T.R. v. A.W. by Pearson, 3-883A275

• Decision Date: 31 October 1984
• Docket Number: No. 3-883A275,3-883A275
• Citation: 470 N.E.2d 95
• Parties: T.R., Appellant (Defendant Below), v. A.W., by her next friend, Lee PEARSON, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 95

470 N.E.2d 95

T.R., Appellant (Defendant Below), v. A.W., by her next friend, Lee PEARSON, Appellee (Plaintiff Below).

No. 3-883A275.

Court of Appeals of Indiana,

Third District.

Oct. 31, 1984.

Howard S. Grimm, Jr., Michael A. Aspy, Fort Wayne, for appellant.

Robert E. Kirsch, Deputy Pros. Atty., Child Support Div., Noble County Prosecutor's Office, Albion, for appellee.

HOFFMAN, Judge.

On October 21, 1977, G.L.W. filed a petition to establish paternity of her daughter, A.W., under IND.CODE Sec. 31-4-1-1 et seq. ¹ Her petition alleged that T.R. was the father of A.W., and responsible for her support. Following trial by jury, a verdict was rendered in favor of T.R.

On March 31, 1983, A.W., by her next friend, Lee Pearson, Director of the Noble County Welfare Department, filed a petition under IND.CODE Sec. 31-6-6.1-1 et seq. alleging that T.R. was her father. T.R. filed a motion for summary judgment contending that this petition was barred by the doctrine of res judicata. The trial court denied this motion. On T.R.'s petition, this issue was certified for interlocutory appeal to this Court.

The sole issue on appeal is whether the same man can be prosecuted a second time for paternity where the same facts and legal issues have been fully litigated and resolved in his favor by a court of competent jurisdiction.

In order to apply the doctrine of res judicata, the following elements must be satisfied:

(1) the former judgment must have been rendered by a court of competent jurisdiction;

(2) the former judgment must have been rendered on the merits;

(3) the matter now in issue was, or might have been, determined in the former suit; and

(4) the controversy adjudicated in the former action must have been between parties to the present suit or their privies.

Williams v. Williams, (1981) Ind.App., 427 N.E.2d 727; Glass v. Continental Assur. Co., (1981) Ind.App., 415 N.E.2d 126.

The only element at issue in this case concerns parties or their privies. At the time A.W.'s mother brought the original paternity action, mother and daughter were clearly in privity.

For purposes of issue preclusion, the element of privity contemplates a mutual or successive relationship to the same rights or interests which were the subject matter of prior adjudication. In Indiana, a " '[p]rivy' is one who after rendition of the judgment has acquired an interest in the subject matter affected by the judgment." Smith v. Midwest Mut. Ins. Co., (1972) 154 Ind.App. 259, at 269, 289 N.E.2d 788, at 793.

Under the paternity statute in effect at the time of G.L.W.'s 1977 lawsuit, paternity actions could be commenced by the mother as the child's representative for the purpose of recovering from the father a reasonable share of the child's necessary support. IND.CODE Sec. 31-4-1-1 et seq. Under the present statute, the state or county departments of public welfare may also act as the illegitimate's representative in a suit to enforce support. See, IND.CODE Sec. 31-6-6.1-2(b). Under either statute, the child is the real party in interest, and the purposes served by any representative is the same, i.e., to enforce the child's support.

The record clearly indicates that G.L.W. fully represented A.W.'s rights in the 1977 suit. This trial was held before a jury. Evidence was first presented by G.L.W., then by T.R., and finally rebutted by G.L.W. The trial judge properly instructed the jury on the law, and a verdict finding that T.R. was not A.W.'s father was returned. The issue of paternity was not clouded by the possibility of compromise because of other issues to be decided, as might happen in a dissolution proceeding. The suit dealt exclusively with the question of paternity and the concomitant obligation of support in the event paternity was established. It is exactly this sort of case in which issue preclusion must be invoked. The issues now forwarded are identical to those forwarded in the 1977 suit, and liability in both cases is based on the same facts. The issues were fully and conclusively litigated in the first action and may not be relitigated.

Not only were the elements of issue preclusion present, but the policies favoring preclusion clearly outweigh the reasons for retrying this matter. First, courts favor the final repose of decisions. The purpose of our court system is to resolve disputes. If different parties representing the same interest are allowed to successively relitigate the same facts and issues, final judgment would become an illusive, if not unattainable goal.

Second, courts should promote policies which discourage inconsistent judgments. While relitigation of this case is not certain to produce contrary results, the possibility is not inconceivable.

Third, the need to avoid harassing litigation is a legitimate concern, worthy of consideration in barring subsequent suits. In 1977, T.R. successfully defended the suit brought by A.W.'s mother, G.L.W., which was based on the same facts and legal issues now forwarded. T.R. now faces the same ordeal, embarrassment, and expense incurred in the 1977 suit. Were this a criminal matter, he would be protected by the double jeopardy provisions of the United States and Indiana constitutions. It seems fundamentally unfair to make him run the same gambit a second time.

Finally, the failure to invoke preclusion in this case results in an unnecessary delay and additional burden on an already overcrowded court system. Seven years have passed since the original trial resolved this issue in T.R.'s favor, and under today's decision, this case may take several more years to relitigate.

From the child's perspective, the imposition of preclusion will not dilute any rights not already forwarded by her mother in the first suit. The present statute, by joining the mother, child, and putative father as necessary parties to paternity actions avoids the problem now considered. It does not, however, extend to the parties or their privies a new cause of action where their cases have been fully litigated under the prior statute.

For these reasons, the doctrine of issue preclusion bars retrial of this case. The decision of the trial court is reversed and remanded with instructions to grant T.R.'s motion for summary judgment.

Reversed and remanded.

STATON, P.J., concurs.

GARRARD, J., dissents with opinion.

GARRARD, Judge, dissenting.

Although my sentiment supports the majority reaction to this appeal, my understanding of Indiana's position concerning the doctrine of res judicata requires me to dissent. Central to our disagreement, however, is the majority's assumed conclusion that the mother's original action was brought strictly in a representative capacity. I believe it clear under the prior statute that the mother had a substantial interest of her own in the proceeding, an interest that was not necessarily and solely identical with the interests of her child. Clearly under Indiana law the child was not in privity with her. See, e.g., Tobin v. McClellan (1947), 225 Ind. 335, 73 N.E.2d 679.

The case arose from a fact situation made possible by a change in the law between the times the two actions were brought. When the mother filed the initial paternity suit such actions were controlled by IC 31-4-1-1 et seq., Children Born Out of Wedlock. Some of the relevant sections of that chapter are as follows:

"Sec. 1. It is the obligation of the state of Indiana to provide proper legal procedures that will enable children born out of wedlock to have proper care, maintenance, education, protection, support and opportunities the same as children born in wedlock; and it is the purpose of this act to establish procedures that will enable such children to have such rights and privileges.

Sec. 2. The parents of a child born out of wedlock and not legitimated, hereinafter referred to in this act as the 'child,' owe the child necessary maintenance, medical care, education, and support, and are liable for the child's funeral expenses. The obligations imposed upon parents to support their legitimate children are hereby imposed upon the parents of children born out of wedlock.

Sec. 3. The mother may recover from the father a reasonable share of the necessary support and care of the child, including necessary maintenance, medical care, education and the child's funeral expenses in the event of the death of the child.

Sec. 4. The mother may recover from the father the necessary expenses of the pregnancy and birth.

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Sec. 9. An action to compel support may be brought by the mother, or, in case of her death, by her legal representatives. If the mother be insane, of unsound mind, under eighteen (18) years of age or under any other disability, the action may be brought by her guardian or next friend. If the mother dies during the pendency of the action, the child by its guardian or next friend may be substituted for the mother. The action shall be commenced by filing a verified petition."

Under the law effective at the time of the mother's initial suit, only the mother could file a petition pursuant to the statutorily defined procedure for establishing an alleged father's obligation to support his child. A______. B______. v. C______. D______. (1971), 150 Ind.App. 535, 277 N.E.2d 599; Fisher v. State of Indiana ex rel. Morrow (1947), 117 Ind.App. 552, 74 N.E.2d 743 (decided under 3-631, Burns' 1946 Replacement which was replaced, but not in effect changed, by IC 31-4-1-9); accord, Harter v. Johnson (1861), 16 Ind. 271.

Effective October 1, 1979, IC 31-4-1-1 et seq. was repealed and replaced by IC 31-6-6.1-1 et seq. (Acts 1979, P.L. 277, Section 1). An important aspect of the new act is that the mother is no longer the only person in whose name a paternity action can be brought. IC 31-6-6.1-2 reads as follows:

"Persons who may file paternity action--Necessary parties.--(a) A paternity action may be filed by the following persons:

(1) The mother, or expectant mother.

(2) A man...