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F.M. and Q.M v. E.M.M

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 14, 2012

F.M. AND Q.M., PLAINTIFFS-APPELLANTS,
v.
E.M.M., DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-17-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 7, 2012 - Before Judges Axelrad and Sapp-Peterson.

Plaintiffs, F.M. and Q.M., appeal from the Family Part order dismissing their paternity complaint filed against their mother, their maternal aunt, the estate of their deceased putative father, and the Essex County Medical Examiner (ME). We affirm.

According to the complaint, plaintiffs, who are twins, were born, out of wedlock, to M.T.M. on March 13, 1986, in New York City. Subsequent to their birth, decedent married their maternal aunt, defendant E.M.M., who is decedent's surviving spouse. Their mother relocated to South Africa in 2007, and during a visit with her in South Africa on April 16, 2009, their mother told them decedent was their father.

Upon their return from South Africa, plaintiffs commenced a paternity action in Massachusetts against their mother, E.M.M., and decedent's brother. The complaint was dismissed on jurisdictional grounds. Plaintiffs retained New Jersey counsel and instituted the present action after learning that DNA samples of decedent were being retained by the ME. Judge Carolyn Wright entered an order permitting testing of plaintiffs and the genetic material of decedent held by the ME. Decedent's sample did not yield sufficient DNA because of either environmental degradation of the DNA in the sample or contamination with a substance that inhibited the test procedure. As a result, the court dismissed plaintiffs' complaint, with the provision that "[i]f there's another source of DNA located, [plaintiffs were] certainly free to bring the application[.]"

Plaintiffs re-filed their complaint several months later, seeking an order compelling decedent's brother to submit to DNA testing, and compelling E.M.M. to submit proof of marriage. In support of this application, they produced what purportedly was a diary authored by decedent to their mother and photographs depicting decedent with them or their mother. Judge Wright explained to plaintiffs that the essence of their complaint was "a lawsuit between yourselves and the young lady" (E.M.M., decedent's surviving spouse) and that while, as a Family Part judge, she had jurisdiction to order paternity testing, she did not have jurisdiction to resolve the probate dispute, which she advised plaintiffs should be brought before the "Law Division or in the Equity Court." Finally, Judge Wright noted that even if the matter was properly before her, the proffered documents had not been properly authenticated and therefore would not be considered competent evidence to establish the facts for which the documents were being proffered. The present appeal followed.

On appeal, plaintiffs raise the following points for our consideration:

POINT I

THE COURT ERRED IN NOT GRANTING A DEFAULT OF PATERNITY ADJUDICATING THE DECEASE[D] . . . TO BE THE FATHER, WHEN NO OPPOSITION WAS FILED BY [THEIR MOTHER AND E.M.M.], THE WIFE

AND ADMINISTRATOR OF [THE] ESTATE OF DECEDENT.

POINT II

EVEN AFTER THE COURT FAILED TO GRANT A DEFAULT OF PATERNITY, THE COURT ERRED IN NOT GRANTING THE PLAINTIFFS A RIGHT TO A TRIAL.

We have considered the points raised in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. We affirm for the reasons expressed by Judge Wright in her October 27, 2010 and April 7, 2011 oral opinions. R. 2:11-3(e)(1)(E). We add the following brief comment.

The fact that a motion is unopposed does not entitle a litigant to the relief sought in an application. An application, though unopposed, must nonetheless have a legal basis for which relief may be granted. See Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 302 (App. Div. 2009) ("[E]ven in an uncontested motion, the judge must consider whether undisputed facts are sufficient to entitle a party to relief."). As Judge Wright explained to plaintiffs, there was insufficient DNA evidence to establish paternity through the sample preserved by the ME, and plaintiffs' re-filed action was against the estate, which the Family Part lacked jurisdiction to consider. As such, there was no legal basis to grant the relief sought.

Affirmed.

20120814

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