On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FD-13-266-99B.
Before Judges Stern, Collester and Lintner.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2001
Plaintiff L.V. appeals from an order of the Family Court denying her application against defendant R.S. for child support on behalf of Michelle, born on January 5, 1982. We reverse and remand.
Plaintiff's complaint filed on July 28, 1998, initially sought an adjudication of paternity as well as child support, but defendant conceded the issue after genetic testing established a 99.99 percent determination of paternity. Consent orders limited the retroactivity of any child support award to the date of the filing of plaintiff's complaint. A pendente lite child support order was entered on November 19, 1999, fixing support at $183 per week and was payable through the probation department by way of a wage garnishment. A motion for enforcement was deferred until trial. In a related action defendant's wife filed a complaint against plaintiff alleging breach of an agreement by plaintiff to waive any claim for child support. That action was consolidated with plaintiff's complaint for support.*fn1
Plaintiff and defendant had a social and sexual relationship which began in 1978 and ended in early 1981. Both characterized the relationship as "on-again/off-again," tumultuous, and at times abusive. After they ended the relationship, the parties met by chance at a bar in late April of 1991. Later that evening they engaged in sexual intercourse. About four months later plaintiff called defendant to advise that she was pregnant with his child and to ask for financial assistance for medical expenses related to the pregnancy. Defendant agreed and sent plaintiff $100.
Michelle was born on January 5, 1982, and was given her mother's surname. The birth certificate did not name defendant as her father. Plaintiff testified at the plenary hearing that she wanted no contact with defendant and did not want him to play any role in Michelle's life.
Subsequent contacts between the parties were minimal. When defendant asked mutual friends if plaintiff had had the baby, plaintiff called him and told him she had given birth about three months earlier. She said that defendant expressed no desire to see Michelle. A month later defendant saw plaintiff and Michelle at a shopping mall, but no words were exchanged. Defendant testified he was convinced the child was not his because she had blond hair similar to plaintiff's former boyfriend. While plaintiff confirmed the chance encounter, she said that Michelle's hair was dark brown and not blond. Defendant also claimed he saw plaintiff at a bar on a subsequent date and that she refused to speak with him. Plaintiff denies any such meeting.
Seven years later defendant sent a letter to plaintiff informing her that he had become a born-again Christian and wished to make amends "for all the humiliation that I put you and your family through." The letter concluded:
I hope that you do get this letter. I have to send it to your mother's house because I don't know where you live. I know absolutely nothing about your life since last we spoke. I only know that you probably still hate me. I hope you don't. I am sorry that our relationship did not work, but I'm sure you agree, that it was not meant to be, even though we both tried very hard. I hope you have found true happiness and that you and your family are doing well. I am happy now and I know that being happy is what you wanted because you told me so during one of our fights. If you want to reach me, I will be working at Sea-Land Corp. in Elizabeth, at least for the next 2 years. But don't misunderstand me, I am not expecting any response from you. I only tell you this because I am not easily reached and I could not leave a return address. There are no hidden meanings in this letter, just take it for what it is, don't try to analyze it. I will not contact you again, so a threatening response from you will not be necessary. I hear that Michelle is a pretty young lady, you are a very lucky woman. I wish you well.
Plaintiff did not respond and made no effort to communicate with the defendant. She testified she was aware of how to proceed to secure child support for Michelle, but she consciously chose not to pursue any action against defendant.
Plaintiff did not hide from Michelle the identity of her father, and in the summer of 1998, when she was sixteen, Michelle made an effort to locate him. Using the Internet and then a Pennsylvania phonebook, she found a similar name and called the number. The person she called was defendant's brother, who gave her defendant's e-mail address. He also told defendant that he received a call from a girl claiming to be his daughter.
Shortly thereafter Michelle and defendant began communicating through e-mail. In the course of these computer conversations Michelle and her father introduced themselves and exchanged information as to the previously unknown lives of father and daughter. Defendant told Michelle he had three children from a current marriage, two from a prior marriage and lived with his wife in New Jersey after ...