Nancy Darlene M. v. James Lee M., Jr.

• Citation: 400 S.E.2d 882,184 W.Va. 447
• Decision Date: 18 December 1990
• Docket Number: No. 19513,19513
• Court: West Virginia Supreme Court
• Parties: NANCY DARLENE M. v. JAMES LEE M., Jr.

Page 882

400 S.E.2d 882

184 W.Va. 447

NANCY DARLENE M. v. JAMES LEE M., Jr.

No. 19513.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1990.

Syllabus by the Court

1. 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.

2. "Matured installments provided for in a decree, which orders the payment of monthly sums for alimony or child support, stand as 'decretal judgments' against the party charged with the payments." Syl. pt. 1, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).

3. "The authority of the circuit courts to modify alimony or child support awards is prospective only and, absent a showing of fraud or other judicially cognizable circumstance in procuring the original award, a circuit court is without authority to modify or cancel accrued alimony or child support installments." Syl. pt. 2, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).

Kevin V. Sansalone, Children's Advocate, Fairmont, for Nancy Darlene M.

G. Patrick Stanton, Jr., Stanton and Stanton, Fairmont, for James Lee M., Jr.

McHUGH, Justice:

This case is before the Court upon the appeal of Nancy Darlene M., from the February 28, 1989 final order of the Circuit Court of Marion County. The appellee is James Lee M., Jr. ¹

I

The appellant and appellee were married on August 24, 1974. On October 20, 1979, the appellant gave birth to L.D.M.

The appellant filed for divorce in the Circuit Court of Marion County on December 26, 1980, alleging irreconcilable differences. The complaint also alleged that L.D.M. "was born of the marriage."

Following an "agreement for enlargement of time to answer," the appellee's answer, filed June 3, 1982, admitted essentially all of the substantive allegations of the appellant, including the allegation that L.D.M. was born of the marriage. The appellee is in the United States Marine Corps, serving in California during the time much of this litigation occurred, and was so when he filed his answer to the appellant's complaint. ²

On August 23, 1982, the circuit court entered an order granting the divorce, awarding custody of the child to the appellant, and ordering the appellee to pay $250 per month child support. The circuit court's order noted that L.D.M. is the "infant child of the parties." ³

In December, 1982, as a result of the appellee's failure to pay child support, the appellant filed a petition under the Revised Uniform Reciprocal Enforcement of Support Act. ⁴ This petition, initiated by and through the Marion County prosecutor's office, was filed in the Superior Court of Orange County, California.

The California court held a hearing during which the appellee raised the issue of paternity. ⁵ That court ordered the appellant and the child to submit to blood testing. The appellant, who was never even in California with respect to this case, refused to submit to such testing. The California court entered an order on October 14, 1983, denying the appellant's enforcement petition, noting that the appellant refused to submit to a blood test, and finding that the appellee is not the father of the child.

The appellant, in 1987, with the assistance of the Marion County Child Advocate Office, caused the appellee's wages to be attached. ⁶

In May, 1988, the appellee filed a motion to terminate child support payments, and, accordingly, a hearing was conducted by the family law master in West Virginia.

At this hearing, the appellee alleged, as he does before this Court, that he observed the appellant having sexual intercourse with another male in February, 1979, and that in April, 1979, when the appellant discovered that she was pregnant, she informed the appellee that he was not the father of the unborn child.

The family law master concluded that the issue of paternity had been settled by the West Virginia circuit court, and that the California court order does not nullify nor modify the circuit court's August 23, 1982 order, compelling the appellee to pay $250 per month child support.

Upon the appellee's petition for review of the family law master's recommended decision, the circuit court required the parties to submit to blood testing. This testing was performed, and, as asserted by the appellant, the results were returned exclusively to the circuit court. ⁷

On February 28, 1989, the circuit court entered an order denying the appellee's request to challenge paternity. However, the circuit court found that "by clear and convincing evidence," the appellee proved a "substantial change in circumstances," warranting a change in child support payments. The circuit court further found that in light of what it termed an "expert report," equity requires that child support payments be suspended and paid at a nominal rate. ⁸ The circuit court determined that an arrearage of $17,000 existed, but ordered monthly payments of only ten dollars. This appeal ensued.

II

The appellant raises issues concerning whether the circuit court committed reversible error by: (1) suspending the appellee's monthly child support obligation; (2) according full faith and credit to the California court order; and (3) lowering the appellee's child support obligation to only ten dollars per month, thus, effectively cancelling the arrearage of $17,000. Because these issues all relate to each other, they will be addressed together.

The appellant contends that the appellee is barred from challenging the issue of paternity because he did not appeal this issue within the then-prescribed period of eight months. ⁹ We agree with the appellant's contention.

It is a general principle that an "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." 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).

This principle is recognized throughout American jurisdictions. See De Weese v. Unick, 102 Cal.App.3d 100, 162 Cal.Rptr. 259 (1980); Garcia v. Garcia, 148 Cal.App.2d 147, 306 P.2d 80 (1957); Johnson v. Johnson, 395 So.2d 640 (Fla.Dist.Ct.App.1981); In re Marriage of Detert, 391 N.W.2d 707 (Iowa Ct.App.1986); Baum v. Baum, 20 Mich.App. 68, 173 N.W.2d 744 (1969); In re Marriage of Campbell, 741 S.W.2d 294 (Mo.Ct.App.1987); Withrow v. Webb, 53 N.C.App. 67, 280 S.E.2d 22 (1981); Arnold v. Arnold, 207 Okla. 352, 249 P.2d 734 (1952); Com. ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 384 A.2d 1285 (1978); Johns v. Johns, 64 Wash.2d 696, 393 P.2d 948 (1964); E v. E, 57 Wis.2d 436, 204 N.W.2d 503 (1973). See also 24 Am.Jur.2d Divorce and Separation § 1099, at 1084 (1983) ("If the paternity of a child is placed in issue in an action for a divorce and is adjudicated, the matter is res judicata as between the husband and wife in any subsequent action or proceeding[.]").

This Court has addressed a challenge to a paternity determination on a similar point. In N.C. v. W.R.C., 173 W.Va. 434, 317 S.E.2d 793 (1984), the parties, following a first divorce from each other, continued to have sexual relations, and then remarried upon learning that the wife was pregnant. The parties were then divorced a second time, and the husband was ordered to pay child support. Over eight months after the second divorce order was entered, the husband petitioned the circuit court for relief from paying child support, alleging that he was not the father of the child. This Court addressed the husband's claim in that case as a motion for relief from a final judgment, order, or proceeding. ¹⁰ We affirmed the circuit court's decision in N.C. that the husband was not entitled to the relief sought because he did not raise "the issue of paternity through appropriate proceedings prior to the final disposition of his second divorce." Id., 173 W.Va. at 438, 317 S.E.2d at 797. See also Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964) (under Rule 60(b), father could not use blood test results which disproved paternity after six months).

We have also recognized that a final order setting alimony and child support cannot be collaterally attacked due to an alleged insufficiency of evidence if the period for appeal has expired. Syl. pt. 1, Robinson v. Robinson, 169 W.Va. 425, 288 S.E.2d 161 (1982).

"The doctrine of res judicata guards the finality of a court's decision." Cook v. Cook, 178 W.Va. 322, 324, 359 S.E.2d 342, 344 (1987). In syllabus point 1 of In re Estate of McIntosh, 144 W.Va. 583, 109 S.E.2d 153 (1959), this Court reiterated well established legal principles with respect to the doctrine of res judicata:

'An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata.' Point 1, Syllabus, Sayre's Adm'r v. Harpold et al., 33 W.Va. 553 [, 11 S.E. 16 (1890) ].

(emphasis in original) Accord, syl. pt. 1, Sattler v. Bailey, 184 W.Va. 212, 400 S.E.2d 220 (1990); syl. pt. 1, Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983).

The Court of...