On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Family Part, Docket No. FV-02-22346-06.
FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2009
Before Judges Lisa and Sapp-Peterson.
In this unopposed appeal,*fn1 plaintiff appeals from that portion of the April 18, 2008 Family Part order finding that she was in violation of litigant's rights for failing to change the name on her daughter's birth certificate from H.R.K. to H.R.O. and ordering plaintiff to pay counsel fees on behalf of defendant. We reverse in part and affirm in part.
The origin of this appeal stems from a paternity action filed by plaintiff to adjudicate defendant as H.R.K.'s father. H.R.K. was born October 5, 2006 and plaintiff claimed that defendant is the putative father. On February 21, 2007, the trial court entered an order, by consent, adjudicating that defendant is the father of H.R.K. The order directed plaintiff to amend H.R.K.'s birth certificate "to reflect that the child's father is D.P.O." Thereafter, another motion was filed that addressed issues related to child support. Defendant also apparently filed a motion seeking to change H.R.K.'s name to J.L.O.*fn2
On October 19, 2007, after entertaining oral argument addressing child support, the court inquired of counsel about the birth certificate issue. Defense counsel advised the court that the birth certificate had not been changed in accordance with the court's February 21, 2007 order and that plaintiff had commented that "she didn't believe the order from Judge Jerejian [directing the name change] would be sufficient for the Registrar of birth certificates." Defense counsel argued further that he did not believe the Registrar would have rejected a signed order from a Superior Court judge and that plaintiff's failure to comply with the order was not an "innocent oversight." He indicated further that defendant had an application pending to change H.R.K.'s name to J.L.O., the name upon which the parties had previously agreed.
In response, plaintiff's counsel advised the court that because defendant was petitioning the court to change H.R.K.'s name to J.L.O., he believed that "it's up to Your Honor to change the child's name to J.L.O., I think it's up to Your Honor today to determine exactly what the new birth certificate going forward will say[.]" Plaintiff's counsel also objected to defense counsel's characterization of plaintiff's conduct:
[PLAINTIFF'S COUNSEL]: Well, let's --let's put this in proper perspective, Judge. We had to sue [defendant] to get his name on the birth certificate, something we want, okay. The interim order that was issued by Judge -- Judge Jerejian, I don't know that it would have been sufficient with the Registrar. We're waiting for a final order to determine the other issues, like the amount of child support that Your Honor is finally doing, counsel fees, and a final order with a judgment of paternity which I've submitted to Judge Jerejian three or four times, I think, in the course of this.
THE COURT: What do -- wait a minute, I don't understand. I thought Jerejian is finished with it, I have it. I have the case now.
[DEFENDANT'S COUNSEL]: You do, Judge.
[PLAINTIFF'S COUNSEL]: Well, what I'm saying, Judge, I know you've had the case but in terms of saying we haven't changed the birth certificate, as if to thrust the burden on ...