Opposition Brief — Ryan v. Johnson

| Suprenie Court, US

FILED |

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| Aue 7 200 |

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No.01-81__ | omer me cei

IN THE

Supreme Court of the United States

ERIC B. RYAN and HILLARY A. RYAN,

Petitioners,

v.

JENIA ANNE JOSEPHINE JOHNSON and

THOMAS J. BITAR, Guardian ad litem,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI

TO THE NEW JERSEY SUPREME COURT

Joint Brief in Opposition for Respondents

Jenia Anne Josephine Johnson and Thomas J. Bitar, Esq.,

Guardian ad litem for the born and unborn children of

Jenia Anne Josephine Johnson

Tuomas J. BITAR Rosert J. DEL TuFo

Counsel of Record Counsel of Record

Ditton, Bitar & LutHer, L.L.C. ~~ SKADDEN, Arps, SLATE,

Attorneys for Respondent MEAGHER & FLoM LLP

Thomas J. Bitar, Esq., Attorneys for Respondent

Guardian ad litem for the born Jenia Anne Josephine Johnson

and unborn children of One Newark Center

Jenia Anne Josephine Johnson Newark, New Jersey 07102

53 Maple Avenue (973) 639-6800

Momistown, New Jersey 07960

(973) 539-3100

168507 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

i

QUESTIONS PRESENTED '

1. Where the New Jersey Parentage Act provides that

“a judgment . . . determining the existence of a parent child

relationship is determinative for all purposes . . .”, was not

the New Jersey Supreme Court’s construction of the statute

as creating a substantive rule of law barring third party

collateral attacks upon such a judgment and in holding that

Petitioners could not contest a judgment entered in 1965

determining that Jenia Anne Josephine Johnson was the

daughter of J. Seward Johnson, Jr. correct and consistent

with due process of law?

2. Where Petitioners’ attempted challenge to the 1965

judgment determining the existence of the parent-child

relationship was not made until 1996, 35 years after the birth

of Jenia Anne Josephine Johnson, was not the New Jersev

Supreme Court’s construction of the New Jersey Parentage

Act’s statute of limitations requiring a proceeding to

challenge the established parentage of a child to be brought

within 23 years of the child’s birth as barring Petitioners’

challenge correct and consistent with due process of law?

~

1. The statement of “Question Presented” by Petitioners (Pet. i)

is not an accurate statement of the ruling of the New Jersey Supreme

Court or of the nature of the record and the proceedings before the

New Jersey Supreme Court.

li

PARTIES

Petitioners, Eric B. Ryan and Hillary A. Ryan, and

Respondents, Jenia Anne Josephine Johnson and Thomas J.

Bitar, Guardian ad Litem for the born and unborn children

of Jenia Anne Josephine Johnson.

The list of parties identified by Petitioners is not correct.

(Pet. i1).

Petitioners and Respondents were the only parties to the

proceedings before the New Jersey Supreme Court. Counsel

for the children of J. Seward Johnson, Jr. was permitted to

present oral argument (App. to Pet. 1) but his clients were

not de jure parties to the proceedings. (Jd. at 9).

The others listed as parties by Petitioners were involved

in the Ninth Intermediate Accounting proceedings in the trial

court. Some of them were involved in the proceedings before

the Appellate Division of the Superior Court. None of them

was involved in the proceedings before the New Jersey

Supreme Court and none of them is a proper party in the

proceedings before the United States Supreme Court in

connection with Petitioners’ Petition for Certiorari. See Rules

of the Supreme Court of the United States 12.6.

ul

TABLE OF CONTENTS

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Table of Cited Authorities ....................

Premmimary Statement ..... 0.2.0... ccc cc cees

Counter Statement of the Case .................

2 Seo) £6. 2S 2 eo .8 £68: S, 6 8 6 So 6 eo 4 C48. S.0 BO - Oe -S

Reasons for Denying the Wnt .................

Conclusion

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Page

10

15

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Atherton v. Atherton, 181 U.S. 155 (1901) ....... 13

Beard v. Vincent, 141 So. 862 (La. 1932) ........ 12

Byrd v. The Travelers Ins. Co., 275 S.W.2d 861

(Tex. Civ. App. 1955, writ ref’'d n.r.e.) ........ 12, 13

Campbell v. Holt, 115 U.S. 620 (1985) .......... 13

Chase Securities Corp. v. Donaldson, 325 U.S. 304

i | RAPS GP pera rari pera arin pUnray yr arine mararen ge 13,14

Chrzanowski v. Chrzanowski, 472 A.2d 1128

ioe Soe, | Serer reer errr rer re 13

Clement v. Merchants Nat’l Bank, 493 So. 2d 1350

fe ere pres ree rrr rant ee erg 12

Cook v. Cook, 342 U.S. 126 (1951) ............. 13

Deatherage v. Phipps, 441 P.2d 1020 (Okla. 1967)

RS ee Te ree ere Pe yr ree rye 12

Favre v. Celotex Co., 139 So. 904 (La. Ct. App.

| ee eee sew rarer ame en mere re 12

Gonzales v. Pacific Greyhound Lines, 214 P.2d 809

Ree BO aa kb cus ba PAN k ade kas soa bes 12

Vv

Cited Authorities

Page

Greenspan v. Greenspan, 18 A.2d 283 (N.J. Ch.

be ) rere Pt er te rec ee re I 13

Jenkins v. Aetna Cas. & Ins. Co., 158 So. 217

(La. CA. Age. PISS occ ee 11,12

Johnson v. Johnson, 395 So. 2d 640 (Fla. Dist. Ct.

Age. 1981) 366i eee 12, 13

In re Coe, 201 A.2d 571 (N.J. 1964) ............ 8

In re Estate of Lee, 253 P. 145 (Cal. 1927) ....... 13

In re Howard, 76 U.S. 175 (1869) .............. 13

In re Vainio, 943 P.2d 1282 (Mont. 1997) ....... 12

In re Wehrhane’s Estate, 128 A.2d 681 (N.J. 1957)

EP eee eT ee ee Ne 8

In the Matter of Thompson, 250 A.2d 393 (N.J. 1969)

Pe Fee Er rr es FP An 8

Knauer v. Barnett, 360 So. 2d 399 (Fla. 1978) .... 11

Logan'v. Zimmerman Brush Co., 455 U.S. 422

by: aes 12a skeeen gab ee aa bed weewee 14

Michael H. v. Gerald D., 491 U.S. 110 (1989) ..9, 10, 11

Speight v. Wheeler, 310 So. 2d 716 (Miss. 1974) .. 12

vi

Cited Authorities

Succession of Saloy, 10 So. 872 (La. 1892) ...

Theis v. City of Miami, 564 So. 2d 117 (Fla. 1990)

Williams v. North Carolina, 325 U.S. 226 (1945) . 13

Wingate v. Estate of Ryan, 693 A.2d 457 (N.J. 1997)

+ 004040deue Rene ema Oa een eee ee 9

Zieper v. Zieper, 103 A.2d 366 (N.J. 1954) ...... 13

Statutes:

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NIDA SEE sh cosdeunnauiansuueneeaee eee 7

N.S. RUFSe WO Oe oss se eeceuneeieeteuaes |

NEA. DEPRESS os iveusseesneweneteer reel 1,2,8

(sleaecneeetea aaa 1,2,9, 11

N.J.S.A. 9:17-53(a)

l

PRELIMINARY STATEMENT

Jenia Anne Josephine Johnson (“Jenia” or “Jenia

Johnson”) and Thomas J. Bitar, Guardian ad litem for the

born and unborn children of Jenia Johnson submit this joint

Brief in Opposition to the Petition for Writ of Certiorari

filed by her cousins, Eric B. Ryan and Hillary A. Ryan

(“Petitioners” or the “Cousins Ryan”), to review a decision

and Judgment of the New Jersey Supreme Court.

The New Jersey Supreme Court ruled in favor of

Respondents, holding: (1) that, under the New Jersey

Parentage Act, a 1965 Judgment of the New Jersey Superior

Court adjudicating Jenia Johnson to be the daughter of

J. Seward Johnson, Jr. (“Seward, Jr.”) was determinative for

all purposes and not susceptible to third-party collateral

attack by Petitioners; and (2), alternatively, that Petitioners’

challenge to the Judgment was barred by the statute of

limitations provision of the New Jersey Parentage Act, a

ruling which was not addressed in the Petition.

COUNTER STATEMENT OF THE CASE

1.

This case involves the construction of a New Jersey

statute, the New Jersey Parentage Act, N.J.S.A. 9:17-38 to

-59 (“the Parentage Act”), by the New Jersey Supreme Court

(“the Court”) and, respectfully, offers no question worthy

of review by the United States Supreme Court.

The New Jersey Supreme Court construed both Sections

53(a) and 45(b) of the Parentage Act. N.J.S.A. 9:17-53(a),~45(b).

2

Section 53(a) provides that “a judgment or order of the

court ... determining the existence or nonexistence of

the parent child relationship is determinative for all

purposes... .” The Court construed Section 53(a) to mean

that a judgment establishing parent-child status is conclusive

and not susceptible to third party collateral attack.

Section 45(b) is the limitations provision of the

Parentage Act and requires a proceeding to be brought to

determine parentage within 23 years of the birth of the child.

The Court construed Section 45(b) to bar challenges to the

“established parentage of others .. .” if not brought within

the 23 year period.

The Court held:

1.) that under Section 53(a), a 1965 judgment

adjudicating Jenia Johnson to be the child of Seward, Jr.

established her status and foreclosed the third-party attack

launched against the judgment and its adjudication of

paternity by Petitioners; and

2.) that the challenge of Petitioners which sought to

defeat the established parentage of Jenia was barred by

Section 45(b) because not initiated within 23 years of Jenia’s

1961 birth.’

1. The New Jersey Supreme Court and the trial court both

agreed that any contest over parentage had to be pursued, if at all,

under the Parentage Act. App. 11, 111.

a

2.

Jenia Johnson was born to J. Seward Johnson Jr.

(“Seward Jr.”) and Barbara Johnson on January 11, 1961

during their marriage. App. 3.7 Jenia’s birth and baptismal

certificates both name Seward Jr. as her father. App. 2, 3.

On June 28, 1962, Seward Jr. filed for divorce from

Barbara Johnson in the New Jersey Superior Court, Chancery

Division. App. 4. Seward Jr.’s paternity of Jenia became

a contested issue among many other contested issues.

App. 4-5. Ultimately, Seward Jr.’s parentage of Jenia was

adjudicated by the Superior Court and formally incorporated

into the Judgment Nisi of divorce. App. 2, 5-6, 95.

More specifically, at a hearing on March 8, 1965 in

connection with the divorce proceeding, the court made the

following adjudication:

There are two children of this marriage one, Bruce

Johnson, ... the other Jennie Anne Josephine

Johnson, who was born January 11, 1961

*x * ae

I find one more thing: That Jenni¢é Anne Josephine

Johnson was duly born of the marriage.

App. 5, 95.

2. References (“App”) to the Appendix are to the Appendix

filed with the Court by Petitioners.

4

The Judgment Nisi of divorce dated March 12, 1965

contains a provision confirming and formalizing these

findings, stating:

That the paternity of the plaintiff as the father of

the infant, Jenia Johnson, born January 11, 1961,

is hereby adjudicated.

In addition, during the divorce proceedings, Seward Jr.

executed a written acknowledgment of his paternity of Jenia.’

App. 2, 5, 95.

Moreover, some 12 years later, on September 28, 1977,

Seward Jr. again affirmatively represented to the Superior

Court of New Jersey that he was Jenia’s father in a petition

which he signed and filed with the court requesting that the

court appoint a guardian ad litem to represent her interests

in connection with an intermediate accounting of the 1961

Trust described below. App. 6.

3.

On December 20, 1961, J. Seward Johnson Sr. created

an irrevocable trust (“the 1961 Trust” or “Trust”). App. 3, 4,

6, 93. The 1961 Trust provides for income to charities until

the earlier of January 10, 1997, or the death of the last of

enumerated “children” and “grandchildren” of the grantor.

Id. Jenia is included by name as one of these measuring lives.

3. The written acknowledgment, dated March 3, 1965, reads as

follows: “The undersigned, John Seward Johnson, Jr. (sometimes known

as J. Seward Johnson, Jr.), hereby unequivocally acknowledges paternity

of Jennie Anne Josephine Johnson (sometimes referred to as “Kookie”

Johnson), born of Barbara E. Johnson at Princeton, New Jersey, on

January 11, 1961.” App. 2, 5, 95.

5

App. 3. Thereafter the trustees of the Trust (the “Trustees”)

and their successors are authorized, but not required, to

“sprinkle” income and corpus among such of the grantor’s

four children, their spouses and their issue as the Trustees in

their absolute and uncontrolled discretion shall determine

to be.in the best interests of such beneficiaries. Provision 1s

made for the ultimate termination of the trust and payment

of the balance of the trust property, if not previously

exhausted, upon the death of all of the grantor’s named

“children” and “grandchildren”, again including Jenia by

name. App. 3, 4, 6, 93.

On March 22, 1996, the trustees filed a verified

complaint for settlement of the Trustees’ Ninth Intermediate

Accounting and other relief, including determination of

the class of eligible beneficiaries and the definition of the

terms “spouse” and “issue.” App. 7, 96.

Other than the requested relief regarding the

determination of the class of eligible beneficiaries generally,

Jenia’s status was not a question raised by the Trustees in

their complaint. As stated above, in the trust instrument Jenia

was named as a grandchild of the grantor as well as one of

the measuring lives of the Trust. She was consistently named

as one of the “children of John Seward Johnson, Jr.,” in each

of the intermediate judicial accountings covering the 34 years

of the Trust’s administration.‘ App. 95. The nature of her

4. In 9 44 and 4 46 of the verified complaint in the ninth

intermediate accounting, the Trustees continued to list Jenia among

the named grandchildren of the grantor, stating that their

understanding of who the beneficiaries are “stems from the long

course of dealings Plaintiffs, and their predecessors, have had with

the Johnson family in Plaintiffs’ and their predecessors’ role as

Trustees of the Trust.”

6

interest was specifically described by the Trustees as being

the same as every other grandchild of the grantor, that is, a

“discretionary interest in principal and income after January -

10, 1997.” Petitioners were parties to each of the intermediate

accountings by virtual representation, through guardians

ad litem, or in later accountings directly in their own behalf.

Petitioners (as well as Jenia’s father, Seward, Jr., and

his present family) did not challenge Jenia’s inclusion in

the class of beneficiaries until some 35 years after her birth

when the Trustees filed their complaint seeking approval of

their Ninth Intermediate Accounting of the Trust. App. 95.

The basis of the challenge stemmed largely from_Seward

Jr.’s denial of paternity decades after entry of the standing

judgment in the Superior Court of New Jersey to the contrary

and after his other affirmations that Jenia was his daughter.

App. 95-96.

At the trial court’s initial case management conference

on May 1, 1996, the challenge to Jenia’s inclusion as a

member of the class of beneficiaries on paternity grounds

was first raised.’ App. 7, 96. The Trustees suggested to the

court that the challenge might possibly be determined as a

matter of law, thereby avoiding the lost time and expense of

discovery and related proceedings. Jd. Counsel for the

challengers agreed that possible resolution as a legal issue

should appropriately be addressed by the court. The court

then directed Jenia’s attorneys, to bring the legal issues

5. Petitioners are not excluded from the class of possible

beneficiaries of the 1961 Trust by reason of Jenia’s inclusion. Rather,

they have exactly the same discretionary interest that they have

always had. Their claimed deprivation was that in Jenia’s absence

there would be one less interest the Trustees would have to consider.

7

before the court by filing a motion for partial summary

judgment.® /d.

On June 6, 1996, Jenia’s attorneys filed the court directed

motion for partial summary judgment seeking confirmation,

as a matter of law, of Jenia’s status as a beneficiary under

the Trust. By opinion of August 2, 1996, see App. 90-114

and by Order entered on August 19, 1996, the trial court

granted the relief sought and determined that “Jenia’s lineage

is established as a matter of law,”’ App. 112. The trial court

6. Notwithstanding their understanding that the issues were to

be framed as a matter of law, Petitioners (and Seward, Jr. as well)

filled their papers filed in the trial court with what can only be

characterized as scandalous hearsay, irrelevant to the legal issues

involved. Petitioners chose to revisit the acrimonious 1965 divorce

proceedings between Jenia’s mother and father. The process

continued during the New Jersey appellate proceedings where

conjecture and hearsay were erroneously styled as fact. Jenia did

not respond to this outrageous conduct not only so as not to dignify

it but also because it was immaterial to resolution of the relevant

legal issues and contrary to the trial court’s direction that those issues

be addressed as a matter of law. Here, Petitioners have continued

the practice, suggesting erroneously that there was a factual record

developed by the trial court and going on to make unsupported

allegations unfavorable to Jenia and her mother. We urge the Court

to ignore these incompetent materials.

7. The Trial court’s determination is consistent with New Jersey

law. N.J.S.A. 3B:1-2 defines issue as “lineal descendants, natural

or adopted, of all generations ... with the relationship of parent

and child at each generation being determined by the definition of

child and parent.” N.J.S.A. 3B:1-1 defines child as one “entitled to

take by intestate succession from the parent whose relationship is

involved. . . .” Petitioners’ statement in their Petition that the term

“issue” under New Jersey law has traditionally meant blood or

(Cont'd)

8

considered the Parentage Act to be the exclusive method for

determining paternity and further found that Section 45(b)

of the Act, the 23-year statute of limitations provision of

New Jersey’s Parentage Act (N.J.S.A. 9:17-45(b)), was a

statute of repose which barred the challenge of Petitioners

and of Seward, Jr. and his family.* Therefore, the court

concluded that “Jenia is an eligible beneficiary under the

terms of the 1961 Trust.” App. 112.

The Appellate Division of the New Jersey Superior Court

reversed the trial court’s finding that the Parentage Act statute

of limitations did not apply and that a factual record was

necessary to determine whether the grantor intended Jenia

to be in the class of beneficiaries. App. 28-89.

The New Jersey Supreme Court unanimously reversed

the Appellate Division agreeing with, and reinstating, the

result and conclusions reached by the trial court. App. 1-27.

The Supreme Court accepted the trial court’s view of the

Parentage Act’s limitation on actions, finding that the stated

period of repose would bar anyone who was, as here,

“seeking to defeat the established parentage of others.”

(Cont’d)

biological issue is simply not true. Jn re Wehrhane’s Estate, 128 A.2d

681 (N.J. 1957) relied upon by Petitioners in this regard was in fact

overruled by a tandem of later New Jersey cases. Jn re Coe, 201 A.2d

571 (N.J. 1964); Jn the Matter of Thompson, 250 A.2d 393 (N.J. 1969).

8. Seward, Jr. and his family were also barred on grounds of res

judicata, collateral estoppel and judicial estoppel. The bar was affirmed

by the Appellate Division. The cross-petition for certification filed by

Seward, Jr.’s children with the New Jersey Supreme Court seeking

review of this ruling as it applied to them was denied.

9

App. 14-15.° The court also construed the Parentage Act as

requiring the judgment entered in the divorce proceeding

some 30 years before to be unassailably determinative of

Jenia’s status as Seward Jr.’s daughter because, in the words

of the statute, the judgment must be regarded as

“determinative for all purposes.” App. 13, 15-16; N.J.S.A.

9:17-53a. Accordingly, the court found Jenia’s status as

Seward, Jr.’s child to be unassailable and held that Jenia

was an eligible beneficiary of the 1961 Trust.'° App. 27.

Addressing Petitioners’ assertion that they had been

denied due process because they had had no say in the

establishment of Jenia’s status, the New Jersey Supreme

Court found that the Parentage Act made the 1965

adjudication of Jenia’s parentage conclusive, i.e., that it

“cements Jenia’s status as an eligible beneficiary under

the 1961 trust ...” App. 23-26. The Court referred to the

decision of the United States Supreme Court in Michael H.

v. Gerald D., 491 U.S. 110 (1989) where a procedural and

substantive due process challenge by the natural father to a

9. In addressing the statute of limitations issue, the New Jersey

Supreme Court construed its earlier decision in Wingate v. Estate of

Ryan, 693 A.2d 457 (N.J. 1997), and the 1997 amendments to both the

Parentage Act and the Probate Code codifying Wingate, as permitting

“parties seeking to establish or confirm their parentage . . .” to proceed

“as opposed to those [such as Petitioners] seeking to defeat the

established parentage of others.” App. 14-15. Petitioners’ suggestion

that Wingate and the statutory amendments somehow support the

legitimacy of their challenge to the 1965 Judgment establishing Jenia’s

parental status (Pet. 7, 11-12) is clearly errcneous and directly contrary

to the ruling of the New Jersey Supreme Court in this very case.

10. Neither Seward Jr. nor his other children have attempted to

join in this Petition and thus are bound by the decision of the New

Jersey Supreme Court.

10

determination that his child was the daughter of another

was rejected on the basis of a California statute which

conclusively presumed a child born to a cohabiting husband

and wife during their marriage to be a child of the marriage.

App. 24-25. The United States Supreme Court declared the

statute to be a substantive rule of law and the question of

actual parentage to be irrelevant.'' The New Jersey Supreme

Court opined that the economic interests of the Cousins Ryan

in this case occupied “a lower place in the hierarchy of rights

as compared to a putative father’s right to the parent-child

relationship .. .” as in the Michael H. case, and thus went

on to observe that the circumstances justifying the “setting

aside the due process claim . . .” in Jenia’s case were even

“more compelling than those that existed in the Michael H.

case.” App. 25.

REASONS FOR DENYING THE WRIT

Petitioners themselves describe the decision in Michael H.

as holding “that the Constitution does not bar a state from

establishing as a substantive rule of law that a child born within

wedlock is per se the lawful child cf the husband, and, under

such circumstances, from deeming paternity not to be an

adjudicatory fact to be contested in litigation. ...” (Pet. 9).

The description is accurate and the same principles and

conclusions apply here.

The New Jersey Parentage Act provides that “[t]he

judgment or order of the court . . . determining the existence

11. Though the opinion is a plurality option, at least five Justices

of this Court agreed with this result. Justice Stevens’, in his concurring

opinion, agreed with the majority in rejecting the due process challenge

by the natural father to a conclusive parental determination and took

issue with the related question of visitation rights.

11

or nonexistence of the parent and child relationship

is determinative for all purposes.” N.J.S.A. 9:17-53a.

The statutory command, as the similar directive of the California

statute in Michael H. with respect to a conclusive presumption

for children born during wedlock, amounts to a substantive rule

of law making judicial adjudication of parentage conclusive

for all purposes. The New Jersey Supreme Court so construed

the statute and ruled “that the Parentage Act essentially

forecloses a third party attack upon Jenia’s parentage.”

App. 15-16. In a word, the New Jersey Supreme Court construed

the Parentage Act to require such judgments be considered final

for all purposes. And, consistent with Michael H., such a

construction and requirement assuredly passes constitutional

muster.

Parenthetically, the New Jersey Supreme Court ruling

is consistent with long-established principles of law,

noted with approval both by the New Jersey Supreme Court,

App. 9-10, 12, and the United States Supreme Court, Michael

H. at 123-25, which favor the powerful presumption of

legitimacy and with the case law which stands for the socially

sound proposition that when members of the spousal unit

acknowledge, or are precluded by judicial decree or otherwise

from disputing, paternity “for a stronger reason the door should

be closed on third persons . . . [lest] the question of status fixed

as to family be successively raised and litigated in a number of

ordinary suits.” Jenkins v. Aetna Cas. & Ins. Co., 158 So. 217,

220 (La. Ct. App. 1935). The vast majority of cases have reached

this conclusion for similar sound policy reasons and essentially

regard a judgment adjudicating paternity as in the nature of an

in rem determination not subject to third party collateral attack.’

12. See, e.g., Knauer v. Barnett, 360 So. 2d 399, 405 (Fla.

1978) (right to dispute legitimacy of child born in wedlock limited

(Cont'd)

12

As this Court noted, in reiterating a long established

principal of law, a judgment determining an individual’s

(Cont'd)

to husband and wife); Deatherage v. Phipps, 441 P.2d 1020, 1023

(Okla. 1967) (where neither husband or wife disputed legitimacy of

child born in wedlock, all others were barred from doing so; non-

relation third-party in wrongful death suit precluded); Byrd v. The

Travelers Ins. Co., 275 S.W.2d 861, 863-4 (Tex. Civ. App. 1955,

writ ref’d n.r.e.) (“If the father renounces the right to bastardize his

alleged son, either expressly or tacitly, it is extinguished and can

never thereafter be exercised by anyone ...”; father and mother

of decedent barred where prior divorce adjudicated legitimacy);

Jenkins v. Aetna Cas. & Sur. Co., 158 So. 217, 220 (La. Ct. App.

1935) (“If the husband and his heirs cannot dispute . . . legitimacy

..., for a stronger reason the door should be closed on third persons

in actions for money or property”); Jn re Vainio, 943 P.2d 1282

(Mont. 1997) (siblings lacked standing to bring paternity action);

Succession of Saloy, 10 So. 872, 876 (La. 1892) (if father does not

dispute paternity, “the door is forever closed” to others); Theis v.

City of Miami, 564 So. 2d 117, 119 (Fla. 1990) (employer precluded

from challenging legitimacy of child born in wedlock); Gonzales v.

Pacific Greyhound Lines, 214 P.2d 809, 811 (Cal. 1950) (employer

of decedent-father, collateral heirs and non-relative beneficiaries

cannot question legitimacy of child born in wedlock); Favre v.

Celotex Co., 139 So. 904, 905 (La. Ct. App. 1932) (employer of

decedent-father denied standing to dispute parentage of child born

in wedlock); Beard v. Vincent, 141 So. 862, 863-65 (La. 1932)

(collateral heirs of decedent barred from challenging parentage of

children born during marriage); Clement v. Merchants Nat’l Bank,

493 So. 2d 1350, 1352 n.2 (Ala. 1986) (in affirming denial of motion

for blood tests, court chided parties for not raising standing questions

for collateral relative); Speight v. Wheeler, 310 So. 2d 716, 719

(Miss. 1974) (heirs of decedent precluded from attacking

legitimacy); Johnson v. Johnson, 395 So. 2d 640, 641 (Fla. Dist.

Ct. App. 1981) (absent a bar, relitigation of paternity issue resolved

in divorce proceedings would be “chaotic;” requiring children and

former wives to submit to blood tests would be humiliating).

13

personal status “is operative and conclusive as to all the

world.” Atherton v. Atherton, 181 U.S. 155, 168 (1901);

see also In re Howard, 76 U.S. 175, 183 (1869).

As stated above, and as an alternative basis for its ruling,

the New Jersey Supreme Court also construed the statute

of limitations provision in the Parentage Act to bar any

challenge by Petitioners to Jenia’s status as the daughter of

Seward, Jr. App. 14-15. In their Petition, the Cousins Ryan

have neither addressed nor contested this alternative basis

for the ruling of the New Jersey Supreme Court. In this

regard, this Court has consistently followed the lead of

Campbell v. Holt, 115 U.S. 620 (1985) by adopting “as a

working hypothesis, as a matter of constitutional law, the

view that statutes of limitation go to matters of remedy, not

to destruction of fundamental rights.” Chase Securities Corp.

13. Giving conclusive effect to prior adjudications of paternity

contained in divorce decrees like the 1965 Judgment Nisi is

consistent with the well established principle that: (1) a “decree of

divorce is a conclusive adjudication of everything except the

jurisdictional facts upon which it is founded . . .” Williams v. North

Carolina, 325 U.S. 226, 232 (1945); Zieper v. Zieper, 103 A.2d

366, 370 (N.J. 1954); see also Chrzanowski v. Chrzanowski, 472

A.2d 1128, 1131 (Pa. Super. Ct. 1984); (2) that because the decree

is tantamount to a judgment in rem, “it is binding upon all the world

...” In re Estate of Lee, 253 P. 145, 147 (Cal. 1927); see Williams,

325 U.S. at 232 (“divorce decree partakes of some of the

characteristics of a decree in rem” and conclusively adjudicates

matter); see also Greenspan v. Greenspan, 18 A.2d 283, 289

(N.J. Ch. 1941) (“divorce suit is a suit in rem” and a decree stemming

from such suit “operates immediately and absolutely”); and (3) thai

the decree cannot be collaterally attacked by a “stranger” to the

proceedings. Cook v. Cook, 342 U.S. 126, 127 (1951); In re Lee’s

Estate, 253 at 147; Byrd v. The Travelers Ins. Co., 275 S.W.2d 861,

863-4 (Tex. Civ. App. 1955); Johnson v. Johnson, 395 So. 2d 640.

14

v. Donaldson, 325 U.S. 304, 315 (1945). The concept of

due process was established to protect the taking of life,

liberty or property, id., and does not extend to “entitl[{ing]

every civil litigant to a hearing on the merits in every case.

The State may erect reasonable procedural requirements

for triggering the right to an adjudication, be they statutes

of limitations, or, in an appropriate case, filing fees,”

Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982).

The Parentage Act’s 23 year statute of repose clearly

sets forth a generous time frame after which a child’s

established status, even if it were otherwise vulnerable, can

not be challenged by anyone.

Both bases of the New Jersey Supreme Court’s decision

involve the construction and interpretation of New Jersey

statutes, which are consistent with long established

constitutional principles and sound common law precedents.

This case, in its application of those principles and

precedents, should not occupy the attention of this Court.

15

CONCLUSION

For all the foregoing reasons, Respondents respectfully

urge the Court to deny the Petition for Writ of Certiorari.

Respectfully submitted,

Rosert J. Det Turo

Counsel of Record

SKADDEN, ARPS, SLATE,

MEAGHER & FLom LLP

Attorneys for Respondent

Jenia Anne Josephine Johnson

One Newark Center

Newark, New Jersey 07102

(973) 639-6800

THOMAS J. Bitar

Counsel of Record

Ditton, Bitar & Lutuer, L.L.C.

Attorneys for Respondent

Thomas J. Bitar, Esq.,

Guardian ad litem for the born

and unborn children of

Jenia Anne Josephine Johnson

53 Maple Avenue

Morristown, New Jersey 07960

(973) 539-3100