By his third аssignment of error, defendant contends that the court erred in its second conclusion of law which is: “The defendant’s motion for blood test pursuаnt to N.C. G.S. § 8-50.1 is dismissed; issue of paternity between defendant and the minor child, Holly Lisa Webb, having been previously adjudicated by the court.” We disagree. We think
Williams v. Holland,
Thus, before a court is required to order a blood-grouping test in a civil action, the question of paternity must arise. If defеndant in this case is barred by res judicata or estoppel from raising the issue of paternity as plaintiff contends, the statutorily imposed obligation of the court to order that the parties submit to blood-grouping tests never arose, and it was error for the court to enter such order.
We found the Nevada order to be based on in personam jurisdiction, and entitled to full faith and credit.
See Brondum v. Cox,
That a judgment rendered by a court having jurisdiction to do so finding paternity to exist bars the relitigation of that issue by the parties to the original judgment is a well established rule of law in other jurisdictions that have considered the question. Adoption of Stroope,232 Cal. App. 2d 581 ,43 Cal. Rptr. 40 (1965); Peck v. Superior Court,185 Cal. App. 2d 573 ,8 Cal. Rptr. 561 (1960); Peercy v. Peercy,154 Colo. 575 ,392 P. 2d 609 (1964); Sorenson v. Sorenson,254 Ia. 817 ,119 N.W. 2d 129 (1963); Dornfeld v. Dornfeld,200 App. Div. 38 ,192 N.Y.S. 497 (1922); Time v. Time,59 Misc. 2d 912 ,300 N.Y.S. 2d 924 (1969); Arnold v. Arnold, 207 Okla, 352,249 P. 2d 734 (1952); Byrd v. Travellers Insurance Co.,275 S.W. 2d 861 (Tex. Civ. App. 1955); Johns v. Johns,64 Wash. 2d 696 ,393 P. 2d 948 (1964); E_ v. E_,57 Wis. 2d 436 , 204 *70 N.W. 2d 503 (1973); Limberg v. Limberg,10 Wis. 2d 63 ,102 N.W. 2d 103 (1960). For a discussion of these and other cases that have considered this question, see Annot,65 A.L.R. 2d, 1381 , pp. 1395-96.
Williams v. Holland,
supra at 147,
Here defendant could have raised the issue of paternity in 1974 in the wife’s action for alimony, custody, and child support. On the contrary, by verified answer, he admitted paternity and asked for custody. Nor did he appeal from the judgment entered finding that four children, among whоm was Holly Lisa, were born of the marriage between plaintiff and defendant. Subsequently, in his own action for divorce, he alleged that Holly Lisa Webb was born of his marriage to plaintiff herein, and the.judgment in that action also found that Holly Lisa Webb was born of the marriage between plaintiff and defendant. Five years later, he attempts to raise the issue of paternity. He is barred from doing so by
res judicata. Peercy v. Peercy,
In this case the husband did not challenge paternity until more than three and one-half years after the final divorce decree was granted and almost five years after he had returned to Keene where he allegedly discovered the new “reliable information” that he might not be the natural father of Denise Ann. Nor was рaternity disputed in August 1973 when Persis petitioned for payment of the support arrearage. To permit the husband to raise the question of pаternity after an eight-year period of uninterrupted acquiescence, with several opportunities to raise the issue, would contravene the policy of this State’s law to protect the child and the spouse from the belated resort to scientific proof in an еffort to escape parental responsibility. Watts v. Watts,115 N.H. 186 ,337 A. 2d 350 (1975).
In the instant case, the issue of paternity was decided at the August 3, 1973 support hearing. At that timе, appellee had the opportunity to appear and assert his rights and defenses. *71 Although a copy of the notice of the hearing was sent to ap-pellee’s attorney, appellee chose to appear by himself and to enter into a consеnt agreement and court order to support both Stacie and Julie Palchinski. Moreover, at the time of the hearing, appelleе, unlike the petitioner in Nedzwecky, had the opportunity to demand blood tests but he neglected to do so for three years. Appellee alsо failed to appeal from the original order of support. Therefore, res judicata would operate to foreclose a subsequent challenge on the issue of paternity.
With respect to the question of estoppel, our Supreme Court in
Wright v. Wright,
supra, said by way of dictum that “. . . the putative father of the child conceived or born during wedlock should [perhaps] be estopped to raise the issue of paternity unless he does so within a fixed time,” but that “. . . is a matter for consideration by the General Assembly,”
We do not reach, nor do we imply, an affirmative answer to the question of whether this defendant’s motion for a blood grouping tеst could have been allowed even if defendant had, by answer, denied paternity. In the light of the facts of this case, in which the defendant was married to plaintiff in 1959 and lived with her until November 1968, seven years after the birth of their daughter and four years following the birth of their son, common sense, publiс policy and overriding consideration for the welfare of innocent children would seem to dictate the contrary, despite the brоad language of G.S. 8-50.1.
Finally, dеfendant contends that certain findings of fact are unsupported by evidence. This is quite true, since the judgment specifically relates that “[t]hе court heard no oral evidence in this matter, ruled on the arguments of counsel and the record of the Court in the Court file.” The matters of whiсh defendant complains are clearly matters with respect to which the fact would be revealed by the official records and filеs in this matter which were before the court.
The order of the trial court denying defendant’s motion for a blood-grouping test and finding plaintiff entitled to attorneys fees is
Affirmed.
Notes
. G.S. 8-50.1 now provides that “[i]n the trial of any civil action in which the question of parentage arises, the court before whom the matter may be brought, upon motion of the plaintiff, alleged-parent defendant, or other interested party, shall order that the alleged-parent defendant, the known natural parent, and the child submit to” blood-grouping tests.