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A.K. v. S.K.

Decided: April 26, 1993.

A.K., PLAINTIFF/RESPONDENT,
v.
S.K., DEFENDANT/APPELLANT



On appeal from the Superior Court of New Jersey, Chancery Division, Morris County.

Havey, Stern and Brochin. The opinion of the court was delivered by Stern, J.A.D.

Stern

[264 NJSuper Page 80] This is an appeal from an order of the Family Part denying defendant's motion seeking HLA blood testing to ascertain whether he is the biological father of the three children he previously considered his own. Defendant desires to contest his support obligation on the grounds that he is not the biological father. His application, filed in opposition to plaintiff's post-judgment enforcement motion, also sought an order "allowing defendant to cease

payment of alimony and support to the plaintiff" until parentage was determined. The Family Part rejected defendant's application based on the "entire controversy doctrine" because the issue was not raised in prior proceedings, either before or after final judgment was entered. Employing the doctrine of equitable estoppel, we affirm. We also affirm the order awarding plaintiff $5,170.00 in post-judgment counsel fees.

The parties were married in 1975. At first the parties were unsuccessful in conceiving a child, but plaintiff ultimately became pregnant in 1976. The three children were born in 1977, 1979, and 1982. Prior to entry of a Property Settlement Agreement which was embodied in the 1988 final judgment of divorce, defendant was supporting the children and considered himself their father.

Defendant was diagnosed as suffering from Hodgkin's Disease in 1971 and was treated with radiation and chemotherapy. In 1976, when plaintiff could not become pregnant, semen tests revealed an insufficient sperm count on his part. However, when plaintiff subsequently became pregnant defendant concluded that the test results were wrong or that circumstances changed,*fn1 and therefore never contested the legitimacy of the children.

In denying the request for HLA testing, made after prior post-judgment proceedings in this ongoing matrimonial litigation, the trial Judge concluded that defendant was "barred by the entire controversy doctrine in pursuing this matter now" for various

reasons, including the fact that defendant knew of the test results before the divorce proceedings were commenced and had the type of "suspicions" which required him to pursue the issue earlier. The Judge held that by "pursuing custody of the children" even after entry of the judgment, and by not contesting parentage earlier, defendant was estopped from doing so now.

Defendant claims that the issue of parentage is not barred by the entire controversy doctrine or any other procedural bar because his attitude towards the children's legitimacy was the result of "fraudulent misrepresentations" by his former wife, and because his present action is based upon post-judgment discovery following a new marriage and new testing which confirms his inability to produce semen for fertilization. Since the case was submitted to us, the parties have submitted letters to the effect that defendant's new wife is now pregnant. Defendant argues his new wife was able to conceive only after he had bilateral varicocele surgery, thus confirming his pre-surgical condition. We do not pass upon the form or impact of these new submissions which would further supplement the record because they are not material to our determination.

The plaintiff wife points to the long history evidencing defendant's attitudes and conduct as father of the children. She also points to pre-complaint joint Discussions with a marriage counselor on the issue of legitimacy and to the existence of unfiled draft pleadings she claims to have seen in which defendant alleged that L.K., born in 1977, was not his child and was the child of a third party. Plaintiff thus contends that it is apparent that the paternity issue was the subject of controversy and negotiation between the parties prior to the execution of the settlement agreement in which joint custody was granted.

While defendant asserts various reasons for his attitude at the time, it is uncontested that "[i]n approximately 1985 . . . in the course of 'marriage counseling,' . . . plaintiff stated that the defendant was not the biological father of [L.K., the oldest child]." Defendant states plaintiff told him of an extra-marital relationship

"which . . . had begun before [L.K.] was conceived," that she appeared to tell him this and "provided the name of her biological father" "in an angry moment," and that she subsequently made "repeated denials" on which defendant relied. Plaintiff now insists that all three children were fathered by defendant, and defendant states that even during the ...


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