Palm v. General Painting Co., Inc.

Decision Date19 April 1988
Docket NumberNo. 1173,1173
Citation296 S.C. 41,370 S.E.2d 463
PartiesJames L. PALM, Jr., Deceased, James Lewis Palm, Sandy Ann Palm, a minor, Shirley Ann Palm Merritt, Rusty Lewis Palm, Minor, Julia Lucille Williams, Veronica Jean Palm Stewart, and Christy Lynn Palm, Minor, Plaintiffs, v. GENERAL PAINTING COMPANY, INC., Employer, and United States Fidelity and Guaranty Company, Carrier, Defendants, of whom Sandy Ann Palm and Rusty Lewis Palm are Appellants-Respondents, and of whom Christy Lynn Palm and Julia Lucille Williams are Respondents-Appellants. . Heard
CourtSouth Carolina Court of Appeals

James D. Calmes, III, Greenville, for appellants-respondents.

Ronald S. Clement and Donald L. Pilzer, Greenville, for respondents-appellants.


This workers' compensation case arises out of the death on June 10, 1985 of James Lewis Palm, Jr. The single commissioner awarded benefits to Sandy Ann Palm, Rusty Lewis Palm, and Christy Lynn Palm under Section 42-9-290 of the South Carolina Code of Laws (1976) as employee dependents and denied benefits to Julia Lucille Williams thereunder. The full commission and the circuit court affirmed the single commissioner's order. Sandy, Rusty, Christy, and Julia all appeal. The basic issue on appeal is whether Christy, found by the single commissioner to be the legitimate daughter of the deceased, Rusty, found by the single commissioner to be the illegitimate son of the deceased, and Julia, found by the single commissioner to be married to another but totally dependent on the deceased for support for a period in excess of three months prior to the death of the deceased, are entitled to benefits. We affirm.


We address first the issue of whether the single commissioner erred in awarding Christy benefits.

The single commissioner found Christy "was the legitimate issue of the marriage of Veronica Jean Palm Stewart and [the deceased], having been born during the existence of their marriage and before such marriage was legally dissolved." He also found the deceased "had access to his wife ... during the period that ... Christy ... was conceived."

Sandy, Rusty, and Julia question the single commissioner's failure to find Christy collaterally estopped to claim the deceased is her father and question whether Christy may be considered a dependent of the deceased. Sandy and Rusty also question the factual underpinnings of the single commissioner's finding regarding Christy's being the child of the deceased and the reliance by the single commissioner on Barr's Next of Kin v. Cherokee, Inc., 220 S.C. 447, 68 S.E.2d 440 (1951), to support his finding.


Sandy, Rusty, and Julia base their contention that Christy is collaterally estopped to claim the deceased is her father on two family court orders, one entered in 1982 divorcing the deceased from Christy's mother and finding Christy to be illegitimate and the other entered in 1985 declaring Christy to be the daughter of Veronica and Bobby Roy Stewart, changing Christy's last name from Palm to Stewart, and directing Christy's birth certificate to reflect Stewart as Christy's natural father.

Although Christy was neither a party to the divorce action nor represented by a guardian ad litem therein, a guardian ad litem represented her in the name-change action. Sandy, Rusty, and Julia, however, were strangers to both family court actions.

A party is not precluded from relitigating an issue with another person if the party lacked a full and fair opportunity to litigate the issue in the first action or if other circumstances justify affording the party an opportunity to litigate the issue again. Beall v. Doe, 281 S.C. 363, 315 S.E.2d 186 (Ct.App.1984). In determining the question of whether a party may relitigate an issue, a court may consider whether the prior determination apparently was based on a compromise verdict or finding and whether other compelling circumstances make it appropriate that the party be allowed to relitigate the issue. Id.; RESTATEMENT (SECOND) OF JUDGMENTS § 29(5) and (8) at 291-292 (1982). The question of whether to allow a stranger to use offensive collateral estoppel so as to bar a party from relitigating an issue in a subsequent action is one addressed to the broad discretion of the trial court. Conley v. Spillers, 301 S.E.2d 216 (W.Va.1983).

We have no trouble concluding the single commissioner did not abuse his discretion in refusing to hold Christy precluded by the divorce action and by the name-change action from relitigating the issue of her legitimacy in the instant action.

Christy was neither a party nor a privy of a party to the divorce action. She therefore lacked a full and fair opportunity to litigate the issue of her legitimacy in that action. Cf. Prather v. Tupper, 267 S.C. 636, 230 S.E.2d 712 (1976) (a determination that a child was illegitimate must be set aside where the child was not represented by a guardian ad litem in the action and an issue was not raised by the pleadings and a defendant is not bound by an adjudication where he was not a party to the action).

The name-change action was uncontested. Had the guardian ad litem contested the allegations made by Christy's mother and Stewart in their petition and not joined in their prayer that Christy be found to be their daughter, that her name be changed, and that her birth certificate be amended, the action could reasonably have been resolved otherwise. See RESTATEMENT (SECOND) OF JUDGMENTS § 29, comment g at 295 (1982) (A party is not precluded from relitigating an issue with another where "[t]he circumstances attending the determination of an issue in the first action may indicate that it could reasonably have been resolved otherwise if those circumstances were absent."). Indeed, in view of the presumption of legitimacy and the restrictions placed on a spouse's testimony regarding non-access to the other spouse during the period of conception, the result probably would have been the same as the result here. Peoples National Bank of Greenville v. Manos Brothers, Inc., 226 S.C. 257, 84 S.E.2d 857, 45 A.L.R.2d 1070 (1954); Lewter by Epps v. Thompson, 281 S.C. 397, 315 S.E.2d 821 (Ct.App.1984).


We find no merit in the contention that Christy is not entitled to share in the deceased's death benefits because, under the name-change order, she was not a dependent of the deceased at the time of his death.

As a surviving child of the deceased, Christy, who was four years old when the deceased died, is conclusively presumed under Section 42-9-110 of the South Carolina Code of Laws (1976) "to be wholly dependent for support" on the deceased. See CODE OF LAWS OF SOUTH CAROLINA § 42-1-70 (1976) (defining the term "child" to include only persons under 18 years of age or wholly dependent upon the employee).


As to the challenge by Sandy and Rusty to the single-commissioner's finding that Christy is the legitimate child of the deceased, in a workers' compensation case a finding of the Workers' Compensation Commission cannot be reversed or modified by a court unless the finding is controlled by legal error or is "[c]learly erroneous in view of the reliable, probative and substantial evidence on the whole record." CODE OF LAWS OF SOUTH CAROLINA § 1-23-380(g)(3) and (5) (1976); Lail v. Georgia-Pacific Corp., 285 S.C. 234, 328 S.E.2d 911 (1985); Hanks v. Blair Mills, Inc., 286 S.C. 378, 335 S.E.2d 91 (Ct.App.1985).

A child born in lawful wedlock is presumed to be legitimate. Chandler v. Merrell, 291 S.C. 227, 353 S.E.2d 135 (1987); Barr's Next of Kin v. Cherokee, Inc., supra. "The presumption of legitimacy arising from birth in wedlock supports the rule that, ordinarily, if a husband had access to his wife so that by the laws of nature he could be the father of a child born in wedlock, it must be presumed to be his." 10 Am.Jur.2d Bastards § 12 at 853 (1963). This presumption, however, is rebuttable but only " 'by the clearest evidence that it was impossible for [the husband], by reason of impotency or imbecility, or entire absence from the place where the wife was during [the period of conception], to have had access to the wife, or to be the father of the child.' " Barr's Next of Kin v. Cherokee, Inc., 220 S.C. at 464, 68 S.E.2d at 447.

Here, the reliable, probative, and substantial evidence on the whole record shows that Christy was conceived and born during a time when her mother Veronica Jean Palm Stewart was married to the deceased, whom she later divorced, and that the deceased had access to Christy's mother during the period Christy was conceived.

Christy's mother and the deceased married sometime in 1975 and divorced on September 14, 1982. Christy was born on October 30, 1980, after being conceived, according to her mother, sometime during February, 1980. Christy's mother testified she had sexual intercourse with the deceased "[q]uite a few times" in February, 1980.

The presumption of legitimacy, therefore, clearly applies.

Although the single commissioner made no express finding that the presumption of legitimacy was not rebutted by the clearest of evidence that it was impossible for the deceased to have fathered Christy, he implicitly did so. Evidence supporting this implicit finding was supplied by Stewart himself. Stewart denied he had sexual relations with Christy's mother in February, 1980.


We also find no merit in Sandy's and Rusty's contention that the single commissioner improperly relied on Barr's Next of Kin in declaring Christy to be the legitimate daughter of the deceased because the issue regarding Christy's legitimacy had become moot when Christy's mother and Stewart married subsequent to Christy's birth. See CODE OF LAWS OF SOUTH CAROLINA § 20-1-60 (1976) ("If the parents of an illegitimate child subsequently marry, the child shall become legitimate ... .").

This argument, however, assumes Christy was illegitimate to start with. Section...

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