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COURT OF APPEALS
DECISION
DATED AND RELEASED
MAY 7, 1996
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NOTICE
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats.
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports.
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No. 95-2838-FT
STATE
OF WISCONSIN IN
COURT OF APPEALS
IN RE THE PATERNITY OF
MAYONIA M. M.:
MAYONIA M M., BY HER GUARDIAN
AD LITEM, ATTORNEY MILTON D.
SCHIERLAND, JR.,
Petitioner-Respondent,
v.
KEITH N.,
Respondent-Appellant.
APPEAL from a judgment
of the circuit court for Outagamie County:
JOSEPH M. TROY, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Keith N. appeals a judgment adjudicating
him the father of Mayonia M. M. Keith argues the paternity action is barred
as a result of a prior paternity action brought against him by the district
attorney that was tried in 1976 and dismissed.
Because we conclude the current paternity action is not barred, we
affirm the judgment.
The facts are
undisputed. Mayonia was born in
1976. That same year, the district
attorney brought a paternity action against Keith, presumably pursuant to ch.
52, Stats., 1975. After a trial to the court, the trial court
concluded the state had not met its burden of proof that Keith was Mayonia's
father and, accordingly, dismissed the complaint.
In 1993, Mayonia, then
seventeen years old and acting through her guardian ad litem, brought a new
cause of action for paternity pursuant to § 767.45(1)(a), Stats. New blood tests were ordered and indicated a
99.98% probability that Keith is Mayonia's father. Ultimately, the parties agreed that Keith would allow a finding
of paternity without contest, reserving his right to appeal whether the second
action is barred in light of the 1976 paternity action. The trial court accepted this agreement and
found that Keith is Mayonia's father.
The trial court also ordered Keith to pay $15,000 in back child support.
The sole issue on appeal
is whether the second paternity action is barred. Keith argues the claim is barred by: (1) res judicata, or claim preclusion; and (2) collateral estoppel,
or issue preclusion. Whether a claim is barred by claim
preclusion or issue preclusion is a question of law we review without deference
to the trial court. See Lindas
v. Cady, 183 Wis.2d 547, 552, 515 N.W.2d 458, 460 (1994) (application
of preclusion doctrines to a given set of facts is a question of law which is
reviewed on appeal without deference to the trial court).
During the time between
the first paternity case brought against Keith and the instant case, paternity
law in Wisconsin changed significantly.
Before July 1, 1981, the statutes gave no right to either the
mother or child to commence an action to establish the child's paternity. In re R.W.L., 116 Wis.2d 150,
153, 341 N.W.2d 682, 683 (1984).
Effective July 1, 1981, the Wisconsin legislature provided that a child
may file a paternity action. Id.
at 154, 341 N.W.2d at 683; see also § 767.45(1), Stats.
Currently, such an action must be brought within nineteen years of the
child's birth. Section 893.88, Stats.
We addressed whether a
child's paternity action may be barred by a previous action filed on behalf of
the mother by a district attorney in In re Chad M.G., 194 Wis.2d
690, 694, 535 N.W.2d 97, 99 (Ct. App. 1995), which held that claim preclusion
did not bar the child's action. This
court observed that under the doctrine of claim preclusion, a final judgment on
the merits in a prior action is conclusive and bars all subsequent actions
between the same parties or their privies as to all matters that were or that
might have been litigated in the prior action.
Id. However, in Chad
M.G., we concluded that claim preclusion did not apply because the
respective interests of a mother and child are not sufficiently identical to
place them in privity. Id.
at 695, 535 N.W.2d at 99.
Keith attempts to
distinguish Chad M.G. because the case brought on behalf of
Chad's mother by corporation counsel was dismissed for failure to prosecute,
without having proceeded to a trial. In
contrast, Keith notes, the first paternity case against him was fully tried by
the district attorney. He argues,
"There has been no claim here (and no basis to suggest) that the handling
of the [first] matter was inadequate or that a Guardian ad Litem could have
done any better under the law existing at the time."
We are not persuaded
that the existence of a full trial in Keith's first paternity case cures the
problem we identified in Chad M.G.: neither mother and child, nor the state and the child, are in
privity. See id.
at 695, 535 N.W.2d at 99. As we noted
in In re D.S.L., 159 Wis.2d 747, 752, 465 N.W.2d 242, 244 (Ct.
App. 1990):
A
child in a paternity proceeding can have many interests divergent from those of
the state or of the child's mother. The
state's primary interest is to protect the public from the burden of supporting
children born out of wedlock where fathers are financially able to contribute
to their maintenance. In re
R.W.L., 116 Wis.2d 150, 161, 341 N.W.2d 682, 687 (1984). The mother may have a variety of reasons for
not initiating paternity proceedings, including a continuing relationship with
the father, or a desire to avoid the disapproval of her family or the
community. Id. at 160-61,
341 N.W.2d at 686.
The child, however, can
be interested in determining his or her right to seek inheritance and the
father's right to seek custody, obtaining a complete medical history, amassing
genealogical information or establishing a meaningful bond with the
father. D.S.L., 159
Wis.2d at 752, 465 N.W.2d at 244.
Next, Keith argues that
issue preclusion bars Mayonia's claim because privity or sufficient identity of
parties is not necessary to support a contention that the case is barred on the
grounds of issue preclusion. In Northern
States Power Co. v. Bugher, 189 Wis.2d 541, 550, 525 N.W.2d 723, 727
(1995), our supreme court explained that issue preclusion refers to the effect
of a judgment in foreclosing relitigation in a subsequent action of an issue of
law or fact that has been actually litigated and decided in a prior
action. Issue preclusion is a narrower
doctrine than claim preclusion and requires courts to conduct a "fundamental
fairness" analysis before applying the doctrine. Id. at 551, 525 N.W.2d at 727. Under this fundamental fairness analysis,
courts consider an array of factors in deciding whether issue preclusion is
equitable in a particular case. Id.
Although issue
preclusion was originally permitted only if the parties were mutually bound by
the first court's judgments, the development of the doctrine has removed the
mutuality requirement and adopted a more flexible approach toward its
application. See Michelle
T. v. Crozier, 173 Wis.2d 681, 687, 690, 495 N.W.2d 327, 330, 331
(1993). Thus, issue preclusion may
apply where the party against whom the plea is raised was a party to a prior
action and had fully opportunity to litigate the issue. See id. at 691, 495
N.W.2d at 331.
For example, offensive
issue preclusion occurs when the plaintiff seeks to foreclose a defendant from
litigating an issue the defendant has previously litigated unsuccessfully in an
action with another party. Id.
at 684 n.1, 495 N.W.2d at 328 n.1.
Defensive use occurs when a defendant seeks to prevent a plaintiff from
asserting a claim that the plaintiff has previously litigated and lost against
another defendant. Id.
If Keith was asserting
offensive or defensive issue preclusion, we would consider the factors
enumerated in Michelle T. to determine whether Mayonia should be
precluded from litigating the issue of Keith's paternity. However, the situation here constitutes
neither defensive issue preclusion nor offensive issue preclusion because Keith
is attempting to preclude an individual who was not a party or privy in the
first paternity action from relitigating an issue Keith won in that
action. It is a fundamental premise of
preclusion law that nonparties to a prior decision cannot be bound by it unless
they had sufficient identity of interest with a party that their interests are
deemed to have been litigated. See
In re Birmingham Reverse Discrimination Employment Litigation,
833 F.2d 1492, 1498 (11th Cir. 1987), aff'd, 490 U.S. 755 (1989). Indeed, "It is a violation of due
process for a judgment to be binding on a litigant who was not a party or a
privy and therefore has never had an opportunity to be heard." Parklane Hosiery Co. v. Shore,
439 U.S. 322, 327 n. 7 (1979).
Because Mayonia has a
right to bring her own paternity action, see § 767.45(1)(a), Stats., and, as we have already
concluded, was not a party or privy in the first paternity action against
Keith, it would be a violation of her due process rights to preclude her from
litigating the issue of Keith's paternity.
See Parklane Hosiery, 439 U.S. at 327 n.7. Therefore, we reject Keith's argument that
issue preclusion bars the second paternity action against him.
Keith argues that if
this court allows Mayonia's paternity action against him, judgments throughout
the state dismissing actions against putative fathers that were commended by
district attorneys under the old ch. 52, Stats.,
procedure will have no practical effect.
Instead, new actions could now be brought which would "negate that
which was thought to be long since resolved." This is especially unjust, Keith argues, because the district
attorney in his first case vigorously and aggressively pursued the matter
through to a conclusion by a trial.
As we recognized in Chad
M.G., a father once acquitted of a paternity charge brought by the
mother, or the state, can be subject to two separate paternity
proceedings. See id.
at 696, 535 N.W.2d at 100. While Keith
argues this is unjust, the solution to this problem is not to conclude that
there is an identity of interests between the mother and the child or, as in
Keith's case, the state and the child.
Rather, as we stated in Chad M.G.:
[W]e
recommend that when a paternity action is initiated by a party, trial courts
take affirmative steps to ensure that those persons whose similar interests
remain unlitigated are added as additional parties. In this way, the first judgment will have preclusory effects on
all individual parties to the action, and the courts and defendants will not be
confronted with a series of sequential claims identical to previously resolved judicial
matters.
Id. at
697, 535 N.W.2d at 100.
We recognize that it is
impossible for Keith to go back in time, join Mayonia in the first action and
thereby avoid a second paternity action.
While it is true that for the last seventeen years Keith has gone on
with his life believing that the paternity matter was settled, Mayonia has due
process rights that must be protected.
Because Mayonia was not a party or privy to the first paternity action,
she is entitled to pursue her action against Keith.
For the foregoing
reasons, we conclude the doctrines of claim preclusion and issue preclusion do
not bar Mayonia's paternity action against Keith. Therefore, the judgment adjudicating paternity is affirmed.
By the Court.—Judgment
affirmed.
