Paternity of SDM, Matter of

• Decision Date: 10 October 1994
• Docket Number: No. C-93-5,C-93-5
• Citation: 882 P.2d 1217
• Parties: In the Matter of the PATERNITY OF SDM. RKS, JR., Appellant (Defendant), v. SDM, by next friend TY, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1217

882 P.2d 1217

In the Matter of the PATERNITY OF SDM RKS, JR., Appellant (Defendant), v. SDM, by next friend TY, Appellee (Plaintiff).

No. C-93-5.

Supreme Court of Wyoming.

Oct. 10, 1994.

Robert B. Carroll, Cheyenne, for appellant.

Donald A. Cole of Cole & Cole, Cheyenne, for appellee TY.

Ronald E. Triggs, Cheyenne, Guardian ad Litem.

Before GOLDEN, C.J., and THOMAS, MACY and TAYLOR, JJ., and CARDINE, J., ^* Retired.

THOMAS, Justice.

The essential issue in this case is whether a minor child is foreclosed by preclusive legal doctrines from an action to establish paternity. The action was commenced by the child's mother in the name of the child after the mother had stipulated to the dismissal with prejudice of an action to establish paternity filed by the mother and after a decree of divorce in which the child was declared the issue of the marriage of the mother and her husband. The putative father (RKS), relying upon the doctrines of res judicata, collateral estoppel, judicial estoppel, and laches, sought dismissal of the action. The district court ruled the child was not foreclosed from pursuing the paternity action; found RKS was the natural father; and ordered child support, payment and provision of certain costs, expenses, and additional benefits by RKS. We hold a minor child has a separate and independent cause of action to establish paternity under our statutes, and the child was not foreclosed from that action by the earlier proceedings because the child was not a party to them. The Decree of Paternity entered by the district court is affirmed.

RKS in his Appellant's Opening Brief asserts the following issues:

I. Are parties to a paternity action and their privies prevented from relitigating paternity if the action is voluntarily dismissed before the informal hearing?

II. Can a child born during a marriage bring a paternity action after a divorce in which the child's mother and presumed father have declared the child to be born as issue of their marriage?

In the Brief of Appellees (the mother and the child, by her guardian ad litem ), the issues are set forth in this way:

I. Does the Appellant's failure to affirmatively plead res judicata, his counterclaim for paternity and his subsequent motions to join mother and presumed father waive res judicata?

II. Whether the stipulation and order to dismiss with prejudice entered into by mother and putative father in the first paternity action preclude the current paternity action?

A. The stipulation and order dismissing with prejudice are void.

B. Res judicata does not apply to the minor child because she was not a party to the action.

III. Whether the minor child is precluded by res judicata or collateral estoppel from bringing a paternity action after a divorce wherein the child's mother and mother's husband stipulated that the child was born as issue of their marriage?

In his reply brief, RKS addresses the first issue articulated by the appellees, which he articulates in the identical language used by the appellees.

This case is the third action in which paternity of the child has been addressed. Prior to the birth of the child, the mother instituted a paternity action on June 29, 1989, alleging that RKS was the putative father. A guardian ad litem was appointed to represent the unborn child. RKS responded by filing a Motion to Dismiss in which he alleged that the husband of the mother was the presumptive father of the child pursuant to WYO.STAT. § 14-2-102(a)(i) (Cum.Supp.1993). ¹

After the child was born on July 31, 1989, the mother executed an Affidavit for Dismissal of the paternity action in which she stated in part:

4. That I agree that my husband, [husband's name], is the natural father of the minor child.

5. That I agree that [putative father's name] is not the natural father of said minor child.

The attorneys for the parties then signed a Stipulated Motion for Dismissal. The guardian ad litem previously appointed for the child did not receive notice of the stipulation and did not participate in the dismissal action nor object to the dismissal. On August 14, 1989, the court entered an Order of Dismissal of that first action with prejudice. No appeal was taken from that ruling.

In the second action relating to the child, the mother sought a divorce from her husband (the presumptive father) by a complaint filed November 21, 1989. The case was set for default hearing on January 30, 1990. The mother then filed a Motion to Set Aside Setting in which she asserted, "[t]hat there has arisen a substantial question of fact as to the biological paternity of the infant child born as issue of this marriage." In response to that motion, the court entered an order in which it set aside the default trial until biological paternity was determined, but no further action was taken to establish paternity. Subsequently, the mother, in an Affidavit for Divorce, and the mother and husband, in a Property Settlement Agreement, stated one child had been born as issue of the marriage, naming the child born on July 31, 1989. On April 27, 1990, a Decree of Divorce was entered stating the child was the issue of the marriage. The mother was awarded custody of the child, and the husband was granted visitation rights and ordered to pay child support. No appeal was taken from the divorce decree.

This action to establish paternity was filed on October 15, 1990 by the child acting by and through her next best friend, her mother, alleging that RKS was the natural father. In responding to this action, RKS argued, among other things, that paternity had been adjudicated by the court in two prior proceedings, and those determinations were res judicata in this action. The district court, however, adopted the Report of the District Court Commissioner and found the child had not been a party to either the first paternity action or the divorce action. RKS then joined both the mother and the presumptive father as parties in this case. Subsequently, the court ordered genetic testing of the four parties and appointed a guardian ad litem for the child. The result of the genetic testing demonstrated the presumptive father, the ex-husband, was excluded as the child's biological father. The same tests indicated RKS was the biological father at a probability level of 99.17%. RKS has appealed the ruling of the district court supporting the right of the child to pursue this paternity action.

RKS did not raise the doctrines of res judicata, collateral estoppel, judicial estoppel or laches as affirmative defenses in his Answer and Counterclaim in this case. In pertinent part, WYO.R.CIV.P. 8(c) provides:

Affirmative defenses.--In pleading to a preceding pleading, a party shall set forth affirmatively * * * estoppel, * * * laches, * * * res judicata, * * * and any other matter constituting an avoidance or affirmative defense.

In Bredthauer v. TSP, 864 P.2d 442, 446 (Wyo.1993), we said:

We strongly adhere to the rule forbidding us to "consider for the first time on appeal issues that were neither raised in, nor argued to, the trial court," except for those issues which are jurisdictional or are fundamental in nature. Oatts v. Jorgenson, 821 P.2d 108, 111 (Wyo.1991).

While RKS did not raise his affirmative defenses in his pleading, the issues were argued to the court. Consequently, the pleading may be considered as having been amended pursuant to WYO.R.CIV.P. 15(b). We also perceive that the question of whether a minor child has a separate and distinct cause of action to establish paternity in the absence of a child having been joined as a party in proceedings instituted by the mother or the putative father is fundamental in nature. We proceed to decide that issue.

The doctrines of res judicata and collateral estoppel are historic features of the law in Wyoming. In Delgue v. Curutchet, 677 P.2d 208, 213-14 (Wyo.1984), we said:

In this jurisdiction the doctrine of res judicata and the related doctrine of collateral estoppel have been recognized in a number of decisions over the years. Barrett v. Town of Guernsey, Wyo., 652 P.2d 395 (1982); Roush v. Roush, Wyo., 589 P.2d 841 (1979); Bard Ranch Company v. Weber, Wyo., 557 P.2d 722 (1976); Blount v. City of Laramie, Wyo., 510 P.2d 294 (1973); Knight v. Boner, Wyo., 459 P.2d 205 (1969); Rubeling v. Rubeling, Wyo., 406 P.2d 283 (1965); Lee v. Brown, Wyo., 357 P.2d 1106 (1960); Willis v. Willis, 48 Wyo. 403, 49 P.2d 670 (1935), reh. denied 49 Wyo. 296, 54 P.2d 814 (1936); and Cook v. Elmore, 27 Wyo. 163, 192 P. 824 (1920). See also Price v. Bonnifield, 2 Wyo. 80 (1878). As recognized in this state, these doctrines incorporate a universal precept of common-law jurisprudence to the effect that a "right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction ... cannot be disputed in a subsequent suit between the same parties or their privies." Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979), quoting from Southern Pacific R. Co. v. United States, 168 U.S. 1, 48-49, 18 S.Ct. 18, 27, 42 L.Ed. 355 (1897). These doctrines are founded upon the interest held by society in having differences conclusively resolved in a single action thereby avoiding the vexation and expense which are associated with piecemeal litigation. The necessity for sustaining this social interest is the justification for the doctrines of res judicata and collateral estoppel. Montana v. United States, supra, 440 U.S. at 153-154, 99 S.Ct. at 973-74; Barrett v. Town of Guernsey, supra, 652 P.2d at 398-399; and Rubeling v. Rubeling, supra, 406 P.2d at 284. These doctrines, which inhibit the relitigation of claims or issues upon which there has been a full and fair opportunity to litigate in a court of competent jurisdiction, promote the reliance by citizens of the state upon courts to settle their disputes and they conserve judicial resources.

The interest served by both doctrines is...