Shelby J.S. v. George L.H.

• Decision Date: 17 May 1989
• Docket Number: No. 18673,18673
• Citation: 381 S.E.2d 269,181 W.Va. 154
• Court: West Virginia Supreme Court
• Parties: SHELBY J.S. v. GEORGE L.H. West Virginia

Page 269

381 S.E.2d 269

181 W.Va. 154

SHELBY J.S. v. GEORGE L.H.

No. 18673.

Supreme Court of Appeals of

West Virginia.

May 17, 1989.

Syllabus by the Court

1. Most courts dealing with paternity statutes have construed them favorably toward the mother and her child with regard to a res judicata claim where there was no actual decision made on the merits in the prior proceeding.

2. "Before the principles of res judicata can be involved, there must have been an adjudication on the merits of a case." Syllabus Point 6 of Johnson v. Huntington Moving & Storage, Inc., 160 W.Va. 796, 239 S.E.2d 128 (1977).

3. Under equal protection principles, a statute which discriminates based on sex or illegitimacy must be substantially related to an important governmental objective. This test is one of intermediate scrutiny which rests between the "rational basis" review and the "strict scrutiny" test.

4. The intermediate test in illegitimacy cases for equal protection purposes under the Fourteenth Amendment to the United States Constitution and Article VI, Section 39 of the West Virginia Constitution requires that the questioned legislation must be substantially related to an important governmental objective.

5. The provisions of W.Va.Code, 48-7-4(a) (1983), providing for a ten-year statute of limitations, violate the equal protection provisions of the Constitution of the United States and the Constitution of the State of West Virginia and are, therefore, unenforceable.

Beth M. Suter, Child Advocate Office, Charleston, for appellant.

Timothy N. Barber, Charleston, for appellee.

MILLER, Justice:

In this appeal from the dismissal of a paternity action, two key issues are raised. The first is whether the dismissal of a prior paternity action bars Shelby J.S., ¹ the plaintiff below, from instituting a second paternity action against George L.H., the defendant below. The second issue is whether the ten-year statute of limitations under W.Va.Code, 48-7-4(a) (1983), precludes this action.

The facts in this appeal are fairly straightforward. The child was born on November 8, 1973. The mother instituted a paternity action on September 10, 1976, and then agreed to withdraw the suit by a signed statement dated July 10, 1977. The case was then dismissed by an agreed order dated July 21, 1977.

On May 9, 1985, the mother filed the present paternity suit to obtain child support. The defendant denied paternity and blood tests were ordered which showed a 99.88 percent probability of paternity. Subsequently, on April 3, 1987, the defendant filed a motion to dismiss and motion for judgment, raising as a bar the previously dismissed suit and the ten-year statute of limitations under W.Va.Code, 48-7-4(a) (1983). This case was dismissed on November 19, 1987.

I.

The plaintiff argues that the West Virginia Rules of Civil Procedure, and particularly Rule 41(a), relating to voluntary dismissals, should apply to the action originally dismissed on July 21, 1977. The defendant disagrees, pointing out that at the time of the initial proceeding in 1976, we had characterized paternity suits as quasi-criminal in nature and, therefore, not subject to the Rules of Civil Procedure. See State ex rel. Toryak v. Spagnuolo, 170 W.Va. 234, 292 S.E.2d 654 (1982), overruled on other grounds, Moore v. Goode, 180 W.Va. 78, 375 S.E.2d 549 (1988); State ex rel. Graves v. Daugherty, 164 W.Va. 726, 266 S.E.2d 142 (1980). However, in these cases, we were concerned with according certain minimal due process rights to the defendants.

Independently of these arguments as to the nature of a paternity suit, ² it is clear that most courts dealing with paternity statutes have construed them favorably toward the mother and her child with regard to a res judicata claim where there was no actual decision made on the merits in the prior proceeding. See generally 10 Am.Jur.2d Bastards § 94 (1963); ³ Annot., 37 A.L.R.2d 836, 840 (1954). One of the premises is a traditional one, that res judicata does not arise until there is a judgment on the merits, as we explained in Syllabus Point 6 of Johnson v. Huntington Moving & Storage, Inc., 160 W.Va. 796, 239 S.E.2d 128 (1977):

"Before the principles of res judicata can be involved, there must have been an adjudication on the merits of a case."

See also Litten v. Peer, 156 W.Va. 791, 197 S.E.2d 322 (1973); Efthemes v. Crouch, 138 W.Va. 50, 74 S.E.2d 508 (1953).

The second basis is the realization that the State has an interest in seeing that natural fathers support their children. As we explained in one of our earlier cases, Burr v. Phares, 81 W.Va. 160, 162, 94 S.E. 30, 31 (1917), "the primary object of the [paternity] statute is to protect the public against the burden of supporting and maintaining illegitimate children." As a result, courts tend to scrutinize carefully the mother's actions in a paternity suit in order that her child's support is not jeopardized.

A brief review of cases in other jurisdictions demonstrates the general approach. In Smith v. Bott, 169 Colo. 133, 454 P.2d 82 (1969), the court concluded that even though the dismissal of a mother's action in a prior case might be res judicata as to her, it did not foreclose the child's suit pursuant to a broader and more recently enacted statute. See also Johnson v. Norman, 66 Ohio St.2d 186, 20 O.O.3d 196, 421 N.E.2d 124 (1981). The Indiana court in C.L.B. v. S.T.P., 167 Ind.App. 10, 337 N.E.2d 582 (1975), refused to apply res judicata where the original paternity suit had been dismissed pursuant to a plea bargain agreement. See also Backora v. Balkin, 14 Ariz.App. 569, 485 P.2d 292 (1971).

In McDaniel v. Jackson, 78 Mich.App. 218, 259 N.W.2d 563 (1977), the mother testified in the original suit that the defendant was not the father. Based on this testimony, the prosecutor dismissed the action. Yet the court held that the dismissal was "voluntary" and that a second suit was not barred. In a more analogous situation, courts have refused to accord res judicata to dismissal orders where they are not shown to have the character of a judgment on the merits or its legal effect. E.g., W.R.S. v. E.R., 41 Colo.App. 414, 588 P.2d 379 (1978); South Carolina Dep't of Social Serv. v. Foggie, 271 S.C. 109, 245 S.E.2d 423 (1978); Patrick v. Dickson, 526 S.W.2d 449 (Tenn.1975).

In this case, we have an ex parte agreement by the mother to dismiss the original paternity suit and not to prosecute another one. No consideration is recited which might suggest that it was a compromise settlement. The order is equally vague, as it recites nothing as to the reasons for the agreed dismissal. Significantly, the dismissal was without prejudice.

Even if we were to assume that there had been some type of compromise settlement, there is nothing in the record to disclose its nature. We have always been cautious about permitting a mother to settle the child support claim with the natural father. Thus, in Burr, supra, we found the compromise agreement made by the mother to be inadequate and refused to bar her paternity suit, stating in Syllabus Point 2 that "to preclude her from instituting and prosecuting [paternity] proceedings against her seducer such contract must be fair, free from fraud and deceit, and founded upon a good and sufficient consideration."

In Pope v. Kincaid, 99 W.Va. 677, 129 S.E. 752 (1925), we also rejected a compromise agreement because it was based on inadequate consideration. Recently, in some jurisdictions, courts have came to the conclusion that the mother has no right to make a private compromise with the putative father which would contract away the child's support rights. Gammon v. Cobb, 335 So.2d 261 (Fla.1976); Tuer v. Niedoliwka, 92 Mich.App. 694, 285 N.W.2d 424 (1979); Worthington v. Worthington, 250 Ga. 730, 301 S.E.2d 44 (1983).

From the foregoing law, we conclude that the dismissal of the initial paternity suit does not bar the second suit instituted in 1985 and that the circuit court committed reversible error in dismissing it on that basis.

II.

The defendant also claims that since the child was born on November 8, 1973, the present suit, filed in 1985, should be barred by the ten-year statute of limitations then set out for paternity actions in W.Va.Code, 48-7-4(a) (1983). ⁴ The defendant recognizes that in Turner v. Jones, 175 W.Va. 1, 330 S.E.2d 323 (1985), we avoided deciding whether the ten-year limitations period was unconstitutional under equal protection principles.

In State ex rel. S.M.B. v. D.A.P., 168 W.Va. 455, 284 S.E.2d 912 (1981), , we found the three-year statute of limitations in W.Va.Code, 48-7-1 (1969), to be unconstitutional based on several United States Supreme Court cases which suggested that such a statute of limitations violated equal protection principles. Our view was confirmed in later Supreme Court opinions. E.g., Clark v. Jeter, 486 U.S. 456, 108 S.Ct.1910, 100 L.Ed.2d 465 (1988); Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983); Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982).

In Clark, the Supreme Court struck down a Pennsylvania six-year statute of limitations for instituting paternity actions. The Supreme Court determined under equal protection principles that a statute which discriminates based on sex or illegitimacy "must be substantially related to an important governmental objective." 486 U.S. at 461, 108 S.Ct. at 1914, 100 L.Ed.2d at 471. The Supreme Court characterized this test as one of intermediate scrutiny which rests between the "rational basis review and the strict scrutiny" test. 486 U.S. at 461. 108 S.Ct. at 1914, 100 L.Ed.2d at 471. We have followed these latter tests in our equal protection cases. E.g., State ex rel. Longanacre v. Crabtree, 202a. , 350 S.E.2d 760 (1986); Shackleford v. Catlett, 161 W.Va. 568, 244 S.E.2d 327 (1978); State ex rel. Piccirillo v. City of Follansbee, 160 W.Va. 329, 233 S.E.2d 419 (1977).

In Longanacre, we acknowledged that "[...