SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6960-96T5
MONMOUTH COUNTY DIVISION OF
SOCIAL SERVICES, ON BEHALF OF
V.L.H. and S.W.,
Plaintiff-Respondent, AMENDED OPINION
v.
P.A.Q.,
Defendant-Appellant.
________________________________________
Argued November 10, 1998 - Decided December
22, 1998
Before Judges Muir, Jr.,See footnote 1 Keefe and Eichen.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Monmouth County.
James P. Jones argued the cause for appellant.
Patrick J. Boyle argued the cause for
respondent (Thomas H. Klein, attorney; Mr.
Boyle, on the brief).
The opinion of the court was delivered by
EICHEN, J.A.D.
Defendant P.A.Q. appeals from an order denying his motion to
vacate a default judgment requiring him to pay child support
arrears of $9,675 for a child born out of wedlock who was
determined not to be his child. We reverse.
On May 25, 1994, plaintiff Monmouth County Division of Social
Services (MCDSS), on behalf of V.L.H.,See footnote 2 filed a "Complaint for
Paternity and Support," pursuant to N.J.S.A. 9:17-45a and 53c,
against defendant P.A.Q. The complaint sought a judgment
determining that defendant was the father of L.I.H., the biological
son of V.L.H. L.I.H. was born January 5, 1991. The complaint also
sought support and repayment of all public assistance and medical
expenses.
The complaint, which purports to be a verified complaint,
states as follows:
Monmouth County Division of Social
Services, in the Department of Human Services
of the County of Monmouth, Kozloski Road,
Freehold Twp., N.J. says:
1. [V.L.H.] is the MOTHER of: [L.I.H.]
D.O.B. 01/05/91 - H57435
born out of wedlock.
2. The child is receiving public assistance
(AFDC N.J.S.A. 44:10-1 et seq.) from the
Monmouth County Division of Social Services
and all support rights have been assigned
pursuant to N.J.S.A. 44:10-2.
3. The plaintiff seeks to establish paternity
pursuant to the New Jersey Parentage Act,
N.J.S.A. 9:17-38 et seq.
4. There have been no prior family court
actions except: N/A
WHEREFORE, plaintiff prays for judgment
against the defendant:
1. Determining the defendant to be the father
of the child.
2. Requiring the defendant to support the
child.
3. Requiring defendant to provide medical and
dental benefits coverage for the child.
4. Repayment of all public assistance and
medical expenses.
NOTICE CONCERNING JURY TRIAL
If you deny you are the father of the child,
the trial shall be by the Court without a
jury, unless you file with the Court a written
request for a trial by jury within ten (10)
days after service of the Complaint.
DATED: 05/16/94 /s/_______________________
Thomas H. Klein, Esq.
Attorney for Plaintiff
Monmouth County Division of
Social Services
VERIFICATION
1. I am employed by the plaintiff, Monmouth
County Division of Social Services.
2. The statements set forth in the foregoing
Complaint are from the files and records of
the plaintiff.
I certify that the foregoing statements
made by me are true. I am aware that if any
of the foregoing statements made by me are
willfully false, I am subject to punishment.
DATED: 05/16/94 /s/_______________________
SUSAN GATSON
Monmouth County Division of
Social Services
Service was effectuated on June 16, 1994 at defendant's
residence by delivery of a summons and complaint to defendant's
brother who was visiting from out of the country. The summons
required defendant to appear in the Superior Court, Chancery
Division, Family Part, on June 30, 1994. A transcript reflects
that on that date defendant failed to appear and a hearing officer
entered the following "findings" on the record:
[V.L.H.] versus [P.A.Q.], FD13-2668-94C. The
defendant was personally served on 6/16/94 by
default established paternity. An order of $75
per week effective May 25, 1994, $25 toward
arrears, for a total of $100 per week by
income withholding and medical insurance if
available.
Based solely on the foregoing, on July 5, 1994, a Family Part
judge entered an "order of paternity" (the default judgment),
indicating that paternity was determined "by default" and requiring
defendant to pay weekly child support as found by the hearing
officer.
Eight months later, on March 8, 1995, the Monmouth County
Probation Department filed a notice of motion seeking enforcement
of the default judgment. The notice was sent by certified mail to
the same address where the summons and complaint had been served.
It was returned to the probation department in an envelope marked
"refused." A hearing on the motion was scheduled for March 29,
1995, and when defendant failed to appear, an order was entered on
April 4, 1995 continuing defendant's obligation to pay child
support in the sum of $100 per week. The order reflected accrued
child support arrears of $3,300.
Sixteen months later, the county filed another enforcement
motion, on August 27, 1996, which it sent by certified mail to
defendant's residence. It too was returned marked "refused." On
September 26, 1996, after defendant failed to appear in response to
the notice, an order was entered directing issuance of a bench
warrant for defendant's arrest. The order set a "release figure"
of $9,000 which represented accrued arrears through the date of the
order. On November 20, 1996, defendant appeared before the Family
Part judge in response to the warrant, and after paying $750, he
was released. By then, the total amount of delinquent support was
$9,675.
On December 4, 1996, defendant filed a motion pro se seeking
"a rehearing for paternity."See footnote 3 On February 11, 1997, after a
hearing officer denied his motion, a different Family Part judge
reviewed the matter under R. 4:50. Defendant, appearing pro se,
contended that he had spoken to V.L.H. after receiving "a letter
from Freehold about support." He explained that V.L.H. told him
she had named him as the father after the man she had been living
with for four or five years left her and because "[defendant] was
the closest person to her." Defendant maintained that he had not
received the initial complaint but that after he received a notice
to come to court, he had appeared on two occasions. He stated that
on each occasion "the judge that presided tell me that I am
excused." There is no evidence of these alleged appearances in the
record.
The judge found that defendant had delayed too long in seeking
relief from the default judgment and, at least initially, denied
the motion. However, the judge reversed his ruling and directed
defendant to undergo genetic testing at his own expense after
defendant pointed out that, prior to the hearing, counsel for MCDSS
had indicated he had no objection to genetic testing so long as the
results did not excuse defendant from paying the accrued arrears.
On February 11, 1997, the judge entered an order to that effect,
indicating that "[i]f paternity is excluded, support as of 12/4/97
[sic] is vacated."
Defendant submitted to testing on February 25, 1997. The
results of the testing conclusively excluded defendant as the
child's biological father.
On June 24, 1997, following a de novo hearing at which
defendant was again unrepresented by counsel, the same Family Part
judge vacated that portion of the default judgment filed on July 5,
1994 which had determined defendant to be the child's biological
father, relieved him from paying prospective support, but ordered
defendant to pay the $9,675 in accrued arrears at the rate of $20
per week. This appeal ensued.
On appeal, defendant challenges the entry of the default
judgment raising numerous evidentiary and procedural arguments. In
addition, defendant contends the judge abused his discretion by
refusing to vacate the judgment in its entirety under R. 4:50.
Defendant argues in substance that the allegations in the complaint
and the "proofs" relied upon for entry of judgment were
insufficient. He also asserts that he demonstrated exceptional
circumstances to justify setting aside the default judgment. We
agree and reverse.
Initially, we observe that the complaint is vague and does not expressly allege that defendant is the child's father. But even if the complaint could be viewed as sufficient to apprise defendant that MCDSS was seeking to declare him the biological father of L.I.H., the complaint was not verified as required by the rules of court.
Rule 5:14-1 requires a verified complaint in a proceeding to determine the existence or non-existence of the parent and child relationship. Rule 1:4-7 provides that a verification may incorporate the allegations of the pleadings by reference if made on "personal knowledge ... and the allegations are of facts admissible in evidence to which the affiant is competent to testify." R. 1:6-6; see also Sylvia B. Pressler, Rules Governing the Courts of the State of New Jersey 78-79 (1998) (comment to R. 1:6-6).
The "verification" in this case, which was signed by an employee of MCDSS and not by the mother of the child, states only that the MCDSS employee "is employed by the plaintiff, [MCDSS]" and that "[t]he statements set forth in the foregoing Complaint are from the files and records of the plaintiff" and that the statements are "true."
However, the complaint contains no "statements" accusing defendant of being the biological father of L.I.H. Certainly, it contains no "facts [concerning defendant's parentage] made on personal knowledge admissible in evidence to which the affiant is competent to testify." Consequently, we consider the "verification" a nullity, see State v. One (1971) Datsun, 189 N.J. Super. 209, 211 (App. Div. 1983), and therefore, the complaint was insufficient to invoke the jurisdiction of the court. See Lippman v. Hydro-Space Technology, Inc., 77 N.J. Super. 497, 503-04 (App. Div. 1962).
In Little v. Streater, 452 U.S. 1, 101 S. Ct. 2202, 68 L. Ed.2d 627 (1981), the United States Supreme Court expressly discussed the important interests involved in a paternity suit:
The private interests implicated here are
substantial. Apart from the putative father's
pecuniary interest in avoiding a substantial
support obligation and liberty interest
threatened by the possible sanctions for
noncompliance, at issue is the creation of a
parent-child relationship. This Court
frequently has stressed the importance of
familial bonds, whether or not legitimized by
marriage, and accorded them constitutional
protection. Just as the termination of such
bonds demands procedural fairness, so too does
their imposition. Through the judicial
process, the State properly endeavors to
identify the father of a child born out of
wedlock and to make him responsible for the
child's maintenance. Obviously, both the
child and the defendant in a paternity action
have a compelling interest in the accuracy of
such a determination.
[Id. at 13, 101 S. Ct. at 2209, 68 L. Ed.
2d
at 637 (citations omitted).]
The complaint in this case was filed in May 1994. In December
1994, the "New Jersey Parentage Act," N.J.S.A. 9:17-38 to -59 (the
Act), was amended to include a provision governing default orders
in paternity actions. See N.J.S.A. 9:17-52.1. That section of the
Act now requires the biological mother to execute "a sworn
statement ... indicating the parentage of the child" before a
default can be entered. Although that section of the Act was not
in effect at the time this case was commenced, and therefore a
sworn statement by the biological mother was not statutorily
mandated, fundamental fairness nonetheless required MCDSS to at
least allege some facts under oath demonstrating that the
biological mother was accusing defendant of being L.I.H.'s father
before a valid default could be entered against him.
In its respondent's brief MCDSS asserts for the first time
that it had such a sworn statement from V.L.H. in its files. As a
threshold matter, we note that this court does not consider
evidential material not contained in the record. See County of
Bergen v. Borough of Paramus,
79 N.J. 302, 310 (1979); R. 2:5-5.
Even if it did, the information comes too late. It is at the
inception of a paternity action that a sworn statement of
parentage, or equivalent evidence, should be asserted so that a
defendant is given proper notice that he is being accused of being
a child's biological father. Such a statement must be made part of
the complaint, either by incorporating the contents of the
statement into the complaint and having the biological mother sign
the complaint under oath, or by attaching the sworn statement to
the verified complaint, and having the county employee responsible
for its books and records attest to its authenticity, or, at the
very least, by alleging in the verified complaint that the
defendant is the biological father and that the county's records
contain competent evidence to support that allegation.
In addition to the insufficiency of the complaint, no proofs whatsoever were adduced at the hearing on June 30, 1994 before the Child Support Hearing OfficerSee footnote 4 to support the allegation of paternity against defendant. In particular, there is no evidence that the mother was present or that counsel for MCDSS presented a certificate of parentage or even told the Child Support Hearing Officer that one existed. Under the circumstances where the complaint was deficient and there was no evidence presented to the hearing officer to support the mother's allegation of paternity against defendant, as far as we can tell, default was improvidently entered. While we appreciate the high volume of paternity and support matters that come before the Child Support Hearing Officers every day, nonetheless, where a paternity complaint is vague or conclusory, there is an especial call upon the hearing officer to exercise his or her jurisdiction more judiciously to assure that adequate proof of parentage is adduced and to create a complete record of the proceedings so that a proper review by this court can be made. The Family Part judges who enter these paternity and support default orders rely on the accuracy of these findings and the recommendations of the officers. Based on the record before us in this case, we are unable to determine the basis of this hearing officer's determination and therefore its recommendation can not support the entry of judgment by the Family Part judge.
Even if the complaint and hearing were deemed sufficient, the Family Part judge should not have refused to vacate the entire judgment. Defendant's application for relief from the default judgment was reviewed under R. 4:50-1. Although a motion under this rule "is addressed to the sound discretion of the trial court, it should be guided by equitable principles in determining whether relief should be granted or denied." Housing Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994) (citing Hodgson v. Appelgate, 31 N.J. 29, 37 (1959) and Shammas v. Shammas, 9 N.J. 321, 328 (1952)). Moreover, such applications should be viewed with great liberality. Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964).
Here, the sole ground for relief available to defendant is that specified in R. 4:50-1(f) because defendant's application to vacate the default judgment was made more than one year after its entry. See R. 4:50-2. "[N]o categorization can be made of the situations which would warrant redress under subsection (f). The very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." Housing Auth. of Morristown v. Little, supra, 135 N.J. at 286 (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)) (internal punctuation omitted). Because the rule applies only to exceptional circumstances, each case must be decided on its own specific facts. Baumann v. Marinaro, 95 N.J. 380, 395 (1984); see also Housing Auth. of Morristown v. Little, supra, 135 N.J. at 286.
Concededly, defendant failed to answer the complaint and did not act promptly to seek relief from the judgment after V.L.H. told him she had named him as L.I.H.'s father; nonetheless, MCDSS's efforts to enforce its judgment were just as dilatory. Indeed, MCDSS waited eight months before it filed its first motion to enforce the judgment, and another sixteen months before the second motion was filed. Had it moved more quickly, an earlier determination of defendant's paternity could have been made and the arrears might not have grown to $9,675. We also note that once defendant did appear and was granted leave to obtain genetic testing, he acted immediately to undergo the testing.
We further observe that MCDSS indicated it was not truly opposed to setting aside the default judgment so long as the arrears were not excused. Accordingly, the judge vacated the judgment prospectively. The problem with this bifurcated approach is that it produces an anomalous result. The fact is defendant is not the biological father of L.I.H., and the court-ordered genetic testing conclusively proves that fact. To accept the test results for one purpose, and repudiate them for another, cannot be fairly rationalized. As another jurisdiction has recently recognized, "denying the county the opportunity to collect child support from a man who it knows is not the child's father does not deny the county any right deserving protection." Losoya v. Richardson, 584 N.W.2d 425, 429 (Minn. Ct. App. 1998).See footnote 5 Significantly, it is unclear on this record what, if any, legal impediment exists to MCDSS's seeking to recover the money from the actual biological father. Hence, especially in the circumstances of this case, we conclude defendant's right to be free from paying back support for a child who is not his child is paramount to the county's right to recover from him the financial aid it paid on behalf of the child, especially where it is required to pay for that financial assistance no matter who the biological father is.
Lastly, we reject defendant's request for a remand of the case to the Family Part to determine whether he is entitled to a refund of the money he paid to MCDSS for L.I.H.'s support.See footnote 6 The request for a refund raises issues not addressed by the parties in the trial court and not adequately briefed on appeal. Accordingly, we decline to consider them. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We also reject defendant's request for a remand to the Family Part for an award of attorney's fees.
The default judgment is reversed, and the matter is remanded for entry of judgment absolving defendant of the obligation to pay past child support.
Footnote: 1 Judge Muir did not participate in oral argument. However,
the parties consented to his participation in the decision.
Footnote: 2 On December 14, 1994, an administrative change of
beneficiary order was entered indicating that the child had gone to
live with S.W., his maternal grandmother, and had begun to receive
public assistance under the grandmother's grant. Accordingly,
MCDSS has filed this appeal on behalf of both V.L.H. and S.W.
Footnote: 3 We note that defendant did not expressly request "a
rehearing for support," but, in view of his pro se status, we
review the matter as though he had sought relief from the entire
judgment.
Footnote: 4 Rule 5:25-3 created the Office of the Child Support Hearing
Officer. Child Support Hearing Officers are appointed by the Chief
Justice and are under the supervision of the Administrative
Director of the Courts. They have jurisdiction to hear and make
recommendations in uncontested paternity cases. The Family Part
judges base their orders on these recommendations. R. 5:25-3(b)(1).
Footnote: 5 Indeed, paternity aside, the record lacks evidence of any
relationship whatsoever between defendant and the child.
Footnote: 6 The record reflects defendant paid $750 as "release" money
after he responded to the bench warrant. The record does not
disclose any other payments.