Murillo v. Perez

• Decision Date: 10 December 1985
• Citation: 206 N.J.Super. 196,502 A.2d 54
• Parties: Maria Carmen MURILLO, Plaintiff-Respondent, v. Mario PEREZ, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 196

206 N.J.Super. 196

502 A.2d 54

Maria Carmen MURILLO, Plaintiff-Respondent, v. Mario PEREZ, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 13, 1985.

Decided Dec. 10, 1985.

Maurice J. Langer, Jersey City, attorney for appellant.

Sheldon G. Weinstein, Elizabeth, attorney for respondent (Brian W. Banasiak, Elizabeth, on brief).

Before Judges PRESSLER, DREIER and GRUCCIO.

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

Defendant Mario Perez appeals from a jury verdict rendered on a trial de novo in the Law Division adjudicating his paternity of R.M., a child born to plaintiff Maria Carmen Murillo in October 1979. The appeal raises novel questions respecting the application and construction of the New Jersey Parentage Act, N.J.S.A. 9:17-38 to 59, enacted on January 21, 1983, subject to an effective date of 120 days thereafter. See L. 1983, c. 17, § 24. The primary question presented involves the interpretation of N.J.S.A. 9:17-50(e), which bars the defendant-putative father from introducing proof that another man had access to the mother at the probable time of conception unless he also introduces blood and genetic test results which do not exclude the possibility of that "other man's" paternity and, if the "other man" is subject to the jurisdiction of the court, unless that "other man" is joined as a party to the action.

This action was commenced sometime after the birth of the child when plaintiff's husband, from whom she has since been divorced, learned that he was not the child's father although he and plaintiff were living together at the time of the conception and birth. ¹ Insofar as we are able to determine from the inadequate record filed on this appeal, plaintiff, after her separation from her husband, sought public assistance for the support of the child, and this action was filed at the behest of the Union County Welfare Board after she had identified defendant as the father. There is no question that the action was brought pursuant to the former so-called Bastardy Act, N.J.S.A. 9:17-1, et seq., repealed by L. 1983, c. 17, § 23. Pursuant to that act, a paternity action was tried in the first instance by a judge of the juvenile and domestic relations court sitting without a jury and was subject to appeal by way of trial de novo in the Law Division by a jury, if demanded. See also the then applicable rules of court, R. 4:74-6 (appeals in bastardy proceedings) (deleted effective September 12, 1983), and R. 5:5-9 (bastardy proceedings) (deleted December 31, 1983), replaced by R. 5:14 (proceedings to determine parent-child relationship) (effective December 31, 1983).

Following the former legislative and court-rule scheme, this action was first tried in March and April 1983 by a judge of the juvenile and domestic relations court who adjudicated defendant's paternity prior to the effective date of the Parentage Act. Defendant exercised his right to a de novo trial by jury, and trial commenced on September 6, 1983, after the effective date of the Act. The jury verdict here appealed from finding defendant to have fathered the child was returned on September 14, 1983. Thus, this de novo trial commenced prior to the deletion of R. 4:74-6 but was concluded thereafter. ²

At trial plaintiff testified that she had had sexual relations with defendant on January 9, 1979, a date which her treating obstetrician, who rendered prenatal care starting in February 1979, testified was within the period of probable conception. Defendant was no stranger to plaintiff. He was the husband of her cousin, and they had known each other for many years. The critical evidence, however, was the testimony of Dr. G Lynn Ryals, the holder of a Ph.D. degree in biological sciences and the Associate Director of the Department of Paternity Evaluation at Roche Biomedical Laboratories in Burlington, North Carolina, a leading facility conducting blood testing in paternity suits. Based on HLA (human leucocyte antigen) tests, six red blood cell tests, and a red blood cell enzyme test, all performed on blood samples provided by plaintiff, defendant and the child, Dr. Ryals was of the opinion that there was a 99.15% probability of defendant's paternity.

Defendant produced no controverting expert opinion. He relied on his own denial of plaintiff's testimony respecting their intimacy and on proof that two other men could have been the father. The first of these was a Jose Gil Muela, who died on June 3, 1980. Muela's son Gil, a friend of defendant's and called by him as a defense witness, was permitted to testify, pursuant to N.J.Evid.R. 63(32), that his father Jose had told him at a family Easter celebration in 1979 that plaintiff was pregnant and that he, Jose, was the father. Another defense witness, Pedro Suarez, also a friend of defendant's, testified that on three occasions during the probable week of conception he had had sexual relations with plaintiff in a Union County motel. The testimony of Suarez was completely uncorroborated, and plaintiff denied even knowing him. The jury's verdict of paternity was obviously predicated on its acceptance of Dr. Ryals' testimony and its rejection of the credibility of the defense witnesses.

On this appeal defendant asserts that he is entitled to a new trial by reason of the fact that Pedro Suarez had not been made a party to the action and that no blood or genetic tests had been performed which excluded the possibility of his paternity. In making this argument he relies on N.J.S.A. 9:17-50(e), a provision having no analogue in predecessor legislation, stipulating that:

In an action against an alleged father, uncorroborated evidence offered by him with respect to a man who is not subject to the jurisdiction of the court concerning his sexual intercourse with the mother at or about the probable time of conception of the child is admissible in evidence only if the other man has undergone blood tests or genetic tests, the results of which do not exclude the possibility of his paternity of the child and which tests are made available to the court. A man who is identified and is subject to the jurisdiction of the court shall be made a party in the action.

As we understand defendant's somewhat inartful argument, he is apparently urging that it was the trial court's obligation to have ordered the joinder of Suarez as a party after the jury trial had commenced and to have ordered him to submit to appropriate blood tests. Plaintiff's response to this argument includes the assertion that the Parentage Act as a whole does not apply to this proceeding.

As we have suggested, the New Jersey Parentage Act, modeled on the 1973 Uniform Parentage Act, 9A U.L.A. at 579, effected comprehensive and broad-reaching substantive and procedural changes in paternity litigation. See generally Statement of The Assembly, Judiciary, Law, Public Safety and Defense Committee on Senate Bill No. 888, reprinted following N.J.S.A. 9:17-38. The first question before us is whether the Act applies to an action pending on its effective date and particularly to one which had already been initially tried by the juvenile and domestic relations court under the former legislation and applicable court rule.

Defendant's claim of applicability is not based on any principle of statutory construction but rather on the assertion that the parties had so stipulated at the de novo jury trial. He directs us, however, to no record indication of any such stipulation, and we are unable ourselves to find any. Although there was mention of the Act once or twice during the trial, we cannot construe these references as a stipulation of applicability. Our own analysis of applicable principles suggests, however, that as a theoretical matter, there may be merit to defendant's claim of applicability.

It is well settled as a general rule that while legislation affecting substantive rights is ordinarily construed as prospective in effect, statutes which primarily affect procedural and remedial matters apply to pending actions unless vested rights of parties would be impaired or unless the legislature has itself otherwise indicated. See In re Grossman, 127 N.J.Super. 13, 35, 316 A.2d 39 (App.Div.1974), certif. den., 65 N.J. 292, 321 A.2d 253 (1974). See also State, Dept. of Environ. Protect. v. Ventron Corp., 94 N.J. 473, 468 A.2d 150 (1983); Feuchtbaum v. Constantini, 59 N.J. 167, 172, 280 A.2d 161 (1971); Eyre v. Bloomfield Sav. Bank, 177 N.J.Super. 125, 129, 425 A.2d 705 (Ch.Div.1980). We recognize that the Parentage Act is, in significant degree, procedural and remedial in nature and hence that the rule of applicability to pending actions would normally apply.

The problem with applicability here, however, is that at no time after the juvenile and domestic relations court judgment did either party suggest in any way that the Act would apply to what may well have been the last appeal by de novo trial in the State. Neither they nor the court made any effort to consider the appropriateness of appointing a guardian ad litem for the child pursuant to N.J.S.A. 9:17-47, or to obtain the court intake service consent conference mandated by N.J.S.A. 9:17-48, or in any other way to comply with the substantive or procedural provisions of the Act. Indeed, even now defendant does not urge that the Act as a whole applied to the trial de novo but only that N.J.S.A. 9:17-50(e) applied. We need not therefore, and we do not, consider the general applicability of the Act to appeals by trial de novo conducted after its effective date. We are, however, of the view that defendant's basic misapprehension of the import of N.J.S.A. 9:17-50(e) requires our comment on that section. We have concluded that even if that section were to have applied to this trial, nothing in its purpose or provision can be reasonably construed, under the circumstances here, as affording defendant the right to a new trial now.

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