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D.W. v. R.B.

November 16, 2007

D.W., PLAINTIFF-RESPONDENT,
v.
R.B., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-313-95.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 17, 2007

Before Judges Lihotz and Simonelli.

Defendant R.B. appeals from two Family Part orders. The first, entered on February 10, 2006, denied his application to vacate accumulated child support arrearages, complete paternity testing, and terminate the existing child support obligation. The second, entered December 13, 2006, denied defendant's request for reconsideration. On appeal, defendant argues that, since its entry on October 15, 2003, he has repeatedly, but unsuccessfully, sought enforcement of the order for genetic testing. We are persuaded that compliance with the order for genetic testing is warranted. Accordingly, we reverse. We also note that defendant filed a motion for emancipation on June 25, 2004, which has not been heard. Depending upon the results of the genetic testing, the emancipation motion may need to be listed and finalized.

Defendant and plaintiff D.W. engaged in a "consensual sexual relationship"; they never married. On January 23, 1983 their son was born. Defendant acknowledged paternity and began to pay child support as ordered on June 26, 1985.*fn1 This child was emancipated on October 17, 2002.

Plaintiff gave birth to twins on February 19, 1986, and another son on July 10, 1989. Defendant asserts he was incarcerated when the children were conceived and born.*fn2 At some point, plaintiff relocated to California, where she applied for and received public assistance.

The Mercer County Board of Social Services (MCBSS), as requested by the Sacramento Department of Social Services (SDSS), initiated a complaint against defendant for the establishment of child support for plaintiff's children pursuant to the Uniform Reciprocal Enforcement of Support Act, N.J.S.A. 2A:4-30.24 to -30.64. The matter was heard on January 9, 1995.

Defendant maintains he did not appear at this hearing.*fn3

However, the filed form of order includes a check in the box appearing before the pre-printed language, which states: "Paternity of child(ren) (# above)_______, is acknowledged by defendant, and an ORDER of paternity is entered." In the blank space, the numbers corresponding to plaintiff's youngest three children from a list of all four children were inserted. The order noted the oldest child was receiving child support pursuant to an order under a separate docket number (Docket No. FD-011-1478-85E). The two support cases were consolidated and defendant was ordered to pay fifty dollars per week, beginning April 21, 1994, plus ten dollars per week towards accumulated arrearages.

Over the years, the amount of child support was increased and decreased. In the fall of 2003, defendant sought paternity testing of the three younger children. Following a hearing on October 15, 2003, Judge Hayser granted the request for genetic testing. The record does not disclose whether the order was transmitted to the Sacramento Department of Social Services.

The case was again before Judge Hayser on February 4, 2004, after defendant appeared for the scheduled paternity testing. Judge Hayser ordered verification of plaintiff's failure to appear for the genetic testing and stated that if "[s]he did not appear for the test[,] defendant's child support will be vacated." The matter was continued. No further action was taken to verify the status of plaintiff's participation in paternity testing or to relist the matter for final disposition.

On March 23, 2004, defendant again sought resolution of paternity. The copy of the complaint he filed provided in the record is mostly illegible; however, it can be discerned that defendant requested to "terminate C/S [child support] & arrears" because plaintiff had not complied with "ordered DNA tests . . . ." The matter was heard on ...


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