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Desantis v. Dukes

May 6, 1981

EDMUND A. DESANTIS, DIRECTOR PASSAIC COUNTY BOARD OF SOCIAL SERVICE ASSIGNEE FOR LAVONNE HOLLEN, PLAINTIFF,
v.
JOHN DUKES, DEFENDANT



Ferrante, P.J.J.D.R.C.

Ferrante

This case poses a question hitherto unaddressed by the courts of this State, to wit, whether the Juvenile and Domestic Relations Court has the power to authorize and order pretrial discovery in a paternity action.

On November 18, 1980 the Passaic County Board of Social Services (board) began this action pursuant to N.J.S.A. 9:17-1 et seq. In its complaint the board alleges that defendant is the father of two illegitimate children. On February 4, 1981 defendant appeared before the court for arraignment and entered a plea of "not guilty." At that time defense counsel made application for permission to serve complainant board with interrogatories. The application was granted. Subsequently, on February 11, 1981 the attorney for complainant board received interrogatories from defendant attorney under cover letter which requested that the interrogatories be answered by the mother of the two illegitimate children.

Complainant board now moves to vacate the order of February 4, 1981 which allowed defendant's attorney to propound said interrogatories. It is stipulated by all parties that the board was unrepresented by counsel at the arraignment when the order was entered. The issue which must be addressed at this juncture is whether the Juvenile and Domestic Relations Court can authorize and order interrogatories in a bastardy proceeding.

The essence of the board's argument urging that the order be vacated is that R. 5:5-9, which governs procedure in every court having jurisdiction over bastardy proceedings, is silent on the subject of the availability of discovery. Complainant argues that because the rules are silent, our Supreme Court has, by implication, disallowed discovery proceedings in bastardy matters.

The board asks the court to follow the ruling in Ames v. Ames , 89 N.J. Super. 267 (J. & D.R.1965). In Ames plaintiff wife brought an action in Juvenile and Domestic Relations Court seeking support from defendant husband for herself and three children of the marriage. The husband moved for an order permitting the taking of the wife's deposition. The trial judge denied defendant's application, reasoning as follows: the rule-making power is in exclusive possession of our Supreme Court, which by express grants has given deposition power to several courts and at the same time impliedly denied it to the Juvenile and Domestic Relations Court by its silence. 89 N.J. Super. at 273.

This court finds that complainant's reliance on Ames is misplaced. In that case the trial judge was specifically dealing with a support action, and therefore Ames can clearly and properly be distinguished from the case at bar.

Support cases in this court, commonly involving penniless women and their offspring, are frequently emergency matters , where simplicity in pleadings and expedition in hearing and decision are essential. [at 271].

To interpret Ames as supporting the proposition that the Juvenile and Domestic Relations Court has no discovery power is overbroad. Instead, Ames quite rightly decided that discovery is not available in cases involving an emergent need for immediate support. Such support proceedings in the Juvenile and Domestic Relations Court are analogous to applications for support pendente lite in the Matrimonial Division. In both cases the need for support is immediate, the parties submit income and expenses certifications, and the judge expeditiously sets the order for support if it is warranted.

A bastardy proceeding brought by the county board of social services is of entirely different character. The board, as complainant, seeks reimbursement of its expenditures by attempting to show that the obligation for support of a minor child rests with a putative father. It is not an expedited proceeding; it is conducted in the manner of a trial.

Paternity actions, whether instituted under N.J.S.A. 9:16-2 et seq. or N.J.S.A. 9:17-1 et seq. , or both, have been variously described as "civil" in nature. State v. Clark , 58 N.J. 72 (1971); M. v. F. , 55 N.J. Super. 548 (Cty.Ct.1959), or " quasi -criminal", Smith v. Walker , 138 N.J. Super. 187 (Cty.Ct.1975). They have been described as a "special statutory proceeding." Eisler v. Toms , 160 N.J. Super. 272 (J. & D.R.1978). Regardless of whether a paternity action is characterized as civil or criminal, New Jersey's court rules provide for far-ranging discovery in both civil (R. 4:10-2(a)) and criminal (R. 3:13-3) matters. Moreover, ...


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