*1 PALM, Jr., Dеceased, Palm, Sandy Palm, L. James Lewis James Ann minor, Merritt, Shirley Rusty Palm, Minor, Ann Palm Lewis Williams, Stewart, Lynn Palm, Lucille Veronica Jean Palm Minor, COMPANY, INC., Plaintiffs GENERAL PAINTING Em- ployer, Fidelity Guaranty Company, Carrier, and United States Defendants, Sandy whom Ann Palm and Lewis Palm are Appellants-Respondents, Christy Lynn and of whom Palm and Julia Respondents-Appellants. Lucille Williams are
(370 (2d) 463) S. E. Appeals
Court of *2 Calmes, III, Greenville, James D. appellants- for respondents. Pilzer, Greenville, Ronald L. Donald Clement respondents-appellants. April Heard 1988.
Decided June 1988.
Reh. Den. June Judge:
Goolsby, compensation This workers’ case arises out of the death Palm, on June 1985 of James Lewis Jr. The com- Palm, missioner awarded benefits Sandy Ann Palm, Lewis Lynn Palm under Section 42-9-290 of the South Carolina Code of employee Laws dependents and denied benefits Lucille Williams thereunder. The full commission and the circuit court af- *3 single firmed the Sandy, commissioner’s order. Rusty, Christy, appeal. and Julia all appeal The basic issue Christy, whether single found the commissioner to be the legitimate deceased, daughter Rusty, of the found the single illegitimate commissioner to be the son of the de- ceased, Julia, single and found the commissioner to be married to totally dependent another but on the deceased support period for a prior excess of three months to the death the to are entitled benefits. We affirm.
I. single We address the issue first of whether the commis- awarding Christy sioner erred benefits. single Christy legiti- commissioner found “was the marriage
mate issue the Jean Palm Veronica Stewart having deceased], during and beеn born the existence of [the marriage their marriage and before legally such dis- solved.” He also found the deceased “had wife access to his ... Christy the ... ... was conceived.” Sandy, Rusty, question and single commis- Christy sioner’s failure to collaterally find estopped to claim the deceased quеstion Christy is her father and whether may considered a Sandy of the deceased. and underpinnings of the question the factual
Rusty also Christy’s being the child finding regarding commissioner’s single commissioner by and the reliance of the deceased Cherokee, Inc., E. 68 S. Next Kin on Barr’s finding. support his (1951), to (2d)
A. their contention that Sаndy, Rusty, Julia base and is her father collaterally estopped to claim the deceased divorcing orders, in 1982 family court one entered on two finding Christy Christy’s to be mother and deceased from declaring Christy illegitimate the other entered and Stewart, Bobby Roy daughter and of Veronica to be the Stewart, Palm to changing last name from directing Christy’s to reflect Stewart birth certificate Christy’s natural father. party ac-
Although Christy was a to divorce neither therein, guardian ad litem a represented tion nor name-change represented her in the ac- guardian litem ad Julia, however, strangers Rusty, to Sandy, were tion. family both court actions. relitigating party precluded from an issue
A person party if a full and fair with lacked another litigate action or opportunity the issue the first affording party oppor- justify if an circumstances other Doe, again. S. C. tunity litigate the issue Beall ques- App. 1984). determining (Ct. In issue, mаy party may relitigate a court tion of whether prior apparently was whether determination consider compromise finding other on a verdict or and whether based appropriate that compelling circumstances make it *4 Id.', party relitigate the issue. RESTATE- be allowed to (SECOND) §29(5) (8) at MENT OF JUDGMENTS strаnger question of allow a 291-292 whether to estoppel party a to use offensive collateral so as to bar from relitigating subsequent in a is one addressed an issue action Conley Spillers, to the of broad discretion the trial court. v. (W. 1983). 301 E. S. Va. concluding no
We have trouble commis refusing sioner did not abuse his discretion in to hold precluded Christy by the divorce action and name-change relitigating action from legit- issue her imacy in the instant action.
Christy party privy was neither a nor party a of a divorce action. She therefore a full oppor lacked and fair tunity litigate of her legitimacy issue in that action. Tupper, (1976) Prather 230 S. E. Cf illegitimate (a that a must be set determination child was represented by guardian aside was not a where the child ad in the issue not action and an raised litem pléadings adjudication and a defendant not bound an action). party where he was a not namе-change action was guard- uncontested. Had the allegations ian ad litem contested the made petition joined mother and Stewart their and not in their prayer Christy daughter, be found to be their that her changed, amended, name and that her birth be certificate be reasonably the actiоn could have been resolved otherwise. See §29, (SECOND) RESTATEMENT OF JUDGMENTS g (1982) (A party comment precluded at 295 is not from relitigating an issue with another circum- “[t]he attending the stances determination issue the first may action reasonably indicate that it could have been re- solved otherwise if those absent.”). circumstances were In- deed, presumption legitimacy in view of the and the placed spouse’s testimony on regarding restrictions non- spouse during access to the conception, other probably the result would have been the same result Peoples here. National Bank Greenville v. Manos Broth- ers, Inc., E. (2d) 226 S. C. 45 A. L. R.
(1954); by Epps Thompson, Lewter 281 S. C. (Ct. 1984). App.
B. We find no merit the contention that share in entitled to the deceased’s death benefits be cause, order, the name-change under she was not dependent of the deceased at the time his death. surviving deceased, Christy,
As a child of the who was yeаrs died, conclusively four old when the pre- sumed 42-9-110of the under Section South Carolina Code of wholly support” Laws “to *5 46 OF SOUTH CAROLINA See CODE OF LAWS
deceased. only- to include (defining the term “child” (1976) §42-1-70 wholly dependent upon the years age or persons under 18 employee).
C. single- by Sandy challenge As legitimate Christy is the finding that commissiоner’s compensation deceased, in workers’ case child of the Compensation Commission cannot finding of the Workers’ finding a court unless modified reversed or be in “[cjlearly erroneous view legal error or is controlled reliable, evidence on the probative and substantial of thе OF LAWS OF SOUTH CAROLINA CODE whole record.” Georgia-Pacific Corp., (1976); Lail v. l-23-380(g)(3) and § Mills, (1985); Blair (2d) E. 911 Hanks v. 328 S. S. C. 1985). (Ct. App. E. Inc., C. 335 S. 286 S. legiti presumed to be born lawful wedlock is A child Merrell, S. C. Chandler mate. Cherokee, Inc., supra. “The (1987); Next Kin v. Barr’s arising legitimacy from birth wedlock
presumption of that, ordinarily, if had access to rule a husband supports the he the father of nature could be wife so that the laws his wedlock, presumed it to be his.” 10 must be of a child born presumption, 12 at This § Jur. Bastards Am. “ only ‘by evidence however, the clearest is rebuttable but impo impossible husband], reason of it that was [the imbecility, place from the tency or or entire absence conception], to had during have the wife was [the ” wife, child.’ Barr’s or to the father of the access to the 464, 68 Cherokee, Inc., S. E. at Next Kin v. 447. reliable,
Here, probative, and substantial evidence on Christy was and born the whole record shows that conceived when her mother Veronica Jean Pаlm Stewart a time divorced, and was married to the whom she later Christy’s during the had access mother period Christy was conceived.
Christy’s mother and the deceased married sometime September 14, was born 1975 and divorced on 1982. 30, 1980, conceived, being according on October after to her mother, during Fеbruary, sometime mother *6 testified she had sexual intercourse with the deceased February, “[q]uite few times” 1980. presumption legitimacy, therefore, clearly
The of applies. Although single express commissioner made no find- ing presumption legitimacy that the of was not rebutted impossible of the clearest evidence that it was for the de- Christy, to implicitly ceased have fathered he did so. Evi- finding supporting implicit supplied by dence this was Stewart himself. Stewart he had denied sexual relations Christy’s February, with mother
D. We also find in Sandy’s Rusty’s no merit and conten-' single tion that the improperly commissioner relied оn Barr’s Next declaring Christy Kin in to be the legitimate daughter of the deceased because the issue re- garding Christy’s legitimacy had become moot when Chris- ty’s mother and Stewart subsequent Christy’s'- married to birth. See CODE OF LAWS OF 'SOUTH CAROLINA (“If §20-1-60 parents illegitimate of an child subsequently marry, legitimate child shall become ....”). argument, however,
This Christy illegiti- assumes was mate to start with. application Section no 20-1-60has legitimate, a child’s birth presumed birth is to have been.
The determination of the Christy issue whether was the legitimate daughter of the birth, time of her obviously, depended in large measure rule stated Barr’s Next Kin.
II. We next single address the issue whether the com in awarding missioner erred Rusty benefits. single commissioner found the deceased to Rusty. fathered He period
have also found “that Rusty conceived, of time that L. Palm was Julia Lucille husband, Harvey King, Williams’ did not have access to incarcerated____” ... because he Julia findings single commissioner’s questions the deрendent of deceased. Rusty is a child and
A. Rusty gave while married to birth conceived therefore, Kin, King; Barr’s Harvey under Next Sylvester legitimate child of Julia her Rusty presumed husband. commissioner, however, found to be the single holding, In the deceased. so
illegitimate child of Julia and found the evidence rebutted the commissioner he presumption legitimacy when determined there was during the she Julia to her husband non-access Rusty. conceived *7 supports single
Competent the commissioner’s evidence evidence, This which is regarding non-access. conclusion below, reliable, and recounted probative, and substаntial See convincing. as clear and may properly be viewed (the evidence overcome § 6 at 38-39 C. S. Bastards J. legitimacy must be clear presumption the convincing). Ivester, Jr., Henry Clayton and his wife
According to Ivester, the deceased in a Kimberly lived with Louise Julia in adjoining motel from sometime in a Florida theirs room August, 1984. July part the first the end of or June to 18,1985, Rusty, April was born on was testified who Julia July beginning end of or conceived either at the in engaged sexual inter- August, Julia testified she Rusty when was course with the deceased conceived. Harvey they never saw while the testified Ivesters in of them lived Florida.
four appearing on an ar- According of service to an affidavit 1984, and, July warrant, Harvey arrested on rest Appalachian Floyd, J. according to a letter from William of the South Carolina Regional Classification Coordinator Corrections, custody Department was returned 20,1984. King Depаrtment July The letter also shows on custody Department’s until November remained Perry In- in the Correctional confined all the while Pelzer, Carolina. South stitution Julia, According Henry to both the deceased contrib- Rusty’s support. uted to
B... We find no merit the contention entitled to share the deceased’s dеath benefits be dependent cause he was not a of the deceased “for a period of prior three or months more to the accident.” CODE OF LAWS OF (1976). § SOUTH CAROLINA 42-9-120 deceased was killed about two Rusty’s months after birth. surviving
As child of Rusty, though even illegitimate, compensation is entitled to based on the death Inc., the decedent. v. Dickert-Keowee, Flemon 190 E.S. Christy, Rusty Like is conclusively presumed under wholly Section 42-9-110of “to Code support” for on the deceased. The three-month requirement of Section 42-9-120 apply does not to surviv ing illegitimate child.
III. single We come now to the com issue of whether in denying missioner еrred Julia benefits.
Julia, approx- who lived with the deceased for imately years, Harvey two was married to the date Although single died. commissioner found totally dependent upon support, the'deceased for he nevertheless barred her claim death benefits. The *8 Day Day, 334, commissioner rеlied on v. C. 58 E. 216 S. S. (2d) (1950). 83 Supreme Day, Court in stated legislature permit was not the intention a
[I]t woman dependent to be classed and considered aas meaning within Compensation of our Act [Workers’] relationship in who lives an illicit awith man to whom legally she is not married. 345, (2d) Day E. at 58 S. at 88. The in claimant had good
married the in faith but belief mistaken her fist husband was dead. thought Julia who does claim that not she herself no longer Harvey married to while she lived with the
50 only bigamous spouse. disagree, Day a We
argues bars support cases elsewhere that would though well aware of Department Industrial Relations right to recover. Julia’s Board, Compensation Appеal App. (3d) 94 Cal. v. Workers’ Co., (1979); West 394 72, 156 Rptr. v. Barton-Malow Cal. 183 rehearing denied, (2d) (1975), 334, N. 545 395 230 W. Mich. Housing (2d) (1975); 902, N. v. 232 W. Kendall Mich. City, A. Authority 196 Md. Baltimore Johnson, E. 220 Ind. 46 N. (1950); Russell (1987) (discussion § A. 63.43at 11-176 (1943);see 2 LARSON a knows rela claimant a concerning the situation deceased). If a dependent on the tionship illicit and mistakenly good spouse, who believed faith bigаmous marriage, receiving from her is barred death validity of Act, surely Compensation the Workers’ benefits' under another, who, cohabits with not person while married to one they no married is spouse her with belief that are or his mean within the likewise not to considered ing of the act. to one who arе be awarded deliber-
If death benefits with em- in an adulterous relation a deceased ately lived Assembly and not the courts should ployee, the General Day prescribe for award in such cases. See the conditions opinion, (“In if Day, 58 E. at 88 our 216 S. C. legislature to sanction an the intention of it had been relationship constituting depen- a basis adulterous provision have made therefor dency, express would been Compensation Act.”). the [Workers’] argument regarding the con- not address Julia’s We need interpreted stitutionality 42-9-120 the Code as of Section Day. So far as record Supreme Court’s decision appeal. shows, first time on is made this contention City Aiken, S. C. Powers v.
Affirmed. JJ., concur. Cureton,
Gardner REHEARING ON PETITIONS FOR ORDER Per Curiam: *9 upon petition
This matter is before the court for rehear- ing by Sandy filed Ann Palm and Lewis Palm and a petition rehearing filed Julia Lucille Nei- Williams. petition ther has merit. particular regard, however, ground urged
With involving constitutionality of Section of the South (1976), 42-9-120 Carolina Code of Laws Day Day, interpreted by Supreme Court’s decision (1950), 216 S. C. 58 S. E. Julia is correct she when it states that is inferable from .the record that she raised so, this issue before the commissioner. Even we need argument concerning question not address Julia’s of the validity. statute’s passes upon circiut court nowhere the issue and it appears any
nowhere pursuant that Julia made motion to 59(e) Rule of the South Carolina Rules of Civil Procedure to judgment by requesting amend the the circuit court to ad- it; therefore, See preserved. dress the issue properly Talley Higher v. South Carolina Education Tuition Grants Committee, (1986) (where 347 S. E. an issue was raised in the lower court but not ruled judge trial preserved issue is not party and the is obli- gated move before lower judgment court to amend the Green, pursuant 59(e)); Rule Green v. 237 C. (1960) (an exception
S. E. issue raised not properly Supreme before the Court where the record does judge passed issue). not disclose trial on the denied. Petitions RITTER, STATE, Christopher Respondent Appellant.
(370 610) S. E.
Supreme Court