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B.P. v. G.P. and C.L.

Decided: April 15, 1987.

B.P., PLAINTIFF-APPELLANT,
v.
G.P. AND C.L., DEFENDANTS-RESPONDENTS



On appeal from Order for Summary Judgment of the Superior Court, Chancery Division, Family Part, Ocean County.

Deighan and Muir, Jr.

Per Curiam

This appeal involves a mother's effort, subsequent to a judgment of divorce under which she gained child custody and child support, to illegitimatize her son by asserting in a complaint for paternity under the New Jersey Parentage Act, N.J.S.A. 9:17-38 et seq., that a man other than her ex-husband sired the son born during the marriage.

On the appeal, she challenges a Family Part summary judgment dismissing her complaint. The trial judge, in granting

summary judgment dismissing the complaint seeking to establish C.L. as the boy's father, concluded the prior divorce proceeding in which child custody and child support were at issue, even though resolved by settlement, by implication sufficiently resolved the issue of paternity to act as a bar to further litigation on the issue.

The central issue of the appeal is whether plaintiff's Parentage Act complaint against G.P. and C.L. is barred by the fact that plaintiff gained child custody and child support by an agreement with G.P. that recited "there has been one child born of the marriage between the parties," by the fact that plaintiff testified during an uncontested divorce proceeding that the son was born of the marriage and by the fact that she failed to assert the known parental dispute. Integral aspects of determining the issue are the theory of the bar, if any, and the applicability of the bar to C.L., a non-party to the divorce proceeding.

The facts are undisputed. Plaintiff married G.P. on June 26, 1976. A son was born on March 11, 1981. The parties named the son after the father, except for the middle initial.

Some time in late 1983 or early 1984, plaintiff instituted an action for divorce. She raised, among other issues, child custody and child support, seeking both. The parties resolved their differences by agreement and the matter proceeded as an uncontested divorce. During the uncontested divorce proceeding, plaintiff testified under oath that her son was born of the marriage.

The judgment of divorce incorporated the written agreement between the parties. That agreement recited, in part, "[w]hereas, there has been one child born of the marriage between the parties, G.J.P., born March 11, 1981; . . . ." The judgment recited "[t]he Court took no testimony regarding the issue of support, custody and other matters . . . and made no specified findings in regard thereto."

Some time after entry of the judgment, plaintiff moved to Michigan with her son. In Michigan she instituted a Parentage Act claim which mirrored the complaint dismissed by the trial court. The Michigan court declined jurisdiction in favor of New Jersey.

Plaintiff, in the complaint filed in the Law Division, alleged that during the marriage, at a time when she did not practice birth control, she had frequent sexual relations with C.L., leading to the birth of her son. She further asserted the child bore a strong family resemblance to the family of C.L. Additionally, she alleged the only ...


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