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T.W. v. A.W.

Decided: May 5, 1988.

T.W., PLAINTIFF-RESPONDENT,
v.
A.W., DEFENDANT-APPELLANT



On appeal from the Superior Court, Chancery Division, Family Part, Essex County.

Dreier and Ashbey. The opinion of the court was delivered by Ashbey, J.A.D.

Ashbey

Defendant appeals from a May 4, 1987 Family Part order which vacated a November 18, 1986 order requiring plaintiff and defendant to submit to human leucocyte antigen (HLA) paternity blood tests, along with 13-year-old K.W. who was born during the parties' marriage.*fn1 Defendant urges on appeal that the judge erred in granting the motion of the Essex County Division of Welfare (Welfare) for reconsideration of the order for blood tests and that, because the issue of paternity had never been adjudicated between the parties, he was always able to contest paternity. We affirm.

The parties were married on September 17, 1966. One child, K.W., was born on March 7, 1973, and the parties separated

prior to 1974. On January 4, 1974, plaintiff filed a complaint for support against defendant in the then Juvenile and Domestic Relations Court of Essex County (Court) (now absorbed in the Family Part of the Chancery Division). On January 16, 1974, the Court entered a temporary order, directing defendant to pay $70 per week for his wife.*fn2 The order further directed that blood tests be scheduled to determine the paternity of K.W. which defendant evidently disputed.*fn3 On May 7, 1974, the Court ordered defendant to pay $200 in arrears and ordered that blood tests be performed immediately. On May 8, 1974, arrears were set at $390, the $70 per week support order was continued and defendant was ordered to pay $10, bi-weekly, to satisfy arrears and to pay $65 by May 10, 1974. On June 11, 1974, blood tests were taken but no hearing was held.*fn4 On February 26, 1975, the Court continued the prior order. On August 12, 1975, arrears were set at $1,005; support was continued at $70 per week, arrears were continued to be paid at the rate of $10, payable bi-weekly, and defendant was placed on two years of "probation." That order further directed defendant to pay the $75 due for his wife's and the child's blood tests and to produce the report by August 21, 1975. On August 20, 1975, the laboratory advised the Court that defendant could not be excluded as the father.

Following defendant's request for an adjournment concerning his hearing on paternity, the Court ordered that a hearing be held on January 16, 1976, making that date peremptory and finding that defendant had been avoiding court. On January

16, 1976, defendant was ordered to pay $70 per week support for his wife and $20 per week support for K.W. That order said that defendant was under the legal obligation to support his "family." Apparently, however, no evidence had yet been proffered in a hearing on the issue of K.W.'s paternity.

On March 3, 1976, the court ordered a hearing for March 16, 1976, which was later rescheduled to March 26, 1976. On March 26, 1976, defendant did not appear. The court fixed arrears at $1,785 and scheduled a paternity hearing for May 10, 1976. All parties were notified.

On May 10, 1976, defendant appears to have been incarcerated for failure to pay support. By order dated May 12, 1976, the Court ordered that, "Deft's application for paternity hearing is dismissed with prejudice. Pay $100 today and release. Pay $400 on Friday, May 14, 1976. Appear in court on Monday, May 17, 1976 with both counsel. Release all monies to petitioner."*fn5 The record fails to reveal whether defendant appeared on May 17, but on May 18, 1976, defendant filed a notice of motion to reduce his support obligations, making no reference to further denial of paternity. Plaintiff cross-moved for an increase in support. By the May 27, 1976 order, arrears were set at $795, child support was continued "on a temporary basis" at $20 per week with $30 a week on arrears. Alimony was apparently discontinued at this time.

Defendant's divorce judgment recites that the matter was heard on May 19, 1976. However, the judgment was entered on November 5, 1976. Plaintiff did not appear in that proceeding and its terms were therefore ex parte. The judgment of divorce states that jurisdiction concerning ...


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