Jennings v. Dargan, 1820

• Decision Date: 18 March 1992
• Docket Number: No. 1820,1820
• Citation: 417 S.E.2d 646,308 S.C. 317
• Parties: Tamara Michele JENNINGS, Respondent, v. Archie Shaw DARGAN, III, Darlene Jennings, and James C. Cox, Jr., Defendants, of whom Archie Shaw Dargan, III is Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 646

417 S.E.2d 646

308 S.C. 317

Tamara Michele JENNINGS, Respondent, v. Archie Shaw DARGAN, III, Darlene Jennings, and James C. Cox Jr., Defendants of whom Archie Shaw Dargan, III is Appellant.

No. 1820.

Court of Appeals of South Carolina.

Heard March 18, 1992.

Decided May 11, 1992.

As Amended on Denial of Rehearing

June 4, 1992.

Olin L. Purvis, III, of Purvis & Schurlknight, Darlington, for appellant.

Coming B. Gibbs, Jr., Charleston, for respondent.

CURETON, Judge:

This case involves the application of the doctrine of res judicata to an action between an adult child and her putative father. Tamara Michele Jennings filed an action against Archie Shaw Dargan, III, claiming he was her natural father. At the time of the action, Jennings was twenty years old and attending college. In her pleadings she sought a declaration that Dargan was her father and an order requiring him to pay her college expenses. In his answer, Dargan denied paternity and asserted several defenses including res judicata. He alleged the matter had been resolved by a prior action and settlement. The court concluded res judicata did not apply because the order entered in the 1978 case was not a valid final order since the court at that time did not comply with the applicable statute and made no finding that the settlement was "a fair one, in the best interests of the minor, and it was not approved by [the court]." Dargan has appealed this ruling and a venue ruling. We affirm.

I.

Darlene Jennings, the natural mother of Tamara Michele Jennings, brought an action in 1978 against Archie Dargan alleging he was the father of Tamara Jennings. She sought child support. Tamara was then nine years old and was joined as a defendant. A local attorney was appointed guardian ad litem for her. Before trial the parties apparently entered into negotiations resulting in a settlement offer by Dargan of $8000. The guardian ad litem filed an answer recommending acceptance of the lump sum settlement because (1) Dargan was presently married and had three children, (2) his home was mortgaged and his income was limited, (3) there had been a long lapse of time between the birth of Tamara and the institution of the action, and (4) Dargan intended to contest the matter. Darlene Jennings signed an affidavit stating she had been fully advised by her attorney and the guardian ad litem. She understood no judicial or scientific determination had been made about the matter of paternity. She also stated she understood she "individually and in behalf of said minor child is relinquishing any claim that she or the minor child may have against [Dargan] for past, present, or future support and maintenance for the minor child." An order of dismissal was signed in 1979 by the family court judge. The order stated:

WHEREAS the parties in this matter have settled their respective disputes and the case herein; and

WHEREAS said settlement was made without the necessity of a hearing on the merits, it is, on motion of [counsel for Darlene Jennings] and with the consent of [counsel for Archie Dargan] and [the guardian ad litem]

ORDERED, ADJUDGED AND DECREED that this action be, and the same hereby is, dismissed and forever ended with prejudice as to all parties.

The parties agree there is no indication from the record that the family court in 1979 either reviewed, had a hearing on, or approved the settlement. Accordingly, the court in this case concluded the court in 1979 did not comply with S.C.Code Ann. § 14-21-850 (1976) and the order was void. ¹

This court has held a guardian ad litem functions as a representative of the court which appointed him to assist the court in properly protecting the interests of an incompetent person. Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441 (Ct.App.1990) (custody case). The court has the final obligation to protect the interests of an incompetent person. This obligation necessarily requires the court to exercise its duty in a prudent and judicious manner. The South Carolina Supreme Court has stated:

Whenever a court of chancery is called upon to sanction and enforce a contract of compromise which involves the rights and interests of minors, it is bound, in the exercise of its general superintendence and protective jurisdiction over the persons and property of infants, to see that their rights and interests are not injuriously affected by such contract. They must have their day in court; they must be represented by guardians ad litem; the proof must satisfy the conscience of the chancellor that their rights and interest are promoted and secured by the compromise. When these requisites are complied with, it is not simply the right, but the duty of the chancellor to uphold and enforce such compromises, especially where they settle family disputes, and put an end to litigation as to doubtful rights. (emphasis added)

Peoples Nat. Bank of Rock Hill v. Rogers, 218 S.C. 11, 20, 61 S.E.2d 391, 396 (1950) (quoting from Reynolds v. Brandon, 50 Tenn. 593 (1871)).

While S.C.Code Ann. § 14-21-850 (1976) would have permitted the parties in the 1978 paternity action to have entered into the agreement regarding paternity and support, this section implicitly required a finding by the family court that the agreement was in the best interest of the minor. Cf. S.C.Code Ann. § 20-7-955 (1985); 42 Am.Jur.2d Infants § 153 (1969). Additionally, the statute required independent approval of the agreement by the court. Cf. S.C.Code Ann. § 15-71-30 (1976) (repealed by Act No. 539, 1986 S.C. Acts 3446) (statute in effect at time required a hearing and court approval of minor's settlement in circuit court).

There is no indication the family court in 1979 performed its obligation to protect the interest of the minor by approving the settlement in a prudent and judicious manner. Cook v. Cobb, 271 S.C. 136, 245 S.E.2d 612 (1978) (perfunctorily adopted custody agreement did not indicate an exercise of judicial...