Paternity of Mayonia M.M., In re, 95-2838-FT

• Decision Date: 07 May 1996
• Docket Number: No. 95-2838-FT,95-2838-FT
• Citation: 551 N.W.2d 31,202 Wis.2d 460
• Parties: In re the PATERNITY OF MAYONIA M.M. MAYONIA M.M., by her Guardian Ad Litem, Attorney Milton D. SCHIERLAND, Jr., Petitioner-Respondent, v. KEITH N., Respondent-Appellant. d
• Court: Wisconsin Court of Appeals

Page 31

551 N.W.2d 31

202 Wis.2d 460

In re the PATERNITY OF MAYONIA M.M. MAYONIA M.M., by her Guardian Ad Litem, Attorney Milton D SCHIERLAND, Jr., Petitioner-Respondent, v. KEITH N., Respondent-Appellant. ^d

No. 95-2838-FT.

Court of Appeals of Wisconsin.

Submitted on Briefs April 8, 1996.

Opinion Released May 7, 1996.

Opinion Filed May 7, 1996.

On behalf of the respondent-appellant, the cause was submitted on the briefs of John S. Bartholomew of Bartholomew & Greenhill of Shawano.

On behalf of the petitioner-respondent, the cause was submitted on the brief of guardian ad litem, Milton D. Schierland, Jr. of Schierland Law Office of Neenah.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Keith N. appeals a judgment adjudicating him the father of Mayonia M.M. ¹ Keith argues the paternity action is barred as a result of a prior paternity action brought against him by the district attorney that was tried in 1976 and dismissed. Because we conclude the current paternity action is not barred, we affirm the judgment.

The facts are undisputed. Mayonia was born in 1976. That same year, the district attorney brought a paternity action against Keith, presumably pursuant to ch. 52, STATS., 1975. ² After a trial to the court, the trial court concluded the state had not met its burden of proof that Keith was Mayonia's father and, accordingly, dismissed the complaint.

In 1993, Mayonia, then seventeen years old and acting through her guardian ad litem, brought a new cause of action for paternity pursuant to § 767.45(1)(a), STATS. ³ New blood tests were ordered and indicated a 99.98% probability that Keith is Mayonia's father. Ultimately, the parties agreed that Keith would allow a finding of paternity without contest, reserving his right to appeal whether the second action is barred in light of the 1976 paternity action. The trial court accepted this agreement and found that Keith is Mayonia's father. The trial court also ordered Keith to pay $15,000 in back child support.

The sole issue on appeal is whether the second paternity action is barred. Keith argues the claim is barred by: (1) res judicata, or claim preclusion; and (2) collateral estoppel, or issue preclusion. ⁴ Whether a claim is barred by claim preclusion or issue preclusion is a question of law we review without deference to the trial court. See Lindas v. Cady, 183 Wis.2d 547, 552, 515 N.W.2d 458, 460 (1994) (application of preclusion doctrines to a given set of facts is a question of law which is reviewed on appeal without deference to the trial court).

During the time between the first paternity case brought against Keith and the instant case, paternity law in Wisconsin changed significantly. Before July 1, 1981, the statutes gave no right to either the mother or child to commence an action to establish the child's paternity. ⁵ In re R.W.L., 116 Wis.2d 150, 153, 341 N.W.2d 682, 683 (1984). Effective July 1, 1981, the Wisconsin legislature provided that a child may file a paternity action. Id. at 154, 341 N.W.2d at 683; see also § 767.45(1), STATS. Currently, such an action must be brought within nineteen years of the child's birth. Section 893.88, STATS. ⁶

We addressed whether a child's paternity action may be barred by a previous action filed on behalf of the mother by a district attorney in In re Chad M.G., 194 Wis.2d 689, 694, 535 N.W.2d 97, 99 (Ct.App.1995), which held that claim preclusion did not bar the child's action. This court observed that under the doctrine of claim preclusion, a final judgment on the merits in a prior action is conclusive and bars all subsequent actions between the same parties or their privies as to all matters that were or that might have been litigated in the prior action. Id. However, in Chad M.G., we concluded that claim preclusion did not apply because the respective interests of a mother and child are not sufficiently identical to place them in privity. Id. at 695, 535 N.W.2d at 99.

Keith attempts to distinguish Chad M.G. because the case brought on behalf of Chad's mother by corporation counsel was dismissed for failure to prosecute, without having proceeded to a trial. In contrast, Keith notes, the first paternity case against him was fully tried by the district attorney. He argues, "There has been no claim here (and no basis to suggest) that the handling of the [first] matter was inadequate or that a Guardian ad Litem could have done any better under the law existing at the time."

We are not persuaded that the existence of a full trial in Keith's first paternity case cures the problem we identified in Chad M.G.: neither mother and child, nor the state and the child, are in privity. See id. at 695, 535 N.W.2d at 99. As we noted in In re D.S.L., 159 Wis.2d 747, 752, 465 N.W.2d 242, 244 (Ct.App.1990):

A child in a paternity proceeding can have many interests divergent from those of the state or of the child's mother. The state's primary interest is to protect the public from the burden of supporting children born out of wedlock where fathers are financially able to contribute to their maintenance. In re R.W.L., 116 Wis.2d 150, 161, 341 N.W.2d 682, 687 (1984). The mother may have a variety of reasons for not initiating paternity proceedings, including a continuing relationship with the father, or a desire to avoid the disapproval of her family or the community. Id. at 160-61, 341 N.W.2d at 686.

The child, however, can be interested in determining his or her right to seek inheritance and the father's right to seek custody, obtaining a complete medical history, amassing genealogical information or establishing a meaningful bond with the father. D.S.L., 159 Wis.2d at 752, 465 N.W.2d at 244.

Next, Keith argues that issue preclusion bars Mayonia's claim because privity or sufficient identity of parties is not necessary to support a contention that the case is barred on the grounds of issue preclusion. In Northern States Power Co. v. Bugher, 189 Wis.2d 541, 550, 525 N.W.2d 723, 727 (1995), our supreme court explained that issue preclusion refers to the effect of a judgment in foreclosing relitigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in a prior action. Issue preclusion is a narrower doctrine than claim preclusion and requires courts to conduct a "fundamental fairness" analysis before applying the doctrine. Id. at 551, 525 N.W.2d at 727. Under this fundamental fairness analysis, courts consider an array of factors in deciding whether issue preclusion is equitable in a particular case. Id. ⁷

Although issue preclusion was originally permitted only if the parties were mutually bound by the first court's judgments, the development of the doctrine has removed the mutuality requirement and adopted a more flexible approach toward its application. See Michelle T. v. Crozier, 173 Wis.2d 681, 687, 690, 495 N.W.2d 327, 330, 331 (1993). Thus, issue preclusion may apply where the party against whom the plea is raised was a party to a prior action and had full opportunity to litigate the issue. See id. at 691, 495 N.W.2d at 331.

For example, offensive issue preclusion occurs when the plaintiff seeks to foreclose a defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party. Id. at 684 n. 1, 495 N.W.2d at 328 n. 1. Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim that the plaintiff has previously litigated and lost against another defendant. Id.

If Keith was asserting offensive or defensive issue preclusion, we would consider the factors enumerated in Michelle T. to determine whether Mayonia should be precluded from litigating the issue of Keith's paternity. However, the situation here constitutes neither defensive issue preclusion nor offensive issue preclusion because Keith is attempting to preclude an individual who was not a party or privy in the first paternity action from relitigating an issue Keith won in that action. It is a fundamental premise of preclusion law that nonparties to a prior decision cannot be bound by it unless they had sufficient identity of interest with a party that their interests are deemed to have been litigated. See In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492, 1498 (11th Cir.1987), aff'd, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). Indeed, "It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n. 7, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). ⁸

Because Mayonia has a right to bring her own paternity action, see § 767.45(1)(a), STATS., and, as we have already concluded, was not a party or privy in the first paternity action against Keith, it would be a violation of her due process rights to preclude her from litigating the issue of Keith's paternity. See Parklane Hosiery, 439 U.S. at 327 n. 7, 99 S.Ct. at 649. Therefore, we reject Keith's argument that issue preclusion bars the second paternity action against him.

Keith argues that if this court allows Mayonia's paternity action against him, judgments throughout the state dismissing actions against putative fathers that were commenced by district attorneys under the old ch. 52, STATS., procedure will have no practical effect. Instead, new actions could now be brought which would "negate that which was thought to be long since resolved." This is especially unjust, Keith argues, because the district attorney in his first case vigorously and aggressively pursued the matter...