G.E.B. v. S.R.W.

Decision Date26 February 1996
Citation422 Mass. 158,661 N.E.2d 646
PartiesG.E.B. & another 1 v. S.R.W.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

David Berman, Medford, for defendant.

Ronna D. Howard, Boston, for plaintiff.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

The child brought an action in the Probate and Family Court Department for a judgment of paternity under G.L. c. 209C (1994 ed.). 2 The complaint was amended to name the mother as a plaintiff in response to the defendant's claim that the child could not litigate on her own behalf but rather only through a next friend. The putative father (defendant) moved to dismiss the child's action on the ground that the action is barred by his previous action for declaratory relief brought in June, 1982, against the mother and by the settlement agreement that followed. The defendant also argued that the instant action is barred because the 1982 action for declaratory relief was not an adjudication which was rendered ineffective after the enactment of G.L. c. 209C. His motion to dismiss was denied.

On November 30, 1990, a Probate Court judge ordered that the issues of paternity and support be bifurcated and that the parties proceed first on the issue of paternity. On October 10, 1991, a judgment of paternity was entered in favor of the child and, in a separate ruling, temporary child support and counsel fees were ordered. The defendant appeals from the judgment of paternity, alleging that the Probate Court judge erred in not barring the action and in admitting documentary and oral evidence of a genetic marker test. The defendant also argues that the court erred in awarding support and counsel fees to the child. We granted the defendant's application for direct appellate review of the judgment of paternity and we affirm. We deny the child's request for costs associated with this appeal. We allow the child's motion to strike volume VII of the record appendix. The order awarding child support and counsel fees is not properly before us and, therefore, we do not reach those issues.

Facts. The child was born on February 22, 1982, to the mother, who was not then married and had not been married within 300 days prior to the child's birth. The mother asserts that the defendant, with whom she had a sexual relationship for approximately one decade, is the child's father. The defendant disputes this.

In June, 1982, the defendant sought a declaratory judgment against the mother that he was not the child's father. The child was not a party to that action nor was she represented by counsel. Neither a guardian nor next friend was appointed to safeguard the child's interests. That case was settled by an agreement for judgment signed by counsel for the defendant and counsel for the mother. The mother and the defendant also signed a settlement agreement under which the defendant was to pay the mother $25,000 in exchange for the mother's assent to a stipulation stating that the defendant was not the child's father. The agreement purported to be signed by the mother "acting on her own behalf and on behalf of a daughter born to her on February 22, 1982," and provided that neither party would bring any further action or claim arising out of the facts giving rise to the case being settled. The agreement specifically provided that it "shall be binding upon the successors, representatives, heirs and assigns of both parties including, without limitation, the child." The child did not sign the agreement and the agreement did not provide that the money be used for child support. The stipulation was not signed by a judge of the Superior Court nor filed with the Superior Court.

On August 2, 1990, the child brought an action under G.L. c. 209C against the defendant. Genetic marker tests were performed. 3 The plaintiff's expert, Dr. David H. Bing, opined that these tests showed the statistical probability of the defendant's paternity to be 99.8%. 4 The paternity tests performed would have excluded 98.63% of falsely accused men as the father. The trial judge also found a physical resemblance between the defendant and the child in facial bone structure and complexion.

I. Res judicata effect of 1982 Superior Court action. a. Adjudication under G.L. c. 273 (1994 ed.). General Laws c. 209C, § 22(d ), provides: "No proceeding hereunder shall be barred by a prior finding or adjudication under any repealed sections of [c. 273] or by the fact that a child was born prior to the effective date of this chapter." The parties dispute whether the 1982 action was an adjudication under a repealed section of c. 273. A Probate Court judge found that the subject matter of the prior proceeding was similar in nature to proceedings under G.L. c. 273, § 12, and did not bar a proceeding under c. 209C. We agree. The defendant, as plaintiff in the 1982 action, relied on G.L. c. 273, § 12A, as appearing in St.1977, c. 846, § 5, in litigating his claim. The mother, as defendant, counterclaimed for "an adjudication under G.L. c. 273, § 12, that [the defendant] is the father of [the child]." It is clear that the parties, in signing the settlement agreement, were agreeing to a legal determination of the paternity of the child. We agree with the trial judge that, "[i]f, instead of a settlement agreement, there had been an adjudication on the merits of the 1982 action in [the defendant's] favor on the question of paternity, there is no doubt that the prior adjudication would not have been a bar to [the child's] claim under G.L. c. 209C in the Probate Court" (emphasis in original). See Department of Revenue v. Jarvenpaa, 404 Mass. 177, 182, 534 N.E.2d 286 (1989). That the stipulation as to paternity was entered by agreement of the parties rather than by the court is immaterial in determining whether it can be attacked collaterally. Nagle v. O'Neil, 337 Mass. 80, 81, 148 N.E.2d 183 (1958).

General Laws c. 209C, § 22(d ), specifically erodes the common law policy on finality of judgments and allows readjudication of paternity where there has been a judgment in favor of the alleged father. See Jarvenpaa, supra at 182, 534 N.E.2d 286 ("the Legislature intended to permit readjudication of the question of paternity under G.L. c. 209C where, under G.L. c. 273, § 12, proof of the alleged paternity of the defendant had not succeeded. Section 22 (d ) makes irrelevant all questions concerning the application to this kind of case of common law principles of claim and issue preclusion based on findings and rulings in earlier litigation"). We conclude that the 1982 Superior Court action is not a bar to the current proceeding.

b. Preclusive effect of 1983 judgment and agreement on the child. Even if the 1982 action could operate as a bar to subsequent proceedings, it could not have preclusive effect on the child who was not a party to that action commenced by the defendant against the mother. As a nonparty, the child's rights could not have been prejudiced by the 1982 action. See G.L. c. 231A, § 8 (1994 ed.) ("no declaration shall prejudice the rights of persons not parties to the proceeding").

The child cannot be bound by the mother's settlement of the mother's claims. We cannot conclude that the child's interests were fully protected by the mother. 5 The child has her own, independent, interests in determining the identity of her father. See Jarvenpaa, supra at 184, 534 N.E.2d 286. She has intangible interests independent of monetary support which cannot be equated completely with her mother's interests. Id. See Spada v. Pauley, 149 Mich.App. 196, 205 n. 6, 385 N.W.2d 746 (1986), quoting Wolfe v. Geno (On remand), 134 Mich.App. 433, 435-436, 351 N.W.2d 316 (1984) (Cynar, J., dissenting) ("At some point, the law must recognize the fact that a child's interests in paternity litigation are much greater than the mother's interest in continued support. 'In addition to the right of the child to receive support many other present as well as future rights of the child are involved, depending on the facts and circumstances of a specific case' "). The mother also has independent interests that may prevent her from fully protecting the child's sometimes competing concerns. See Ruddock v. Ohls, 91 Cal.App.3d 271, 278, 154 Cal.Rptr. 87 (1979) (mother's emotional and financial needs may prevent her from acting in a proper representative capacity for her child).

The defendant argues that, even if the child were not in privity with her mother and thereby bound, she should be barred from proceeding in this action because her mother was acting as "procheine amie" or "next friend" on her behalf in the 1982 action and released her rights. The child disputes that the mother can bind the child when the mother was not legally the child's representative. See Rudow v. Fogel, 376 Mass. 587, 589, 382 N.E.2d 1046 (1978) (policy forbids assimilation of parent litigating on his own behalf with parent litigating as representative of child). The child cannot be bound by her mother's bare assertion that she was acting on behalf of the child without a formal recognition of her status as guardian or without the child's being joined as a party to the action. See Jarvenpaa, supra at 184-185, 534 N.E.2d 286 ("The minor plaintiff should not be foreclosed by the prior judgment from presenting his own case for support (and perhaps to establish other rights) against the defendant. The prior proceeding was not brought in the minor's name, nor could it have been"); Symonds v. Symonds, 385 Mass. 540, 545 n. 7, 432 N.E.2d 700 (1982) ("Any determination that the husband is not the father of a child born to his wife during marriage is, of course, not binding on the child who is not a party to the proceeding").

Other jurisdictions are in accord. See, e.g., Ruddock v. Ohls, supra at 284, 154 Cal.Rptr. 87 ("In the absence of a full and fair adversary hearing resulting in a judgment on the merits on the...

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