Lowe v. Clayton, 19972

• Citation: 212 S.E.2d 582,264 S.C. 75
• Decision Date: 11 March 1975
• Docket Number: No. 19972,19972
• Court: United States State Supreme Court of South Carolina
• Parties: Mary Elizabeth L. Thompson LOWE, Appellant, v. James E. CLAYTON et al., Respondents.

Page 582

212 S.E.2d 582

264 S.C. 75

Mary Elizabeth L. Thompson LOWE, Appellant, v. James E. CLAYTON et al., Respondents.

No. 19972.

Supreme Court of South Carolina.

March 11, 1975.

Moore, Swofford & Turnipseed, Spartanburg, for appellant.

Odom, Nolen, Terry & Abernathy, Spartanburg, for respondents.

LEWIS, Justice:

The appellant, natural mother of the minor respondent, Lisa Ann Clayton, seeks in this action to set aside a previous decree of the Family Court of Spartanburg County, under which the respondents, Linda L. and James E. Clayton, the half sister and brother-in-law, respectively, of appellant, were allowed to adopt the minor respondent. The appeal is from an order of the Family Court granting, pursuant to Circuit Court Rule 44, respondent's motion for summary judgment upon the ground, as alleged in the fourth defense of the answer, that the present action was barred, under the doctrine of res judicata or estoppel, by a prior judgment or order of the court denying appellant visitation rights with the child.

The record shows that appellant was granted a divorce from her first husband, James F. Thompson, in 1968, and also custody of their child, the minor respondent, born August 10, 1965. As a result of a petition filed by respondents, Linda L. and James E. Clayton (hereafter designated respondents), the Family Court of Spartanburg County issued a decree on March 10, 1971 granting to them the adoption of the minor respondent (minor), then about five (5) years of age. Appellant and the natural father consented to the adoption.

Thereafter, appellant married her present husband and, subsequently, petitioned the court, in January 1973, for visitation rights with the minor. This petition was denied by an order of the court dated June 11, 1973 and a rehearing thereof was denied on November 1, 1973. The present action was instituted in February 1974 to set aside the adoption decree.

Appellant alleged, as grounds for vacating and setting aside the adoption decree, that the adoption, and her consent thereto, was obtained as a result of the fraud, deceit, and misrepresentations of respondents to her that the adoption was one of convenience, was temporary and that she would always be allowed to see and visit her daughter as her mother; and that the guardian ad litem had failed to adequately represent the minor in the adoption action. Pertinent here, the complaint alleged:

'4. That on or about August, 1970, the petitioner was living in Spartanburg, South Carolina, with her daughter, the Minor-Respondent herein, and was in extremely poor health; such that she was unable to care, provide for and support her daughter or herself; that although, the petitioner was divorced from the said James Frederick Thompson, she was only receiving nominal support from him.

'5. That at that time, the petitioner sought the aid of her sister, the Respondent, Linda L. Clayton, to help care for her minor daughter until such time as she was over her illness and able to financially and physically care for her daughter once again; that thereafter, the Respondents, James E. Clayton and Linda L. Clayton, informed the petitioner that they would agree to care for the said minor daughter only if the petitioner would agree to allow them to adopt the said minor.

'6. Thereupon, the petitioner stated that she would not entertain such a proposal in that she could not bear to give up her daughter; whereupon her sister and brother-in-law, the Respondents herein assured the petitioner that it would only be an adoption for convenience; that it would always remain in the family; that it would only be a temporary thing; that she would always be allowed to see and take her daughter places; that she would always be the real mother to her daughter, and that they would make sure that the said minor, Lisa Ann, always referred to her as her mother.

'7. That the petitioner, relying on the above representations and assurances of the said Respondents, entrusted her daughter to their care, and did not object to the said Respondents initiating adoption proceedings.

'8. That on October, 1970, the petitioner was served with a Petition for adoption of the said Respondent, Lisa Ann; that the petitioner was misled by the Petition and by the subsequent assurances of the said Respondents, James E. Clayton and Linda L. Clayton, that her visitation rights and other promises of the said Respondents would be complied with in the adoption proceeding.

'10. That in November, 1970, the petitioner was informed by the Respondents that a hearing was to be held on the adoption in the near future and that it was not necessary for her to be present, and due to her ill health, it would probably be better if she was not present, and for her not to worry that they would take care of everything; that as a result of such, the petitioner did not attend said hearing.

'11. That after the said hearing, the petitioner was visited on several occasions by the Respondents and by their attorney in an effort to obtain her signature consenting to a final decree of adoption; that the petitioner refused to sign said decree because there was no provision protecting her visitation rights with her minor child; that after many assurances and representations by the Respondents, that the only reason such was not provided for in the decree was that the Laws of the State of South Carolina prohibited such but that her rights to the child would always be protected by them, the petitioner signed her consent.'

The complaint contained further allegations that, after appellant signed the adoption decree, respondents denied her the right to see her child, and that due to her poor health and financial condition she was unable to seek legal assistance until recently.

The fourth defense of the answer, upon which the lower court granted summary judgment, incorporates the files of the Family Court, which contain the adoption proceedings, and the pleadings and the testimony in the subsequent action in which appellant sought visitation rights with her child. The proceedings and order denying visitation rights form the basis for respondents' contention, sustained by the lower court, that appellant is 'precluded by the doctrine of res judicata and/or estoppel' from bringing the present action to set aside the adoption decree.

The sole question to be decided is whether the prior unsuccessful action of appellant for visitation rights with her child now precludes, on the ground of res judicata or estoppel, the maintenance of the present action to set aside the adoption decree on the ground of fraud.

We have held that a final decree of adoption may be vacated or set aside because of fraud in the procurement of the judgment. Wold v. Funderburg, 250 S.C. 205, 157 S.E.2d 180.

The plea of res judicata And estoppel brings into play what is sometimes referred to as the dual aspects of the doctrine of res judicata. As pointed out in 46 Am.Jur. (2d), Judgments, Section 396, 'there is a wide difference between the effect of a judgment as a bar to the prosecution of a second action upon the same claim, demand, or cause of action, and its effect to preclude the relitigation of particular facts or issues in another action between the same parties on a different claim or cause of action. Although there is virtual unanimity of agreement on this distinction, confusion frequently arises from variations in nomenclature applied thereto. The two aspects of the doctrine do not necessarily have the same consequences, the effect of a judgment upon a subsequent controversy between the parties being more limited where the controversy is based upon a different cause of action than where it is based upon the original cause of action.'

Both aspects of res judicata involve the theory of estoppel and it is said that the more recent tendency is to describe the rule precluding the relitigation of particular issues in a subsequent action on a different cause of action as 'collateral estoppel by judgment' as distinguished from the 'direct estoppel by judgment' where the prior and subsequent causes of action are identical. 46 Am.Jur. (2d), Judgments, Section 397.

Regardless of the nomenclature used, our decisions recognize this dual aspect of the doctrine of res judicata.

In Wold v. Funderburg, supra, we restated the long established general rule that, in order to sustain the plea of res judicata the following three basic elements must be established: (1) identity of parties; (2) identity of the subject matter; and (3) an adjudication of the issue in the former suit.

The dual aspect of the doctrine derives largely from the application of the foregoing third element. The rule as to the conclusiveness of the prior adjudication has a different application where the prior and...