Marriage of Betty LW v. WILLIAM EW

• Citation: 212 W.Va. 1,569 S.E.2d 77
• Decision Date: 07 June 2002
• Docket Number: No. 30189.,30189.
• Parties: In re the MARRIAGE/CHILDREN OF: BETTY L.W., Plaintiff/Respondent Below, Appellee, v. WILLIAM E.W., Defendant/Petitioner Below, Appellant.
• Court: West Virginia Supreme Court

569 S.E.2d 77

212 W.Va. 1

In re the MARRIAGE/CHILDREN OF: BETTY L.W., Plaintiff/Respondent Below, Appellee, v. WILLIAM E.W., Defendant/Petitioner Below, Appellant.

No. 30189.

Supreme Court of Appeals of West Virginia.

Submitted May 22, 2002.

Decided June 7, 2002.

Dissenting Opinion of Justice Maynard July 2, 2002.

Howard M. Ferris, Grafton, West Virginia, for appellee.

Kevin T. Tipton, Clagett & Gorey, Fairmont, West Virginia, for appellant.

Darrell V. McGraw, Jr., Attorney General, Kimberly D. Bentley, Assistant Attorney General, Charleston, West Virginia, for the Bureau of Child Support Enforcement.

PER CURIAM.

This is an appeal by William E.W. (hereinafter "Appellant")¹ from a June 22, 2001, order of the Circuit Court of Taylor County denying his petition to modify child support. The Appellant had discovered, through DNA testing, that he was not the father of a child for whom he had been paying child support. The lower court denied the petition on the basis of res judicata, ruling that the paternity issue had been determined by the Appellant's admission of paternity and the divorce decree stating that he was the child's father. On appeal, the Appellant contends that his challenge to the paternity finding should be permitted. Having thoroughly reviewed the record and the arguments of counsel, we affirm the determination of the lower court.

I. Facts

A divorce action was instituted by Mrs. Betty L.W. against the Appellant in July 1996. Mrs. W. alleged that three children had been born of the parties' marriage, Ruth, born March 9, 1981; Stacy, born December 30, 1984; and Crystal, born October 10, 1989. In his answer, the Appellant admitted that three children had been born of the marriage. An agreed divorce order, filed December 6, 1996, also stated that three children had been born of the marriage.²

In March 2001, the Appellant discovered through DNA testing that he was not Crystal's biological father. On March 27, 2001, the Appellant filed a petition to modify/terminate child support on the ground that Crystal was not his child.³ Subsequent to a May 9, 2001, hearing before the family law master, the Appellant's petition was denied on the basis of res judicata because paternity had been established in the divorce decree. By order dated June 22, 2001, the lower court affirmed the decision of the family law master, and the Appellant now appeals to this Court.

The Appellant contends that a child's best interests⁴ are not served by dismissing a petition to modify child support when the alleged father has learned that he is not the biological father. The Appellant further requests this Court to revisit our holding in Nancy Darlene M. v. James Lee M., Jr., 184 W.Va. 447, 400 S.E.2d 882 (1990), in light of what he perceives to be its inherent unfairness and its incompatibility with principles applied in one of this Court's most recent paternity cases, State ex rel. Department of Health and Human Resources v. Michael George K., 207 W.Va. 290, 531 S.E.2d 669 (2000).

II. Standard of Review

Where lower court rulings are primarily based upon matters of legal interpretation, this Court employs a de novo standard of review. See Michael George, 207 W.Va. at 294,

531 S.E.2d at 673. This approach was concisely stated in syllabus point one of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995), as follows:

In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

III. Discussion

This Court's contemplation of paternity matters has generated several decisive principles in this significant area of the law. While our decision in Michael K.T. v. Tina L.T., 182 W.Va. 399, 387 S.E.2d 866 (1989), did not specifically address issues of res judicata, the reasoning of that opinion is relevant to our present inquiry and serves as a prefatory instrument of analysis. In Michael K.T., this Court emphasized the necessity for concentration upon the rights⁵ of the child and explained as follows in syllabus point two:

When a putative father seeks to use blood test results to disprove his paternity and rebut the presumption of legitimacy which has attached to a child born of a valid marriage, an in camera hearing should be held in order for the circuit court to make a preliminary determination whether the equities surrounding the particular facts and circumstances of the case warrant admission of blood test results.

This Court based that ruling "upon the inherent inequity which results when a man is forced to bear the financial burden of child support when he did not father the child or knowingly hold the child out to be his own." Id. at 404, 387 S.E.2d at 871. In syllabus point three of Michael K.T., this Court explained that a trial court "should refuse to admit blood test evidence which would disprove paternity when the individual attempting to disestablish paternity has held himself out to be the father of the child for a sufficient period of time such that disproof of paternity would result in undeniable harm to the child." Syllabus point four of Michael K.T. also provided the requirement that "[a] guardian ad litem should be appointed to represent the interests of the minor child whenever an action is initiated to disprove a child's paternity." 182 W.Va. at 400,387 S.E.2d at 867.⁶

The precise issue of the preclusive effect of principles of res judicata upon prior findings of paternity was raised in 1990 in Nancy Darlene. In that pivotal case, this Court encountered an argument substantially similar to that forwarded by the Appellant in this case. The alleged father and former husband in Nancy Darlene had sought to terminate child support payments, despite the existence of an acknowledgment in the divorce order that he was the father of the child in question. 184 W.Va. at 448, 400 S.E.2d at 883. The mother contended that the alleged father was "barred from challenging that issue of paternity because he did not appeal this issue within the then-prescribed period of eight months." Id. at 450, 400 S.E.2d at 885. This Court agreed, relying upon precedent and general principles of res judicata,⁷ and held that "`adjudication in a divorce or annulment action concerning the paternity of a child is res judicata as to the husband or wife in any subsequent action or proceeding.'" Id., quoting Annotation, Effect, in Subsequent Proceedings, of Paternity Findings or Implications in Divorce or Annulment Decree or in Support or Custody Order Made Incidental Thereto, 78 A.L.R.3d 846, 853 (1977).⁸

This Court in Nancy Darlene also relied upon principles enunciated in N.C. v. W.R.C., 173 W.Va. 434, 317 S.E.2d 793 (1984), in which the husband had petitioned the circuit court for relief from child support payments, alleging that he was not the father of the parties' child. In N.C., this Court affirmed the circuit court's decision that the husband was not entitled to relief because he had failed to raise "the issue of paternity through appropriate proceedings prior to the final disposition" of the divorce. 173 W.Va. at 438,317 S.E.2d at 797.

In Nancy Darlene, this Court also examined the issue of finality in paternity determinations and reasoned as follows:

If we were to recognize that the appellee could continue to raise the issue of paternity nearly five years after the birth of his putative daughter, then our domestic relations law would be replete with cases in which paternity is denied, and, consequently, child support payments, necessary for the daily needs of children's lives, would never be met.

184 W.Va. at 451, 400 S.E.2d at 886.⁹ This Court concluded as follows in syllabus point one of Nancy Darlene:

An adjudication of paternity, which is expressed in a divorce order, is res judicata as to the husband and wife in any subsequent proceeding. Therefore, the provisions of W.Va.Code, 48A-7-26 [1986], part of the Revised Uniform Reciprocal Enforcement of Support Act, W.Va.Code, 48A-7-1 to 48A-7-41, as amended, which authorizes the adjudication of paternity under certain circumstances is not applicable if an adjudication of paternity is expressed in the divorce order.

Id. at 448, 400 S.E.2d at 883.

The rights of the child and the absence of res judicata preclusion of challenges initiated by or on behalf of the child were addressed by this Court in State ex rel. Dep't of Health and Human Resources v. Pentasuglia, 193 W.Va. 621, 457 S.E.2d 644 (1995). In Pentasuglia, this Court found that because the child had not been a party to the initial divorce action, principles of res judicata would not operate to preclude a support action filed by the child against another putative father. Id. at 622, 457 S.E.2d at 645. This ruling was also consistent with syllabus point five of State ex rel. Div. of Human Servs. v. Benjamin P.B., 183 W.Va. 220, 395 S.E.2d 220 (1990) ("The dismissal with prejudice of a paternity action initiated by a mother against a putative father of a child does not preclude the child, under the principle of res judicata, from bringing a second action to determine paternity when the evidence does not show privity between the mother and the child in the original action nor does the evidence indicate that the child was either a party to the original action or represented by counsel or guardian ad litem in that action."). Elaborating upon this assertion from Benjamin P.B., the Pentasuglia Court observed that "`[t]he child also has a fundamental right, not shared by the mother, to establish the father-child relationship, and in exercising that right there clearly is potential for conflict between the mother's interest and the child's interest.'" 193...