Wagner v. Baron

• Court: United States State Supreme Court of Florida
• Writing for the Court: ROBERTS; THOMAS; TERRELL; THOMAS
• Citation: 37 A.L.R.2d 831,64 So.2d 267
• Decision Date: 17 March 1953
• Parties: WAGNER v. BARON et al.

Page 267

64 So.2d 267 37 A.L.R.2d 831 WAGNER
v.
BARON et al. Supreme Court of Florida, en Banc. March 17, 1953.
Rehearing Denied April 28, 1953.

George H. Henry, Miami, for appellant.

William E. Walsh, Jr., Miami, for A. J. Baron, appellee.

Alexander S. Gordon, Miami, and Frederick N. Barad, Miami Beach, for Marine Engineering and Towboat Company, appellee.

ROBERTS, Chief Justice.

The question here is whether a judgment in bastardy proceedings instituted by the appellant under the provisions of Chapter 742, Florida Statutes, F.S.A., prior to its amendment in 1951 by Chapter 26949, Laws of Florida, Acts of 1951, is res adjudicata of a similar proceeding brought under the Act, as amended. The lower court so held, and dismissed the appellant's Complaint for Determination of Paternity of Child and for Child Support. This appeal followed.

The cases are legion which hold that res judicata is not a defense in a subsequent action where the law under which the first judgment was obtained is different than that applicable to the second action, or there has been an intervening drcision, or a change in the law between the first and second judgment, creating an altered situation. Mission Theatres v. Twentieth Century-Fox Film Corp., D.C., 88 F.Supp. 681, 684; Sunnen v. Commissioner of Internal Revenue, 8 Cir., 161 F.2d 171, 178; Bush v. Commissioner of Internal Revenue, 2 Cir., 175 F.2d 391; Durham v. Crawford, 196 Ga. 381, 26 S.E.2d 778; Williams v. Ledbetter, 87 Ohio App. 171, 94 N.E.2d 377; Young Men's Christian Ass'n v. Sestric, 362, Mo. 551, 242 S.W.2d 497; Moseley v. Welch, 218 S.C. 242, 62 S.E.2d 313; Imbrici v. Madison Avenue Realty Corp., 199 Misc. 244, 99 N.Y.S.2d 762; Lasasso v. Lasasso, 1 N.J. 324, 63 A.2d 526; Beatty v. McClellan, 121 Ind.App. 242, 96 N.E.2d 675; Hurd v. Albert, 214 Cal. 15, 3 P.2d 545, 76 A.L.R. 1348; Mullane v. McKenzie, 269 N.Y. 369, 199 N.E.

Page 268

624, 103 A.L.R. 758; Third National Bank of Louisville v. Stone, 174 U.S. 432, 19 S.Ct. 759, 43 L.Ed. 1035; State Farm Mutual Automobile Ins. Co. v. Duel, 324 U.S. 154, 65 S.Ct. 573, 89 L.Ed. 812; Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 599, 68 S.Ct. 715, 720, 92 L.Ed. 898; see also 2 Freeman, Judgments, 1925, 5th ed., Sec. 713; 30 Am.Jur., Judgments, Sec. 206, page 943; 50 C.J.S., Judgments, § 650, page 92.

'The doctrine of res judicata as to the finality of the judgment and the doctrine of law of the case as to the binding effect of interlocutory orders in litigation are rules of convenience 'designed to prevent repetitious law suits over matters which have once been decided and which have remained substantially static, factually and legally (and must give way where there has been a change in the fundamental controlling legal principles). It is not meant to create vested rights in decisions that have become obsolete or erroneous with time.'' Imbrici v. Madison Avenue Realty Corp., supra, [199 Misc. 244, 99 N.Y.S.2d 764] citing Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 599, 68 S.Ct. 715, 92 L.Ed. 898.

Clearly, a judgment is not res judicata as to rights which were not in existence and which could not have been litigated at the time the prior judgment was entered. Mullane v. McKenzie, supra; Lasasso v. Lasasso, supra; Moseley v. Welch, supra; Williams v. Ledbetter, supra. In the instant case, the appellant's only rights under the law prevailing at that time was to obtain an adjudication of the paternity of her child and to obtain from the putative father 'all necessary incidental expenses attending the birth of the said child' and 'not exceeding fifty dollars * * * yearly, for ten years toward the support, maintenance and education of said child'. Act of Jan. 5, 1828, and appearing as Chapter 742, Florida Statutes, prior to its amendment in 1951 by Chapter 26949. Under the terms of the 1951 Act, the putative father may be required to pay 'periodically for the support of such child such sum as shall be fixed by the court in accordance with the provisions of this act.' The monthly contributions fixed by Section 742.041 of the 1951 Act range from $40 per month for a child under the age of six years, to $110 per month for a child between 15 and 18 years of age. Her right to receive the vastly increased contributions for the support of the child was not in existence at the time she first instituted proceedings to compel the putative father to contribute to the support of the child; and the judgment in such suit should not, then, be deemed to be an adjudication of her rights with respect to the contributions provided for in the 1951 Act. As stated in Mullane v. McKenzie, supra [269 N.Y. 369, 199 N.E. 625], 'The earlier decision may be a conclusive adjudication of the petitioner's rights, existing then; it cannot be an adjudication of rights thereafter conferred by law, or bar a new proceeding to vindicate new rights.'

Moreover, to apply the principles of res judicata in the instant case would be to penalize the appellant for her diligence in prosecuting her action against the putative father to obtain support for her child under the Act of Jan. 5, 1828, and would reward the indolent mother who failed...