D.W. v. R.W.

52 A.3d 1043, 212 N.J. 232, 2012 WL 4795701, 2012 N.J. LEXIS 998
CourtSupreme Court of New Jersey
DecidedOctober 10, 2012
StatusPublished
Cited by129 cases

This text of 52 A.3d 1043 (D.W. v. R.W.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.W. v. R.W., 52 A.3d 1043, 212 N.J. 232, 2012 WL 4795701, 2012 N.J. LEXIS 998 (N.J. 2012).

Opinions

JUSTICE ALBIN

delivered the opinion of the Court.

As his marriage was foundering, R.W. (Richard) came to believe that M.W. (Mark), his nineteen-year-old son, was conceived during an adulterous relationship that his wife had with his former brother-in-law, D.B. (Donald).1 When his wife, D.W. (Diane), filed a divorce complaint, Richard filed a third-party paternity action seeking to have Donald declared Mark’s natural father and to have Donald reimburse him for the expenses related to Mark’s upbringing. Both Diane and Mark opposed Richard’s application for genetic testing to prove parentage.

This ease raises an issue of first impression for this Court — the precise standard that must be met to compel genetic testing to prove parentage when there is a presumed father. The law 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)(l). 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 eases, genetic testing may be the only sufficiently persuasive evidence to overcome the presumption of paternity. Under N.J.S.A. 9:17-48(d), when there is a reasonable possibility that parentage is in doubt, good cause must be shown why genetic testing should not be undertaken.

In denying genetic testing, the family court applied the factors and standard of proof articulated in M.F. v. N.H., 252 N.J.Super. [237]*237420, 429-30, 599 A.2d 1297 (App.Div.1991), which predated statutory changes to the New Jersey Parentage Act (Parentage Act), N.J.S.A. 9:17-38 to -59. The trial court found that Richard was unable to establish by clear and convincing evidence that genetic testing was in the best interests of his then twenty-two-year-old son. The Appellate Division affirmed. Without genetic testing, Richard’s parentage claim could not proceed and was dismissed.

We now reverse. This case is not about the wisdom of a father proceeding with a parentage action in the circumstances presented here, but about his legal right to do so under the statute. Neither the trial court nor Appellate Division referenced the applicable statutory provision, N.J.S.A. 9:17-48, which addresses the circumstances that warrant an order of genetic testing when parentage is in doubt. Although the factors and standard of proof set forth in M.F. may have been suitable to decide the facts in that case, a wider application of M.F. is not only problematic, but inconsistent with the dictates of the Parentage Act.

We conclude that the M.F. template must be modified and replaced with one broad enough to account for the myriad circumstances that arise in family law cases. We believe that even under the most generous view of the facts from Mark or Diane’s perspective, there is an absence of good cause to deny genetic testing. We therefore remand to the trial court for the entry of an order compelling genetic testing.

I.

A.

Richard and Diane were married in 1979. During the course of their marriage, Diane gave birth to three children. Mark, the youngest child, was born in April 1987. Diane filed a complaint for divorce in November 2006. In February 2007, Richard filed an amended answer and counterclaim, alleging that Diane fraudulently concealed that he was not Mark’s biological father. Richard also filed a third-party complaint against his ex-brother-in-law, [238]*238Donald, alleging that Donald was Mark’s biological father and demanding from him reimbursement for the monies spent rearing Mark. See N.J.S.A. 9:17 — 55(a). In his answer, Donald neither admitted nor denied paternity of Mark.

In May 2007, Richard moved to compel Mark and Diane to submit to genetic testing. In support of his motion, he submitted a certification detailing evidence that suggested that Diane and Donald had an affair during which Mark was conceived. He also submitted the results of a privately commissioned DNA test that excluded him as Mark’s biological father.

In June 2007, on Diane’s motion, the trial court dismissed Richard’s paternity claim. However, in March 2008, the court granted Richard’s motion for reconsideration, reinstated the paternity claim, and directed that a hearing be scheduled to determine whether genetic testing should be ordered. For discovery purposes only, Mark was joined as a third-party defendant.

At the hearing to determine whether genetic testing should be ordered, Richard, Diane, and Mark testified. We summarize the record developed at that hearing.

B.

In April 2006, Richard and Diane’s marriage apparently was going through a rough period. That month, Richard discovered on Diane’s phone “some inappropriate text messages” sent from her “current boyfriend.” Richard thought his marital woes were related to problems he and Diane were then having with their son, Mark. When he confronted Diane with the text messages, he said, “[Tjhis is all about [Mark], isn’t it.” Diane became “very excited, somewhat tearful,” and responded, “[W]hy are you dragging [Mark] into this[?]” The next day, Diane began “crying out loud” and stated, “I am so sorry for what I did to you 20 years ago.” Several months later, at a small social gathering, Richard witnessed Donald reach for Diane while the two conversed about Mark’s troubles, and overheard Donald remark, do “you think he knows something[?]”

[239]*239By November 2006, when Diane moved out of the marital home, Richard began to notice that Mark did not look like him. Later, during a telephone conversation, Diane made veiled disclosures, telling Richard that he might remember that years earlier there were allegations that she and Donald were “possibly having an affair.” At some later point, Diane admitted to Richard that she had sexual relations with Donald five or six times in the latter part of the summer of 1986. Mark was born on April 27, 1987.

With his suspicions raised about Mark’s paternity, Richard purchased a home DNA testing kit. At the time, Mark was battling alcohol and drug abuse problems and living with his father. Richard made it clear to Mark that he had to remain clean while living under his roof, and under that guise had Mark provide a DNA sample. Richard submitted the DNA samples to a laboratory for paternity testing. In January 2007, Richard received the results, which revealed that Mark was not his biological son. Richard did not disclose the results to Mark, and the two continued to live together until late March or early April 2008.

At that time, Richard had to go on a short business trip. Because of Mark’s alcohol-abuse problems and penchant for late-nights out and partying, Richard did not want to entrust his home to Mark while he was gone. He asked Mark to stay with his mother or a friend in the interim. Mark left, as requested, but as events cascaded, he never returned home.

Around this same time, Mark learned from his cousin that his Uncle Donald might be his biological father. Initially, Richard and Mark continued to maintain a good relationship. Richard drove Mark to and from work because Mark did not have a license due to a driving-while-intoxicated (DWI) conviction. The two had an emotional conversation on Mark’s twentieth birthday on April 27. Afterwards, Mark texted Richard: “I love you and always will.”

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Cite This Page — Counsel Stack

Bluebook (online)
52 A.3d 1043, 212 N.J. 232, 2012 WL 4795701, 2012 N.J. LEXIS 998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dw-v-rw-nj-2012.