Opinion
DOCKET NO. A-1531-11T4
03-05-2013
M.M., Plaintiff-Respondent, v. M.G., Defendant-Appellant.
David Perry Davis, attorney for appellant. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-678-99.
David Perry Davis, attorney for appellant.
Respondent has not filed a brief. PER CURIAM
Defendant Matt appeals from the June 2, 2010 and September 30, 2011 Family Part orders denying his requests to disestablish paternity of A.G. (Adam), for credit towards related child support arrears and payments, and for modification of child support based on other changed circumstances. For the reasons that follow, and in light of the recent Supreme Court decision in D.W. v. R.W., 212 N.J. 232 (2012), we reverse and remand for reconsideration of these issues in accordance with the newly espoused factors set forth in that case.
In light of the sensitive issues involved, we refer to all parties by fictitious names. R. 1:38-3(d). Plaintiff, M.M., is "Mary" and defendant, M.G., is "Matt". The children's names have likewise been changed to protect their privacy.
The relevant facts as adduced from the record follow. The parties were married on June 3, 1989. Two children were born during their marriage - L.G. (Lance) in 1990, and Adam in 1994. The parties divorced on December 23, 1999. In their Final Judgment of Divorce (FJD), Matt agreed to pay child support for both children.
In late 2009, N.S. (Neil), a family friend, informed Matt that he had obtained a DNA test proving that he, not Matt, was Adam's father. Neil provided Matt with a copy of the test results. Adam was then fifteen years old.
In light of that revelation, Matt filed a pro se motion in March 2010 seeking to disestablish paternity of Adam, modify child support, and receive credit for previously paid support based on fraudulent paternity. Mary filed a certification generally asserting that the parties always had doubts regarding the paternity and denying that she defrauded Matt. On June 2, 2010, Matt's application was denied in its entirety, without oral argument or appearance by either party. The court, citing F.B. v. A.L.G., 176 N.J. 201, 213-14 (2003), ordered that
We have not been provided with a copy of Mary's certification to this motion.
the [d]efendant's motion to emancipate [Adam] on the basis of non-paternity is denied without prejudice because there is no indication of fraud upon the [d]efendant or a significant change of circumstances. The [d]efendant signed the child's birth certificate, did not contest paternity at any point until the filing of this instant motion despite there being doubts as to the child's paternity at the time of his birth, and the [d]efendant has treated the child as his own over the course of the child's life. However, the [d]efendant is not without a possible remedy. Pursuant to M.H.B. v. H.T.B., 100 N.J. 567, 579-80 (1985), the [d]efendant may bring a support action against the natural father if it can be demonstrated that "changed circumstances show that it would be in the best interest of the child, fair to the stepparent, and legally just as to the biological father."The court also denied the motion to modify child support, finding that Matt failed to establish a significant change in circumstances.
[(Citations omitted) (emphasis added).]
On July 29, 2011, Matt filed a new motion, this time with assistance of counsel. In addition to setting forth his legal basis to disestablish paternity, he sought a recalculation of child support based on alleged changed circumstances. He asserted his reduced income following two years of unemployment, as well as Mary's new employment and increased income. He also argued he should receive an other-dependent deduction for his two additional children, who were not parties to this matter. See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2549 (2013).
Mary filed a response and cross-motion, requesting that the court deny Matt's application and grant her counsel fees and costs. Regarding the request to disestablish paternity, her certification alleged the parties always doubted Adam's paternity. She asserted further that Matt's motion was the same motion as previously filed and was nothing more than an untimely motion for reconsideration. She did not provide income information or address the allegation that her income had increased as a result of her job promotion, and argued that Matt had not provided income information for his current wife. Mary argued, without proof, that Matt already received credit for his support obligation to Lance and Adam in his court-ordered support obligation for one additional child and that defendant failed to provide any income information for the other child. Therefore, defendant was not entitled to further consideration of the other-dependent deduction credit for those children.
Matt filed a reply certification in which he contended he was defrauded. Matt argued that he signed the birth certificate because he trusted Mary and because there was a legal presumption that he was the father as he was married to the child's mother. He denied ever doubting Adam's paternity and asserted that he had no reason to suspect Adam's paternity until Neil approached him with the DNA test results. He argued that this issue raised a material question of fact requiring a hearing. Matt pointed out that he was seeking an adjustment in his other child support obligation as well, since it had not been adjusted in the last several years. As to his current wife's income, Matt asserted he revealed the same on his child support guidelines worksheet submitted with his motion.
On September 30, 2011, the judge denied both parties' requests for oral argument ruling, that
the Court has not granted oral argument pursuant to N.J. Court Rules, R. 5:5-4 and Palombi v. Palombi, 414 N.J. Super. 274 (App. Div. 2010)[,] since there is no evidence beyond the motion papers themselves and the existing record necessary to make a decision and any evidentiary deficiency as to any substantive issue cannot be cured at oral argument.Thereafter, Matt's application was denied in its entirety. The court ruled, among other things, that
the [c]ourt's decision as to disestablishing paternity denying this relief in its June 2,
2010 [o]rder is the law of the case. Said [o]rder was not the subject of a timely motion for reconsideration (R. 4:49-2) or motion to vacate judgment (R. 4:50). Defendant is not precluded from filing a support action against the biological father pursuant to M.H.B. v. H.T.B., 100 N.J. 569 (1985). Relationship issues are not a change of circumstances since the last order.
The judge stayed enforcement of the child support obligation so Matt could pursue a support action against Neil, the child's biological father. The court further decided that Matt had not demonstrated a reduction in his earning capacity to warrant a recalculation of child support, and that Matt already received the benefit of his other support order. Finally, the judge ruled that including a worksheet for purposes of the other-dependent deduction was insufficient proof of Matt's wife's income.
The judge granted Mary's request for counsel fees and costs in the amount of $1420 because she prevailed in her opposition to Matt's application and the motion "substantially raise[d] similar arguments without any meritorious legal basis in view of the [c]ourt's prior orders and [d]efendant's failure to seek relief against [Adam's] biological father."
In this uncontested appeal, Matt raises the following points:
I. THE TRIAL COURT ERRED IN DENYING, WITHOUT A PLENARY HEARING, DEFENDANT'S APPLICATION TO DISESTABLISH PATERNITY.
II. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT HAD NOT ESTABLISHED A PRIMA FACIE CASE OF CHANGED CIRCUMSTANCES WARRANTING A REVIEW OF CHILD SUPPORT.
III. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING PLAINTIFF ATTORNEY'S FEES.
IV. IF ANY ISSUE IS REMANDED, THIS MATTER SHOULD BE HEARD BY A DIFFERENT JUDGE.
V. THE APPELLATE DIVISION SHOULD MODIFY PALOMBI V. PALOMBI, 414 N.J. SUPER. 274 (APP. DIV. 2010) AND CLARIFY THE REQUIREMENT OF RULE 5:5-4 AS TO ORAL ARGUMENT IN FAMILY PART MATTERS.
"The general rule is that the trial court findings are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Cesare, supra, 154 N.J. Super. at 413. But if a judge makes a discretionary decision under a misconception of the applicable law, the appellate court need not give the usual deference. The court, instead, "must adjudicate the controversy in light of the applicable law to avoid a manifest denial of justice." State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966).
We begin with defendant's contention that the motion judge erred in denying his second request to disestablish paternity based on its earlier June 2, 2010 order, declaring it the "law of the case." The June 2, 2010 order denied Matt's request to disestablish paternity, but only without prejudice. In Lombardi v. Masso, 207 N.J. 517, 539 (2011), the Supreme Court explained
the law of the case doctrine is only triggered when one court is faced with a ruling on the merits by a different and co-equal court on an identical issue. It is entirely inapposite where . . . , in trial court proceedings, the same judge is reconsidering his own interlocutory ruling. Because such a ruling is always subject to reconsideration up until final judgment is entered, it is not considered "law of the case."
[(Citations omitted).]
The June 2, 2010 order was not a final judgment, as each of Matt's requests were denied "without prejudice" thereby allowing Matt to fix the deficiencies and file again. See id. at 534-35; R. 4:42-2. "A dismissal without prejudice means that there has been no adjudication on the merits and that a subsequent complaint alleging the same cause of action will not be barred by reason of its prior dismissal." Czepas v. Schenk, 362 N.J. Super. 216, 228 (App. Div.), certif. denied, 178 N.J. 374 (2003). The judge's declaration that the June 2, 2010 order constituted the "law of the case" was an error of law. A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). We conclude therefore that the trial court erred by failing to consider the motion on the merits, and consequently that issue must be remanded.
Next, the trial judge rejected Matt's second paternity claim as an untimely motion for reconsideration, pursuant to the time limitation of Rule 4:49-2 or a motion to vacate judgment pursuant to Rule 4:50-1, of the June 2, 2010 order. Even assuming the applicability of either rule to Matt's motion, the time prescriptions of these rules only apply to final judgments and final orders. See Rusak v. Ryan Automotive, L.L.C., 418 N.J. Super. 107, 117 n.5 (App. Div. 2011) (pursuant to R. 4:49-2, "[t]he time prescription of th[e] rule applies only to final judgments and orders"); see also Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 258 n.7 (App. Div. 1987) (R. 4:50-1 applies to final judgments and orders), certif. denied, 110 N.J. 196 (1988).
We now turn to the claims raised pertaining to the disestablishment of paternity. First, Matt asserts trial court error in denying his application without a plenary hearing. In particular, he argues that the issue of his knowledge of Adam's paternity was "a material fact question that should not have been resolved on the basis of conflicting certifications." We agree with that argument.
A trial judge has the authority to hear and decide motions exclusively upon affidavits unless there is a genuine issue as to material facts. See R. 1:6-6; R. 4:67-5. Following such a review, a judge determines if a plenary hearing is necessary to resolve any contested facts. A plenary hearing is not required in every contested proceeding, but is required if there is a genuine, material and legitimate factual dispute. See, Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding that "a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary"); see also Hand v. Hand, 391 N.J. Super. 102, 105 (App.Div.2007) (explaining that hearing is required only when there "is a genuine and substantial factual dispute").
Here, Matt and Mary raised sufficient contested material facts to warrant a plenary hearing on Matt's knowledge of Adam's paternity, and the changed financial circumstances of the parties. The proper consideration of these issues will require a plenary hearing.
As to Matt's contention that the trial court's decision should be reviewed pursuant to the Parentage Act, we agree as well but not based on the case law relied upon by the trial court. Rather, we review this issue in light of our Supreme Court's recent interpretation of the New Jersey Parentage Act (the Act), N.J.S.A. 9:17-38 to -59, related to a husband's challenge to paternity. After a parentage action is brought to declare the existence or nonexistence of the father and child relationship, the Act provides, in relevant part, that if "blood tests or genetic tests have not been taken," then . . . "the court shall order the child and the parties to submit to blood tests or genetic tests unless a party claims, and . . . the court finds, good cause for not ordering the tests." N.J.S.A. 9:17-48(d) (emphasis added).
The court's reliance on F.B. v. A.L.G. 176 N.J. 201, 213-214 (2003), is inapposite. F.B. is clearly distinguishable in that it involved a child born out of wedlock and the putative father's challenge of paternity after the court had entered judgment establishing paternity based on his signed acknowledgment. The Court held that absent a showing of fraud the court's judgment will not be disturbed. Ibid.
The Parentage Act further provides that
[a] genetic test shall be ordered upon the request of either party, if the request is supported by a sworn statement by the requesting party which alleges paternity and sets forth the facts establishing a reasonable possibility of the requisite sexual contact between the parties or denies paternity and sets forth the facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties.
[Ibid.]
In a case of first impression, the Court considered the precise standard that must be met to compel paternity testing when there is a presumed father. D.W. v. R.W., 212 N.J. 232, 236 (2012). The Act presumes that the husband is the father of a child born during the course of his marriage. N.J.S.A. 9:17-43(a)(1). In a parentage action, that presumption of paternity can only be overcome by clear and convincing evidence. N.J.S.A. 9:17-43(b). In many cases, genetic testing may be the only sufficiently persuasive evidence to overcome the presumption.
In D.W., the wife gave birth to three children during the marriage. Twenty years later, prior to their divorce proceedings, the husband learned that the youngest son was not his child. In his counterclaim to the divorce complaint, he sought a genetic test and also filed a third-party action against his ex-brother-in-law, alleging that the latter was the biological father. Id. at 237.
Under N.J.S.A. 9:17-48(d), "[w]hen there is a reasonable possibility that parentage is in doubt, good cause must be shown why genetic testing should not be undertaken." D.W., supra, 212 N.J. at 236. The Court specified that "once the reasonable-possibility threshold of paternity or non-paternity has been crossed, the default position is genetic testing." D.W., supra, 212 N.J. at 249. The burden then shifts to the party-opponent to make a good-cause showing that court ordered genetic testing should not go forward. See id. at 249; N.J.S.A. 9:17-48(d).
Noting that the Parentage Act does not define good cause, the Supreme Court adopted several factors to consider in barring genetic testing. See id. at 257. "In deciding whether good cause has been shown to deny genetic testing under N.J.S.A. 9:17-48(d), . . . the best interests of the child must be considered and given due weight, but the ultimate decision will depend on an appropriate weighing of all relevant factors." Ibid. Additional factors considered in a court's good-cause determination to grant or deny genetic testing are:
(1) the length of time between the proceeding to adjudicate parentage and the time that the presumed or acknowledged father was placed on notice that he might not be the genetic father;
(2) the length of time during which the presumed or acknowledged father has assumed the role of father of the child;
(3) the facts surrounding the presumed or acknowledged father's discovery of his possible non-paternity;
(4) the nature of the relationship between the child and the presumed or acknowledged father;
(5) the nature of the relationship between the child and any alleged father;
(6) the age of the child;
(7) the degree of physical, mental, and emotional harm that may result to the child if presumed or acknowledged paternity is successfully disproved;
(8) the extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child;
(9) the extent, if any, to which uncertainty of parentage exists in the child's mind;
(10) the child's interest in knowing family and genetic background, including medical and emotional history; and
(11) other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or acknowledged father or the chance of other harm to the child.
[Ibid.]
In the instant case, we determine that Matt's motion satisfies the reasonable-possibility threshold of non-paternity based on the private DNA test results that purportedly indicate that Neil is Adam's father, as well as Mary's apparent concession to Matt's lack of paternity.
The record suggests that, as between the parties, such court-ordered testing might not be necessary because Mary seemingly concedes Matt's lack of paternity. However, her position on that subject should be confirmed on remand. In any event, to succeed in a lawsuit for reimbursement of child support from the putative father (who is not a party to this case and thus cannot be bound by a stipulation of the parties), Matt might still need to have court-sanctioned genetic testing performed, as a prerequisite to pursue the remedial action directed by the trial court.
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Recognizing that the trial court did not have the benefit of the D.W. case to guide its deliberations, we determine that the trial court must re-examine this matter in accordance with the factors recently set forth by the Supreme Court. Accordingly, we remand for further proceedings consistent with D.W. The trial court is directed to schedule a plenary hearing to address the conflicting assertions in the parties' certifications pertaining to paternity, as well as the child support claims. See Tretola v. Tretola, 389 N.J. Super. 15, 20-21 (App. Div. 2006).
Defendant contends that the award of counsel fees was an abuse of discretion in the absence of an analysis of the factors under R. 5:3-5(c) and financial disclosure by plaintiff. Counsel fee awards in Family Part matters are permissible, R. 4:42-9(a)(1), and such awards are within the sound discretion of the trial court. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004) (citation omitted). On appeal, a decision regarding counsel fees will not be reversed absent a showing of an abuse of discretion involving a clear error in judgment. Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970). Under the circumstances of this case, we reverse the award of counsel fees to Mary, without prejudice, and direct the judge to address anew the fee applications after the completion of the plenary hearing, in accordance with Rule 5:3-5(c).
Next, we reject Matt's request to remand to a different judge based upon the trial judge's bias. We have carefully considered the record in this matter and find no evidence of bias, particularly given that the judge did not conduct a plenary hearing and made no findings on credibility. Bias cannot be inferred from adverse rulings against a party. Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008) (citing Matthews v. Deane, 196 N.J. Super. 441, 444-47 (Ch. Div. 1984)). On remand, the trial judge will not be precluded from presiding over this matter.
Lastly, the final contention seeking our review of Palombi, supra, lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION