State ex rel. West Virginia Dept. of Health and Human Resources v. Cline, 20030

• Citation: 185 W.Va. 318,406 S.E.2d 749
• Decision Date: 28 June 1991
• Docket Number: No. 20030,20030
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia ex rel. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES as subrogee of Jeaneace L. Stump, Plaintiff Below, Petitioner, v. Honorable Danny O. CLINE, Judge of the Circuit Court of Webster County, and Delmas Simmons, Defendant Below, Respondent.

Page 749

406 S.E.2d 749

185 W.Va. 318

STATE of West Virginia ex rel. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES as subrogee of Jeaneace L. Stump, Plaintiff Below, Petitioner, v. Honorable Danny O. CLINE, Judge of the Circuit Court of Webster County, and Delmas Simmons, Defendant Below, Respondent.

No. 20030.

Supreme Court of Appeals of West Virginia.

Submitted March 13, 1991.

Decided June 28, 1991.

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, 33 W.Va. 553 [1890]." Syl.Pt. 1,In re McIntosh's Estate, 144 W.Va. 583, 109 S.E.2d 153 (1959).

2. "An adjudication of paternity, which is expressed in a divorce order, is res judicata as to the husband and wife in any subsequent proceeding." Syl.Pt. 1, in part, Nancy Darlene M. v. James Lee M., Jr., 184 W.Va. 447, 400 S.E.2d 882 (1990).

William W. Talbott, Talbott & Alsop, L.C., Webster Springs, for Delmas D. Simmons.

Asa Holcomb, for West Virginia Dept. of Health and Human Resources.

Robert Reed Sowa, Sutton, Child Advocate on behalf of Oliver Stump.

PER CURIAM:

The West Virginia Department of Health and Human Resources, as subrogee of

Jeaneace L. Stump, seeks a writ of prohibition to prevent the execution of a final order of the Circuit Court of Webster County entered on February 8, 1991. The petitioner contends that the lower court erred by ordering the DNA fingerprinting blood testing of Jeaneace L. Stump, her son Oliver J. Stump, and the putative father, Delmas D. Simmons. We agree with the contentions of the petitioner and grant the writ of prohibition.

I.

Oliver J. Stump was born on February 27, 1981, to Jeaneace L. Stump. The mother and child have received Aid to Families With Dependent Children assistance from the petitioner since March 1981 and, pursuant to W.Va.Code § 9-3-4 (1979), have subrogated to the appellant "all rights, title and interest such recipient may have to the receipt of support and maintenance moneys from any person responsible for the support and maintenance of any member of the benefit group." Pursuant to a bastardy suit brought by Ms. Stump against Mr. Simmons, adjudication of the issue of paternity was conducted in May 1983. Prior to trial, Mr. Simmons requested blood tests, and the Circuit Court of Webster County, the Honorable A.L. Sommerville, Jr., presiding, issued an order on April 26, 1982, compelling the parties to submit to blood testing. Mr. Simmons contends that he made no effort to schedule the requested blood tests because no specific directions were set forth by the court in the order. Consequently, Mr. Simmons moved for a continuance in December 1982 on the basis that no blood tests had yet been conducted. In the state's answer to Mr. Simmons' motion for a continuance, the state indicated its understanding that the duty to schedule the blood testing was upon the party requesting the testing, Mr. Simmons. Although the court granted Mr. Simmons' motion for a continuance, no blood tests had been conducted by the trial date in May 1983. A jury trial was conducted, and Mr. Simmons was determined to be the father of the child. By final order dated January 30, 1984, the Circuit Court of Webster County, pursuant to the jury verdict, adjudged Mr. Simmons the father of the child and ordered him to pay seventy-five dollars monthly in child support.

On or about November 26, 1986, the Child Advocate Office of the petitioner instituted an income withholding procedure seeking to withhold seventy-five dollars in current child support and an additional ten percent of Mr. Simmons' disposable income to satisfy the arrearage of $1,317.38 which had accumulated from February 1984 through November 1986. By order dated February 2, 1987, the income withholding as requested by the Child Advocate Office was implemented, and judgment was granted against Mr. Simmons in the amount of $1,317.38.

On August 28, 1989, the Child Advocate Office instituted a petition to modify the support order to increase the amount of child support to be paid by Mr. Simmons. In response, Mr. Simmons moved that the parties submit to DNA fingerprinting and blood testing regarding the issue of paternity. By recommended order reflecting a hearing of September 18, 1990, Family Law Master Jeffrey L. Hall recommended that Mr. Simmons' motion be granted. At a January 18, 1991, hearing regarding the Child Advocate's subsequent petition for review of the Family Law Master's recommended order, the Circuit Court of Webster County, by order entered February 8, 1991, denied the petition for review and ordered the parties to submit to DNA fingerprinting blood tests to determine the paternity of Oliver Stump.

II.

We have recognized on numerous prior occasions that "[t]he doctrine of res judicata guards the finality of a court's decision." Cook v. Cook, 178 W.Va. 322, 324, 359 S.E.2d 342, 344 (1987). In syllabus point 1 of In re McIntosh's Estate, 144 W.Va. 583, 109 S.E.2d 153 (1959), we explained the doctrine of res judicata as follows:

'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, 33 W.Va. 553 [1890].

In Nancy Darlene M. v. James Lee M., Jr., 184 W.Va. 447, 400 S.E.2d 882 (1990), we encountered a situation wherein a putative father attempted to challenge his paternity nearly five years after the birth of his putative daughter. Syllabus point 1 of Nancy Darlene M., in pertinent part,...