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S.Y. v. W.S.Y.

January 23, 2008

S.Y., N/K/A S.C., PLAINTIFF-RESPONDENT,
v.
W.S.Y., JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, FM-10-154-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 11, 2007

Before Judges Axelrad, Sapp-Peterson and Messano.

Defendant W.S.Y., Jr. appeals from the October 6, 2006 order of the Superior Court, Chancery Division, Family Part, denying his post-judgment motion for reconsideration. Although defendant sought reconsideration of issues previously raised, defendant, for the first time, raised an issue as to the parentage of his ten-year old daughter F.Y. Defendant claimed that a paternity test F.Y. underwent two years earlier conclusively revealed that he was not F.Y.'s biological father. Defendant sought disclosure of the identity of F.Y.'s father, appointment of a mental health professional to assist the parties in addressing paternity issues, and modification of child support, to include reimbursement for child support previously paid, retroactive to the date of F.Y.'s birth. The court denied defendant's motion in all respects. We affirm.

We relate the facts and procedural history only to the extent relevant to the issues on appeal. W.S.Y. and S.Y. were married in 1991. Their first child was born in 1992. The parties briefly separated in 1994 but reconciled in mid-1996. F.Y. was born in February 1997. The parties' reconciliation was not successful and they eventually divorced in 1999. The judgment of divorce awarded joint legal custody to both parents with S.Y. designated as the parent with primary residential custody. In July of 2006, plaintiff filed a motion to enforce litigant's rights stemming from, among other things, an alleged substantial change in circumstances warranting modification and recalculation of defendant's child support obligation. On July 31, 2006, Judge Rubin entered an order finding defendant in violation of litigant's rights due to his failure to pay (1) counsel fees; (2) dental expenses; and (3) his share of the children's after-care and summer camp costs as he had previously been ordered to do. The court granted the relief plaintiff sought and also increased defendant's child support obligation.

Defendant filed a motion for reconsideration and, for the first time, raised the issue of F.Y.'s parentage. In the certification submitted in support of the motion, defendant claimed that in 2003 plaintiff started making statements that he was not F.Y.'s father. In 2004, on his own, defendant took F.Y. to a testing facility where she underwent DNA testing. The test results revealed that there was a zero percent probability that F.Y. is his biological child. Despite learning this information at that time, defendant did not seek any judicial relief because he was "extremely concerned about the effects this revelation would have upon [F.Y.]" Consequently, he was "reluctant to include this issue in documents that would become part of the Court's file[]" and "attempted to address this issue directly with plaintiff[.]" Defendant claimed he confronted plaintiff in mid-2004 regarding paternity and alleges that although she initially "adamantly insisted that he was [F.Y.]'s father," she "finally relented[.]" Additionally, in correspondence to plaintiff dated August 10, 2005, defendant's counsel alerted her to the fact that "due to [his] client's recent discovery regarding [F.Y.]'s paternity, he would like to discuss in an amicable fashion, issues pertaining to [F.Y.]" Plaintiff did not respond to the letter, and defendant claimed that he felt he "had no choice, but to raise the issue in court." Plaintiff's certification in opposition to defendant's motion for reconsideration asserted that "[d]efendant is [F.Y.]'s biological father."

Judge Rubin concluded defendant failed to establish, by clear and convincing evidence, that it was in F.Y.'s best interests to undergo paternity testing or to learn of the test results from the DNA testing she had undergone two years earlier. He also questioned the reliability of the genetic test results offered by defendant, but reasoned that even if defendant is not F.Y.'s biological father, he is the only father she has ever known, and the strong psychological bond between defendant and F.Y. did not change as a result of the purported test results. Consequently, the judge prohibited the parties from discussing paternity issues with F.Y., prohibited defendant from performing any further genetic testing on F.Y., increased the amount owed to plaintiff for counsel fees, and denied defendant's request for counsel fees. The ensuing appeal followed. Defendant raises the following points for our consideration:

POINT I

THE COURT'S DENIAL WITHOUT A HEARING OF RELIEF FROM PLAINTIFF'S FRAUDULENT ASSERTION OF PATERNITY WAS CONTRARY TO LAW AND AN ABUSE OF DISCRETION.

POINT III*fn1

THE COURT'S DENIAL OF DEFENDANT'S MOTION TO IMPUTE ADDITIONAL INCOME TO ...


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