Sarte v. PidotoSarte v. Pidoto
This is a filiation case under N.J.S.A. 9:16-2 brought originally in the Edison Township Municipal Court but tried in the Cranbury Municipal Court on a change of venue. Following an adverse determination, plaintiff filed a notice of appeal to the County Court requesting a trial by jury. The denial of this request and the trial of the matter in the County Court without a jury require a reversal and remand.
The distinctions between custody and support proceedings under Chapter 16 of Title 9, N.J.S.A. 9:16-1 et seq., and bastardy actions under Chapter 17 of Title 9, N.J.S.A. 9:17-1 et seq., have been the subject of considerable judicial treatment. E.g., Leonard v. Werger, 21 N.J. 539 (1956); Borawick v. Barba, 7 N.J. 393 (1951); F. v. M., 96 N.J. Super. 335 (App. Div.), certif. den. 50 N.J. 300 (1967);
Most instructive for present purposes is Leonard v. Werger, supra. That case involved the question of whether a mother in a filiation proceeding under Chapter 16 was entitled to an appeal and a trial de novo before the County Court. The court analyzed the interrelationship between Chapter 16 and Chapter 17 proceedings. It noted that although Chapter 16 had no provision for such an appeal, it did by
It is recognized that not every aspect of the procedure in a County Court appeal in a Chapter 17 action is to be applied wholesale to a Chapter 16 appeal. Some procedural provisions of Chapter 17 have no pertinency in Chapter 16 cases. E.g., State v. Arbus, supra; Jesson v. DeBernardo, supra. The right to proceed before a jury on an appeal before the County Court, however, is not inappropriate in a filiation proceeding under Chapter 16. Moreover, although in no way emphasized, there was in fact a trial de novo before a jury in the County Court in Leonard v. Werger, supra, as well as in F. v. M., supra, and State v. Arbus, supra.
We are also mindful of R. 4:74-6, urged by defendant as allowing a jury trial before the County Court only upon the demand of the defendant. It is doubtful that this rule dealing with appeals in bastardy proceedings was intended to apply to the different actions for custody and support under Chapter 16. Cf. Borawick v. Barba, 7 N.J. supra at 399; M. v. F., 95 N.J. Super. 165, 171 (Cty. Ct. 1967). We note but have no occasion to resolve the apparent conflict between
Since there must be a retrial, two other issues raised by plaintiff should be addressed and clarified. It has been argued that certain tape recordings of conversations of the parties offered by plaintiff were improperly excluded. The court‘s reasons for disallowing these tape recordings are not entirely clear. At any rate, the standards governing the admissibility of such evidence are enunciated in State v.
It has also been argued that the trial judge assumed an improper burden of proof in determining that plaintiff had failed to establish nonaccess between herself and her husband during the period of time that her child was conceived and consequently did not prove that the child was the illegitimate offspring of defendant. The court below stated that “there is a strong presumption that a child born in wedlock is legitimate and in order to overcome such presumption the proof must be such that there is `no possible escape from that conclusion.‘”
It has long been recognized that a child born in wedlock is presumed to be the legitimate offspring of the husband and wife. In re Adoption by K, 92 N.J. Super. 204 (Cty. Ct. 1966); Wallace v. Wallace, 73 N.J. Eq. 403
Quite clearly the court below proceeded in accordance with the standard of proof generally thought applicable to proceedings in which the legitimacy of a child was a critical issue. It reflects the strong extant public policy in preserving the legitimacy of a child, which properly characterizes the burden of overcoming that very strong presumption as a heavy one and as one greater and more exacting than a fair preponderance of the evidence. See Annotation, “Presumption of Legitimacy — Disproof,” 128 A.L.R. 713 (1940, Supp. 1974). Thus, the majority of jurisdictions have resolved that the degree of proof necessary to demonstrate that a husband did not have access to his wife during the period within which her child was conceived should be clear and convincing evidence. Gray v. Richardson, 474 F.2d 1370 (6 Cir. 1973); Taylor v. Richardson, 354 F. Supp. 13 (N.D. La. 1973); Anonymous v. Anonymous, 10 Ariz. App. 496, 460 P.2d 32 (App. Ct. 1969); Hooley v. Hooley, 141 Ind. App. 101, 226 N.E.2d 344 (Ind. App. Ct. 1967); In re L, 461 S.W.2d 529 (Mo. Ct. App. 1970), aff‘d 499 S.W.2d 490 (1973); Melvin v. Kazhe, 83 N.M. 356, 492 P.2d 138 (Sup. Ct. 1971); Rose v. Rose, 16 Ohio App.2d 123, 242 N.E.2d 677 (App. Ct. 1968); Davis v. Davis, 507 S.W.2d 841 (Tex. Cts. App. 1974).
The criteria for meeting the burden of proof on an issue are classified under our rules of evidence. These are
Accordingly, on the retrial of this matter, the jury should be instructed as to the presumption of legitimacy, that it is rebuttable and that the fact of nonaccess by the husband of plaintiff during the period of conception must be resolved by clear and convincing evidence.
Reversed and remanded.