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Smith v. Walker

December 5, 1975

SHIRLEY SMITH, PLAINTIFF,
v.
HERMAN THOMAS WALKER, DEFENDANT



Albano, J.d.c., Temporarily Assigned.

Albano

This is an interlocutory appeal by defendant from an adverse determination by the Newark Municipal Court of a pretrial motion to have the cost of blood-grouping tests paid by the court or the Essex County Welfare Board in an action for support, pursuant to N.J.S.A. 9:16-3.

In bringing his motion in the municipal court and on his appeal here defendant asserts that he is indigent, that due process of law mandates he have a meaningful opportunity to be heard in his defense, that blood-grouping tests are critical to his defense, and that the Essex County Welfare Board or the State or some other subdivision thereof should bear the costs of the tests. In reply plaintiff, by the Essex County Welfare Board, alleges budgetary immunity, the impropriety of an interlocutory appeal since the proceeding is a civil and not a criminal one, failure of defendant to sustain the burden of proof of his indigency, and no constitutional requirement that a government entity pay a third party for services (doctor for blood grouping tests).

This action was instituted by plaintiff Shirley Smith against defendant Herman Thomas Walker by the filing of a verified complaint pursuant to N.J.S.A. 9:16-2 et seq. in the Newark Municipal Court under R. 7:9, "Bastardy Proceedings," for the support of an illegitimate child, allegedly sired by defendant. At this point it must be noted, in passing, that while Ms. Smith is the named plaintiff, the complaint bears an Essex County Welfare Board file number

and was prepared by the Board, and that plaintiff has been represented by an attorney at each stage of these proceedings.

Bastardy proceedings have been termed "strictly civil in nature," M v. F , 95 N.J. Super. 165, 172 (Cty. Ct. 1967), or "criminal and quasi -criminal", Cortese v. Cortese , 10 N.J. Super. 152, 156 (App. Div. 1950), and the distinction between support and custody proceedings under N.J.S.A. 9:16-1, et seq. and bastardy proceedings under N.J.S.A. 9:17-1 et seq. seems not only unimportant but also more imaginary than real in this matter.

N.J.S.A. 9:16-2 provides that a child born out of wedlock shall have support and education from its father and mother to the same extent as if born in lawful wedlock. N.J.S.A. 9:16-3 permits proceedings to enforce support and education obligations of illegitimate children to be maintained by one parent against the other, by the person having physical custody of the child or, if the child is or is likely to become a public charge, by the director of welfare of the municipality or municipalities where the father and mother, or either of them, reside. Further, this section gives jurisdiction of such proceedings to those courts exercising jurisdiction in bastardy proceedings under N.J.S.A. 9:17-1 et seq. Finally, N.J.S.A. 9:16-4 makes the remedies of the two prior sections cumulative as to the remedies of N.J.S.A. 9:17-1 et seq. , the bastardy statutes.

The Bastardy Act section controlling the institution of such actions, N.J.S.A. 9:17-2, provides in part that proceedings under it shall be maintained by a duly authorized representative of the State Board of Child Welfare, the county welfare board, or a director of welfare of the municipality where the woman is or of the municipality wherein she has a legal settlement, where an illegitimate child is or is likely to become a public charge.

It follows from the above that, under N.J.S.A. 9:16-1 et seq. (chapter 16) support and education obligations may be maintained by either parent or by the person having physical custody of the child, regardless of whether

the child is or is likely to become a public charge, and by the local director of welfare only if the child is or is likely to become a public charge; while, under N.J.S.A. 9:17-1 et seq. (chapter 17), only a public official can maintain the action, and only if the child is or is likely to become a public charge.

The municipal court judge, in his determination of the matter, found that the Essex County Welfare Board was making payments for the support of the child in question and was prosecuting the matter to gain reimbursement. Neither plaintiff nor the Essex County Welfare Board has disputed this finding. It stands uncontroverted and should not be disturbed. The consequence of such a situation, an illegitimate child being a public charge, is an election of remedies, an action under chapter 16 or one under chapter 17, available to plaintiff and to the Essex County Welfare Board, but obviously not to defendant. The objectives of the plaintiff and the Essex County Welfare Board are exactly the same, the support of the child and the reduction or elimination of a public charge, whether they proceed under chapter 16 or chapter 17. Additionally, Leonard v. Werger , 21 N.J. 539, 543 (1956) reviewed both statutes and concluded that chapters 16 and 17 were intertwined enactments, particularly with respect to the processing of an action under chapter 16 to accomplish its objectives. And, more recently, the Appellate Division, in Sarte v. Pidoto , 129 N.J. Super. 405 (1974), held that rights explicit under a chapter 17 proceeding were applicable inferentially to a chapter 16 proceeding. Insofar as this action is concerned, then, the differences between a chapter 16 and a ...


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