Matter of Paternity of JRW
814 P.2d 1256
Wyo.
1991
Check Treatment

*1 of the PATERNITY OF Matter KB, Minors. JRW (Petitioner),

DLB, Appellant Wyoming,

DJB and State of

Appellees (Respondents).

No. C-90-3. Wyoming.

Supreme Court of

July *2 Simpson Aron and Patricia L.

C.M. Henning, Laramie, appellant. Aron Lewis, Chey- Blythe Linda S. Lewis & enne, appellees. URBIGKIT, C.J.,

Before CARDINE, THOMAS, MACY, and GOLDEN, JJ.

URBIGKIT, Chief Justice. case, must decide DLB, whether (hereinafter minor father of two children pater- can raise appellant), nity than two more natu- FACTS DJB, the children's appellee from mother). Under (hereinafter ral mother (the son) gave to JRW The mother birth collateral es- judicata, the doctrines of res and the November *3 April married thereafter on appel- mother were and because judicial estoppel, toppel, separated February and then on paternity action bring his failed to lant Following separation, the the 1986. time,” we affirm a “reasonable within (the daughter) KB on gave to mother birth granting the district order of by followed 1986 which was November peti- appellant’s to dismiss motion mother’s May 1987. a divorce on the fa- nonexistence of to determine tion paternity acknowledged of the Appellant Wyo- relationship pursuant to ther-child filed with the state in an affidavit son Parentage ming’s version of the Uniform shortly Records office for Vital Services through 14-2-120. 14-2-101 Appel- marriage to the mother. after his the father on the child’s following on lant was named as issues Appellant raises Appellant admitted in his certificate. birth appeal: the mother’s and counterclaim to answer support order in a divorce 1. Is a child that the son was born complaint for divorce question of on the decree res In marriage. the same “as issue” of statutory pro- paternity so as to bar document, appellant paternity contested Wyoming ceeding under the daughter by stating that “[the mother] Act? [appellant] the father proof her that is on daughter] possibility since the of [the petition subject to 2. Is a however, appel- Subsequently, remote.” has petitioner been dismissal because property stated in their lant and the mother support? pay to child ordered children agreement that both settlement contrast, the is- addition, In the mother identifies marriage. issue of the specifically found that decree of divorce sues as: offspring daughter were born the son and specifical- decree that I. Does a divorce marriage. Appellant was as issue of the ly finds that two children were born monthly support in the pay ordered marriage operate to bar issue of a twenty-five per child or amount of $100 Wyoming Parent- proceeding under month, up per percent of his income $600 age Act? greater. was whichever was throughout the di- represented by counsel judicial estoppel II. Does the doctrine proceeding appeal and no was taken. vorce appellant’s paternity action? bar divorce, Shortly appellant be- ap- Wyoming Parentage Act III. Is the making monthly delinquent came previ- plicable paternity has been when support payments. The court-ordered child ously established? moth- Wyoming, assignee State of petition de- appellant’s IV. Was support payments right er’s to collect child termine the non-existence Dependent to Families with Chil- under Aid enforcement provisions,1 an timely 14-2-104? dren filed under W.S. sup- of his relation- Assignment right restates the moral boundaries to collect child ship to the two children: payments governed by port 42 U.S.C.S. Court ] [found] 1. The 602(a)(26) (1985 Cum.Supp.) Commissioned & and W.S. § underlying is a de- basis for the Petition (1985 20-6-106(a). & § See abo 42 U.S.C.S. 654 sup- payment sire to avoid of Court-ordered Cum.Supp.). substantially port. Although finding this form, record, tragic the initia- The shows fact, true, incomplete. there is no it is parentage was DPASS tive cause for contested argu- record—other than the evidence in the stipu- activity support. to secure The collection upon which to make such ment finding. er, counsel— parentage was filed and the decree lation of argument complete of Petition- November, May entered 1987 and would and the evidence which Petitioner underway. evidentiary hearing collection activities were expect DPASS at an to offer matter, Sep- proceeding [appellant] two later in wants to deter- This followed is that tember, proceeding, appellant he is the father of these chil- mine whether 1989. Within this In an re- This court the modern against appellant. order follows trend ** *, if necessary the information ducing arrearage judgment and mod- for decision is decree, available the court the state was ifying the divorce notice, defendant can raise res granted judgment past due or collateral for consid- $4,939.60 the amount of eration a motion to dismiss. provide also ordered to health insurance Subsequently, appellant the two children. Id. at 858.

brought a Petition to Determine Nonex- principles disposition These control the istence of the Father and Child Relation- Despite this case. the fact that motions to 14-2-104(a)(ii). ship pursuant to W.S. favored, generally dismiss are not we hold *4 Alleging daughter that the son and properly that the district court decided that children, appellant request- not his natural appellant’s petition to disestablish appointment guardian ad litem for ed a was barred since it was not within children, hearing informal and an an statutory “reasonable time.” W.S. 14- genetic testing to conduct to deter- order 2-104(a)(ii). addition, In hold that parentage. requests mine The were de- petition is barred the doctrines of res nied, granted the district court the moth- judicata, estoppel collateral es- dismiss, appeal er’s motion to and this fol- toppel. lowed. 1977, Wyoming adopted slightly a

modified version of the Uniform ANALYSIS Act, through 14-2-101 14-2-120. W.S. See generally, Uniform 9B Associates, In Mostert v. CBL & 287, (1987 U.L.A. 287-345 & 1991 Cum. 1090, 1092 (Wyo.1987), 741 P.2d we summa Supp.). promulgated by The Act was rized a trial our standard review when National Conference Commissioners grants a motion to dismiss for failure response Uniform State Laws to several upon to state a claim which relief can be United States Court decisions 12(b)(6): granted pursuant to W.R.C.P. discriminatory premised on the treatment According to our standard of review Equal illegitimate children and the Pro- complaint we will sustain dismissal of a tection of the Fourteenth Amend- Clause only if it shows on its face that ment of the Constitution. United States plaintiff was not entitled to relief under Perez, 409 U.S. 535, See Gomez v. 93 S.Ct. Johnson v. Aetna Cas- 872, any of facts. set (1973) (holding that an 35 L.Ed.2d 56 ualty Surety Hartford, Co. Wyo., & right illegitimate guaranteed child is (1980). considering 608 P.2d 1299 father); Weber Aetna support from motion, alleged such a the “facts Co., Cas. & Sur. 406 U.S. 92 S.Ct. complaint allega- are admitted and the (1972) (holding 31 L.Ed.2d 768 light tions must be viewed most illegitimate child penalizing the for the acts Moxley v. Lara- plaintiffs.” favorable parent an unconstitutional Builders, Inc., mie Wyo., 600 P.2d ineffective deterrent and does not serve (1979). is a reme- Dismissal drastic Louisiana, interest); Levy any state Harris v. granted. dy, sparingly and is 88 S.Ct. 20 L.Ed.2d U.S. Grizzle, (1979). Wyo., 599 P.2d 580 65, 21 reh’g denied 393 U.S. (1968) (holding unconstitution- Corp. In Texas v. L.Ed.2d 185 West Oil Gas Casper, First Interstate Bank wrongful death statute which al a state reconfirmed, 749 P.2d 278 (1987), illegitimate right children the to re- denied wrongful death of their moth- (Wyo.1988), we answered the narrower cover for the er). primarily designed The to ac- of whether res or collat children, legitimate cord all or ille- eral defenses can be sustained on whether gitimate, Fourteenth Amendment substan- a motion to dismiss. We concluded: father, properly support can them them if he is the unjust and he can avoid the dren so and establish a he supporting paternal relationship if with burden of them he is not. (a) presumed to the natu- legislative A man is legal The Act equality.

tive of a child if: ral father attempt stigma associated with to erase the Comment, (i) Wash- He the child’s natural mother out-of-wedlockbirth. See other StepA Forward are have married to each Parentage Act: been ington’s for pertinent part: half months mother’s of both children quirements Uniform age Act: What tive Father ral father Children’s son (a) (1976). [*] Appellant is A man is born marriage, Parentage Act. With [*] of a child if: approximately Note, California, Wyoming’s Rights, It Will presumed to under the [*] The Mean “presumed 14-2-102 [*] Uniform Gonzaga version four Hastings statutory re be [*] regard to the Puta- the natu- and one- states in and the Parent- father” L.Rev. [*] L.J. Wyoming, a child born ter’s or Thus, gests the months before Though *5 subsequent more than conceived the child of the mother’s husband. ter decree of riage, or within three hundred a court and the child is born days daughter birth, appellant also death, after the nine months no during record, * * annulment proceeding except *. separation had born marriage complaint is found. wedlock minimal meets the to a married woman prior separated slightly parties approximately during the mar- is is entered presumed terminated statutory divorced. is, daugh- or af- (300) sug- six to birth, (iii) “presumed he father” After the child’s definition daughter. married the child’s natural mother ** *; and: strongest is Legitimacy one of the (A) acknowledged pater- his He has However, presumptions known the law. nity writing filed with child Parentage Act as the Uniform under the state office vital records servic- Wyoming, presumption is adopted in es; or or Under the Par not absolute conclusive. (B) consent, Act, he as has cer entage “presumed With his is named a father” statutory pa specific rights the child’s to contest the child’s father on birth tain certificate; part: ternity. 14-2-104 states in W.S. (a)

(C) obligated presumed man to be support He to [a child’s] 14-2-102(a)(i), (ii) or voluntary prom- father under W.S. under a written child * * (iii) may bring action: ise or court order *. The record indicates that appellant [*] [*] [*] [*] [*] [*] by virtue of father of the son (ii) declaring the purpose For the having the mother and acknowl- married of the father and child nonexistence paternity in an affidavit filed edging his relationship 14- presumed under W.S. state office for Vital Records Ser- with the 2-102(a)(i),(ii) (iii) only if the action being to named Appellant consented vices. brought reasonable time within a on the birth certificate. as the father son’s obtaining knowledge of relevant Also, voluntary appellant made a written facts, in no event later than five but pay support property in a promise to years after the child’s birth. agreement to settlement and was ordered case, appellant his this while Thus, the same in the divorce decree. do the nonexistence of petition to determine statutory satisfies all of the alter- appellant relationship within five the father-child "presumed for father” status of natives children, of both he years of the birth wait- son under the Act. years than two after the divorce ed more court, Similarly, appellant “pre doing is the so. The district before daughter pursuant findings adopting father” of the and recommendations sumed commissioner, 14-2-102, ap- pertinent states in the court found that which bring his within a pellant failed to action part: agreed appel- time” and thus refused and the mother children “reasonable that guardi- request appointment marriage agree- of a were born of the lant’s and this children, decree, an informal an ad litem for the ment was reflected the divorce hearing, genetic testing.2 there has no violation of the been mandato- ry language ap- in the Act. The Appellant argued the district before case, plied to the circumstances appeal that court and reiterates on appellant and, “presumed made father” mandatory language in W.S. 14-2-107 such, mandatory blood test was not through 14-2-109 of the parentage time of establish at the divorce. compels grant pre- the district court 14-2-106(a)3 Under W.S. in effect at the request genetic testing sumed father’s divorce, appellant time of the failed to exer- paternity. the nonexistence of establish statutory option challenging cise the argument This comes more than two “presumed parentage father” status in a parties agreed after the children both joined proceeding. with the divorce marriage” were born “of and after [the] appeal did not the divorce decree finds in this court’s stating daughter the son TLB, decision in Matter 771 P.2d 811 marriage. Appel- “born as issue” of the (Wyo.1989). However, appellant’s reliance P.2d 721 Vigil Tafoya, lant cites misplaced since TLB Matter is distin- (Wyo.1979) proposition for the that the Par- guishable present from the case in several entage Act is the exclusive means of deter- First, ways. attempting rather than to ver- mining parentage. Appellant reads the ify paternity, the nonexistence of Matter of any pa- Act to invalidate other putative trying TLB involved father ternity not made in strict determination *6 paternity. Second, putative establish the (i.e., compliance any finding with the Act father natural mother in Matter of genetic paternity without the benefit of Third, TLB married. TLB never Matter of void). testing is negotiated agreement a in involved which fails, however,

Appellant’s argument stipulated the father that he the was natu- child, pay the ignores policy implications since it the clear ral father of would child and, time, genetic testing, support, agreed underlying the Act. While at the same to appointment guardian relinquish parental rights child. of a ad litem and an all to the hearing mandatory Finally, significantly, in the most informal are case Matter of initial, paternity “presumed of an contested determina- TLB did not involve a father” tion, Act the Act. TLB dealt with the does not mandate the under Matter of paternity paternity in procedures same be used when an initial determination of already statutory requirements the con- were not has been established with which followed; case, parties reviewing in in a adjudication. sent of the a we are paternity nothing read in the final determination of made more We procedural compliance by agreement requires years which full than two earlier paterni- auspices under the of the dis- with the Act before the Where, here, Thus, ty appellant finding trict court. this court’s in is resolved. statutory may, upon request by party request based his on three The court shall, a child, alleged require the mother or provisions Wyoming in the act. W.S. 14-2-107 genetic father to submit tests. part: states in 14-2-106(a) 3. W.S. states: party The child shall be made a jurisdiction represent- If he is a minor he shall be The district court has of an action action. brought through W.S. 14-2-101 14-2- guardian guardian under a ad litem ed may joined 120. The action be with an action appointed the court. divorce, annulment, separate mainte- 14-2-108(a) part: W.S. states in nance, any affecting support or action practicable after an action is As soon parent relationship. and child brought declare the existence or nonex- Wyoming, compel joinder Unlike other states relationship, of the an istence father and child parentage proceedings. actions with divorce hearing informal shall be held. G.P., N.J.Super. See B.P. v. 536 A.2d 271 14-2-109(b) part: W.S. states in (1987). presumption legiti the district court’s Court considered Matter TLB that guardian appoint macy a ad litem refusal to under California’s version of Uni hearing an rendered conduct informal Act. States form The United bearing no on the paternity decree void has in Supreme Court stated that California TLB, 771 P.2d at present case. Matter purposes paternity is “irrelevant 812-13. during, whether a conceived born into, existing marriage begotten by an testing presumptively may genetic While other than someone the husband [of action, necessary pre- in - Id. at mother].” sumption effectively can be rebutted (emphasis in original). The United States SAJ, agreement parties. Matter of presumption Court found that the Act, seeking (Wyo.1989). The 781 P.2d 528 legitimacy actually rule substantive “legitimize” outside the children born overriding policy of law unit, based on social presumes paternity family traditional relationship pre derived from the under those certain circumstances which obligation father and the child at the time of present in this case and the sumed are bring reasoning father to Applying remains with the birth. Id. Mi 14-2-104(a)(ii) case, timely grant action under W.S. to this if chael H. we presumption. right testing, rebut the compel genetic deny effectively protected the children’s in Consequently, interpret we must lan- having legitimacy presumed terests in their 14-2-104(a)(ii)as guage it relates to in W.S. Act. under the The balance between the bringing paterni- statutory limitations on right protected not children’s to be “bast- ty action under the Act. statute dic- outweighs the father’s interest ardiz[ed]” brought tates that an action must be “with- ascertaining paternity than more two obtaining knowl- a reasonable time after years acknowledging the same. See facts, edge of no event later relevant but X, Y & Z, (Wyo.), A v. (5) years child’s than after the birth.” five U.S. cert. denied 459 14-2-104(a)(ii).4 Appellant argues (1982). 74 L.Ed.2d controlling is the feature five any within the statute *7 Also, accept appellant’s argu to years automatically five of birth is viable. controlling is ment that five limi Accepting appellant’s argument as correct our tation in this case would violate well purpose would eviscerate the fundamental interpreta statutory established rules is, Act; every to ensure child’s Deloges Wyoming tion. In v. State ex rel. right equal protection to under the law Div., 750 P.2d Compensation Worker’s possi- “legitimizing” the earliest a 1329, (Wyo.1988),we stated: would, Appellant’s argument in time. ble effect, every presumed father in the allow general statutory rules Our con- year a in state five “window” which are If the struction well settled. lan- challenge on domes- paternity, wreak havoc guage unambig- of a statute clear and attempt escape pa- tranquility, tic uous, plain we must abide mean- * * * support obligations. result rental This statute, ing of the but where a surely legislature not intended when ambiguous, will re- statute adopted Wyoming’s it version of Uni- general principles statutory sort Parentage Act form in 1977. attempt construction in an to ascertain * * * Furthermore, D., 110, legislative intent. it 491 U.S. Michael H. v. Gerald 91, statutory reh’g fundamental rule inter- 105 L.Ed.2d de 22, 106 937, 110 pretation portions that all of an act must 492 U.S. L.Ed.2d nied (1989), materia, word, pari every the United States be read Washington knowledge outs, 4. Syb See and California eliminated the five relevant facts. Miller v. year statutory bringing an action to 97 Wash.2d 645 P.2d limit (1982); 26.26.060(l)(b) paternity; their § establish nonexistence of stat Wash.Rev.Code Ann. Cal.Civ.Code, (1986); 7006(a)(2) (West simply require brought § utes that an action be obtaining Supp.). “within a time” after reasonable clause, presented res in the mother’s sentence must be construed Appellant contends this inoperative superflu- or motion to dismiss. part so that no * * * viewing Additionally, held the court’s standard of we have violates ous. allegations petition light must assume that most this Court things, party opposing the motion legislature did not intend futile favorable * * *, statutes should not be to dismiss. and that interpreted producing in a manner ab- disagree. motion to We The mother’s surd results. appellant’s in opposition dismiss filed Parentage Act must have held that the We petition the nonexistence of the to establish “strictly carefully construed and ad- relationship father-child stated follow- give effect to the hered to” order to ing underlying as the basis for dismissal: TRG, 665 legislative intent. Matter Respondents allege that this mat- reading (Wyo.1983). P.2d ter is Res Judicata and that Petitioner is whole, 14-2-104(a)(ii) find that the as a from action to determine the non- barred that, legislature obviously intended for the time. existence of at this child, sake of the an action establish added.) (Emphasis read the We basis brought paternity must be nonexistence of motion to dismiss to consti- the mother’s promptly upon discovery of circumstances separate grounds tute two —res nonpaternity. a rea- indicative of “[WJithin first and a statute of limitations being the operative time” is the hurdle which sonable being the second. The district court bar paternity action must a nonexistence of essentially granted the motion to dismiss pass. Any dilatory action will not be saved ground on the second when based year ceiling. by the five adopted the commissioner’s conclusion that “rea Determination of what constitutes “[wjhile may there not be sufficient evi- is a of fact for the sonable time” estop- to determine dence before the Court recently trial court. This court stated pel judicata, there is sufficient evi- following quotation in principle by the Mat not with- dence that the action was Webster, (Wyo. ney v. period in reasonable of time after knowl- 1991): edge of the relevant facts.” time What constitutes reasonable District Uniform Rules for the Rule question of fact. any particular case is a Wyoming of the State of states Courts Svihovec, Equity Mott Elevator part: (N.D.1975). N.W.2d filed, except motions for Each motion the fur application In the of this rule and spe- set out the summary judgment, shall review, principle regarding appellate ther points upon which the mo- point cific *8 court, in 97 Wash.2d Sybouts, the Miller v. brought[.J tion is (1982), 445, 1082, P.2d 1085 said that 645 Thus, obligated specify mother the judg “[njormally will not substitute our we grounds on she based her motion the which that the trial court when there ment for of and the district court was re- to dismiss its decision.” We will follow grant the motion based on one or quired to to concur principles those for this decision grounds. The mother more of the stated trial court. Klaw the decision of the with on clearly specify failed to reliance W.S. 778, 133 Crawford, Ill.App.3d 185 itter v. 14-2-104(a)(ii)5 her 1159, 721, 727, 541 N.E.2d 1165 Ill.Dec. dismiss; yet, equally it is clear motion to (1989). argued for both sides that that counsel

Next, applicability of the statute before the com- appellant argues that the addition, appel- court, findings counsel for by adopting the of missioner. district in his commissioner, addressed the timeliness issue decided the case based lant the objection of to the commission- ground stated of statement grounds other than the 14-2-104(a)(ii) obtaining knowledge of portion a reasonable time after relevant of W.S. § 5. The facts, but in no event later than five requires nonexistence of relevant an action determine relationship after the child's birth.” be "within the father-child 1264 find, therefore, at These beling, supra, that if 406 P.2d report. We

er’s doctrines, of relitigation inhibit the which error in the district court’s there was upon which has claims or issues there to dismiss the motion granting of mother’s to liti opportunity full and fair been a specifically set forth reasons not based on gate competent jurisdiction, of a court motion, the error was harm- in the written Rubeling (Wyo.1965). 213-14 cies behind the district res The ing lished in the less. W.R.A.P. clusion of the prevent Also, prevent arises same cause. ty, related judicata, which doctrine is well estab doctrine Delgue there (Wyo.1984), the doctrine motion Differing being in through public policy and hardship on v. court, doctrine of collateral should Rubeling, v. commissioner as being doctrine Wyoming judicial system. Curutchet, 7.04. res we somewhat dismiss was arises from the need to also find vexed twice interest of the state an discussed the 406 individual end res judicata P.2d from the con that justified by adopted by P.2d litigation. estoppel: 283, necessi- sustain for the and to poli- 208, 284 Bard Ranch P.2d were involved ment preventing relitigation Sac, ties or those 557 P.2d which same claim that was resolved er ta cluding this promote state lis distinguish The interest served can essentially the judgment. v. effect they [670] 94 U.S. (Second) upon precludes be described Willis, [722] conserve action between the at courts to settle their between court, collateral 673; (1935)]; Company reliance actually and 351, supra, at Cromwell privity Judgments, 727 [ same, generally have been careful 24 the two. Res presentation [ by [48 (Wyo.1976)]; estoppel L.Ed. with them of the v. but citizens of both doctrines Weber, supra, Wyo. v. necessarily issues which resources. and Restate- § as that 195 County courts, same is that of disputes an 403] by par- judica- (1877); (1982). earli- Wil- par- rule the in- 49 state, Roush, these doc recognized supra, As in this ties. Roush v. 589 P.2d trines incorporate universal precept [841] at [ (Wyo.1979) ]; Bard Ranch Weber, jurisprudence supra, to the effect P.2d at Company common-law v. Willis, 726-727; “right, distinctly supra, fact v. Willis (Second) 673-677; put directly determined and Restatement in issue and * * * Judgments, (1982). can competent jurisdiction court of § disputed subsequent in a suit be not be justification for doctrines of Additional privies.” same or their tween the in and collateral States, 440 U.S. v. Montana United prevention cludes: of inconsistent decisions 59 L.Ed.2d 210 99 S.Ct. (Allen McCurry, 449 U.S. (1979),quoting from Southern R. 411, 415, (1980)); con 66 L.Ed.2d 308 Pacific 1, 48-49, States, 168 U.S. Co. v. United one cept party that each shall be limited to (1897). 27, 42 L.Ed. try opportunity to his case on the merits upon founded These doctrines are (see CLJ, (Wyo. P.2d CLS by society having differ held interest 1985)); preventing legal system *9 single in a conclusively ences resolved becoming unmanageable, (Manners from v. thereby avoiding the and vexation Manners, (Wyo. 674-75 706 P.2d piece expense with 1985)). which are associated As the States United “ necessity for litigation. said, meal The sus judi- doctrine of res Court has ‘[the] justifica taining this social interest the practice matter of cata not mere tion of res for the doctrines procedure inherited from more technical estoppel. v. United collateral Montana ours. It is a rule of fundamental time than 153-154, States, supra, justice, public policy 440 U.S. at 99 and “of substantial 399 Guernsey, supra, [ (Wyo.1982) at 973-74; ]; 652 Barrett v. Town P.2d Rubeling [395] at 398- v. Ru of courts and of cordially regarded * private * *.’ ” peace,” Federated and enforced which should be Dept. Stores, the

1265 identical; (3) the issues were the 101 S.Ct. ter was Moitie, 452 U.S. Inc. v. matter; (1981) (quoting subject 2424, 2429, to the L.Ed.2d 103 same and related 69 Co., Supply (4) capacities persons Railroad Hart Co. v. the Steel 506, 508, 61 294, 299, 244 subject U.S. the identical in reference both ” (1917)). L.Ed. 1148 them.’ Id. the issues between matter and Swasso, 751 (quoting Matter judgment final at 1355 is a A divorce decree party (Wyo.1988)). decided. Warren A cannot all issues P.2d 890 res (Wyo.1987); Hart, have been relitigate 747 P.2d which could v. issues 674; Mentock Manners, P.2d suit. presented previous in the Davis (Wyo.1981); Mentock, P.2d Davis, (1941). Wyo. 524, 111 P.2d 124 (Wyo.1974). Heyl, Heyl v. (1) The four criteria were met in this case: context, recognized the we In the divorce identical appellant and the mother were the said finality importance of when (2) proceeding; the parties in the divorce cases true in divorce “[^specially is this proceeding dealt with the divorce par the involvement of the emotional when the district court and paternity and both importance of all magnify the ties tends to daugh- parties found that the son the Heyl, therewith.” in connection matters (3) marriage; born of the ter were P.2d at 30. directly related paternity was question of damaging ef- potentially Because of proceed- adjudication final of the divorce paternity determi- relitigation of a fect that appellant and the mother ing; and both children, the might on innocent nation have interests de- had the same fundamental es- judicata and collateral doctrines of res pro- paternity the divorce termination pater- in the toppel rigorously are observed ceeding. nity context. in a child A determination the doctrine of collateral Similarly, order, the is- particularly where in this applicable estoppel would also have contested or could sue has been decided paternity issue was case. The contested, precludes generally, sub- been prop parties in their agreement of paternity. sequent denials by the dis erty and confirmed settlement (1986). 702 at 331 Divorce C.J.S. 27C Appel § decree. in the trict court placed paternity of a child plea If the lant, against party whom for a divorce and is in an action issue asserted, prior divorce party judicata as the matter is res adjudicated, paternity was an is Finally, adjudication. any and wife between the husband ac “necessarily decided” sue proceeding[.] subsequent action oppor a full and fair appellant had tion and Separation Divorce and time. 24 Am.Jur.2d the issue at that tunity litigate (1983). 1099 at 1084-85 § appel factor in preclusive final paternity of a child the issue of Where is based on disinclination lant’s fatherhood entry judicata upon the has become doc judicial estoppel. The the doctrine in the divorce ac- judgment final here, where, parties arises trine tion, may not thereafter trial court as “issue of the children tests of identified requiring [the] blood grant a motion proceeding. As child, in the divorce though marriage” even (5th Dictionary 761 abate in Black’s Law that the tests would defined believes party by ed.1979), that the child is judicial obsession binds the husband’s and he not his. declarations Am.Jur.2d, supra, 1100 at § subsequent them in a may not contradict involving same issues proceeding Newell, [the] Estate Matter * * * *10 doctrine, a parties. Under and identified the (Wyo.1988), we P.2d 1353 pleadings, statements by his party who applica to determine criteria used four “ oath, contentions, has assumed under ‘(1) or are: judicata. They bility of res proceed- position judicial in a identical; (2) particular subject mat- parties 1266

ing estopped judicata an inconsistent doctrines of res and/or collateral to assume estoppel to relitigation paternity bar of af- subsequent action. position in a paternity ter prior was in a established Thus, affirmatively assert- where proceeding. despite This is so agreement property ed in the settlement genetic testing gen- fact blood was “of mar- children were both [the] erally done concurrently not the di- with riage,” estopped from current he is that, instead, proceeding paterni- and vorce neither child is inconsistent claim that his. ty by agreement either was established of case An of law from other examination parties by judicial and/or decree.6 The jurisdictions supports our result. In states in an same result is also found overwhelm- adopted Parentage the Uniform ing adopted that have states that have not number of applied Parentage consistently courts have the Uniform Act.7 502, 804, Anonymous Anonymous, (Minn.App.1986), v. 473 So.2d dismissed 484 U.S. 108 6. See 49, (1987) (Ala.Civ.App.1984) (finding (presumed that the minor 504 98 L.Ed.2d 14 father “ parties' pleadings child'" in the stipulated paternity child was 'the in dissolution decree and ” marriage’ and that the “child ‘was born to the judicata estop- was res barred and collateral judicata in the divorce decree was res as to challenging pel action); paternity subsequent from in a Unick, paternity); De Weesev. Blohm, determination of rel. State ex Ondracek v. 363 100, (1980) Cal.App.3d Cal.Rptr. 102 162 259 (res judicata (Minn.App.1985) pre N.W.2d 113 (where stipulated the father to fatherhood in nonpaternity despite cluded a of defense paternity proceeding agreed pay paternity prior fact that was not contested in a support. That court said he was barred res Gilbraith, separation hearing); and In re 32 judicata requesting from a blood test four 127, (1987) (court Ohio St.3d 512 N.E.2d 956 later. The court pleadings took notice of the agreed that a non-adversarial dissolution of paternity in the determination and marriage judicata, thereby barring was res probable also discussed the father’s motivation subsequent paternity brought pursuant denying subsequently paternity); Brown v. Act). the Uniform Superior City County Court In and For of Francisco, 633, Cal.App.3d Cal.Rptr. San 98 159 State, Dept, 7. See Health and Rehabilitative (1979) (court judicata said 604 res controlled Support Services Child v. Office of Enforcement despite presumed the fact that father knew the (ap Wright, (Fla.App.1986) pell So.2d 1008 498 child was not his at time of divorce but did not quashed ate court a trial court order for a 403, issue); S.G., contest the A.G. v. 199 Colo. paternity. blood test to determine The final (1980) (once paternity 609 P.2d 121 is estab judgment marriage of dissolution of resolved proceed lished when not contested in a divorce ing was, therefore, paternity the issue of res necessary apply it is not the Uniform Johnson, judicata); Johnson v. 395 So.2d 640 challenge. Act in a later If the Act (Fla.App.1981) (paternity by stip issue resolved applied were to be fathers, to children with parties property ulation of the settlement unnecessary litigation, it would lead to agreement judicata. divorce was res disruption family relationships, and would be The court stated: "To allow former husbands to contrary public policy underlying long entry judg come into court final legitimacy); presumption McNeece v. challenge legitimacy ment and of children McNeece, (1977) Colo.App. 39 562 P.2d 767 during marriages born their would be chaotic at (presumed father barred addition, require best. former wives and judgments raising paternity from would, their children to submit to blood tests action); a defense in a child In re Mar instances, many humiliating experience be a Yakubec, riage 453, Ill.App.3d 154 107 Ill.Dec. 641); Pike, Ga.App. (1987) (the them.” Id. at East v. 163 117 507 N.E.2d (1982) (res judicata 294 S.E.2d parentage adjudicated upon barred relied non-paternity determining rights parties father’s tion); defense in a URESA ac at the time Detert, entered); B.P., Marriage In re 391 N.W.2d 707 the divorce decree was 536 A.2d (Iowa (res (where App.1986) judicata prevented precluded the mother was from intro bringing paternity an action to disestablish duction of new blood test evidence that showed agreed pro when it had been to in the divorce ex-husband could not have been the child's fa ther); Anderson, ceeding. That court said the doctrine of res Anderson v. 407 Mass. (1990) (held applicable paternity was not because N.E.2d that divorce decrees are action; actually litigated binding was not in the divorce conclusive and with re however, applied gard actually necessarily the court the doctrine of re to matters all deter mined, agreement pose parties); including paternity); Hackley Hackley, based on the v. (1986) (the Naylor, Callison v. 108 N.M. Mich. 395 N.W.2d 906 need (1989) (court estoppel applied finality said collateral as to a determination com opportunity pelled application judicata); Cogan had because father to raise the of res parentage Cogan, Mich.App. issue of at the time of the divorce and 326 N.W.2d 414 so); Clay Clay, (appellate failed to do N.W.2d court found that father’s re-

1267

CONCLUSION KLUTZNICK, Samuel J. of the district court We affirm the order (Defendant), motion to dismiss granting the mother’s v. petition nonex- appellant’s to determine Thulin, W. THULIN and M. Joan Walter relationship. istence the father-child wife; husband and Robert E. and White Wy- father under

Appellant, Co., Partnership, Wyoming General oming’s is barred from now White, Robert E. and Barbara White G. contesting young boy of this parentage Partners; General Robert S. Cheek and bring his by his action girl failure within Cheek, Cheek, R. Jean Robert S. Trust pursuant “reasonable time” to W.S. 14- Cheek, ee for Jean Rick Robert S. 2-104(a)(ii) judi- the doctrines of res Cheek, III, Cheek, Ap P. and Deborah cata, estoppel judicial estop- collateral (Plaintiffs). pellees pel. No. 91-5. CARDINE, J., specially filed concur- Wyoming. Court opinion. ring

July CARDINE, Justice, specially

concurring.

I concur in the affirmance of trial

court’s order of dismissal in so much opinion appellant’s as holds parentage not com-

determination of was

menced within a reasonable time. paternity); quest for blood tests was barred the doctrine decree as nowski, v. Chrzanowski Chrza appeal Pa.Super. A.2d from a 325 472 1128 of collateral holding (appellate was trial court order for a trial court determination the same vacated puni- appellate court test and full faith and credit should vexatious. The assessed blood found damages equivalent to the accorded an divorce decree based

tive in an amount out-of-state mother); estoppel); expenses appeal by Wal incurred on on the doctrine of collateral Walters, Stewart, (Tex.Civ.App. Mich.App. ters v. S.W.2d 586 Stewart 1978) (res (1979) (res judicata relitigat- and doctrine of barred father from N.W.2d estoppel however, Fairrow, disestablishing pa- ing paternity); Fairrow from see barred father (where (Ind.1990) ternity); Campbell, Marriage was In re 741 S.W.2d N.E.2d 597 father (Mo.App.1987) (despite express finding relitigate no based allowed issue decree, "newly the ex-hus- medical evidence" eleven in the divorce discovered subse- after the Id. at 599. The court band barred from divorce. Sutton, contesting highly quently paternity); Sutton v. viewed circumstances case (1982) (court N.C.App. "[did] S.E.2d unusual and stated that not intend binding weapon hus- a new nuclear for di held decree was on former create tactical 600). despite finding band fact there was no in the vorce combatants." Id.