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D.W v. R.W


April 21, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-662-07.

Per curiam.



Submitted October 18, 2010

Before Judges Grall and LeWinn.

This case arises from the extremely contentious divorce of Diane*fn1 and Richard and involves the paternity of their youngest son, Mark. Richard appeals from the April 24, 2009 order denying his request "to have a DNA test performed regarding the issue of parentage of [Mark]" entered after a plenary hearing on the merits. He also appeals from the orders of July 31, 2009, granting summary judgment to Donald and Mark dismissing his third-party complaint. We affirm.

Diane and Richard were married in 1979. They have three children; Mark was born in 1987. At about the time Diane filed her divorce complaint in 2006, Richard began to suspect that Mark was not his biological son. Diane moved out of the marital residence in November 2006; Richard remained in the home with Mark; he described their relationship at that time as "very good" and a "regular father-son relationship."

In December 2006, Richard acquired a DNA testing kit to determine whether he was Mark's natural father. He surreptitiously obtained a DNA sample from Mark. The test results "very definitively" led Richard to believe he was not Mark's biological father; he did not tell Mark about the test results at that time.

At some point Richard received information that made him further suspect that Mark's biological father was Donald, who is the former husband of Richard's sister. On or about February 5, 2007, Richard filed a third-party complaint against Donald, alleging that Donald was Mark's father and seeking reimbursement for all support he had paid on Mark's behalf since birth, compensatory damages and counsel fees. Donald filed an answer denying Richard's allegations.

In March 2007, Mark moved out of the marital home and moved in with Diane. He then became aware of the issue respecting his paternity. The relationship between Richard and Mark began to deteriorate at this time and Mark told Richard he was "a bad father" and to "[s]top suing [Donald]."

In May 2007, Richard filed a motion to compel Diane and Mark to submit to DNA testing. Diane filed a cross-motion to dismiss Richard's paternity complaint against Donald. On June 25, 2007, a judge entered an order denying Richard's motion and granting Diane's. Richard moved for reconsideration and, on March 28, 2008, another judge entered an order granting reconsideration, in part, to reinstate Richard's claims against Donald.

On March 31, 2008, the judge entered an order severing the divorce proceedings from the paternity case and scheduling a plenary hearing to determine whether "a paternity test [would] be ordered." Diane and Richard were divorced by a final judgment entered on August 25, 2008.

On October 10, 2008, the judge entered an order permitting Richard to add Mark as a third-party defendant for discovery purposes only; Richard filed an amended complaint and Mark filed an answer alleging insufficient "knowledge . . . to either admit or deny" the paternity allegations.

A plenary hearing on Richard's motion to compel a paternity test was held on April 24, 2009. Richard testified that he and Mark had "no relationship" at that time and that he believed a paternity test would have a positive impact on the family because there will be closure and get this skeleton out of the closet . . . . [W]e can all three re-bond and become a family unit again . . . . I can see a very positive thing of having closure, putting it behind us, and moving forward as a family, at least as a father, and my three children.

Richard asserted an "inherent right to know" if Mark is his son, adding that "[i]f [Donald] is the biological father, . . . he should have to be held accountable . . . financially." Richard acknowledged that he knew Mark did not want to submit to a paternity test.

Diane testified that she had explained to Mark the possibility that Donald is his father. She stated that Mark has a better relationship with Donald than with Richard.

Mark testified that he first learned of the question regarding his paternity from a cousin. When he confronted Diane about it, she claimed Donald had raped her. Mark acknowledged that he wanted to have the paternity issue resolved "at some time as it relates to medical information[.]" He did not think it was "in [his] best interest" to resolve the issue then, adding:

I'm going through a lot in my life right now. . . . I just don't think that this is something that needs to be brought out in this way. I feel like it's my decision. If I want to know, I should be able to decide on my own time.

Mark stated that he had no relationship with Richard and there was "no possible chance" the two "will reconcile" if "the testing goes through." He added that he has a good relationship with Donald and may want to learn at some point if Donald is his biological father.

At the conclusion of the testimony, the judge rendered a decision from the bench denying Richard's request for a paternity test. The judge reviewed the history of the parties' litigation, noting that there was "so much emotion" in the case. He pointed out that Richard raised the paternity issue by filing a third-party complaint in the divorce proceeding, thus making it "a public action," rather than filing a private action under the Parentage Act, N.J.S.A. 9:17-38 to -59. The judge found this strategy "ha[d] to do somewhat with the motivations here[,]" adding:

I've made this decision by virtue of all of the evidence, as well as what I believe to be a pretty careful understanding of the Parentage Act, as well as the case law under it. I've listened to what [Mark has] said, it is a factor, and he's entitled, I believe, to have that voice, but I have not made this decision because of that.

I do believe that it was [sic] not in the best interest of the boy to have a paternity test, so I'm going to deny that . . . .

But most importantly, . . . we have to go back to the clear and convincing evidence. . . .

I do not believe that . . . [Richard] has sustained his burden of proof. He's not convinced me by clear and convincing evidence that it is in the best interest of his son [Mark] to go forward with this test.

[I]n this case it's [Richard] that I think has thrown . . . the potential rupture into the relationship by asserting this publicly and by basically making no effort since last September to restore the relationship between h[im] and [Mark].

. . . I do believe the facts as to how a matter like this started really don't alter the standard because in this case it's [Richard] . . . who wanted to set in place a consequence where he would lose his son.

That's what he's really doing.

On July 31, 2009, the judge heard arguments on Donald's and Mark's motions for summary judgment. Richard filed opposition to both motions but no cross-motion. At oral argument, Richard requested that in lieu of dismissal, the judge issue a protective order allowing the paternity test to "go forward" with the results released only to himself and Donald. Richard asserted this would afford him the "opportunity to pursue his claims against" Donald.

The judge rendered his decision from the bench, granting both motions and denying Richard's request for a protective order. With respect to the summary judgment motions, the judge noted that he had denied Richard's request for a paternity test and without the evidence generated by such a test, "it is clear that if this matter went to trial [the judge] would not be able to make a finding on [Richard's] behalf because there isn't any evidence." The judge concluded: "So for the reasons that I've indicated [Richard's] claim is dismissed because there's no question that there's no evidence that he can present at trial even drawing all reasonable inferences on behalf of . . . [him] that he could pursue this claim."

With respect to the protective order, the judge stated:

[T]he request for a protective order . . . [is] not properly brought before the [c]court. You cannot in my view add something in a memo to the [c]court saying, [j]udge, rather than dismiss it do this, because . . . you have to affirmatively seek relief.

But even if you had affirmatively sought that relief I still would have denied it because the case is over . . . . It would be inimica[l] to the boy's best interest, which is the focus of my job, what the law requires me to do, to allow this claim to proceed surreptitiously if you will with a protective order . . . .

So even if I had this request to provide some sort of protective order proceeding . . . I wouldn't do it because it's contrary to the finding I've already made and that is that this claim cannot proceed because it is not in the boy's best interest. . . .

On appeal, Richard contends that the judge erred by (1) applying an incorrect legal standard in determining whether a paternity test should be ordered; (2) denying him the right to pursue discovery by means of a paternity test; (3) granting summary judgment to Donald and Mark without affording him discovery; and (4) rendering a decision that was contrary to the weight of the credible evidence.

Having considered these contentions in light of the record, we are convinced they "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E). We affirm all three orders for the reasons stated by Judge Stephan C. Hansbury in his two oral decisions rendered from the bench on April 24 and July 31, 2009, which we are satisfied are both "based on findings of fact which are adequately supported by [the] evidence." R. 2:11-3(e)(1)(A).

Suffice it to say, in denying Richard's request for a paternity test, the judge properly followed statutory and case law precedent based on evidence adduced at a plenary hearing. His findings and conclusions are not so "wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations omitted). We defer to the family courts because of their "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

When reviewing an order granting summary judgment, we apply the same standard as that used by the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Without evidence supporting his paternity claim against Donald, Richard could present "no genuine issue as to any material fact challenged[,]" thereby rendering the grants of summary judgment appropriate. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).


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