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I. v. D.

Decided: March 7, 1960.

I., PLAINTIFF-APPELLANT,
v.
D., DEFENDANT-RESPONDENT



Conford, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.

Freund

Plaintiff, the unmarried mother of an illegitimate child born to her on December 23, 1958, instituted this filiation proceeding against the defendant in the municipal court under R.S. 9:16-2, which provides:

"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."

After trial the defendant was adjudged to be the father of the infant and directed to pay $10 weekly toward its support. Defendant prosecuted an appeal to the County Court under the authority of Leonard v. Werger , 21 N.J. 539 (1956). There was a trial de novo without a jury, resulting in a reversal of the judgment on the ground that the plaintiff failed to carry the burden of proving by a preponderance of the evidence that the defendant was the father. R.R. 5:2-8; 7:15-4. The matter is before us on the mother's appeal. The main point justifying consideration is that the County Court judgment in favor of defendant was overwhelmingly against the weight of the evidence.

In aid of our determination and in fairness to the infant, we have examined the full transcript of the proceedings in the County Court. The facts, as gleaned therefrom, are as follows.

Plaintiff has known the defendant and his family since they came from Europe, over ten years ago. On Thanksgiving Day, 1957, the parties became engaged to be married, and preparations were made for the wedding to be held on June 8, 1958. Plaintiff, then 20 or 21 years of age, lived with her parents in New York, and the defendant resided with his parents, brother, widowed sister, and niece in a one-family home in Maplewood. It was a matter of "routine"

for the plaintiff to come to the defendant's home on Saturdays, sleep with his sister, and return to New York on Sunday night.

It was plaintiff's testimony that on two, or possibly three, of these weekend visits she and the defendant engaged in sexual intercourse. Plaintiff stated that on the last Saturday of March 1958 they had gone to the movies, returned to the house at about 11:00 or 11:30 P.M., and "watched television for a while." The defendant then insisted upon having relations, pointing out that they were "going to be married in a few weeks," and that "it doesn't make any difference." Plaintiff yielded, and the experience marked her "first relations" with any man. Two weeks later, again after a Saturday night out, plaintiff had her "second relation with him." Plaintiff testified that on the following Saturday, when she advised the defendant of the possibility of pregnancy, he replied:

"Don't worry about it. What's the difference? We are going to get married in a couple of months. So the wedding is late, the baby is on time."

A third act of intercourse was committed at his home on another Saturday in April 1958. The defendant's family on each occasion had retired for the night, leaving the engaged couple downstairs to watch television.

The defendant denied having intercourse with the plaintiff and denied that any Saturday in March 1958 had any particular significance to him. He denied having been informed of her pregnancy. He denied making an attempt to have sexual relations with her either prior to or during the engagement period. He admitted "necking," "petting" and kissing the plaintiff, but claimed he was never left alone with her in the house after coming in from a date since his "mother used to be up." He testified that as he sat ...


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