Child, through her guardian ad litem, appeals from a judgment dismissing her paternity claim against Robert Ellinwood III. The trial court granted Ellinwood’s motion for summary judgment on the ground that child’s claim was barred by a stipulated judgment of nonpaternity entered in a dissolution proceeding between Ellinwood and child’s mother, Andrea D’Amico. We conclude that, because child was neither a party nor in privity with a party to the dissolution proceeding, the judgment did not bar her claim. Accordingly, we reverse and remand for further proceedings.
The material facts are undisputed. D’Amico and Ellinwood were married in 1995, and child was bom six months later. In 1998, Ellinwood filed a petition for dissolution of the marriage, alleging that child was a child of the parties. However, two months later, Ellinwood moved to amend the petition, alleging uncertainty about whether he was child’s biological father and requesting genetic testing. Shortly thereafter, the parties agreed to a stipulated judgment regarding child’s paternity, which the trial court entered in early 1999.
The “Findings” section of that judgment recited that Ellinwood “denies that he is [child’s] biological father.” It further provided:
“The parties are convinced that, because of the serious and ongoing conflict between them, it would be in [child’s] best interest if the parties resolved the parentage dispute by entering a Judgment which declares that [Ellinwood] is not [child’s] father and that, accordingly, [Ellinwood] will have no legal rights or obligations with respect to [child].”
D’Amico declared that she had the ability, assets, and income to meet all of child’s present and future needs.
The judgment then declared that Ellinwood “is not the biological father of [child].” Under the terms of the judgment, Ellinwood relinquished all legal rights with respect to child “such that [child] will no longer be legally related to [Ellinwood] and accordingly [child] will no longer be considered an heir of [Ellinwood] for purposes of laws relating to wills and intestate succession.” D’Amico surrendered “for *716 herself and on behalf of [child] * * * all rights to receive child support or any other type of support from [Ellinwood] for the benefit of [child]The parties, by signing the judgment, “stipulate [d] to all of the facts and agreements recited [in the judgment]” and to its entry.
The parties subsequently entered into a stipulated judgment dissolving their marriage. That judgment acknowledged the prior judgment and stated that “[n]o custody or child support issues are involved in this case.” The dissolution judgment awarded D’Amico $675,000 as an equalizing judgment and $150,000 for a covenant not to compete, related to business interests that the parties had developed during their marriage.
About three years after entry of the dissolution judgment, child filed a petition alleging that Ellinwood is child’s biological father and seeking a declaration of paternity and an award of child support. Child attached an affidavit from D’Amico, stating that Ellinwood is child’s biological father and that D’Amico had signed the stipulated nonpaternity judgment because she “agreed that our daughter would be better off without contact from [Ellinwood] because of the acrimony and bitterness of our circumstances.” She stated that child “was not a party to the proceeding” and did not know about it.
Ellinwood moved for summary judgment, contending that the doctrines of res judicata, issue preclusion, and judicial estoppel precluded child’s paternity proceeding. Child responded that those principles did not bar her paternity claim, because she was neither a party nor in privity with a party to the dissolution proceeding.
The trial court entered summary judgment in Ellinwood’s favor. The court found that, in the stipulated judgment of nonpaternity, D’Amico “agreed, swore, and corroborated that Ellinwood was not [c]hild’s legal father.” Apparently relying on
Dept. of Human Resources v. Shinall,
*717 On appeal, child renews her argument that the non-paternity judgment does not bind her, because she was neither a party nor in privity with a party to that proceeding. Ellinwood responds that child was in privity with D’Amico in the dissolution proceeding. Ellinwood does not contend that child was a party or that she is bound even if she was not in privity with D’Amico. He thus implicitly concedes that if child was not in privity with D’Amico, child is not bound by the judgment. We begin our discussion of the privity question by explaining why that concession is legally correct.
Oregon has long subscribed to the related common-law doctrines of issue preclusion (collateral estoppel) and claim preclusion (res
judicata). North Clackamas School Dist. v. White,
For either claim preclusion or issue preclusion to apply, the person against whom preclusion is asserted must
*718
have been a party or in privity with a party to the earlier proceeding.
Bloomfield,
“This court also has held that a person who was not a party to an earlier action but who was in ‘privity’ with a party to that earlier action also can be barred on claim preclusion grounds from bringing a second action. * * * An inherent limitation on using the concept of privity in such circumstances, however, is a concern about the fairness of binding a person to a judgment rendered in an earlier case in which he or she was not a party. As this court stated in Wolff v. Du Puis,233 Or 317 , 321,378 P2d 707 (1963), privity ‘is merely a word used to say that the relationship between the one who is a party on the record and another is close enough to include the other within the res judicata.’ And that relationship is ‘close enough’ for purposes of preventing the third party from pursuing claims in a second trial ‘only when it is realistic to say that the third party was fully protected in the first trial.’ Id. at 322. Thus, even if the present plaintiffs can be said to have been in privity with [a party] in the earlier litigation, claim preclusion will not operate to bar their claims in the present action unless it is fundamentally fair to do so.”
Bloomfield,
Privity “includes those who control an action although not parties to it; those whose interests are represented by a party to the action; and successors in interest to those having derivative claims.”
Wolff,
*719
Neither this court nor the Supreme Court has addressed the question of privity under the circumstances presented here. The cases closest to the question have involved the state seeking to establish paternity and a child support obligation after an earlier determination in a dissolution proceeding has declined to find paternity or award support.
See State ex rel Moran v. Rushman,
Courts in other states, however, have addressed the issue of privity in these circumstances, and the decided trend is that a child should not be deemed to be in privity with the mother.
See, e.g., Chance v. Gibson,
The reasoning of the courts that have considered the issue is perhaps best summarized by the Arizona Supreme Court in Hall. The court began by noting that, although a mother and a child may have common objectives in a paternity proceeding, they do not necessarily have the same interests:
*721 “Privity * * * is not a result of parties having similar objectives in an action but of the relationship of the parties to the action and the commonality of their interests. * * * Even though a desired objective of all paternity suits is the same — to establish the defendant’s paternity — each party’s interests for doing so differ significantly. Parties with common objectives but disparate interests might pursue an action with varying degrees of diligence. Even when the interests of the parties apparently overlap, a court should determine if there are additional, separate interests that would prevent a finding of privity.”
194 Ariz at 58,
A child’s interests include not only matters of inheritance and financial and medical support but also “intangible psychological and emotional benefits * * *, including establishing familial bonds and learning of cultural heritage. [A] child’s interest in determining his or her father is fundamental, unique, and broader than the interests of all others.”
Id.
at 59,
“[The mother] is often subject to pressures from her relationship with the father. These pressures may affect her decision to proceed with a paternity suit. A mother may decide to dismiss a pending paternity suit because she may hope for a continuing relationship with the father, or because her relationship with the father has deteriorated to the point that she wants to avoid contact with him. There may be pressure from community or family disapproval of the father, the relationship, or the paternity action. The mother may be deterred by the trouble, difficulty, and expense of maintaining the lawsuit and decide that she wants and has the means to raise the child independently. Moreover, the putative father may offer the mother an amount sufficient to induce her to settle the claim without an adjudication.”
Id.
Accordingly, a mother’s and a child’s interests in a paternity proceeding may even be in conflict.
Id.
Recognizing the “significant personal obstacles” that mothers may face in
*722
paternity proceedings, the court concluded that it could not expect mothers always to protect children’s interests and ignore their own, so mothers and children “lack the necessary commonality of interests to find them in privity.”
Id.
at 60,
As this case illustrates, the Arizona court’s observations regarding the complexity of the dynamics between the mother and the putative father in a paternity proceeding apply even more strongly when the paternity issue first arises and is resolved in a dissolution proceeding. In their efforts to untangle their legal relationship and overcome the emotional trauma that accompanies many dissolutions, the parties easily can lose sight of what is best for the children, despite their best intentions.
The burden to establish the requisite elements of issue or claim preclusion rests with the one seeking to invoke that rule.
See State Farm v. Century Home,
The record here establishes that child was
not
in privity with D’Amico. Although D’Amico represented to the court in the dissolution proceeding that she was acting in child’s best interests — both in her decision not to contest Ellinwood’s assertion of nonpaternity and in her claim that
*723
she was financially and emotionally able to care for child — we cannot ignore the fact that the stipulated judgment was entered in a tumultuous dissolution proceeding in which D’Amico received a substantial monetary judgment. As the Arizona Supreme Court recognized,
Hall,
194 Ariz at 59,
Moreover, because the record lacks any evidence regarding paternity, it would be fundamentally unfair to conclude that child’s interests were fully protected. Indeed, the only “fact” supporting the judgment of nonpaternity was Ellinwood’s denial that he was child’s father — but D’Amico did not confirm the accuracy of that denial. Rather, she merely stipulated to the facts recited in the stipulated judgment, that is, to Ellinwood’s denial. Accordingly, the trial court’s finding that, in the dissolution proceeding, D’Amico “agreed, swore, and corroborated that Ellinwood was not [c]hild’s legal father” finds no support in the record.
The nonidentity between child’s and D’Amico’s interests, the limited factual record supporting the declaration of nonpaternity, and child’s total absence from the dissolution proceedings lead us to conclude that D’Amico and child were not in privity and that it would be fundamentally unfair to bind child to the outcome of that proceeding.
See Mares,
Reversed and remanded.
Notes
The court entered a limited judgment because it had not yet disposed of Ellinwood’s third-party claims against D’Amico.
Apparently, Ellinwood argued below that ORS 43.130(2) barred child’s claim, and child included a response to that argument in her opening brief. On appeal, however, Ellinwood does not rely on the statute; although he briefly cites it as a statement of policy favoring finality of judgments, he offers no argument that the statutory analysis differs from the common-law analysis or that the statute is a basis for affirming the trial court’s decision. Because he does not rely on the statute, we do not address it here.
State v.
Krueger,
It appears that this case presents a question of issue preclusion — that is, whether the determination of the issue of paternity in the dissolution proceeding bars child from seeking resolution of that issue in a separate paternity proceeding. In any event, because the privity question is essentially the same for claim *719 preclusion as for issue preclusion (here, whether D’Amico represented child’s interests in the dissolution proceeding), we also rely on cases addressing privity in the context of claim preclusion.
In
Shinall,
on which the trial court apparently relied below, an earlier proceeding initiated by the state Support Enforcement Division had determined that Shinall was the child’s father.
In
Century Home,
the court held that the person seeking to invoke preclusion principles has the burden to establish that the elements of preclusion have been satisfied. However, it also concluded that the party against whom preclusion is asserted has the burden to show that the party did not have a full and fair opportunity to be heard in the prior action.