State ex rel. Division of Human Services by Mary C.M. v. Benjamin P.B.

• Decision Date: 28 June 1990
• Docket Number: No. 19492,19492
• Citation: 183 W.Va. 220,395 S.E.2d 220
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. DIVISION OF HUMAN SERVICES, by MARY C.M., Individually and as its Assignee v. BENJAMIN P.B.

Page 220

395 S.E.2d 220

183 W.Va. 220

STATE of West Virginia ex rel. DIVISION OF HUMAN SERVICES by MARY C.M., Individually and as its Assignee v. BENJAMIN P.B.

No. 19492.

Supreme Court of Appeals of West Virginia.

June 28, 1990.

Syllabus by the Court

1. " 'An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata.' Point 1, Syllabus, Sayre's Adm'r v. Harpold et al., 33 W.Va. 553 [11 S.E. 16 (1890) ]." Syl. pt. 1, In Re Estate of McIntosh, 144 W.Va. 583, 109 S.E.2d 153 (1959) (emphasis in original).

2. " 'To justify the application of the doctrine of res judicata, "... there must be a concurrence of four conditions, namely: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons, and of parties to the action; (4) identity of the quality in the person for or against whom the claim is made." Opinion. Marguerite Coal Co. v. Meadow River Lumber Co., 98 W.Va. 698[, 127 S.E. 644 (1925) ].' Syllabus, Hannah v. Beasley, 132 W.Va. 814, 53 S.E.2d 729 (1949)." Syl. pt. 1, Pearson v. Dodd, 159 W.Va. 254, 221 S.E.2d 171 (1975), appeal dismissed, 429 U.S. 396, 97 S.Ct. 581, 50 L.Ed.2d 574 (1977), overruled on another point, syl. pt. 3, Lilly v. Duke, 180 W.Va. 228, 376 S.E.2d 122 (1988).

3. "Where the principle of res judicata is invoked[,] in order for it to apply it must appear either that the parties in the present case are identical with those in the former litigation or that their privity with them was such as to give them a common interest in the outcome thereof." Syl. pt. 1, Gentry v. Farruggia, 132 W.Va. 809, 53 S.E.2d 741 (1949).

4. "Privity, in a legal sense, ordinarily denotes 'mutual or successive relationship to the same rights of property.' [Edward F.] Gerber [Co.] v. Thompson, 84 W.Va. 721, 727, 100 S.E. 733, [735,] 7 A.L.R. 730[, 734 (1919) ]." Syl., Cater v. Taylor, 120 W.Va. 93, 196 S.E. 558 (1938).

5. 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.

W.T. Weber, Jr., Weston, for Benjamin P.B.

Bryan Frantz Greene, West Virginia Div. of Human Services, Child Advocate Bureau, Clarksburg, for Division of Human Services.

McHUGH, Justice:

This is an appeal by the appellant, Benjamin P.B., ¹ of a final order of the Circuit Court of Lewis County entered on November 7, 1989, which rejected the family law master's recommendation to dismiss this paternity action on the grounds of res judicata. We conclude that this case must be remanded for further proceedings, as set forth herein.

I

The facts in this case are basically the procedural history. The appellee, Mary C.M., caused a warrant to issue against the appellant on May 31, 1978, charging him as the natural father of Breezy R.M., a female child born on March 14, 1978. The circuit court, in response to a motion filed by the appellant, entered an order on June 19, 1978, directing the appellee, the appellant, and the child to submit to one or more blood grouping tests. However, before the blood testing was performed, the appellee filed a motion requesting that the circuit court withdraw the warrant and dismiss the action. By order entered on August 30, 1978, the circuit court withdrew the warrant and dismissed the case with prejudice.

On August 3, 1989, the West Virginia Division of Human Services, on behalf of the appellee, ² filed the present paternity suit to obtain child support. The appellant filed an answer to the complaint asserting that the dismissal of the first paternity action with prejudice indicated an adjudication on the merits, and operated as res judicata, precluding subsequent litigation of the same cause of action. ³

On August 28, 1989, the appellant filed a motion to dismiss this action. A hearing on this motion was held on October 2, 1989, before the family law master. In a report dated October 23, 1989, the family law master recommended that this action be dismissed.

On November 1, 1989, the appellee filed a petition for review of the family law master's report and recommendation. By order entered on November 7, 1989, the circuit court rejected the family law master's recommendation, and remanded this case to the family law master for further proceedings consistent with the holding of this Court in Shelby J.S. v. George L.H., 181 W.Va. 154, 381 S.E.2d 269 (1989). ⁴

II

On appeal, the appellant contends that this paternity action should be dismissed on the grounds of res judicata because the dismissal of the first paternity action with prejudice is an adjudication on the merits. The appellee maintains that despite the inclusion of the words "with prejudice" in the dismissal order of the initial paternity action, the clear intent of the appellee was for the dismissal to be without prejudice, and that there has not been an adjudication upon the merits because the parties have not had an opportunity to present testimony and evidence. ⁵

We defined res judicata in syllabus point 1 of In re Estate of McIntosh, 144 W.Va. 583, 109 S.E.2d 153 (1959):

'An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata.' Point 1, Syllabus, Sayre's Adm'r v. Harpold et al., 33 W.Va. 553 [11 S.E. 16 (1890) ].

(emphasis in original) Accord, syllabus point 1, Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983).

A person seeking to assert the defense of res judicata must establish the four conditions stated by this Court in syllabus point 1 of Pearson v. Dodd, 159 W.Va. 254, 221 S.E.2d 171 (1975), appeal dismissed, 429 U.S. 396, 97 S.Ct. 581, 50 L.Ed.2d 574 (1977), overruled on another point, syl. pt. 3, Lilly v. Duke, 180 W.Va. 228, 376 S.E.2d 122 (1988):

'To justify the application of the doctrine of res judicata, "... there must be a concurrence of four conditions, namely: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons, and of parties to the action; (4) identity of the quality in the person for or against whom the claim is made." Opinion. Marguerite Coal Co. v. Meadow River Lumber Co., 98 W.Va. 698[, 127 S.E. 644 (1925) ].' Syllabus, Hannah v. Beasley, 132 W.Va. 814, 53 S.E.2d 729 (1949).

Furthermore, res judicata operates only against parties and privies to the former action as we stated in syllabus point 1 of Gentry v. Farruggia, 132 W.Va. 809, 53 S.E.2d 741 (1949): "Where the principle of res judicata is invoked[,] in order for it to apply it must appear either that the parties in the present case are identical with those in the former litigation or that their privity with them was such as to give them a common interest in the outcome thereof." We defined the meaning of the word "privity" in the syllabus of Cater v. Taylor, 120 W.Va. 93, 196 S.E. 558 (1938): "Privity, in a legal sense, ordinarily denotes 'mutual or successive relationship to the same rights of property.' [Edward F.] Gerber [Co.] v Thompson, 84 W.Va. 721, 727, 100 S.E. 733, [735,] 7 A.L.R. 730[, 734 (1919) ]."

Although the appellee relies primarily on the argument that the second paternity action was not barred under the doctrine of res judicata because the initial action was not adjudicated on the merits, we believe that the controlling issue is whether the mother and child were in privity with each other, for purposes of the previous action, so that the child would be bound by a judgment against the mother. Most courts which have addressed this question have reached the conclusion that the parent-child relationship does not establish privity, and, therefore, a child who is not a party to a paternity action is not bound in a later paternity action by the prior judgment against the parent. See, e.g., Ex parte Snow, 508 So.2d 266, 267-68 (Ala.1987) (child was not substantially identical party as mother and was not in privity with mother since child had different interests in establishing existence of paternity); Department of Health & Rehabilitative Services ex rel. Ward v. Wyatt, 475 So.2d 1332, 1333-34 (Fla.Dist.Ct.App.1985) (child, who was not a party to the first action, was not barred by res judicata because parent and child are not in privity); Maller v. Cohen, 176 Ill.App.3d 987, 989-91, 126 Ill.Dec. 402, 403-05, 531 N.E.2d 1029, 1030-32 (1988) (mother and child were not in privity in prior suit and thus dismissal of mother's paternity action did not have res judicata effect on child's current suit); In re M.D.H., 437 N.E.2d 119, 130 (Ind.Ct.App.1982) (res judicata was inapplicable to paternity support petition by child, since...