On appeal from Superior Court of New Jersey, Law Division-Probate Part, Monmouth County.
Brody, Gruccio and D'Annunzio. The opinion of the court was delivered by Brody, J.A.D.
This is an appeal from a judgment declaring that four claimants (plaintiffs) to this intestate estate are the decedent's out-of-wedlock children. Plaintiffs' assertion of paternity is resisted by the decedent's four children (defendants) of his marriage to E.P., who herself has no interest in the estate because she and the decedent had divorced before he died. The underlying issue is whether the court had the authority to order E.P., a nonparty witness, to submit to blood tests to enable it to adjudicate the paternity issue. We hold that the court had such authority under its inherent power to compel the production of evidence even though that authority is not found in the Parentage Act, N.J.S.A. 9:17-38, et seq.
The parties are all adults. Plaintiffs were conceived after their mother had separated from her husband and while the decedent was married to and living with E.P. Because plaintiffs' mother was married when they were born, her husband is presumed to be their natural father. N.J.S.A. 9:17-43a(1). That presumption "may be rebutted in an appropriate action only by clear and convincing evidence." N.J.S.A. 9:17-43b.
We need not recount the conflicting evidence that was presented at the bench trial. It is enough to know that it was largely testimonial and led the judge to comment that though the evidence favored plaintiffs' claim, "it can go either way" in view of plaintiffs' heavy burden of proof.*fn1
The judge thereupon granted plaintiffs' motion for an order requiring that the parties and their mothers, who had both testified, submit to DNA "fingerprint" blood tests within 15 days.*fn2 Plaintiffs had made a preliminary showing that the results of such testing would establish whether the decedent was plaintiffs' father. Defendants do not now question whether the test results would be admissible in evidence. The court reserved consideration of that issue until the results are offered in evidence.
When plaintiffs' attorney reported that E.P. had refused to submit to the blood tests, the court declined to hold her in contempt or impose sanctions to coerce compliance. Instead, it ordered that unless E.P. submits, her testimony would be stricken. E.P. never submitted to the tests and never appeared in court to give a reason for her refusal.*fn3
The court concluded in an oral opinion that, with one exception, none of the evidence bore directly on the paternity issue.
The exception was the testimony of plaintiffs' mother: "And the question is do I believe her, because if I believe her, then the evidence is clear and convincing." It arrived at its ultimate finding as follows:
There is a proposition in law that when a witness, who is expected to testify, does not testify or is not called by the party for whom that testimony would be beneficial, if they leave out someone you'd expect them to call, because they have a saying that says good then the inference can be drawn legally if they were called they would not be saying something good and that's why they were left alone and not called to testify, State against Clawans [, 38 N.J. 162, 183 A.2d 77 (1962)].
The opposite inference can be drawn, the inference that if called, the testimony would be unfavorable. I think that the same opinion is applicable to [E.P.] Her unexplained failure to take the test is an indication that she knew if she took the test it would be likely to come out unfavorable to her ...