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Paterno v. Paterno

Decided: October 28, 1991.

MARY PATERNO, PLAINTIFF,
v.
WAYNE PATERNO, DEFENDANT



BERGEN COUNTY. FAMILY PART

Krafte, J.s.c.

Krafte

KRAFTE, J.S.C.

The underlying question which must be answered by this court is one of first impression in this State and concerns whether this court can retain full jurisdiction to grant all of the relief that a court of equity could grant prior to the enactment of N.J.S.A. 2C:13-4, entitled "Interference with Custody."

This matter comes before this court as the result of a postmatrimonial motion, whereby defendant, Wayne Paterno, sought to enforce his visitation rights under the parties' property

settlement agreement, with his minor child, Jennifer. Defendant alleges that his ex-wife, plaintiff, Mary Paterno, denied him his visitation rights with their daughter. In her responding certification, plaintiff stated that as a result of an argument between herself and defendant's mother, defendant directed plaintiff not to drop the infant child off at defendant's mother's home in the future. Mr. Paterno's reply alleged that the parties argued as a result of plaintiff telling his mother that she would no longer see her granddaughter, and that plaintiff then kept him from seeing their child for more than two weeks in violation of both their property settlement agreement and in violation of N.J.S.A. 2C:13-4. The matter was referred to the Bergen County Prosecutor.

However, this court finds that although plaintiff may be in violation of a criminal statute (N.J.S.A. 2C:13-4), plaintiff may concurrently be in violation of R. 1:10-5, "Violation of Litigant's Rights."

The legislative history attendant to the criminal statute does not imply removal of sanction control from the jurisdiction of courts of equity. Rather, equity itself demands that the matter remain with this court, as well as being referred to the prosecutor for possible action. Clearly, there is a lack of available precedents.

Such absence, is in itself, not determinative of the issue. A court of equity will not be foreclosed from acting by lack of precedents, nor by the uniqueness of the problem, especially when there is no reasonable alternative remedy. [ State v. East Shores, Inc., 154 N.J. Super. 57, 64, 380 A.2d 1168 (1977)]

In fact:

Law and equity now being merged under our practice and procedure, there is concurrent jurisdiction in the Superior Court. Thus, this court will exercise its equitable powers to reach a fair and just result. [ 713 Co. v. Jersey ...


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