McDaniels v. Carlson

• Decision Date: 11 June 1987
• Docket Number: No. 52236-7,52236-7
• Citation: 108 Wn.2d 299,738 P.2d 254
• Parties: Shawn McDANIELS, Appellant, and Wendy Lynne Carlson and Lisa D. Carlson, Statutory Parties, v. Gary CARLSON, Respondent.
• Court: Washington Supreme Court

Page 299

108 Wn.2d 299

738 P.2d 254

Shawn McDANIELS, Appellant and Wendy Lynne Carlson and Lisa D. Carlson, Statutory Parties, v. Gary CARLSON, Respondent.

No. 52236-7.

Supreme Court of Washington En Banc.

June 11, 1987.

[738 P.2d 256] Kenneth A. Lee, Everett, for appellant.

Mark T. Patterson, Everett, for respondent.

Sullivan, Graafstra & Twisselman by William R. Sullivan, as guardian ad litem.

GOODLOE, Justice.

Shawn McDaniels appeals from the trial court's dismissal of his action to establish paternity of a child. The trial court held that appellant McDaniels was collaterally estopped from bringing the action because he had resided with the child's mother during the pendency of a dissolution action at which time respondent Gary Carlson was declared to be the father and ordered to pay child support. We reverse.

FACTS OF THE CASE

Respondent and Lisa Carlson were married on May 9, 1981. In June 1981, Lisa met appellant at the company where they both worked, and a 5-month romantic relationship ensued.

Lisa gave birth to Wendy Lynne Carlson on June 29, 1982. Appellant alleges that at the time of pregnancy, he and Lisa determined they had been together three times in a 5-day period surrounding the presumed date of conception, September 5, 1981. He further alleges that Lisa represented to him and others that he was Wendy's father. Respondent and Lisa both deny these allegations and contend that respondent is the natural father of the child.

Respondent and Lisa separated during April or May of 1983. At some time thereafter, but not later than September 1983, Lisa began living with Shawn. Appellant alleges that throughout most of the period he was living with Lisa, he took care of Wendy on a full time basis while Lisa worked. Meanwhile, respondent exercised visitation rights. It appears that both men have developed strong bonds with the child.

Lisa filed for dissolution on June 3, 1983, claiming Wendy to be "the issue" of the marriage and seeking custody and child support. No question as to Wendy's paternity was raised during the dissolution proceedings. Appellant claims that he "reluctantly agreed" with Lisa not to come forward on the paternity issue, because Lisa "did not want to hurt Gary." Clerk's Papers, at 114-15. The dissolution decree, issued February 17, 1984, found Wendy to be the minor child of Lisa and respondent, awarded custody to Lisa, with liberal visitation and consultation rights to respondent, and ordered respondent to pay $300 per month in child support. Appellant alleges that only $400 support money was actually received.

Lisa severed her relationship with appellant on February 24, 1985, and approximately 2 months later moved back in with respondent. Respondent and Lisa were remarried on August 21, 1985.

Appellant filed this paternity action in Snohomish County Superior Court on March 20, 1985, seeking to establish himself as Wendy's father and obtain visitation rights. Respondent moved to dismiss on grounds of collateral estoppel contending that appellant had brought this suit for the sole purpose of continuing his relationship with Lisa. The Court Commissioner denied respondent's motion to dismiss and ordered that blood tests be taken.

The trial judge reversed the Commissioner's order. The trial judge held that because appellant was in privity with Lisa during the dissolution proceeding which established respondent as the father, appellant was collaterally estopped from bringing suit. He subsequently vacated this ruling in light of this court's recent holding in State v. Santos, 104 Wash.2d 142, 702 P.2d 1179 (1985), that a child's interests must be separately represented before there can be a binding paternity determination. However, upon motion for reconsideration, the trial judge decided that Santos was inapplicable. The judge then reversed the order to vacate and reinstated his original ruling that appellant was estopped. This court granted direct review and ordered the appointment of a guardian ad litem to represent the interests of the child.

The guardian ad litem's report, filed September 9, 1986, states that both appellant and respondent have adequate parenting ability, genuinely love Wendy, and maintain an excellent relationship with her. Wendy speaks of both men as her father and has at various times addressed them as "daddy Gary" and "daddy Shawn". Other relatives of her family are well-acquainted with the circumstances of this case. The guardian recommends that paternity be determined to resolve the invariable confusion and tension in Wendy's life and, regardless of the paternity determination, that both appellant and respondent be awarded rights of visitation "because it is clearly in Wendy's best interest to preserve her relationships with each [of them]." Report of Guardian ad Litem, at 7-8.

Since the initiation of these proceedings, Lisa and respondent have again separated and have co-petitioned for dissolution. As of March 1986, Lisa, together with Wendy and a second daughter Rebecca (by respondent), has been living with appellant.

ISSUES

We address two issues:

(1) Did the trial court err in dismissing appellant's paternity action on the basis of estoppel?

(2) What role do public policy and the best interests of the child play in the allowance of paternity actions brought under the Uniform Parentage Act (UPA), RCW 26.26.

DECISION

I Estoppel

Collateral estoppel promotes the policy of ending disputes by preventing the relitigation of an issue or determinative fact after the party estopped has had a full and fair opportunity to present a case. In re Marriage of Mudgett, 41 Wash.App. 337, 342, 704 P.2d 169 (1985); Seattle-First Nat'l Bank v. Cannon, 26 Wash.App. 922, 927, 615 P.2d 1316 (1980). In order for collateral estoppel to apply, the following questions must be answered affirmatively:

(1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? (4) Will the application of the doctrine not work an injustice on the party against whom the doctrine is to be applied?

Rains v. State, 100 Wash.2d 660, 665, 674 P.2d 165 (1983); Lucas v. Velikanje, 2 Wash.App. 888, 894, 471 P.2d 103 (1970). The burden of proof is on the party asserting estoppel. Alaska Marine Trucking v. Carnation Co., 30 Wash.App. 144, 633 P.2d 105 (1981), cert. denied 456 U.S. 964, 102 S.Ct. 2045, 72 L.Ed.2d 490 (1982).

Appellant argues that the above four elements of estoppel have not been met. Specifically, he argues there is neither identity of issues nor finality of judgment because paternity was never actually "litigated" at the dissolution proceeding; it was simply assumed. Privity is not established, appellant claims, because persons in privity must be on equal footing in all respects, Duffy v. Blake, 91 Wash. 140, 157 P. 480 (1916); the fact that he and Lisa were living together is not enough to meet privity requirements. Finally, appellant argues that application of collateral estoppel will work an injustice by depriving him of a fundamental right to assert and prove his paternity of a child. See, e.g., Little v. Streater, 452 U.S. 1, 13, 101 S.Ct. 2202, 2209, 68 L.Ed.2d 627 (1981); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972).

Respondent argues that the four elements of collateral estoppel are met. Respondent claims paternity was an issue in the dissolution action, although not expressly litigated, because questions of support and custody were involved. The dividing up of parental rights and duties in a dissolution proceeding by implication necessitates a paternity determination; "identity of issues" and finality requirements are therefore satisfied. Further, respondent argues that privity denotes a mutual or successive relationship to the same right or property. See Hackler v. Hackler, 37 Wash.App. 791, 794, 683 P.2d 241 (1984). Respondent cites recent cases holding that cohabitants acquire certain mutual rights in each other's property accumulations not unlike the community property rights of married persons. See In re Marriage of Lindsey, 101 Wash.2d 299, 678 P.2d 328 (1984); Warden v. Warden, 36 Wash.App. 693, 698, 676 P.2d 1037 (1984). By living together, respondent contends, appellant and Lisa possessed mutual rights in any received child support and consequently were in privity as to this dissolution proceeding. Finally, respondent argues there is no injustice since appellant had a full and fair opportunity under CR 24 to intervene in the dissolution, an opportunity he voluntar ly relinquished after discussion with Lisa. Respondent concludes that any possible injustice to Shawn from not being able to declare his paternity must be balanced against the injustice caused to Wendy by interfering with the stability of her world.

Appellant's arguments are persuasive. We hold that neither identity of issues nor privity has been established in this case.

Collateral estoppel requires that the issue decided in the prior adjudication is identical with the one at hand. Luisi Truck Lines, Inc. v. State Utils. & Transp. Comm'n, 72 Wash.2d 887, 894, 435 P.2d 654 (1967). Where an issue arises in two entirely different contexts, this requirement is not met. Luisi, at 895, 435 P.2d 654. In addition, collateral estoppel precludes only those issues that have actually been litigated and determined; it "does not operate as a bar to matters which could have ... been raised [in prior litigation] but were not." Davis v. Nielson, 9 Wash.App. 864, 874, 515 P.2d 995 (1973); accord Fluke Capital & Management Servs. Co. v. Richmond, 106 Wash.2d 614, 620, 724 P.2d 356 (1986). ¹ Where, for example, an earlier judgment has been entered upon stipulated findings of fact and embodying a settlement of the parties, appellate courts have refused to apply...