On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-662-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...