There it was agreed by the parties that the basis of the holding in the Magistrate's

Court was that, since the father was honoring the existing court order, the doctrine of res judicata applied. See M. v. F., supra , 55 N.J. Super. , at pages 549-550.

On the trial de novo the County Court dismissed the complaint upon the ground that the defendant was in compliance with the support order in the bastardy proceedings and so the action was duplicative and thus was "harassing and vexatious." Implicit in the County Court's determination is the idea that chapters 16 and 17 provide mutually exclusive proceedings to enforce but one obligation, i.e. , the duty to support the child. We disagree.

Our analysis of the two statutes leads us to conclude that the rights and proceedings thereunder are cumulative and correlated. Chapter 17 is the current version in an unbroken line of bastardy statutes commencing with the act of February 26, 1795 (Rev. 1821, p. 171), the design of which has been to protect the public against the cost of support of children born out of wedlock. To insure against this possible financial burden the municipal director of welfare is permitted to bring action to establish the paternity of the child under N.J.S.A. 9:17-2. See Leonard v. Werger , 21 N.J. 539 (1956). If at the trial it is adjudged that the defendant is the father, the court is required to make an order of filiation in which "it shall specify the sum to be paid weekly by the father, or otherwise, for the support of the child." N.J.S.A. 9:17-12. Thereupon the father is required to enter into bond with the State in such sum as the court shall direct to comply with the order and to indemnify the State and every county and municipality for any cost thereafter incurred for the support of the illegitimate child, or because of proceedings arising therefrom. Plainly the proper construction of these sections of chapter ...


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