State v. H. L.

• Decision Date: 27 May 1960
• Docket Number: No. A--215,A--215
• Citation: 61 N.J.Super. 432,161 A.2d 273
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. H.L., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 432

61 N.J.Super. 432

161 A.2d 273

STATE of New Jersey, Plaintiff-Respondent, v. H.L., Defendant-Appellant.

No. A--215.

Superior Court of New Jersey,

Appellate Division.

Argued April 26, 1960.

Decided May 27, 1960.

Carmen M. Belli, Garfield, argued the cause for plaintiff-respondent.

Alfred L. Genton, Wood-Ridge, argued the cause for defendant-appellant (Arthur J. Messineo, Garfield, attorney).

Before Judges PRICE, GAULKIN and FOLEY.

The opinion of the court was delivered by

FOLEY, J.A.D.

This is an appeal from an order of the Bergen County Court which adjudicated defendant the father of three children born to one A.N. and directed defendant to pay $7 weekly in support of each.

Defendant contends that (1) the proofs were insufficient to sustain the finding of paternity, and (2) in light of defendant's financial circumstances the support allowances are excessive.

The matter was originally heard in the Municipal Court of the City of F. on two complaints brought by the director of welfare of the municipality, presumedly under N.J.S.A 9:17--1 et seq. The first, filed on January 27, 1959, related to the illegitimacy of two children of A.N., C. born January 8, 1956 and B. born December 25, 1957. The second complaint, dated May 19, 1959, concerned L., an illegitimate child born to A.N. on March 18, 1959. The magistrate found defendant to be the father of all three children.

In the County Court A.N. testified that all three were conceived subsequent to her divorce in 1955 and that defendant is their father. Defendant admitted that he had sexual intercourse with A.N., but denied the existence of a carnal relationship at any time when she might have conceived the children. He said he commenced 'going out with her' in November 1955 but ceased to do so in January or February 1956; that sexual relations were resumed in 1958 'around the first of the year,' but ended in January or February of that year.

Neither H.L. nor A.N. created a favorable impression upon the county judge who observed in his findings:

'Frankly, I view with scepticism the testimony of both, and to put it very mildly, it taxes credulity. I am referring to the testimony of both the plaintiff and the defendant.'

Without going into detail, we may say that we share this lack of confidence in the frankness of these witnesses. The judge commented favorably on the testimony of N.U., mother A.N. However, her testimony added nothing in support of the charges. She said only that she came home on a date in May 1958 to find defendant in a bedroom fully clothed and her daughter in the kitchen.

In the findings adjudicating defendant to be the father of the three children the court did not state the factual basis upon which this conclusion rested. From an examination of the record it is noted that the only evidence in support of this finding was that given by A.N. to the effect that in the critical periods of conception of each of the children she had no sexual connection with anyone other than the defendant.

Dr. Robert Brill, a pathologist and director of laboratories and blood bank at R. Hospital, testified that under his supervision blood was drawn from the defendant, the three children and A.N. on May 6, 1959, and that analysis of the same revealed that there was present a 'big C factor' in the blood of B. which was not found in defendant's blood nor that of A.N. It was Dr. Brill's opinion that this definitely excluded defendant as the father of B.

It is settled that medical findings excluding or tending to exclude paternity are not binding on the court. Ross v. Marx, 24 N.J.Super. 25, 93 A.2d 597 (App.Div.1952). Likewise, it is clear that the probative value of the tests is within the sound discretion of the court. Bednarik v. Bednarik, 18 N.J.Misc. 633, 641, 16 A.2d 80 (Ch.1940). It has been said that blood tests can disprove paternity in a great many cases where the tests are administered by specially qualified experts. Cortese v. Cortese, 10 N.J.Super. 152, 156, 76 A.2d 717 (App.Div.1950).

As we have said, reliance upon the testimony of A.N. that she had no sexual connection with any man other than the defendant was indispensable to the respective findings of paternity. The testimony of Dr. Brill, if accepted, would not only have established that defendant is not the father of B. and would have been destructive of A. N.'s testimony on this issue, but also would have cast doubt upon her veracity generally. Thus, Dr. Brill's testimony was of focal importance.

We have reason to doubt that the court in evaluating this testimony attached to it proper significance in either of the aforementioned aspects. As to it the court had this to say:

'Now, as to the blood tests: when we consider these blood tests, we enter upon an area where reliance upon such tests is to be made with a great deal of caution. One reason for that is because the human element enters into it to such an extent. One person draws the blood, places it in a test tube. The test tube is sealed and marked. Then it is placed in an icebox or refrigerator along with many other specimens. Seven or eight technicians as well as doctors have access to that laboratory, to that icebox or refrigerator. And then a couple of days later, it is taken out and the blood is subjected to examination, I have no doubt, by putting it on plates and examining it microscopically, and so forth. Then a doctor, advanced in this particular science, whose capability and integrity I do not question for a minute, evaluates the results of the test. In this particular case Dr. Brill said that the factor...