Com., Dept. of Social Services, Div. of Child Support Enforcement ex rel. Gray v. Johnson, 0918-87-2

• Decision Date: 07 February 1989
• Docket Number: No. 0918-87-2,0918-87-2
• Citation: 376 S.E.2d 787,7 Va.App. 614
• Parties: , 57 USLW 2551 COMMONWEALTH of Virginia, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel. Louise GRAY v. Alonzo JOHNSON. Record
• Court: Virginia Court of Appeals

Page 787

376 S.E.2d 787

7 Va.App. 614, 57 USLW 2551

COMMONWEALTH of Virginia, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel. Louise GRAY v. Alonzo JOHNSON.

Record No. 0918-87-2.

Court of Appeals of Virginia.

Feb. 7, 1989.

Betsy S. Elliott, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., John A. Rupp, Robert B. Cousins, Jr., Sr. Asst. Attys. Gen., on brief), for appellant.

No brief or argument for appellee, Alonzo Johnson.

Present: KOONTZ, C.J., and COLE and MOON, JJ.

KOONTZ, Chief Judge.

The Division of Child Support Enforcement (the "Division") challenges the dismissal of a civil support petition originally filed by Louise Gray, a welfare recipient, against Alonzo Johnson to adjudicate paternity and establish a support obligation and the dismissal of its petition as an intervenor in that proceeding pursuant to Code § 63.1-276 (now Code § 63.1-251). The trial court sustained Johnson's plea of res judicata and dismissed both petitions without reaching the merits of either petition.

The facts are not complicated and consist primarily of the procedural history of the case. Louise Gray first filed a civil child support petition against Alonzo Johnson in the King George County Juvenile and Domestic Relations District Court on March 26, 1981. Gray sought support for her two children, Petey Junior Gray and Myron O'Neill Gray. Gray was not represented by counsel, the children were not made parties to the proceeding, nor was a guardian ad litem appointed to represent the children. At a hearing on this petition on May 18, 1981, Johnson acknowledged that he was the father of Petey; however he denied being the father of Myron. The court ordered Johnson to pay support for Petey. The court denied the petition for the support of Myron, finding that Johnson "may not be the father" of Myron.

Gray filed a second civil child support petition on November 2, 1983, against Johnson. The juvenile and domestic relations district court denied the petition without a hearing on the ground of res judicata. Following Gray's appeal to the circuit court, the Division filed a petition to intervene because Gray was receiving public assistance for Myron. The Division also petitioned the court to appoint a guardian ad litem to represent Myron's interests but did not request that he be made a party to the proceeding. The trial court allowed the Division to intervene and appointed a guardian ad litem pursuant to the Division's request. Johnson once again pled res judicata. The trial court, after reviewing briefs and hearing arguments of counsel on the plea of res judicata, sustained the plea and dismissed Gray's petition and the Division's petition by final order entered June 18, 1987.

Res judicata is a judicially created doctrine founded upon the "considerations of public policy which favor certainty in the establishment of legal relations, demand an end to litigation, and seek to prevent harassment of parties." Bates v. Devers, 214 Va. 667, 670, 202 S.E.2d 917, 920 (1974) (citation omitted). Res judicata literally means a "matter adjudged," Black's Law Dictionary 1174 (5th Ed.1979), and it precludes relitigation of a claim or issue once a final determination on the merits has been reached by a court of competent jurisdiction. It rests upon the principle that a person should not be required to relitigate the same matter a second time "with the same person or another so identified in interest with such person that he represents the same legal right, precisely the same question, particular controversy, or issue, which has been necessarily tried and fully determined, upon the merits, by a court of competent jurisdiction...." Patterson v. Saunders, 194 Va. 607, 614, 74 S.E.2d 204, 209 cert. denied, 345 U.S. 998, 73 S.Ct. 1132, 97 L.Ed. 1405 (1953). In short, once a matter or issue has been adjudicated, it may be relied upon as conclusive between the parties, or their privies, in any subsequent suit.

The doctrine of res judicata encompasses four preclusive effects that a final judgment may have upon subsequent litigation: res judicata-bar, merger, direct estoppel and collateral estoppel. Dotson v Harman, 232 Va. 402, 405, 350 S.E.2d 642, 644 (1986). In Bates, the Supreme Court defined and expounded upon these conceptually distinct preclusive effects. For our purposes, the principle of res judicata-bar is at issue.

"Res judicata-bar is the particular preclusive effect commonly meant by use of the term 'res judicata.' A valid, personal judgment on the merits in favor of defendant bars relitigation of the same cause of action, or any part thereof which could have been litigated, between the same parties and their privies." Bates, 214 Va. at 670-71 202 S.E.2d at 920-21 (emphasis in original) (footnote omitted).

A person seeking to assert res judicata as a defense must establish: (1) identity of the remedies sought; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the quality of the persons for or against whom the claim is made. Wright v. Castles, 232 Va. 218, 222, 349 S.E.2d 125, 128 (1986). He must also establish that a final judgment on the merits has been reached by a court of competent jurisdiction. Storm v. Nationwide Mutual Insurance Co., 199 Va. 130, 134, 97 S.E.2d 759, 761 (1957); Patterson v. Anderson, 194 Va. 557, 564-65, 74 S.E.2d 195, 200 cert. denied, 345 U.S. 965, 73 S.Ct. 952, 97 L.Ed. 1384 (1953).

Although the Division raises numerous arguments in support of its position that the second paternity action brought in 1983 was not barred under the doctrine of res judicata, we believe the dispositive issues in this case are: (1) whether the minor child was in privity with his mother such that mother and child were so identified in interest that she represented the legal rights of the minor child in the 1981 paternity action, and (2) whether res judicata is applicable to the petition as filed by the Division on the facts of this case.

"One of the fundamental prerequisites to the application of the doctrine of res judicata is that there must be an identity of the parties between the present suit and prior litigation asserted as a bar. A party to the present suit, to be barred by the doctrine, must have been a party to the prior litigation, or represented by another so identified in interest that he represents the same legal right." Dotson, 232 Va. at 404-405, 350 S.E.2d at 644.

There is no fixed definition of privity that automatically can be applied in all cases involving res judicata issues. While privity generally involves a party so identified in interest with another that he represents the same legal right, a determination of ... who are privies requires a careful examination of the circumstances of each case.

Nero v. Ferris, 222 Va. 807, 813, 284 S.E.2d 828, 831 (1981).

In Patterson v. Saunders, the Supreme Court stated:

It is generally held that " 'privity' means a mutual or successive relationship to the same rights of property, or such an identification in interest of one person with another as to represent the same legal rights, and the term 'privy,' when applied to a judgment or decree refers to one whose interest has been legally represented at the trial."

194 Va. at 613, 74 S.E.2d at 208 (citation omitted).

In the present case, the issue presented in Louise Gray's 1981 and 1983 paternity actions was the same, i.e., whether Alonzo Johnson is the father of Myron O'Neill Gray. The remedy sought in both instances was a judgment of paternity and support for Myron. We assume, without deciding, that the judgment in the first action was on the merits. ¹ Therefore, the trial court was correct in ruling that the doctrine of res judicata bars her 1983 action. However, Louise Gray initiated the first action individually. She did not initiate the first action in the name of Myron as his next friend. See Code § 8.01-8. In the second action, only after the matter was appealed to the circuit court did the Division petition to intervene and the trial court appoint counsel to represent the minor child's interest. Myron was therefore not a named party to the first action, and only if he was in privity with his mother is he or the Division as his subrogee precluded from litigating the second action under the doctrine of res judicata.

The generally prevailing view is that the parent-child relationship does not establish privity, and a child is therefore not bound by a judgment against his parent. Note, Privity, Preclusion, and the Parent-Child Relationship, 1977 B.Y.U.L.Rev. 612, 621 (1977). Numerous courts that have considered the issue have held that a parent and child are not in privity, and therefore that a child who is not made a party to a paternity action is not bound by judgment against a parent in a subsequent proceeding to establish paternity. See, e.g., Ruddock v. Ohls, 91 Cal.App.3d 271, 286, 154 Cal.Rptr. 87, 96-97 (1979) (finding of non-paternity is not binding on the child, unless child is joined as a party because mother and child not in privity); Department of Health and Rehabilitative Services ex rel. Ward v. Wyatt, 475 So.2d 1332, 1334 (Fla.Dist.Ct.App.1985) (child not a 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) (res judicata inapplicable to support petition of child because earlier action was not filed by or in the name of the child); Arsenault v. Carrier, 390 A.2d 1048, 1051 (Me.1978) (child's subsequent suit not barred because privity not present in relationship between parent and child); Johnson v. Norman, 66 Ohio St.2d 186, 190, 421 N.E.2d 124, 127 (1981) (minor child and mother not in privity, therefore child may bring subsequent action following dismissal with prejudice of mother's claim); see also Whitehead v. General Telephone Co., 20 Ohio St.2d 108, 115-16, 254 N.E.2d 10, 15 (1969) (child not in...