RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1973-16T4
R.R.,
Plaintiff-Appellant,
v.
J.M.,
Defendant-Respondent.
___________________________
R.R,
Plaintiff,
v.
B.R.,
Defendant.
____________________________
Argued May 7, 2018 – Decided June 15, 2018
Before Judges Ostrer and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FD-13-0305-17.
Sean A. Smith argued the cause for appellant
(Brach Eichler, LLC, attorneys; Carl J.
Soranno, Sean A. Smith, and Mia V. Stollen,
of counsel and on the brief).
John Thaddeus Rihacek argued the cause for
respondent (Pavliv & Rihacek, LLC, attorneys;
John Thaddeus Rihacek, on the brief).
PER CURIAM
Plaintiff, R.R.1, appeals from the December 2, 2016 Family
Part orders entered after a plenary hearing, which dismissed her
complaint seeking a genetic test to establish paternity. We affirm
substantially for the reasons set forth in the comprehensive
decision rendered by Judge Lisa P. Thornton.
I.
The chronology is critical to our reasoning in this matter.
Plaintiff filed a non-dissolution application against defendant,
J.M., her former paramour, seeking to compel him to submit to
genetic testing in order to establish paternity of her son, J.R.
At the time of the 2016 hearing, J.R. was fourteen years old.
Plaintiff was married to defendant, B.R., when J.R. was born. J.R.
is their second child together.
R.R. and B.R., were married on July 12, 1992, and divorced
on July 6, 2005. They litigated the divorce matter through binding
arbitration with a retired Superior Court Judge, who rendered a
decision which ultimately was incorporated into the parties' Final
1
Since this matter involves paternity of a minor child, initials
are being used to protect the confidentiality of the parties. See
R. 1:38-3(a)(14).
2 A-1973-16T4
Judgment of Divorce ("FJOD"). B.R. was ordered to pay child
support to R.R. for J.R., who was four years old at the time, and
the parties' daughter, who is now emancipated.
Following the divorce, R.R. and B.R. were litigious. Sixty
motions and applications were filed addressing post-judgment
matters. Ten years after the divorce, R.R. raised the paternity
issue for the first time in a post-judgment motion in the divorce
case. On July 18, 2016, the trial court denied R.R.'s motion to
compel B.R. to undergo genetic testing. A motion for leave to
appeal that order was denied on March 15, 2016.
R.R. renewed her request for genetic testing in the non-
dissolution complaint. R.R. asserted she had an extra-marital
affair with her former employer, J.M., from 1999 until 2003. She
claimed she had unprotected sexual intercourse with J.M. thirty
days before and thirty days after J.R. was conceived.2
She informed J.M. that she was pregnant, but not that he was
J.R.'s father. When J.R. was born, B.R. was named the father on
the birth certificate and assumed the role of a "loving, caring,
2
Defendant B.R. filed a cross-motion seeking to have the
dissolution matter (FM docket) consolidated with the non-
dissolution matter (FD docket) and to have R.R.'s FD complaint
dismissed on the grounds of judicial estoppel based upon R.R.'s
concession as to B.R.'s paternity in the FM matter. Judge Thornton
did not consolidate the FD and FM matters. B.R. did not
participate in this appeal.
3 A-1973-16T4
doting, adoring father," as found by Judge Thornton. B.R.
testified that he "never missed a moment of parenting time" until
R.R. uprooted J.R. and moved him to Morris County, where she
currently resides with her boyfriend. Abuse allegations against
B.R. arose thereafter. J.R. became estranged from B.R. and had
not seen him in over two years as of the time of the trial court
proceedings.3
R.R. now contends that it is "nearly impossible" that B.R.
is J.R's biological father because their sexual encounters were
"infrequent," due to B.R.'s "health issues." She testified that
he was impotent. He denied that, and testified that their sexual
encounters were "more than infrequent."
As to J.M., she testified that their sexual encounters were
"weekly, sometimes bi-weekly." However, J.M. testified that he
saw her only "[a] couple of times, three, four, times in a year."
R.R. provided inconsistent accounts about when she concluded
that J.M. was J.R.'s father, and who she told what and when. R.R.
set forth in one of her certifications submitted with her
application that she suspected J.M. was J.R.'s biological father
from the beginning: "In 2001 when I found out that I was pregnant
. . . I told [J.M.] (as I suspected he was the father)." To the
3
At the time of oral argument, counsel confirmed that J.R. still
has not seen B.R.
4 A-1973-16T4
contrary, J.M. testified that she told him that B.R. was the
father. B.R. testified that he never doubted his paternity.
As the trial court noted, R.R. offered a different account
in a second certification, "in stark contrast to her first
certification." R.R. stated that she "did not come to truly
believe that [J.M.] could be [J.R.'s] father until [J.R.] grew
older and his appearance changed. I now believe that it is nearly
impossible for [B.R.] to be [J.R.'s] father and it is important
to determine whether or not my beliefs are accurate." She
acknowledged that J.M. never admitted to paternity, never sent her
cards or letters regarding the pregnancy, never offered to pay for
an abortion, never visited J.R., and never provided financial
support.
The trial court considered a photograph of J.R. R.R.
testified that J.R.'s eyebrow, hair line, crooked front tooth, and
broad chest resembled those of J.M. B.R. testified that he and
J.R. had the same hair color and J.R. has a fair complexion. J.M.
testified that he was of Italian descent and that he has an olive
complexion.
At the hearing, R.R. denied filing the application in order
to interfere with B.R.'s relationship with J.R. Notwithstanding
that representation, she also testified that B.R. was abusive to
J.R. and that she believed J.R. should know that B.R. is not his
5 A-1973-16T4
biological father, and that it would not have a negative impact
on the child. Even if it did, it was a risk that she was "ready
to take."
R.R. considered the possibility J.M. would not want a father-
child relationship with J.R. if paternity were established. J.M.
is married and has four sons, a daughter, and a granddaughter. He
testified unequivocally that his family would not accept J.R. if
his paternity was established, and that he was not looking to
establish a relationship with him. R.R. attempted to rationalize,
"I don't know that that would be the case. I'm not sure that
[J.R.] would really do that . . . I think it's important to find
out and establish paternity either way."
Judge Thornton denied R.R.'s request for genetic testing. As
R.R. contends Judge Thornton applied the wrong legal standard, we
will address the judge's conclusions of law in detail in the legal
discussion. Suffice it to say here that the judge found B.R. and
J.R. to be credible, and R.R. to be incredible. The judge noted
R.R.'s inconsistent statements about who was J.R.'s father. She
noted that R.R. testified in a prior proceeding that if B.R. was
not J.R.'s father, then she did not know who was. The court found
that R.R. was motivated by her enmity for B.R. R.R. wanted J.M
to take a DNA test because, as R.R. admitted, "[B.R.] is crazy"
and "keeps going for custody." The judge found that R.R. knew
6 A-1973-16T4
that J.M. "had no desire to have a relationship with J.R. even if
he was his son, but was willing to risk J.R.'s emotional health
and expose him to further humiliation and rejection."
II.
R.R. raises three points on appeal. She contends the court
applied the wrong legal standard for assessing her claim. In
particular, she contends the judge applied the Uniform Parentage
Act, instead of the standard set forth in D.W. v. R.W., 212 N.J.
232 (2012). She also contends the trial court erred by not
acknowledging that she met her burden to submit a sworn statement
regarding paternity. Lastly, she contends the trial court failed
to shift the burden to defendant to show why genetic testing should
be denied.
In assessing R.R.'s arguments, we apply a limited scope of
review. We owe substantial deference to the Family Part's findings
of fact because of that court's special expertise in family
matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus,
"[a] reviewing court should uphold the factual findings
undergirding the trial court's decision if they are supported by
adequate, substantial and credible evidence on the record."
MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (alteration in
original) (quoting N.J. Div. of Youth and Family Servs. v. M.M.,
189 N.J. 261, 279 (2007)).
7 A-1973-16T4
While we owe no special deference to the judge's legal
conclusions, Manalapan Realty, LP v. Township Committee of
Mnalapan, 140 N.J. 366, 378 (1995), we will not disturb the judge's
"'factual findings and legal conclusions . . . unless . . .
convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible
evidence as to offend the interests of justice' or when we
determine the court has palpably abused its discretion." Parish
v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare,
154 N.J. at 412). We will only reverse the judge's decision when
it is necessary to "'ensure that there is not a denial of justice'
because the family court's 'conclusions are [] clearly mistaken
or wide of the mark.'" Id. at 48 (alteration in original) (quoting
N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008)).
We consider first R.R's contention that the court applied the
wrong legal standard.
A paternity test is not an automatic right of putative fathers
or anyone else. It should only be ordered by a court after a
careful balancing of all of the circumstances surrounding the
alleged paternity. C.R. v. J.G., 306 N.J. Super. 214, 228 (Ch.
Div. 1997) (citations omitted).
8 A-1973-16T4
The New Jersey Parentage Act ("NJPA"), N.J.S.A. 9:17-38 to
9:17-59, and not the traditional best interest of the child
standard, governs applications to either prove or disprove
paternity. D.W., 212 N.J. at 236 (citation omitted). One of the
primary goals of the NJPA is to "ensure that children receive the
financial support from their parents to which they are entitled."
Id. at 246.
As noted in D.W., the NJPA does not dictate how to determine
if good cause exists to deny genetic testing. The Court devised
eleven factors a trial court should consider in determining if
good cause exists to undergo or forgo genetic testing:
(1) the length of time between the proceeding
to adjudicate parentage and the time that the
presumed or acknowledged father was placed on
notice that he might not be the genetic
father;
(2) the length of time during which the
presumed or acknowledged father has assumed
the role of father of the child;
(3) the facts surrounding the presumed or
acknowledged father's discovery of his
possible nonpaternity;
(4) the nature of the relationship between
the child and the presumed or acknowledged
father;
(5) the nature of the relationship between
the child and any alleged father;
(6) the age of the child;
9 A-1973-16T4
(7) the degree of physical, mental, and
emotional harm that may result to the child
if presumed or acknowledged paternity is
successfully disproved;
(8) the extent to which the passage of time
reduces the chances of establishing the
paternity of another man and a child-support
obligation in favor of the child;
(9) the extent, if any, to which uncertainty
of parentage exists in the child's mind;
(10) the child's interest in knowing family
and genetic background, including medical and
emotional history; and
(11) other factors that may affect the
equities arising from the disruption of the
father-child relationship between the child
and the presumed or acknowledged father or the
chance of other harm to the child.
[Id. at 257.]
In considering the application, Judge Thornton appropriately
applied this eleven factor test.
As the judge found, R.R. waited over fourteen years before
filing an application to adjudicate parentage even though she had
suspicions early on that J.M. was the father. B.R. is the only
father J.R. knows and he provided financial support for him over
the years. After personal observation, the judge did not see any
resemblance between J.R. and J.M., further substantiating her
conclusion that R.R. was disingenuous. Only after R.R. moved J.R.
to Morris County did he rebel against his mother and express a
10 A-1973-16T4
desire to live with B.R. The child's position dramatically changed
after a trip to Florida with his mother and her new boyfriend.
J.M. has no relationship with J.R. and does not want one. The
judge found:
While [R.R.] may be willing to take the risk
that J.R. will be emotionally harmed if
paternity is disproved, this court is not.
For the majority of his life, J.R. has been
embroiled in the middle of a never-ending
custody dispute between the parties and has
been exposed to the venom and discord that
often accompanies high conflict custody
disputes. There is no question that he has
had emotional problems, and the parties'
inability to parent has played a role in
[J.R.'s] difficulties. This court will not
expose him to the possibility that someone
else is his father, and the rejection that
could come if paternity was disproved.4
Judge Thornton weighed the eleven factors fairly, and
emphasized the role B.R. had played in J.R.'s life until recent
years; B.R.'s financial support of the child; the absence of any
relationship between J.R. and J.M.; and his lack of interest in
forming any relationship with the child.
Moreover, the record fully supports Judge Thornton's
conclusion that R.R. is not seeking financial support from J.M.,
and that there is no credible evidence that he is J.R.'s father.
4
At oral argument, counsel for R.R. advised that the underlying
matter was transferred from Monmouth to Morris County and that
J.R.'s guardian ad litem was discharged.
11 A-1973-16T4
In light of the court's application of the D.W. factors, we
reject R.R.'s contention that the court incorrectly applied the
Uniform Parentage Act. The judge referenced the Uniform Parentage
Act's ("UPA") principle of parentage by estoppel as espoused by
the Supreme Court in D.W., 212 N.J. at 255-56. Although the UPA
was not adopted in this State, the judge came to the correct
conclusion, and "it is well-settled that appeals are taken from
orders and judgments and not from opinions, oral decisions,
informal written decisions, or reasons given for the ultimate
conclusion." Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199
(2001) (citing Heffner v. Jackson, 100 N.J. 550, 553 (1985)).
As to the second issue raised, R.R argues that the trial
court misapplied the law governing motions to compel genetic
testing because R.R. met her burden by virtue of her sworn
statement alleging J.M.'s paternity. Applying our deferential
standard of review, we reject this contention based upon the trial
court's thoughtful opinion. Judge Thornton's finding that R.R.
was not credible also finds strong support in the record. She
found that R.R. made a "poor witness" and that there were
inconsistencies in her two certifications which were not
reconciled at the hearing. On the other hand, the judge found
J.M. and B.R. to be "fair witnesses."
12 A-1973-16T4
Paternity is presumed under the law where a man is married
or was married to a child's biological mother, and the child was
born during the marriage. N.J.S.A. 9:17-43(a)(1). The presumption
of paternity may be rebutted by clear and convincing evidence in
an appropriate proceeding. N.J.S.A. 9:17-43(b). The record
supports the trial court's finding that R.R. failed to meet that
burden.
J.R.'s paternity was adjudicated at the time the FJOD was
entered and should not be disturbed at this juncture. The NJPA
mandates that paternity actions be joined in an action for divorce.
N.J.S.A. 9:17-46(a).5
Finally, R.R. argues that "the trial court erred by not
shifting the burden to [B.R.] to demonstrate good cause for why
genetic testing should not be ordered." We find no error here.
There was ample evidence in the record to support the court's
finding that there was good cause to deny genetic testing. As
Judge Thornton declared, "[R.R.] filed this paternity claim after
she was thwarted in her attempts to terminate [B.R.'s] custody
rights." The judge further elaborated that "[R.R's] actions in
filing the paternity action are not motivated by a desire for J.R.
5
The NJPA provides that no action shall be brought pursuant to
the act more than five years after the child attains the age of
majority. N.J.S.A. 9:17-45(b). This creates a twenty-three year
statute of limitations commencing with the child's date of birth.
13 A-1973-16T4
to know his family or medical history." The circumstances
presented and found by Judge Thornton reveal that "[t]he matter
was not filed to ensure that J.R. was supported financially." The
judge concluded that the paternity action was filed to "hurt
defendant [B.R.]" and as a "desperate attempt to undercut this
Court's rulings and validate the two-year separation between J.R.
and his father." Therefore, R.R's argument fails as to shifting
the burden of proof.
In sum, after reviewing the record, we conclude that Judge
Thornton's factual findings are fully supported, and her legal
conclusions are sound. We therefore affirm Judge Thornton's denial
of genetic testing and dismissal of the complaint against J.M.,
and her denial of the application to consolidate the FD and FM
matters.
Affirm.
14 A-1973-16T4