E--- v. E---

• Decision Date: 27 February 1973
• Docket Number: No. 46,46
• Citation: 57 Wis.2d 436,204 N.W.2d 503
• Parties: E_ _, Plaintiff, v. E_ _, Respondent, and E_ _, by Stephan W. Hayes, his guardian ad litem, Appellant.
• Court: Wisconsin Supreme Court

Page 503

204 N.W.2d 503

57 Wis.2d 436

E_ _, Plaintiff, v. E_ _, Respondent, and E_ _, by Stephan W. Hayes, his guardian ad litem, Appellant.

No. 46.

Supreme Court of Wisconsin.

Feb. 27, 1973.

Rehearing Denied April 20 and Modified May 3, 1973.

Stephen W. Hayes, Milwaukee, von Briesen, Redmond & Schilling, Milwaukee, of counsel, for appellant.

Kivett & Kasdorf, Milwaukee, for defendant-respondent.

HANLEY, Justice.

Two issues are presented on this appeal.

1. Was the question of the child's paternity res judicata because the defendant failed to challenge it at the original divorce proceeding; and

2. Assuming the question of paternity was not res judicata, should the defendant be estopped from denying that he is the natural father of the child.

This court is faced with the unique situation of a person initially claiming in court and under oath that a child is his, and then some eight months later challenging this child's legitimacy when he decides that it is no longer to his advantage to pay the child's support. The child contends that the question of his paternity was res judicata and that this should have acted to bar the trial court from vacating judgment. Nowhere in his brief does defendant address himself to the question of whether the issue of the child's paternity is res judicata; being content to rely solely on whether the the trial court abused its discretion in vacating the February 2, 1970 judgment. It is clear not only from rulings of this court, but also from the numerous other jurisdictions which have considered the question, that the issue of the paternity of minor children becomes res judicta between the parties under the original divorce decree and that it is error for a trial court to subsequently either vacate or modify the original judgment on the grounds that one of the alleged parents, who heretofore stood mute on the question of paternity, has now had a change of heart.

This court was faced with a similar situation in the case of Limberg v. Limberg (1960), 10 Wis.2d 63, 102 N.W.2d 103. In Limberg, just like in the case at bar, the trial court made a finding that the child which the plaintiff wife was pregnant with was a child of the marriage. Two years after the judgment for divorce, the defendant moved the court to order blood tests for his former wife, the child and himself, and the court granted his motion. In reversing the action of the trial court in ordering the blood tests, this court, at pages 67 and 68, 102 N.W.2d at page 105 stated:

'The order of January 2, 1958, referring to the children of the parties necessarily included Brian and is an indication that the trial court had so determined by the findings and judgment.

'Since there was a prior adjudication of the issue raised upon the trial, the defendant is now estopped from attempting to relitigate the same issue. Whether it be res judicata or estoppel by judgment is unnecessary for us to determine . . . Since the defendant is estopped by the prior adjudication of the issue, the trial court was in error in issuing the order. Judgments of divorce will have no finality if parties are permitted to attempt to retry issues two years after a judgment has been entered.

'. . .

'The defendant had ample opportunity during the trial to ask for an adjournment thereof until the child had been born and then to request blood tests . . . He is too late now to attempt to try a new approach to the old problem that was determined by the judgment.'

Although the question of paternity was contested in the original trial in Limberg, cases from other jurisdictions hold that regardless of whether the issue was contested, the result is nevertheless the same.

The case of Baum v. Baum (1969), 20 Mich.App. 68, 173 N.W.2d 744, represents a case much like the one at bar. In Baum the wife sued her husband for divorce alleging that the parties had a child born of the marriage. The husband appeared, consented to the judgment of divorce which provided that the wife was to have custody of the child together with support. When the wife sought back support payments, the defendant answered, alleging that his wife had falsified their marriage date in her complaint, and that the child was really that of her former husband. The trial court vacated the judgment and the Michigan Court reversed on appeal stating:

'The defendant raises the question of parenthood in this cause. Res judicata bars him from disestablishing his paternity. The support order, although uncontested, constitutes an adjudication of paternity in regard to defendant's duty of support . . . It becomes apparent to this Court that he now seeks to avoid support responsibility by this new stand; and it also appears through his claim of fraud, which he was a part of, that he seeks to invalidate not only his parental obligations, but also his second marriage, which would be void if the trial court here is affirmed. He had an opportunity to litigate the issue and was clearly aware of the infirmity in the complaint; and therefore, should not now be allowed to complain.' (Emphasis added)

The rule which denies a party the opportunity to relitigate issues of paternity after he has passively sat by throughout the original divorce proceeding likewise finds support in the numerous other courts which have considered the question. Adoption of Stroope (1965), 232 Cal.App.2d 581, 43 Cal.Rptr. 40; Sorenson v. Sorenson (1963), 254 Iowa 817, 119 N.W.2d 129; Johns v. Johns (1964), 64 Wash.2d 696, 393 P.2d 948; Arnold v. Arnold (1952), 207 Okl. 352, 249 P.2d 734; Washington v. Washington (1959), 170 Cal.App.2d 652, 339 P.2d 169.

From the record, it would appear that the trial court's conclusion that there was not a complete finding as to the paternity of the child at the first hearing is without factual foundation. Plaintiff's complaint specifically provided that there was one child of the marriage. Both parties personally appeared at the hearing and on at least three occasions during the examinations of the parties by plaintiff's counsel and the family court commissioner, it was stated by both parties that the child was the natural child of the parties and born to the marriage. Based upon...