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M. v. S.

Decided: June 6, 1979.

M., ON BEHALF OF T., A MINOR, PLAINTIFF,
v.
S., DEFENDANT



Porreca, J.s.c.

Porreca

[169 NJSuper Page 214] This is an interlocutory appeal from an order of the Juvenile and Domestic Relations Court in a bastardy proceeding. An order was entered that all pretrial and trial expenses, judicially determined to be necessary, would be reimbursed by the county to assigned defense counsel, provided the application for payment was on notice to the county treasurer.

Appellant County of Cumberland raises several procedural questions:

1. Whether the initial finding of indigency for purposes of assignment of counsel is a final determination of indigency and governs necessary expenses as well.

2. Whether an indigent defendant can be compelled to make reimbursement for legal expenses in the event that his indigent status ends.

3. The extent of discovery into defendant's finances prior to any determination of indigency.

4. Whether this court can order the county welfare board to pay for pretrial and trial expenses.

The uncontroverted facts in this case are that on December 7, 1977 plaintiff commenced an action in the Cumberland County Juvenile and Domestic Relations Court on complaint for judgment of paternity against defendant. On the same day application was made for Aid to Families with Dependent Children (AFDC). The child was born on January 1, 1978. The AFDC payments began in January 1978 in the amount of $247 a month.

The Juvenile and Domestic Relations Court found defendant indigent. Counsel was assigned to represent defendant, Blood tests were ordered, with the cost to be borne by the county. The present interlocutory appeal resulted from that order.

The determination by a court that defendant is indigent for purposes of assignment of counsel is final and applies with equal force to the payment of necessary expenses. Any reopening of the finding of indigency would inevitably interrupt the continuity of the proceedings. Therefore, such a practice should be avoided, if possible to do so without a result that is inequitable to the pro bono attorney and the taxpaying public. This case is a good illustration of the multiplicity of applications that could arise if the determination of indigency were not final. This defendant is seasonably employed and during the short course of this litigation has been employed and unemployed on at least three occasions.

The only remaining issue, after a finding of indigency, is the determination whether the requested expenses are necessary. The answer to any latter affluence of defendant is reimbursement of the costs by defendant, not a redetermination of indigency at every request for necessary expenses.

The court below found defendant indigent for purposes of assignment of counsel and with respect to the costs of blood testing and related expenses. Bastardy proceedings are at least quasi -criminal in nature. Smith v. Walker , 138 N.J. Super. 187, 194-195 (Cty. Ct. 1975). A paternity action can result in consequences of magnitude. Id. at 195; Lurry v. Mills , 152 N.J. Super. 127 (Cty. Ct. 1977). Therefore, in bastardy proceedings an indigent defendant must be assigned counsel without cost. Rodriguez v. Rosenblatt , 58 N.J. 281, 295 (1971). The right to assigned counsel includes as well that which is necessary to a proper defense such as experts, medical examinations and scientific tests. State v. Horton , 34 N.J. 518, 534 (1961). The court has the inherent power to order these costs to be ...


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