State Dept. of Health and Human Resources, Child Advocate Office ex rel. Cline v. Pentasuglia

• Citation: 457 S.E.2d 644,193 W.Va. 621
• Decision Date: 14 April 1995
• Docket Number: No. 22028,22028
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia DEPARTMENT OF HEALTH AND HUMAN RESOURCES, CHILD ADVOCATE OFFICE ex rel. Travis Wade CLINE, Minor Child of Kim Yvonne Cline, Plaintiff Below, Petitioner, v. Timothy P. PENTASUGLIA, Defendant Below, Respondent.

Page 644

457 S.E.2d 644

193 W.Va. 621

STATE of West Virginia DEPARTMENT OF HEALTH AND HUMAN RESOURCES, CHILD ADVOCATE OFFICE ex rel. Travis Wade CLINE, Minor Child of Kim Yvonne Cline, Plaintiff Below, Petitioner, v. Timothy P. PENTASUGLIA, Defendant Below, Respondent.

No. 22028.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 1, 1994.

Decided April 14, 1995.

Syllabus by the Court

1. "The dismissal with prejudice of a paternity action initiated by a mother against a putative father of a child does not preclude the child, under the principle of res judicata, from bringing a second action to determine paternity when the evidence does not show privity between the mother and the child in the original action nor does the evidence indicate that the child was either a party to the original action or represented by counsel or guardian ad litem in that action." Syl. Pt. 5, State ex rel. Div. of Human Servs. v. Benjamin P.B., 183 W.Va. 220, 395 S.E.2d 220 (1990).

2. The Revised Uniform Reciprocal Enforcement of Support Act, West Virginia Code §§ 48A-7-1 to -41 (1995), enables an obligee in one state to establish the paternity of an obligor in this state.

3. Under West Virginia Code § 48A-7-26 (1995), a circuit court in a RURESA proceeding in this state may adjudicate the issue of paternity if each of the following three statutory elements are satisfied: (1) the obligor asserts a defense that he is not the father of the child involved; (2) the circuit court concludes that the defense is not frivolous; and (3) the parties are present at the hearing or the proof required in the case indicates that the presence of either or both of the parties is not necessary.

4. Prior to adjourning a paternity hearing under West Virginia Code § 48A-7-26 (1995), a circuit court must, at a minimum, order appropriate blood grouping tests to aid (1) in determining parentage; and (2) in determining whether the physical presence of the relevant parties is required.

5. Where the blood grouping tests in a paternity proceeding under West Virginia Code § 48A-7-26 are inconclusive, the circuit court (1) should consider the equities, convenience and justice to the parties; and (2) should determine whether to adjourn the matter to allow for a determination of paternity in a separate proceeding with all relevant parties present. In making this determination, however, the circuit court should consider, inter alia, (1) the Revised Uniform Reciprocal Enforcement of Support Act's goal of furnishing a liberal, speedy and efficient enforcement mechanism for duties of support; and (2) the possibility of taking additional evidence via deposition pursuant to West Virginia Code § 48A-7-20 (1995).

6. The Revised Uniform Reciprocal Enforcement of Support Act may be employed to determine and enforce the duty of a parent to support his or her minor children even though there exists no prior judicial order of support.

7. "Upon a judicial determination of paternity, the paternal parent shall be required to support his child under W.Va.Code, 48A-6-4 (1986), and may also be liable for reimbursement support from the date of birth of the child." Syl. Pt. 2, in part, Kathy L.B. v. Patrick J.B., 179 W.Va. 655, 371 S.E.2d 583 (1988).

Richard Goldstein, Princeton, for Child Advocate Office.

John P. Anderson, Princeton, for Timothy P. Pentasuglia.

Henry L. Harvey, Guardian Ad Litem for Travis Wade Cline, Princeton.

WORKMAN, Justice:

This case is before the Court pursuant to the certified question entered on August 23, 1993, by the Circuit Court of Mercer County. ¹ In an order entered on that same day, the circuit court dismissed a paternity proceeding initiated by the State of Virginia pursuant to the Revised Uniform Reciprocal Enforcement of Support Act ("RURESA"), West Virginia Code §§ 48A-7-1 to -41 (1995). ² The dismissal was based upon the grounds that the child and the State were barred from seeking to establish paternity against the Respondent. This decision was based on the fact that a prior decree of divorce in Virginia between the mother and her former husband, Ronnie Cecil Cline, had established Mr. Cline as the child's natural father.

In February, 1989, the mother, Kim Cline, filed a bill of complaint for divorce in Giles County, Virginia. The bill stated that the mother had been lawfully married to Mr. Cline on December 7, 1981, and that there were two children born of this marriage, namely Travis Wade Cline, born May 15, 1980, and a second child. A birth certificate was filed in Virginia in May, 1980, which listed Mr. Cline as the child's father. On May 10, 1989, the Circuit Court of Giles County issued the divorce decree between Mr. Cline and the mother and simply repeated the mother's reference to Travis' paternity. The court granted custody of the children to the mother and ordered Mr. Cline to pay fifty dollars weekly for child support as well as certain arrearages.

The mother alleges that the Respondent visited Travis in January 1991. Shortly thereafter, the mother filed a motion in Giles County, Virginia, asking that Travis be removed from the support order and asking that the payment for the remaining child be left at fifty dollars per week, with ten dollars on back support. The motion was granted in February 1991, removing Travis from the support obligation. ³

Later, an attempt was made to establish the Respondent as the child's father. In 1992, the Virginia Child Support Enforcement Agency forwarded to West Virginia a RURESA petition seeking a determination of paternity and child support from the Respondent. The RURESA petition was served upon the Respondent, who then filed an answer containing affirmative defenses including, inter alia, (1) that some other individual fathered Travis; and (2) that Mr. Cline, the mother's former husband, had previously been adjudicated as Travis' father. Based on the second defense, the Respondent argued that the action was barred by res judicata.

The Respondent filed a motion for summary judgment on March 3, 1993, on the grounds that the Virginia divorce decree barred the paternity action. The Petitioner countered that since the child was not a party to the divorce, nor was he represented, he was not barred by res judicata. The Circuit Court of Mercer County ruled for the Respondent and appointed a guardian ad litem for the child. Because the trial court ruled in favor of the Respondent and dismissed the petition, there was no evidence or testimony taken and no substantial discovery, such as blood grouping tests, performed. The Child Advocate Office requested that the question of whether the trial court erred in dismissing the RURESA petition be certified to this Court.

We discussed the question of res judicata as it related to paternity issues in State ex rel. Division of Human Services v. Benjamin P.B., 183 W.Va. 220, 395 S.E.2d 220 (1990). That case involved a mother who caused a warrant to issue against the appellant in 1978, charging him with the paternity of a child. The circuit court entered an order, also in 1978, directing the appellee, the appellant, and the child to submit to blood grouping tests. However, the mother then filed a motion requesting that the circuit court withdraw the warrant and dismiss the action, which was done. Thereafter, in 1989, the mother, through the West Virginia Department of Human Services, filed a second paternity suit to obtain child support. The appellant moved to dismiss, claiming res judicata. Id. at 222, 395 S.E.2d at 222.

This Court held that res judicata did not bar the child's paternity action merely because a previous paternity action was instituted by the mother and was dismissed with prejudice. In syllabus point 5 of Benjamin, we stated as follows:

The dismissal with prejudice of a paternity action initiated by a mother against a putative father of a child does not preclude the child, under the principle of res judicata, from bringing a second action to determine paternity when the evidence does not show privity between the mother and the child in the original action nor does the evidence indicate that the child was either a party to the original action or represented by counsel or guardian ad litem in that action.

Id. at 221, 395 S.E.2d at 221.

This approach is attributable in large measure to the differing interests of mother and child in a paternity and support proceeding. These differing interests were discussed in Benjamin and Commonwealth ex rel. Gray v. Johnson, 7 Va.App. 614, 376 S.E.2d 787 (1989), a case that we cited with approval in Benjamin. The court in Johnson stated as follows:

[W]hile the mother and child's rights may relate to the same subject matter, and may be coextensive to some extent, they are distinct....

An actual distinction rests in the right to child support. It is well settled that both parents owe a duty of support to their child.... However, the duty of support of all children is owed to the child, not the mother.... Thus, the mother does not have the same legal right of the child in seeking child support....

The child also has a fundamental right, not shared by the mother, to establish the father-child relationship, and in exercising that right there clearly is potential for conflict between the mother's interest and the child's interest.

Id. at 622, 376 S.E.2d at 791. ⁴

Our prior cases recognize as much. For instance, we stated in syllabus point 4 of Michael K.T. v. Tina L.T., 182 W.Va. 399, 387 S.E.2d 866 (1989), that "[a] guardian ad litem should be appointed to represent the interests of the minor child whenever an action is initiated to disprove a child's paternity." ." More recently, we have observed as follows:

Although historically courts have addressed issues affecting children primarily in the context of competing adults' rights, the present trend in courts throughout the country is to give greater recognition to the rights of children, including their right to independent...