Howard M. Ferris
Kevin
T. Tipton
Grafton, West Virginia
Clagett
& Gorey
Attorney for the Appellee
Fairmont,
West Virginia
Attorney
for the Appellant
Darrell V. McGraw, Jr.
Attorney General
Kimberly D. Bentley
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Bureau of
Child Support Enforcement
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
1. “In reviewing challenges to findings made
by a family law master that also were adopted by a circuit court, a three-pronged
standard of review is applied. Under these circumstances, a final equitable
distribution order is reviewed under an abuse of discretion standard; the
underlying factual findings are reviewed under a clearly erroneous standard;
and questions of law and statutory interpretations are subject to a de
novo review.” Syl. Pt. 1, Burnside v. Burnside, 194 W.Va.
263, 460 S.E.2d 264 (1995).
2. “A child has a right to an establishment
of paternity and a child support obligation[.]” Syl. Pt. 3, in part,
Cleo A.E. v. Rickie Gene E., 190 W.Va. 543, 438 S.E.2d 886 (1993).
3. “When a putative father seeks to use blood
test results to disprove his paternity and rebut the presumption of legitimacy
which has attached to a child born of a valid marriage, an in camera hearing
should be held in order for the circuit court to make a preliminary determination
whether the equities surrounding the particular facts and circumstances of
the case warrant admission of blood test results.” Syl. Pt. 2, Michael
K.T. v. Tina L.T., 182 W.Va. 399, 387 S.E.2d 866 (1989).
4. “A trial judge should refuse to admit blood
test evidence which would disprove paternity when the individual attempting
to disestablish paternity has held himself out to be the father of the child
for a sufficient period of time such that disproof of paternity would result
in undeniable harm to the child.” Syl. Pt. 3, Michael K.T. v. Tina L.T.,
182 W.Va. 399, 387 S.E.2d 866 (1989).
5. “A guardian ad litem should be appointed
to represent the interests of the minor child whenever an action is initiated
to disprove a child's paternity.” Syl. Pt. 4, Michael K.T. v. Tina
L.T., 182 W.Va. 399, 387 S.E.2d 866 (1989).
6. “'An adjudication by a court having jurisdiction
of the subject-matter and the parties is final and conclusive, not only as
to the matters actually determined, but as to every other matter which the
parties might have litigated as incident thereto and coming within the legitimate
purview of the subject-matter of the action. It is not essential that the
matter should have been formally put in issue in a former suit, but it is
sufficient that the status of the suit was such that the parties might
have had the matter disposed of on its merits. An erroneous ruling of the
court will not prevent the matter from being res judicata.' Point 1,
Syllabus, Sayre's Adm'r v. Harpold, 33 W.Va. 553 [, 11 S.E. 16 (1890)
].” Syl. Pt. 1, In re Estate of McIntosh, 144 W.Va. 583, 109 S.E.2d
153 (1959).
7. “Before the prosecution of a lawsuit may be
barred on the basis of res judicata, three elements must be satisfied.
First, there must have been a final adjudication on the merits in the prior
action by a court having jurisdiction of the proceedings. Second, the two actions
must involve either the same parties or persons in privity with those same parties.
Third, the cause of action identified for resolution in the subsequent proceeding
either must be identical to the cause of action determined in the prior action
or must be such that it could have been resolved, had it been presented, in
the prior action.” Syl. Pt. 4, Blake v. Charleston Area Medical Center,
Inc., 201 W.Va. 469, 498 S.E.2d 41 (1997).
8. “An adjudication of paternity, which is
expressed in a divorce order, is res judicata as to the husband and
wife in any subsequent proceeding. Therefore, the provisions of W.Va.Code,
48A-7-26 [1986], part of the Revised Uniform Reciprocal Enforcement of Support
Act, W.Va.Code, 48A-7-1 to 48A-7-41, as amended, which authorizes the
adjudication of paternity under certain circumstances is not applicable if
an adjudication of paternity is expressed in the divorce order.” Syl.
Pt. 1, Nancy Darlene M. v. James Lee M., Jr., 184 W.Va. 447, 400 S.E.2d
882 (1990).
9. “The dismissal with prejudice of a paternity
action initiated by a mother against a putative father of a child does not
preclude the child, under the principle of res judicata, from bringing
a second action to determine paternity when the evidence does not show privity
between the mother and the child in the original action nor does the evidence indicate that the child was either a party to the original action or represented
by counsel or guardian ad litem in that action.” Syl. Pt. 5, State
ex rel. Div. of Human Servs. v. Benjamin P.B., 183 W.Va. 220, 395 S.E.2d
220 (1990).
10. “After the statutory period of time during
which a paternity acknowledgment made pursuant to W.Va.Code, 48A-6-6
[1997] may be rescinded has passed, proof by clear and convincing evidence
of fraud, duress, material mistake of fact, or similar circumstance raising
serious equitable concerns is a necessary prerequisite for a court to entertain
a challenge to the validity and effectiveness of such a paternity acknowledgment.”
Syl. Pt. 1, State ex rel. Dep't of Health and Human Resources v. Michael
George K., 207 W.Va. 290, 531 S.E.2d 669 (2000).
11. “In considering the merits of a challenge to a paternity acknowledgment made pursuant to W.Va.Code, 48A-6-6 [1997], a court's decision whether to render the acknowledgment invalid or ineffective is to be made only after consideration of all applicable preferences, presumptions, and equitable principles established in our paternity jurisprudence, with the best interests of the child being a paramount consideration. To the extent that Syllabus Point 2 of State ex rel. W.Va. DHHR on Behalf of Laura F.M. v. Cline, 197 W.Va. 79, 475 S.E.2d 79 (1996) differs from this holding, it is hereby modified.” Syl. Pt. 2, State ex rel. Dep't of Health and Human Resources v. Michael George K., 207 W.Va. 290, 531 S.E.2d 669 (2000).
12. “Absent a judicial determination that an acknowledgment
of paternity was entered into under fraud or duress, a written notarized acknowledgment
by both the man and woman that the man is the father of the named child legally
and irrevocably establishes the man as the father of the child for all purposes
including child support obligations.” Syl. Pt. 2, State ex rel. Dep't
of Health and Human Resources v. Cline, 197 W.Va. 79, 475 S.E.2d 79 (1996).
Per Curiam:
This is an appeal by William E. W. (hereinafter
“Appellant”)
(See footnote 1) from a June 22, 2001, order of the Circuit
Court of Taylor County denying his petition to modify child support. The Appellant
had discovered, through DNA testing, that he was not the father of a child
for whom he had been paying child support. The lower court denied the petition
on the basis of res judicata, ruling that the paternity issue had been
determined by the Appellant's admission of paternity and the divorce decree
stating that he was the child's father. On appeal, the Appellant contends
that his challenge to the paternity finding should be permitted. Having thoroughly
reviewed the record and the arguments of counsel, we affirm the determination
of the lower court.
In March 2001, the Appellant discovered through
DNA testing that he was not Crystal's biological father. On March 27, 2001,
the Appellant filed a petition to modify/terminate child support on the ground
that Crystal was not his child.
(See footnote 3) Subsequent to a May 9, 2001,
hearing before the family law master, the Appellant's petition was denied
on the basis of res judicata because paternity had been established
in the divorce decree. By order dated June 22, 2001, the lower court affirmed
the decision of the family law master, and the Appellant now appeals to this
Court.
The precise issue of the preclusive effect of principles of res judicata upon prior findings of paternity was raised in 1990 in Nancy Darlene. In that pivotal case, this Court encountered an argument substantially similar to that forwarded by the Appellant in this case. The alleged father and former husband in Nancy Darlene had sought to terminate child support payments, despite the existence of an acknowledgment in the divorce order that he was the father of the child in question. 184 W. Va. at 448, 400 S.E.2d at 883. The mother contended that the alleged father was “barred from challenging that issue of paternity because he did not appeal this issue within the then-prescribed period of eight months.” Id. at 450, 400 S.E.2d at 885. This Court agreed, relying upon precedent and general principles of res judicata, (See footnote 7) and held that “'adjudication in a divorce or annulment action concerning the paternity of a child is res judicata as to the husband or wife in any subsequent action or proceeding.'” Id., quoting Annotation, Effect, in Subsequent Proceedings, of Paternity Findings or Implications in Divorce or Annulment Decree or in Support or Custody Order Made Incidental Thereto, 78 A.L.R.3d 846, 853 (1977). (See footnote 8)
This Court in Nancy Darlene also relied upon
principles enunciated in N.C. v. W.R.C., 173 W. Va. 434, 317 S.E.2d 793
(1984), in which the husband had petitioned the circuit court for relief from
child support payments, alleging that he was not the father of the parties'
child. In N.C., this Court affirmed the circuit court's decision that
the husband was not entitled to relief because he had failed to raise “the
issue of paternity through appropriate proceedings prior to the final disposition”
of the divorce. 173 W. Va. at 438, 317 S.E.2d at 797.
In Nancy Darlene, this Court also examined the
issue of finality in paternity determinations and reasoned as follows:
If we were to recognize that the appellee could continue
to raise the issue of paternity nearly five years after the birth of his putative
daughter, then our domestic relations law would be replete with cases in which
paternity is denied, and, consequently, child support payments, necessary for
the daily needs of children's lives, would never be met.
184 W. Va. at 451, 400 S.E.2d at 886.
(See footnote 9) This Court concluded as follows
in syllabus point one of Nancy Darlene:
An adjudication of paternity,
which is expressed in a divorce order, is res judicata as to the husband
and wife in any subsequent proceeding. Therefore, the provisions of W.Va.Code,
48A-7-26 [1986], part of the Revised Uniform Reciprocal Enforcement of Support
Act, W.Va.Code, 48A-7-1 to 48A-7-41, as amended, which authorizes the adjudication
of paternity under certain circumstances is not applicable if an adjudication
of paternity is expressed in the divorce order.
Id. at 448, 400 S.E.2d at 883.
The rights of the child and the absence of res judicata preclusion of challenges initiated by or on behalf of the child were addressed by this Court in State ex rel. Dep't of Health and Human Resources v. Pentasuglia, 193 W. Va. 621, 457 S.E.2d 644 (1995). In Pentasuglia, this Court found that because the child had not been a party to the initial divorce action, principles of res judicata would not operate to preclude a support action filed by the child against another putative father. Id. at 622, 457 S.E.2d at 645. This ruling was also consistent with syllabus point five of State ex rel. Div. of Human Servs. v. Benjamin P.B., 183 W. Va. 220, 395 S.E.2d 220 (1990) (“The dismissal with prejudice of a paternity action initiated by a mother against a putative father of a child does not preclude the child, under the principle of res judicata, from bringing a second action to determine paternity when the evidence does not show privity between the mother and the child in the original action nor does the evidence indicate that the child was either a party to the original action or represented by counsel or guardian ad litem in that action.”). Elaborating upon this assertion from Benjamin P.B., the Pentasuglia Court observed that “'[t]he child also has a fundamental right, not shared by the mother, to establish the father-child relationship, and in exercising that right there clearly is potential for conflict between the mother's interest and the child's interest.'” 193 W. Va. at 624, 457 S.E.2d at 647, quoting Commonwealth, Dep't of Social Serv. v. Johnson, 376 S.E.2d 787, 791 (Va. App. 1989). (See footnote 10)
In William L. v. Cindy E.L., 201 W. Va. 198,
495 S.E.2d 836 (1997), this Court employed the approach utilized in Michael
K.T., and concluded that a husband in a divorce proceeding could not use
blood tests to disprove paternity because he had acted as the child's father
for a number of years during the marriage. The father-child relationship had
existed for four years, and the father had been on notice that he might not
be the biological father of the child for approximately four years prior to
his challenge to paternity. Id. at 201, 495 S.E.2d at 839. The Court
in William L. noted that “'the law favors the innocent child over
the putative father in certain circumstances.'” Id. at 200, 495
S.E.2d at 838, quoting Michael K.T., 182 W. Va. at 405, 387 S.E.2d at
872.
It is upon one of our most recent cases, State
ex rel. Department of Health and Human Resources v. Michael George K.,
207 W.Va. 290, 531 S.E.2d 669 (2000), that the Appellant principally relies
in support of his contention that res judicata should not prevent a
reassessment of this paternity matter. In Michael George, the document
which originally contained a finding of paternity was a paternity acknowledgment, rather
than a divorce answer and decree as in the present case. The mother in Michael
George was married to Mr. K. at the time of the child's birth, but she
refused to list a father on the birth certificate, and Mr. K. filed for divorce
prior to the child's birth.
The mother and Mr. K. agreed to a divorce order
stating that no children had been born of the marriage. Two weeks after the
child's birth, the mother and Mr. C. signed a notarized paternity acknowledgment
stating that Mr. C. was the biological father. The Child Support Enforcement
Division thereafter instituted a legal proceeding on behalf of the child against
Mr. C. However, subsequent blood testing revealed that Mr. C. was not the
biological father of the child. Consequently, the Division instituted an action
on behalf of the child against Mr. K., and blood testing indicated that Mr.
K. was the child's biological father. 207 W.Va. at 293, 531 S.E.2d at 672.
Subsequent to a lower court child support order against Mr. K., Mr. K appealed to this Court seeking to avail himself of the preclusive res judicata effects of the paternity acknowledgment signed by Mr. C. and the divorce decree stating that no children had been born of the marriage between the mother and Mr. K. This Court examined Mr. K.'s contentions and concluded that the Mr. C.'s paternity acknowledgment did not preclude the biological father's obligation to pay child support. This Court also found that Mr. K could not rely upon the “implicit decree of non-paternity” issued in connection with Mr. K's divorce from the mother stating that no children had been born of the marriage. 207 W.Va. at 299, 531 S.E.2d at 678. We observed that “our cases have consistently held that such decrees or determinations are not res judicata and do not inure to the benefit of a putative parent in an action brought on behalf of the child to obtain support.” 207 W.Va. at 299, 531 S.E.2d at 678. (See footnote 11)
The Appellant in the present case maintains that it
would be fundamentally unfair for this Court to permit a challenge, in an action
such as Michael George, to a paternity finding contained in a statutory
paternity acknowledgment and foreclose a challenge to a paternity finding contained
in a divorce decree. While that argument might be facially persuasive, it deteriorates
upon close examination based upon the existence of several critical points of
distinction between Michael George and the present case. The distinctions
involve two primary areas: (1) the posture in which the challenge to the prior
paternity finding was brought, and (2) the factual circumstances regarding the
existence and extent of a father/child relationship.
In the present case, the challenge was initiated
by a party to the civil action in which the original paternity finding was
made. In Michael George, it was a child services agency, on behalf
of the child, which initiated an action of paternity against a man other than
the one signing the paternity acknowledgment. Such distinction is of critical
importance to the analysis of the applicability of principles of res judicata
since the preclusive effect of res judicata attaches only to parties
to the original action.
In Michael George, once the action was initiated
by the child services agency, it was the man against whom the action was taken
who sought to utilize the prior finding of paternity as a shield, arguing that principles of res judicata would
prevent the disestablishment of paternity against one man and the establishment
of paternity in another. As explained above, it is axiomatic that principles
of res judicata attach only to the parties involved in the initial
civil action; other parties, such as the child or another individual, are
specifically not precluded by res judicata from subsequent litigation
of the paternity issue.
(See footnote 12) This is a universal holding
embraced by this Court in syllabus point five of Benjamin P., as quoted
above, and reviewing courts of other jurisdictions. See Ruddock
v. Ohls, 91 Cal. App.3rd 271, 154 Cal. Rptr. 87 (1979) (holding that child
is not bound by paternity determination in marital dissolution action); Dep't
of Health and Rehabilitative Services v. Wyatt, 475 So.2d 1332, 1334 (Fla. Dist. Ct. App.1985) (finding that child not party to first action not barred
by res judicata because child and mother are not in privity due to
divergent interests); In re M.D.H., 437 N.E.2d 119, 130 (Ind. Ct. App.1982)
(finding res judicata inapplicable to child support petition of child
because earlier action was not filed by or in the name of the child); Baker
by Williams v. Williams, 503 So.2d 249, 254-55 (Miss. 1987) (holding that
adjudication of paternity in divorce decree is not binding on the child).
Thus, the difference in result between the present
case and Michael George is based upon the proper application of principles
of res judicata rather than upon any inequity in the treatment of individuals
signing a paternity acknowledgment or admitting paternity in a divorce decree.
In Michael George, the revisitation of the paternity finding was initiated
on behalf of the child against a man not a party to the paternity acknowledgment.
In the present case, the action was brought by a party to the initial paternity
finding, and consequently, the principles of res judicata apply to
preclude this action.
A second distinction between this case and Michael
George involves the passage of time and the issue of the existence and
extent of a father/child relationship. Mr. C., the man who signed the paternity
acknowledgment in Michael George, did so two weeks after the child's
birth. 207 W. Va. at 292, 531 S.E.2d at 671. No extensive father/child relationship
had developed between Mr. C. and the child. Mr. C. contested his paternity
within approximately six months, and this Court found that “[i]t seems
unlikely that Mr. C. had held himself out as the child's father to such an extent as to make permitting Mr. C. to deny
paternity inequitable because such denial would be undeniably harmful to the
best interests of the child.” 207 W. Va. at 298-99, 531 S.E.2d at 677-78.
Thus, the Court rejected Mr. K's argument that a child support action could
not be maintained against him.
By contrast, in the present case, Crystal was eleven
years of age when the Appellant challenged a paternity finding entered over
four years earlier.
(See footnote 13) He had maintained a normal father/daughter
relationship with her and her sisters for over six years prior to the divorce
and had exercised visitation privileges with her subsequent to the divorce.
As stated above, the crux of this Court's opinion in Michael K. T.
was that a reviewing court must examine the issue of whether an “individual
attempting to disestablish paternity has held himself out to be the father
of the child for a sufficient period of time such that disproof of paternity
would result in undeniable harm to the child.” 182 W. Va. at 404, 387
S.E.2d at 871. In Pentasuglia, this Court observed as follows:
“Although historically courts have addressed
issues affecting children primarily in the context of competing adults' rights,
the present trend in courts throughout the country is to give greater recognition to the rights of children, including their right
to independent representation in proceedings affecting substantial rights.”
193 W.Va. at 625, 457 S.E.2d at 648, quoting Cleo A.E. v. Rickie
Gene E., 190 W.Va. 543, 546, 438 S.E.2d 886, 889 (1993). In Wade v.
Wade, 536 So.2d 1158 (Fla. Dist. Ct. App. 1988), the Florida court refused
to vacate a paternity finding where the father “enjoyed the benefits
of his representation as the child's father, including the child's love and
affection, his status as father in the place of the natural father, and the
community's recognition of him as the father.” Id. at 1160. Similarly,
the controlling interests of the child were acknowledged in In re Paternity
of Cheryl, 746 N.E.2d 488 (Mass. 2001), wherein the court found that a
five and one-half year interval between entry of the paternity judgment and
the motion to vacate the judgment was not a reasonable time within which to
seek relief and that “as a consequence of the father's long delay before
he challenged the paternity judgment, Cheryl's interests now outweigh any
interest of his.” Id. at 497.
While the record before the Court in the present
case does not provide extensive information concerning the nature of the post-divorce
father/daughter relationship, it is apparent that the Appellant held himself
out to be Crystal's father and resided with her, his wife, and his other two
daughters for the first six years of Crystal's life. He thereafter continued
to maintain a relationship at least through the exercise of visitation privileges.
Thus, the Appellant's attempt to compare the present case to Michael George
also fails on the issue of the relationship between the father and the child and the analysis of
the best interests of the child.
Having examined the preclusive effects of principles
of res judicata and the factual circumstances of the present case,
this Court is assured that the judgment of the lower court was not in error.
It is consistent with the principles we have embraced throughout our numerous
evaluations of the complexities of paternity issues and is also consonant
with the principles utilized in Nancy Darlene and Michael George.
We consequently affirm the lower court's decision.
“An adjudication by
a court having jurisdiction of the subject-matter and the parties is final
and conclusive, not only as to the matters actually determined, but as to
every other matter which the parties might have litigated as incident thereto
and coming within the legitimate purview of the subject-matter of the action.
It is not essential that the matter should have been formally put in issue
in a former suit, but it is sufficient that the status of the suit was such
that the parties might have had the matter disposed of on its merits. An erroneous
ruling of the court will not prevent the matter from being res judicata.”
Point 1, Syllabus, Sayre's Adm'r v. Harpold, 33 W.Va. 553 [, 11 S.E. 16 (1890)].
Syllabus point four of Blake v. Charleston Area Medical Center, Inc., 201
W. Va. 469, 498 S.E.2d 41 (1997), also provided the elements of res judicata,
as follows:
Before the prosecution of a lawsuit may be barred on the basis of res judicata, three elements must be satisfied. First, there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings. Second, the two actions must involve either the same parties or persons in privity with those same parties. Third, the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved, had it been presented, in the prior action.
Even if the principle of res judicata were not applicable,
it would seem to us that to grant the motion for a blood-grouping test on
this record, would open the door to unwarranted challenges of paternity, violate
public policy, and clearly result in irreparable harm to the child whose parents
appear to be bent on harassing one another.
280 S.E.2d at 26.
[W]hile the mother and child's rights may relate
to the same subject matter, and may be coextensive to some extent, they are distinct.
. . .
An actual distinction rests
in the right to child support. It is well settled that both parents owe a
duty of support to their child. . . . However, the duty of support of all
children is owed to the child, not the mother. . . . Thus, the mother does
not have the same legal right of the child in seeking child support. . . .
376 S.E.2d at 791.
After the statutory period
of time during which a paternity acknowledgment made pursuant to W.Va.Code,
48A-6-6 [1997] may be rescinded has passed, proof by clear and convincing
evidence of fraud, duress, material mistake of fact, or similar circumstance
raising serious equitable concerns is a necessary prerequisite for a court
to entertain a challenge to the validity and effectiveness of such a paternity
acknowledgment.
Syllabus point two explained:
In considering the merits
of a challenge to a paternity acknowledgment made pursuant to W.Va.Code, 48A-6-6
[1997], a court's decision whether to render the acknowledgment invalid or
ineffective is to be made only after consideration of all applicable preferences,
presumptions, and equitable principles established in our paternity jurisprudence,
with the best interests of the child being a paramount consideration. To the
extent that Syllabus Point 2 of State ex rel. W.Va. DHHR on Behalf of Laura
F.M. v. Cline, 197 W.Va. 79, 475 S.E.2d 79 (1996) differs from this holding,
it is hereby modified.
Syllabus point two of State ex rel. Department of Health and Human Resources
v. Cline, 197 W. Va. 79, 475 S.E.2d 79 (1996), as referenced in the above
syllabus point, held as follows:
Absent a judicial determination that an acknowledgment of paternity was entered into under fraud or duress, a written notarized acknowledgment by both the man and woman that the man is the father of the named child legally and irrevocably establishes the man as the father of the child for all purposes
including child support obligations.