Ex Parte Snow
The facts are recited in the opinion of the Court of Civil Appeals, State ex rel. Snow v. Armstrong, 508 So.2d 264 (Ala.Civ.App. 1986).
The paternity action that was instituted in 1983 by Erica‘s mother, Gwendolyn P. Snow, was brought under the provisions of
“Whenever any woman residing in any county of Alabama is pregnant with or delivered of an illegitimate child, complaint may be made in writing under oath, by the mother of said illegitimate child or other person having legal custody of said child, and if said child is or is likely to become a public charge, by any representative of the state or county department of pensions and security. . . .”
Under the deGraffenried Act, the child was not authorized to begin paternity proceedings.
The Alabama Uniform Parentage Act (“AUPA“), codified at
In the present case, Erica is a person who may bring an action to determinе the father and child relationship, as provided by
“An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section
26-17-5 may be brought by the child, the mother, or personal representative of the child, the public authority chargеable by law with support of the child, the personal representative or a parent of the mother if the mother has died, a man alleged or alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor.”
Also,
“An action to determine paternity may also be commenced upon the complaint of the child, the person having legal custody of the child or the representative of the public authority chargeable by law with the support of the child.”
The action brought by Erica pursuant to the AUPA was dismissed because of the earlier determination in the paternity action brought by Gwendolyn, that Gus Armstrong was not the father. We hold, however, that Erica is entitled to initiate a pаternity proceeding and that her action to determine the father and child relationship should not have been dismissed.
The doctrine of res judicata dоes not bar Erica‘s action under the AUPA. For res judicata to apply to Erica‘s claim, the following elements must be met: “1) the prior judgment was rendered by a сourt of competent jurisdiction; 2) the prior judgment was rendered on the merits; 3) the parties to both suits are substantially identical; and 4) the same cause of аction is present in both suits.” Tatum v. Kelley, 481 So.2d 1132, 1135 (Ala. 1985). The doctrine of res judicata will not apply if any one of these elements is missing. Fisher v. Space of Pensacola, Inc., 461 So.2d 790 (Ala. 1984). In the present case, the third requirement is not met bеcause Erica and Gwendolyn are not substantially identical parties.
For the parties to be substantially the same in both cases, they “must be either the same, or in privity of estate, blood, or law with the original parties.” Lott v. Toomey, 477 So.2d 316, 319 (Ala. 1985). Erica was not a party to the paternity action brought by Gwendolyn, nor was she representеd by a guardian ad litem in that proceeding. Thus, unless Erica and Gwendolyn are in privity, res judicata will not apply. As stated by this Court in Tatum v. Kelley, 481 So.2d at 1136,
“[f]or privity to exist between two peоple, there must be an identity of interests between them. Butler v. Michigan Mutual Ins. Co., 402 So.2d 949, 953 (Ala. 1981). ‘Privity’ has been defined as ‘a mutual or successive relationship to the same rights of property.’ Sims v. City of Birmingham, 254 Ala. 598, 607, 49 So.2d 302, 310 (1950).”
” ‘[P]rivity, for purposes of judicial finality, does not normally arise . . . from the relationship between parent and child.’ ” Brown v. Terry, 375 So.2d 457, 458-59 (Ala. 1979) (quoting 1B J. Moore, Moore‘s Federal Practice ¶ 0.414[11] (2d ed. 1974), ¶ 0.411[11] in 1984 edition).
The interests of Erica in establishing the existence of the father and child relationship are different from the interests of Gwendolyn in bringing the prior paternity action. If Gwendolyn‘s action had been successful, she рossibly could have received a judgment for support benefits on behalf of the child and a judgment for the reasonable expenses of her pregnancy and confinement.
When the AUPA became effective, an illegitimаte child in Alabama was presented with a remedy which that child previously did not possess. The interests of a child in the determination of paternity are protected by the provisions of
“The child may be made a party to the action. If the child is a minor, he shall be represented by his general guardian or a guardian ad litem appointed by the court, if not otherwise represented by counsel. The child‘s mother or father may not represent the child as guardian оr otherwise. . . .”
The remedy provided by the AUPA is available to Erica for determining her paternity. The paternity suit filed by Erica‘s mother was brought under the prior patеrnity statute that neither allowed Erica to be a party nor provided that a guardian ad litem be appointed to protect Erica‘s interests. We сannot permit the previous determination to preclude Erica‘s action under the AUPA, because to do so would allow Erica‘s rights to be foreclоsed by a prior action to which she did not have an opportunity to be a party.
Considering the AUPA as a whole, we determine that the provision of
The judgment is reversed, and the cause is remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES and HOUSTON, JJ., concur.