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F.B. v. A.L.G.

April 26, 2002

F.B. AND MONMOUTH COUNTY DIVISION OF SOCIAL SERVICES, PLAINTIFFS-RESPONDENTS,
v.
A.L.G., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FD-13-609-96.

Before Judges Kestin, Steinberg and Alley.

The opinion of the court was delivered by: Kestin, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: March 11, 2002

The central issues in this appeal implicate the standards for determining when the defendant in a paternity and support action is entitled to a grant of his request for genetic testing as to one child, and the circumstances in which support may be ordered in respect of a second child notwithstanding that the defendant is not the biological father of that child. In the instant matter, the trial court denied defendant's application for genetic testing regarding his alleged paternity of the younger of plaintiff F.B.'s two children; and he was required to continue supporting the older child whose paternity he had previously acknowledged, notwithstanding that it was conceded in this proceeding that he is not the father of that child.

Defendant appeals from a June 22, 2000 trial court order which resolved the paternity and support-obligation issues and established the amount of support due for the two children. After several days of trial, the trial court judge articulated his reasons for the various provisions of the order in an extensive oral opinion delivered on June 13 and 16, 2000.

The record before us discloses that the 1995 complaint for a determination of paternity and support as to the older child was not properly verified pursuant to R. 5:14-1; and this defect carries over to the subsequent amendment of the complaint to include the younger child. We noted in Monmouth County Div. of Soc. Servs. v. P.A.Q., 317 N.J. Super. 187 (App. Div. 1998), that a complaint which alleges no facts pertaining to the paternity issue "on personal knowledge admissible in evidence to which the affiant is competent to testify" is "insufficient to invoke the jurisdiction of the [trial] court." P.A.Q., supra, 317 N.J. Super. at 194; see Lippmann v. Hydro-Space Tech., Inc., 77 N.J. Super. 497, 503-04 (App. Div. 1962); see also State v. One (1971) Datsun, 189 N.J. Super. 209, 211 (App. Div. 1983). The complaint in this matter was filed by the very same social services agency involved in P.A.Q., the Monmouth County Division of Social Services (MCDSS). The "verification" in each instance was by an employee of the agency merely certifying that the skeletal facts alleged in the complaint reflected information contained in the agency's records "maintained in the normal course of business." Such a "verification" does not meet the requirements of the rules as elucidated by us in P.A.Q., supra. A mere formality does not satisfy the need which genuine "verification" is designed to address. There was no basis for the trial judge's ruling that this matter is distinguishable from P.A.Q. in respect of the defective verification.

Nevertheless, because all claims were fully determined by the trial court after full participation by all parties including the sworn testimony of those with first-person knowledge, because all issues have been exhaustively briefed by both sides on appeal, and because those issues bear upon questions commonly encountered, we exercise our discretion to consider the complaint as having been properly amended and to address the issues rather than reversing and ordering dismissal of the complaint. In the future, however, the trial courts should decline to assert jurisdiction over complaints alleging paternity that are not verified in the sense intended by the rules, i.e., those that do not contain verified allegations concerning the defendant's parentage "made on personal knowledge admissible in evidence to which the affiant is competent to testify." P.A.Q., supra, 317 N.J. Super. at 194.

The trial court order which we are called upon to review denied defendant's October 27, 1999 motion for genetic testing of F.B.'s younger son, born on February 26, 1996. The order also declared as moot defendant's May 4, 1999 motion for genetic testing of the older child, born on August 23, 1990. As to the older child, the order recited that F.B. had conceded defendant was not the biological father of that child. The order noted that the concession, accepted as accurate by plaintiff MCDSS, was binding on the agency, which had been subrogated to F.B.'s rights to seek support by reason of having provided public assistance to her for the benefit of the children.

For reasons expressed in his oral opinion, the trial judge also denied defendant's motion for vacation of a December 11, 1995 order and subsequent orders based thereon regarding the support of the older child. Further, he granted plaintiffs' claim for support of the younger child. The instant order went on to establish the amounts of past and future support due for the two children as well as the payment of arrearages on account of the 1995 support order and the subsequent orders based thereon.

Defendant's appeal encompasses those provisions of the order which bear upon paternity. Except to challenge his payment obligations as ordered, he raises no issue concerning the support levels which the trial court set. Defendant argues that the trial court erred in denying his motion to vacate the prior orders dealing with his support obligations for the older child; that in doing so the trial court misapplied the standards of R. 4:50-1(f); that the trial court should have granted his motion for an accounting and reimbursement of all support paid previously on behalf of that child; and that the trial court erred both in denying his motion for genetic testing to determine whether he is the younger child's biological father and in ordering him to make support payments in respect of that child without a proper determination of paternity.

F.B. has joined in MCDSS's response to defendant's arguments on appeal. In addition to its responsive arguments, MCDSS also argues affirmatively on appeal that defendant "should be ordered pursuant to N.J.S.A. 9:17-54 to pay reasonable attorney's fees and costs to MCDSS." Apart from other considerations, MCDSS may not raise this independent issue because it has not filed a cross- appeal. See Pressler, Current N.J. Court Rules, comment on R. 2:3- 4 (2002). The exception to this general bar for "extraordinary circumstances", see ibid., cannot apply where the issue could have been raised before the trial court but was not presented. See ibid.; see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

The trial court's factual findings are well supported by substantial evidence in the record. We are, therefore, bound by them on appeal. See Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). Defendant, however, does not challenge the basic findings of fact; he impugns the conclusions of law based thereon.

F.B. and defendant have never lived together. They first met in January 1990, while both were college students. Their sexual relationship began in February 1990. The first child was born six months later. By size and weight, the child was a full-term baby, but defendant accepted the child as his. There was conflicting testimony whether F.B., during her pregnancy or at the time of the child's birth, had told defendant he was not the father. The trial judge allowed that F.B. had not informed defendant that the child was the product of her earlier relationship with another man. Nevertheless, the trial judge rejected as entirely lacking credibility defendant's assertions that because he had been misled by F.B., both before and after the child's birth, to believe the child was his, he had no basis for denying paternity at the time of birth. In this latter connection, the judge stressed the baby's size and ...


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