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M. v. F.

Decided: April 14, 1967.

M., COMPLAINANT,
v.
F., DEFENDANT



Kentz, J.J.D.R.C.

Kentz

This is an action pursuant to N.J.S.A. 9:16-3 brought in the Juvenile and Domestic Relations Court of Union County by the mother of an illegitimate child against the alleged father. Both the mother and child are resident in Ohio. The putative father is a resident of Union County. Complainant has moved to permit the use at trial of her deposition and the depositions of prospective witnesses in her behalf who are also resident in Ohio. This motion is the sole issue presently before the court. Complainant asserts, and defendant does not contend otherwise, that she is "almost impoverished" and that it would be a great and perhaps insurmountable hardship to require her and the proposed witnesses to journey from Ohio and testify in person. Defendant relies substantially upon the recent holding of Ames v. Ames, 89 N.J. Super. 267 (J.D.R.C. 1965), which is the only reported decision in this area, and makes several other contentions which will be dealt with by the court.

In Ames a woman sued her husband, with whom she faithfully still cohabitated in New Jersey, for support in the Juvenile and Domestic Relations Court. The husband moved for an order that his wife submit to depositions as a matter of pretrial right of discovery. The court denied the motion on the grounds that Part VI of the Rules Governing the New Jersey Courts (1967 ed.) makes no explicit provision for the taking of depositions in that court, and that not only were

depositions inappropriate and unnecessary under the facts of the case but that under the circumstances the granting of the motion would frustrate the summary, economical nature of the tribunal.

I

Ames not only is patently distinguishable from the present case upon numerous grounds but really may be cited as authority in support of the present motion. Ames clearly held that depositions may be allowed in support actions in the Juvenile and Domestic Relations Court when "appropriate" (89 N.J. Super., at p. 272), as when circumstances creating "practical necessities" are present (at p. 274), and the use of such depositions are manifestly in furtherance of the "social utility of this summary tribunal" (at p. 271). Here, contrary to the facts in Ames, one party does not seek to compel the other to submit to depositions as a matter of course for the purpose of discovery, but merely to use depositions as a form of evidence in lieu of personal testimony. Obvious equitable considerations preponderate in favor of the motion, the granting of which would manifestly expedite and economize complainant's remedy in furtherance of the policies indicated by the Ames decision.

Though, as noted, Part VI of the Rules Governing the New Jersey Courts makes no specific provision for the taking of depositions, at least two provisions authorize the use of depositions in this court under proper circumstances. Specifically, R.R. 6:1-1, setting forth the scope of Part VI, provides that the rules may be "relaxed" in the interests of justice. And R.R. 6:6-3 provides that in actions "to provide for the support of dependents, the juvenile and domestic relations court shall follow the practice of the Superior Court * * * so far as may be appropriate." R.R. 4:16-4 provides for the use of depositions in proceedings in the Superior Court.

In its role as fact-finder this court is certainly subject to the traditional rules of evidence, grounded in the concept of equity and codified by recent enactments. R.R. 4:16-4(c)

is merely another such codification. Caramico v. Ferrigno, 83 N.J. Super. 426, 429 (App. Div. 1964). It is an accepted principle of the general law of evidence that depositions may be used in the place of personal testimony when the witness or a party to the action is virtually unavailable through no fault of the offeror of the depositions. See Goldstein v. Penna. Greyhound Lines, Inc., 23 N.J. Super. 126, 130 (App. Div. 1953); 16 Am. Jur., Depositions, § 124, p. 752; 26A C.J.S. Depositions § 92(1), p. 437; the American Law Institute's Model Code of Evidence, chapter 6, rules 503 and 511; and Rules 2, 63(3) and 62(6)(d) of the Rules of Evidence of the New Jersey Supreme Court. Given the opportunity of cross-examination by the opposing party, the principal characteristic of inherently questionable hearsay is removed. See comment to Rule 511 of the Model Code, supra; Daly v. Daly, 39 N.J. Super. 117 (J.D.R.C. 1956). Generally, the law merely requires that the highest degree of proof reasonably accessible be produced. Hoffman v. Rodman, 39 N.J.L. 252, 255 (Sup. Ct. 1877); Pluchino v. Piccolo, 114 N.J.L. 82, 84 (Sup. Ct. 1934).

Defendant contends that to grant the motion will deprive the court of an opportunity to observe the demeanor of the proposed deponents. However, this contention is much too broad, for to uphold it would mean that depositions may never be used. Ross v. Lewin, 83 N.J. Super. 420, 425 (App. Div. 1964). Furthermore, it cannot unquestionably be assumed that the absence of complainant and her witnesses will work a de facto prejudice upon defendant rather than weaken her case.

Also, this action is in the nature of support proceedings pursuant to N.J.S. 2A:4-30.1 et seq., in which depositions are unquestionably allowed under N.J.S. 2A:4-30.19. Ames v. Ames, supra, at p. 274. The dominant trend of contemporary pleading is to eliminate technical distinctions between similar causes of action and to ...


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