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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 PLAINTIFF WAS ERROR.

POINT IV

THE COURT'S DENIAL OF DEFENDANT'S MOTION FOR AN ORDER DIRECTING PLAINTIFF TO PROVIDE PROOF THAT SHE HAS MET HER OBLIGATION TO PAY THE FIRST $250 OF UNREIMBURSED MEDICAL EXPENSES WAS ERROR.

POINT V

THE COURT'S DENIAL OF DEFENDANT'S MOTION FOR AN ORDER DIRECTING PLAINTIFF TO COMPLY WITH THE GUIDELINES AND PARAMETERS OF DEFENDANT'S HEALTH/DENTAL INSURANCE PLANS WAS ERROR.

POINT VI

THE COURT'S DENIAL OF DEFENDANT'S MOTION FOR AN ADJUDICATION FINDING PLAINTIFF IN VIOLATION OF LITIGANT'S RIGHTS FOR HER CONTINUED INTERFERENCE WITH DEFENDANT'S PARENTING TIME AND AN ORDER RESTRAINING HER FROM CONTINUING THIS CONDUCT WAS ERROR.

POINT VII

THE COURT'S DENIAL OF COUNSEL FEES TO DEFENDANT WAS ERROR.

We have considered defendant's contentions and supporting arguments and, with the exception of Point I, we are satisfied they lack sufficient merit to warrant further discussion in a written opinion, Rule 2:11-3(e)(1)(E), and affirm substantially for the reasons expressed in Judge Rubin's oral opinion of October 6, 2006.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. We will not "disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are 'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

In New Jersey, there is a presumption that the husband of a woman who gives birth to a child during the marriage is the child's biological father. N.J.S.A. 9:17-43(a)(1). This presumption may be rebutted with clear and convincing evidence to the contrary, N.J.S.A. 9:17-43(b), and when paternity is contested, a court may order a paternity test only if, by clear and convincing evidence, it is in the child's best interests to do so. M.F. v. N.H., 252 N.J. Super. 420, 429 (App. Div. 1991). However, "[a] blood test is not automatic and it should be ordered only after a delicate balance of all circumstances surrounding the alleged paternity." C.R. v. J.G., 306 N.J. Super. 214, 228 (Ch. Div. 1997).

The requirement that a court engage in a delicate balancing test before ordering paternity testing in a contested matter reflects judicial recognition that although the truth of paternity is valuable, it is not always as valued as the protection of the child from the consequences of such disclosure because a paternity suit "threatens the stability of the child's world" and, in some cases, the best interests of the child "will be even better served by no paternity determination at all."

M.F., supra, 252 N.J. Super. at 427 (quoting McDaniels v. Carlson, 738 P.2d 254, 262 (Wash. 1987)). As we have observed:

The shifting of paternity from the presumed father to the biological father could easily be detrimental to the emotional and physical well-being of any child. Although someone may suffer, it should never be the child, who is totally innocent and who has no control over or conception of the environment into which he or she has been placed. [Id. at 429 (internal citations omitted).] Consequently, in engaging in the best interests of the child analysis, we have instructed courts to consider a number of factors, including,

(1) Harm to the child such as emotional injury, distrust, and possible confusion of knowing the parenting father is not the biological father;

(2) Protection of the child's physical, mental, and emotional needs;

(3) The stability of the family relationship and the extent of the intrusion that will result from a paternity determination;

(4) The consistency of the putative father's interest in the child;

(5) Societal stigma that may result or be perceived by establishing relationship, including placing the child's birth outside of the traditional wedlock setting;

(6) Continuity of established relationships;

(7) Any extent to which uncertainty of parentage already exists in the child's mind;

(8) The child's interest in knowing family and genetic background, including medical and emotional history. [Id. at 429-30.]

Defendant argues that the genetic test results he obtained constitute clear and convincing evidence that rebut the presumption that he is F.Y's father, and the doubt the judge expressed with regard to the legitimacy of the test should have prompted the court to order a second test. Defendant further argues that the court's failure to adjudicate and declare that defendant is not F.Y.'s biological father was an abuse of discretion. Finally, defendant contends the judge's reliance upon the best interests of the child analysis was flawed and should not have been applied to the facts of this case.

At the outset, we are satisfied that Judge Rubin did not abuse his discretion in rejecting the paternity test results privately secured by defendant. The test results proffered by defendant as proof that he was not the father were unaccompanied by any certification as to the circumstances under which the testing took place, and the factual record was otherwise "devoid of evidence that would elucidate the 'method and circumstances' involved in the preparation of the forensic chemist's laboratory report." State v. Matulewicz, 101 N.J. 27, 30 (1985).

Next, having rejected the reliability of the proffered testing, the question then becomes whether the court abused its discretion in not ordering new genetic testing. We observe that the issue of paternity was not raised affirmatively through the commencement of an action under the Uniform Parentage Act, N.J.S.A. 9:17-38 to -59 but, rather, as part of a motion for reconsideration of the court's July 31, 2006 order enforcing litigant's rights. Thus, the question of F.Y.'s paternal parentage was not properly before the court.

Motions for reconsideration permit a party to present to the court matters or controlling decisions which "counsel believe the court has overlooked or as to which it has erred." Rule 4:49-2; See also, Rule 5:1-1 (providing that the scope of the rules governing the Chancery Division, Family Part also include the "rules in Part IV in so far as applicable"). The rule focuses upon what was before the court in the first instance and is not intended to become the vehicle through which new defenses are asserted. Lahue v. Pio Costa, 263 N.J. Super. 575, 598 (App. Div.), certif. denied, 134 N.J. 477 (1993) (citing D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).

Nonetheless, Judge Rubin considered defendant's claim on the merits. He engaged in a reasonable and thorough evaluation of the best interests factors set forth in M.F., supra, 252 N.J. Super. at 429-30, as they would affect ten-year-old F.Y. in the event genetic testing established that defendant was not her biological father and that fact was disclosed to her. The judge considered F.Y.'s age, the fact that defendant was the only father she knows, their close relationship, and the emotional impact of learning that defendant may not be her father. The judge surmised that the stability of her family relationships would fall "like a house of cards[.]" The judge also noted the consistency of defendant's interest in F.Y., which was evidenced by his statement to the court that he loves F.Y. and would want to continue to have a relationship with her, including spending more time with her.

Although acknowledging that illegitimacy is not nearly as stigmatizing as it was in the past, Judge Rubin considered the silent societal stigma attached to illegitimacy and also questioned what effect illegitimacy would have upon F.Y.'s relationship with plaintiff as well as her sister. Finally, the judge addressed the fact that there was no indication of any uncertainty on the part of F.Y. as to her parentage and that F.Y. had no present interest in knowing her family and genetic background, including medical and emotional history because, in her mind, defendant is her father.

We are satisfied that Judge Rubin conducted a thorough analysis of the appropriate best interest factors and concluded, by clear and convincing evidence, that pursuing the issue of paternity at this point in F.Y.'s life is not in her best interests. This conclusion was reached through the reasonable and careful exercise of the judge's discretion, after consideration of the facts, and we discern no basis upon which to interfere with this determination that, in our view, was supported by substantial, credible evidence in the record. See Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999); DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976).

Affirmed.


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