S.K. v. P.D.
| Decision Date | 29 March 2019 |
| Docket Number | DOCKET NO. FD-07-0775-08 |
| Parties | S.K., Plaintiff, v. P.D., Defendant. |
| Court | New Jersey Superior Court |
Kecia Clarke, attorney for State of South Carolina on behalf of plaintiff (Essex County Counsel, attorneys).
Anthony J. Marinello, Montclair, attorney for defendant (Cohen & Marinello, LLC, attorneys).
This matter comes before the court on defendant's application to disestablish paternity, terminate child support, and vacate child support arrears. The court has considered the parties' written submissions, the prior orders entered in this matter, and oral argument of counsel. Following are the court's findings of fact and conclusions of law.
The parties, although never having married, had engaged in a physical relationship. In April 2003, during their relationship, a child was born to plaintiff. In May 2003, the parties signed a Certificate of Parentage (COP) concerning the child. The COP lists plaintiff as the child's mother and defendant as the father. In the COP, defendant states as follows:
I certify and acknowledge that I am the natural father of the child named above. I have read and have had read to me, the notice regarding the legal rights and obligations resulting from acknowledging paternity and I understand its contents. I certify the above information is true.
The parties' relationship ended before the child reached her first birthday. Following that, plaintiff moved out of state with the child. Defendant has had virtually no contact with the child since then. There is no contention that defendant and the child have any relationship with one another.
On October 2, 2007, the court, in addressing an application for child support, entered an order stating that The matter was then relisted for November 20, 2007. On the relisted hearing date, the court found that defendant had been "properly served ... and failed to appear." The court then established "[p]aternity based on COP" and set child support in the amount of $62 per week, with an additional $20 per week for arrears. The support obligation was set in accordance with the Child Support Guidelines.1 Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, www.gannlaw.com (2019).
Defendant failed to pay his support obligation and on June 19, 2008, the court entered an order for issuance of "A BENCH WARRANT for the arrest of the obligor ...." A Warrant for Failure to Appear issued that same day.
On July 31, 2008, the court entered an order that was consented to by defendant. The order confirmed defendant's ongoing child support obligation and noted arrears of $3496. Under the July 31, 2008 order, defendant was released conditioned on his making a lump sum payment of $200 "on or before [August 7, 2008]." On August 7, 2008, the court entered a further order allowing defendant an extension of time to make the lump sum payment. As he had done with the July 31, 2008, order, defendant consented to the August 7, 2008, order.
Defendant's defaults continued and on July 29, 2010, the court entered an order stating, in part, that the bench warrant for failure to appear was to "remain in effect." Subsequently, defendant appeared and satisfied in full his outstanding arrears. His payment was confirmed in an order dated August 4, 2011, which states that "[defendant] satisfied full amount of arrears." Since then, defendant has not made his child support payments.
On May 4, 2016, defendant filed an application seeking to disestablish paternity and for genetic testing. That application was dismissed on August 25, 2016, without prejudice, as "neither party [had] appeared for [the] hearing." By way of application filed on October 10, 2017, defendant again sought an order to compel genetic testing, disestablish paternity, and vacate his support obligation. The notices for that application were sent on November 27, 2017. On December 20, 2017, the court entered an order requiring genetic testing and suspending "enforcement of [defendant's] child support obligation ... until further order of the court." At that time, defendant was $22,748.41 in arrears.2
On August 3, 2018, defendant filed another application in which he stated that he sought Defendant states in the certification that he is asking the court to "vacate all arrears and vacate my child support obligation ...." The court on November 1, 2018, entered an order noting that genetic testing had been ordered on December 20, 2017, but it did "not appear the order was ever communicated to the Plaintiff." Since the court found that by November 1, 2018, all parties were aware of the December 20, 2017, order, it was "appropriate to go forward to testing." The matter now before the court is the final disposition of the October 10, 2017, application.
Laboratory Corporation of America (LabCorp) performed the genetic testing and issued a report dated December 6, 2018 (Report). The Report shows a 0.00% probability that defendant is the child's natural father. Based on the results, LabCorp concluded that defendant is The Report confirms that defendant provided his sample on December 21, 2017, the day after the court entered its order providing for testing and suspension of defendant's support obligation. Plaintiff and the child provided samples on December 3, 2018.
On December 12, 2018, the court heard argument on defendant's application. Following that, the court set a schedule for further argument and directed that the parties submit legal authority on the issues of terminating defendant's support obligation and vacating arrears. The court heard final argument on March 20, 2019. Both parties were present for the March 20, 2019, argument; defendant was present in person and plaintiff appeared telephonically.
Since the court finds that the facts set forth herein are not in dispute and are sufficient for determination of the matters at issue, no plenary hearing is necessary. Harrington v. Harrington, 281 N.J. Super. 39, 46, 656 A.2d 456 (App. Div. 1995) ().
Having considered the facts and argument of counsel, and for the reasons set forth herein, the court grants that part of defendant's application seeking to disestablish paternity and terminate his ongoing support obligation. The court denies that part of defendant's application seeking to vacate arrears.
The court first considers defendant's request to disestablish paternity and terminate his support obligation. Since the genetic testing confirmed defendant is not the child's biological father, the court grants defendant's request to disestablish paternity.
With respect to the ongoing support obligation, the court notes that the "right to child support belongs to the child and ‘cannot be waived by the custodial parent.’ " Pascale v. Pascale, 140 N.J. 583, 591, 660 A.2d 485 (1995) (quoting Martinetti v. Hickman, 261 N.J. Super. 508, 512, 619 A.2d 599 (App. Div. 1993) ). "[A] parent cannot bargain away a child's right to support because the right to support belongs to the child, not the parent[.]" Dolce v. Dolce, 383 N.J. Super. 11, 18, 890 A.2d 361 (App. Div. 2006) ; J.S. v. L.S., 389 N.J. Super. 200, 912 A.2d 180 (App. Div. 2006). In J.S., the Appellate Division stated that:
The purpose of child support is to benefit children, not to protect or support either parent. Our courts have repeatedly recognized that the right to child support belongs to the child, not the custodial parent. See, e.g., Pascale v. Pascale, 140 N.J. 583, 591 (1995) ; Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003) ; Martinetti v. Hickman, 261 N.J. Super 508, 512 (App. Div. 1993). "The custodial parent brings the action on behalf of the child and not his or her own right." Martinetti, supra, 216 [261] N.J. Super. at 512 . Thus, the right to child support cannot be waived by the custodial parent. Pascale, supra, 140 N.J. at 591 .
[ Id. at 205.]
In addition to the limits on a custodial parent's right to waive child support, there are situations where a support obligation may be imposed on a person who is not a biological parent. See Miller v. Miller, 97 N.J. 154, 167, 478 A.2d 351 (1984) ; Monmouth Cty. Div. of Soc. Servs. ex rel. L.R.R. v. D.J.D., 344 N.J. Super. 74, 779 A.2d 1135 (Ch. Div. 2001).3 As the right to support belongs to the child, the court believes that it is appropriate to consider whether there would be any basis to continue support notwithstanding any position that plaintiff may take.
In D.J.D., the court outlined the circumstances under which a third party may be liable for child support. In doing so, the court held that:
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