Lerman v. Lerman, 86-052
| Decision Date | 30 April 1987 |
| Docket Number | No. 86-052,86-052 |
| Citation | 148 Vt. 629,528 A.2d 1121 |
| Parties | Brenda LERMAN v. Howard LERMAN. |
| Court | Vermont Supreme Court |
Plaintiff appeals from the grant of defendant's motion allowing him to undergo genetic testing to determine paternity. We reverse.
The parties were married May 8, 1971; they were divorced on April 29, 1976. The trial court found that "the parties have one minor child," born March 18, 1974. Custody "of the minor child of the parties" was awarded to plaintiff; defendant was ordered to pay child support. No issue concerning paternity was raised during the divorce proceeding; no appeal from the divorce action contesting paternity was taken.
After a period of nonpayment between 1981-1986, the Department of Social Welfare, as assignee of plaintiff's child support rights, filed a motion for contempt and a motion to withhold wages. Defendant replied with a motion for order requiring genetic testing, which was granted. It is that order which is appealed from.
Defendant's collateral attack is precluded as a matter of law. A party who has litigated, or who has had an opportunity to litigate, a matter in a former action in a court of competent jurisdiction should not be permitted to relitigate the issue against the same adversary. Hill v. Grandey, 132 Vt. 460, 463, 321 A.2d 28, 30 (1974). The trial court found that defendant is the minor child's father. Res judicata precludes a relitigation of paternity. See Peck v. Superior Court, 185 Cal.App.2d 573, 576-77, 8 Cal.Rptr. 561, 564-65 (1960) (); Peercy v. Peercy, 154 Colo. 575, 579, 392 P.2d 609, 611 (1964) ().
The order of the trial court allowing defendant to undergo genetic testing is reversed; matter remanded to Rutland Superior Court for determination of contempt motion consistent with the above order.
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