Prather v. Tupper, 20322

Decision Date07 December 1976
Docket NumberNo. 20322,20322
Citation230 S.E.2d 712,267 S.C. 636
PartiesWilliam Alonzo PRATHER, Jr., Appellant, v. Samuel W. TUPPER et al., Respondents.
CourtSouth Carolina Supreme Court

Jan L. Warner, of Weinberg, Bryan, Warner, Brown & McDougall, Sumter, for appellant.

G. Thomas Cooper, Rolly W. Jacobs and Robert Sheheen, Camden, for respondents.

LEWIS, Chief Justice:

The issues in this appeal had their inception in a prior action brought by Samuel W. Tupper against his wife, Diane C. Tupper, for divorce on the ground of desertion. Although there was no such allegation in the pleadings, testimony was introduced in that action that Samuel W. Tupper was not the father of a child born to his wife on February 24, 1975; and that appellant was the putative father. Thereafter, on May 10, 1975, the court issued a decree granting the divorce and adjudicating that Samuel W Tupper was not the father of the child. Appellant was not a party to that action, nor was the child represented by guardian ad litem.

On the same day that the foregoing divorce decree was entered, the mother was appointed guardian ad litem for the child and she then filed a petition alleging that appellant was the child's father and asked that the name of the child be changed on the birth certificate. On May 19, 1975, the court entered an order granting the name change to that of the mother's maiden name and, after a finding that appellant was the natural father, ordered that appellant's name be so entered on the child's birth certificate. Appellant was not a party to this proceeding. Although the child was represented by the mother, as guardian ad litem, the record shows that her representation was only formal with no adversary proceedings.

Subsequently, the mother of the child instituted this action against appellant, on January 26, 1976, to require appellant to support the child. In response to this action for support, appellant challenged the validity of the prior orders of the lower court finding that the child was a bastard and that appellant was its father. Appellant contended that the lower court was without jurisdiction to determine the legitimacy of the child or the questions concerning his paternity, since the child was not represented by a guardian ad litem and appellant was not a party to the prior actions.

After appellant challenged the validity of the foregoing rulings of the lower court, an attorney was appointed as guardian ad litem for the child and has appeared in this...

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5 cases
  • Joiner ex rel. Rivas v. Rivas, 2990.
    • United States
    • South Carolina Court of Appeals
    • 10 de maio de 1999
    ...of incompetents has precedence over procedural rules otherwise limiting the scope of review."); see also Prather v. Tupper, 267 S.C. 636, 639-40, 230 S.E.2d 712, 713 (1976) (setting aside a determination of illegitimacy where no guardian ad litem was appointed to represent the An action to ......
  • Palm v. General Painting Co., Inc.
    • United States
    • South Carolina Court of Appeals
    • 19 de abril de 1988
    ...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 l......
  • Abercrombie v. LaBoon, 0138
    • United States
    • South Carolina Court of Appeals
    • 31 de janeiro de 1984
    ...valid judgment in that regard. See 59 Am.Jur.2d Parties § 259 at 722 (1971); 67A C.J.S. Parties § 121 at 944 (1978); Prather v. Tupper, 267 S.C. 636, 230 S.E.2d 712 (1976); see also South Carolina Dept. of Social Services v. McDow, 276 S.C. 509, 280 S.E.2d 208 (1981); cf. McLaughlin v. Stri......
  • Brown v. Ryder Truck Rental
    • United States
    • South Carolina Court of Appeals
    • 6 de dezembro de 1989
    ...the Browns question whether Linda is bound by the divorce decree, Linda herself chooses not to raise this issue. See 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 l......
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