Arsenault v. Carrier

• Citation: 390 A.2d 1048
• Parties: Donna M. ARSENAULT v. Leo CARRIER.
• Decision Date: 18 August 1978
• Court: Supreme Judicial Court of Maine (US)

Page 1048

390 A.2d 1048

Donna M. ARSENAULT v. Leo CARRIER.

Supreme Judicial Court of Maine.

Aug. 18, 1978.

Eaton, Glass, Marsano & Hammond by Francis C. Marsano, Belfast (orally), for plaintiff.

Childs, McKinley & Emerson by Roderick R. Rovzar (orally), Dana W. Childs, Portland, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

DELAHANTY, Justice.

In August of 1960, the plaintiff, Donna Arsenault, while pregnant, brought a "bastardy" complaint under the then applicable "bastardy" statutes, 19 M.R.S.A. §§ 251-262, and charged the defendant, Leo Carrier, with being the father of her child, Tony Arsenault. The parties settled that action, and the plaintiff signed an instrument indicating receipt from the defendant of $750.00 "in full settlement Carrier case." Thereafter, the following docket entry appeared: "Neither party. No further action for same cause, by agreement of counsel."

The present action commenced in May of 1974 when Ms. Arsenault filed a complaint under the current paternity statutes, 19 M.R.S.A. §§ 271 Et seq., the prior "bastardy" provisions having been replaced in 1967 by the Uniform Act on Paternity (Uniform Act). The complaint, brought in Ms. Arsenault's name, alleged that the defendant was the father of Tony Arsenault and sought a filiation decree and appropriate relief.

After the defendant interposed the affirmative defense of res judicata, the plaintiff moved and was appointed next friend to pursue and protect the child's rights under the Uniform Act. Relying upon the affirmative defense of res judicata, the Waldo County Superior Court in November of 1975 entered judgment for the defendant against the plaintiff, both in her own right and as next friend of the child. From this judgment, the plaintiff has appealed. We sustain the appeal.

On appeal, the plaintiff alleges that the 1960 settlement agreement did not bar a subsequent suit under the Uniform Act by either the mother or the child. Because we hold that res judicata does not preclude a paternity suit by the child, we decline to reach the issue of whether the mother would have been barred by her former agreement. ¹

Before discussing whether the child's present action is barred by res judicata, we pause to consider a separate and distinct argument which the defendant erroneously correlates with res judicata: whether the child's suit subjects the defendant to the retrospective application of the Uniform Act.

In Thut v. Grant, Me., 281 A.2d 1 (1971), a child was born in 1963 while the "bastardy" statutes were operative, but suit was not brought until 1969 which was after the enactment of the Uniform Act. As more fully explained below, under the old "bastardy" statutes, the child had no cause of action against the putative father; however, under the Uniform Act, he had a direct claim. We found Inter alia no problem of retrospectivity that would preclude a suit by the child through a next friend under the Uniform Act. As long as the minor was seeking a filiation order and Future support, the Uniform Act was held to be operating prospectively.

Here, as in Thut, a suit by a minor through a next friend was brought under the Uniform Act although the child's birth occurred while the "bastardy" statutes were operative. Construing the present complaint as one seeking future support and education, the statute properly operates prospectively.

Concluding that the defendant is not being subjected to the retrospective application of the Uniform Act, we reach the issue of whether the child's suit was barred by the mother's former settlement agreement with the putative father.

In its classic formulation, the doctrine of res judicata provides that a final judgment ² rendered by a court of competent jurisdiction precludes another suit between the same parties or their privies on the same cause of action. Cianchette v. Verrier, 155 Me. 74, 151 A.2d 502 (1959).

Res judicata prevents only the same Parties or their Privies from maintaining an identical cause of action. In determining who are the "parties" who will be bound by a prior judgment, we look beyond the nominal parties of record to the real parties in interest. As the Court stated in Savage v. North Anson Manufacturing Co., 124 Me. 1, 4, 124 A. 721, 722 (1924):

Under the term, "parties," the law includes all persons who, though not nominally parties, but being directly interested in the subject-matter, have a right to make a defense, or to control the proceedings, and to appeal from the judgment of the court, which right also includes the right to adduce testimony and cross-examine witnesses offered by the other side. Persons not having these rights are regarded as strangers to the cause, and, of course, are not bound.

Accord, Burns v. Baldwin-Doherty Co., 132 Me. 331, 170 A. 511 (1934).

Under the old "bastardy" statutes, the mother, except where indigent, was the real party in interest. She alone was authorized either to bring suit against the putative father, 19 M.R.S.A. § 251, or to enter into a settlement agreement with him, 19 M.R.S.A. § 258. ³ As the Court stated in Roy v. Poulin, 105 Me. 411, 74 A. 923 (1909) It is the mother who is authorized to invoke the statute. Overseers of the poor cannot invoke it, except in her behalf. In case of her death pending the suit, her executor or administrator is to prosecute it to final judgment. It is her suit, her remedy. . . . It opens the door of the Court to any unfortunate mother of a bastard child without exception. Id. at 412, 74 A. at 923. (emphasis supplied).

The illegitimate child was not an interested party to the bastardy proceedings. It was not until the adoption of the Uniform Act that a child through a next friend could seek a filiation decree and support order. Speaking for the Court in Thut v. Grant, supra at 6, Mr. Justice Webber explained:

As already noted, the child born out of wedlock had no common law right to compel support by the putative father. More importantly, the bastardy statutes repealed in 1967 had afforded no rights to such minor child. Under those statutes he was merely the indirect beneficiary of rights afforded to his mother. The "Uniform Act on Paternity" for the first time grants direct rights to the minor child and imposes a new and direct liability upon one shown to be the father. (emphasis supplied).

It is evident, therefore, that the minor, Tony Arsenault, could not have been a party to the prior action so as to be bound by the settlement agreement. ⁴ Nor was he in privity with his mother in the former action.

Although the meaning of the term "privity" for res judicata purposes may be elusive, 1B Moore's Federal Practice § 0.411(1), at 1255 (2d ed. 1974), we have generally referred to it as a mutual or successive relationship to the same rights of property. Huard v. Pion, 149 Me. 67, 98 A.2d 261 (1953); Maddocks v. Gushee, 120 Me. 247, 113 A. 300 (1921). It does not typically arise from the relationship between parent and child. Sayre v. Crews, 184 F.2d 723 (5th Cir. 1950); Detore v. Demers Bros., Inc., 312 Mass. 531, 45 N.E.2d 745 (1942); Whitehead v. General Telephone Co., 20 Ohio St.2d 108, 254 N.E.2d 10 (1969); See also Annot., 41 A.L.R.3d 536 (1972). Where the child and the mother had no concurrent relationship to the same right, as may exist between trustee and trust beneficiary or guardian and ward, See 1 B Moore's Federal Practice, Supra at 1256, or where the child did not succeed to some interest of the mother's, no privity existed which would preclude the child's subsequent suit.

The entry shall be:

Appeal sustained.

Case remanded to the Superior Court for further proceedings consistent with this opinion.

DUFRESNE, A. R. J., sat at oral argument as Chief Justice but retired prior to the preparation of the opinion. He has joined the opinion as Active Retired Justice.

DUFRESNE, Active Retired Justice ¹ (concurring).

In the summer of 1960, the defendant, Leo Carrier, was prosecuted in a civil complaint for being the father of the prospective child of Donna Arsenault, the plaintiff, pursuant to the then existing bastardy statutory provisions (19 M.R.S.A., §§ 251-262). For the sum of seven hundred and fifty ($750.00) dollars, which the present plaintiff acknowledged receiving in full settlement of the case, a docket entry was recorded on August 30, 1960 which read: "Neither party. No further action for same cause, by agreement of counsel."

The plaintiff, in her present complaint against the same Leo Carrier under date of May 8, 1974, notwithstanding the reference settlement of the case, now seeks a paternity determination respecting her minor child, Tony Arsenault, born January 20, 1961, pursuant to our Uniform Act on Paternity (19 M.R.S.A., §§ 271-287), praying simultaneously for an order of support of the child, together with an allowance of reasonable counsel fees.

To counteract the defendant's affirmative defense that the subject matter of the present complaint had been previously adjudicated in a court of competent jurisdiction (res judicata), the plaintiff sought by motion permission to intervene for the benefit of her minor child, alleging

"that the child is entitled to be heard in this action as rights are available to said child exclusive of the right of the Plaintiff, even though the Plaintiff is contributing to the support of said child,"

and praying

"that some suitable person may be appointed as guardian ad litem for said child, including the Plaintiff, so that said cause of action may be finalized so that the child may have the benefit of the provisions of T. 19 M.R.S.A. § 272 et seq."

We note that the plaintiff was in violation of Rule 24(c), M.R.Civ.P., which provides that the motion to intervene "shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought." It is obvious, however, that the plaintiff was attempting to present, with her...