This is an appeal from the Family Court of the State of Delaware, in and for New Castle County. Following a paternity hearing on August 29, 1988, the Family Court found that the respondent-appellant, Robert W. Bradley ("Bradley"), was the father of Nancy R. Patterson ("the Child"), who was born to Diane A. Patterson ("the Mother") on June 14, 1973.
The present matter was initially considered by a panel of this Court and then reheard en banc because of the reasonable likelihood that our prior Order would have to be modified or overruled, if the appellee's argument prevailed. Supr.Ct.R. 4(d). After careful consideration, we have concluded that the holding of our prior Order was correct. Accordingly, the Family Court's decision in this matter must be reversed.
On March 28, 1977, the Mother assigned and transferred all of her rights to child support to the State of Delaware. This assignment was part of an application for public assistance, under the Aid to Families with Dependent Children program ("AFDC"). 31 Del.C. § 504. See Allen v. Division of Child Support Enforcement, Del.Supr., 575 A.2d 1176, 1180 (1990). Pursuant to this assignment, the Bureau (now Division) of Child Support Enforcement ("DCSE") filed a paternity and non-support petition, on behalf of the Mother, which named Bradley as the putative father.
A hearing on DCSE's petition was rescheduled twice, once at the request of both DCSE and Bradley and once at the request of DCSE. On May 25, 1978, when the hearing was finally convened, DCSE requested an additional continuance because its witness, the Mother, had failed to appear. The Family Court denied that request and proceeded with the hearing to determine the merits of DCSE's petition, alleging Bradley's paternity and non-support.
During the 1978 proceeding, both Bradley and DCSE were represented by counsel. Bradley denied that he was the father of the Child. Bradley testified that he had never had sexual intercourse with the Mother during the period of the Child's conception, i.e., August, September, or October of 1972. At the conclusion of the 1978 hearing, the Family Court dismissed DCSE's petition, alleging Bradley's paternity and non-support, with prejudice. DCSE did not appeal that judgment.
Nearly nine years later, on March 19, 1987, the Mother, who was no longer receiving public assistance, filed a petition alleging paternity and non-support, under the Uniform Reciprocal Enforcement Support Act. 13 Del.C. ch. 6. That petition also named Bradley as the Child's putative father. On April 29, 1987, Bradley filed an answer to the petition, in which he denied paternity and asserted res judicata as an affirmative defense. On August 18, 1987, a Family Court Master recommended that the Mother's petition be dismissed on the basis of res judicata.
On September 1, 1987, DCSE filed an appeal de novo from the Master's recommendation. See 10 Del.C. § 913; Fam.Ct. Civ.R. 53(d). On October 28, 1987, following a de novo review of the Mother's recommendation, a Judge of the Family Court ruled that the Mother's petition was not barred by res judicata. The Family Court Judge also ordered that blood grouping tests be performed on Bradley, the Mother and the Child. See Allen v. Division of Child Support Enforcement, 575 A.2d 1176; Blake v. Division of Child Support
After concluding that the Mother's petition was barred by res judicata, the Family Court dismissed her paternity petition "without prejudice to any rights of ... [the] minor child to assert a claim pursuant to the statutory provisos of 13 Del.C., Chapter 8."
The Current Paternity Petition
On March 4, 1988, DCSE filed a petition, on behalf of the Child, alleging Bradley's paternity and non-support.
"Under the doctrine of res judicata, a judgment in a prior suit involving the same parties, or persons in privity with them, bars a second suit on the same cause of action." Foltz v. Pullman, Inc., Del.Super., 319 A.2d 38, 40 (1974). In order to successfully assert the affirmative defense of res judicata, Bradley was required to establish that: (1) the Family Court had jurisdiction over the subject matter of the suit and the parties to it; (2) the parties to the original action were the same as the parties, or their privies, in the case at bar; (3) the cause of action in the original action was the same as in the case at bar, or the issues necessarily decided in the prior action were the same as those that have been raised in the case at bar; (4) the issues in the prior action were decided adversely to the contention of the plaintiff or petitioner in the case at bar; and (5) the prior action was finally determined. Rumsey Electric Co. v. University of Delaware, Del.Super., 334 A.2d 226, 228 (1975); Epstein v. Chatham Park, Inc., Del.Super., 153 A.2d 180, 185 (1959).
DCSE does not dispute that Bradley has proven four of the conditions precedent which are necessary to establish his affirmative defense. DCSE alleges that the procedural bar of res judicata is inapplicable to the case sub judice solely on the basis that the Child was not a party to the original paternity action and was not in privity with either DCSE, or her Mother. Alternatively, DCSE asserts that an application of res judicata to its petition on behalf of the Child should be prohibited, as a matter of public policy.
"The concept of privity pertains to the relationship between a party to a suit and a person who was not a party but whose interest in the action was such that he [or she] will be bound by the final judgment as if he [or she] were a party." Foltz v. Pullman, Inc., 319 A.2d at 41. The Child, who was a minor, was not named as a party in the original paternity and non-support action, which was filed by DCSE and decided in 1978. Accordingly, we must determine if the interest of the Child in the original paternity proceeding was such that
This Court and the United States Supreme Court have recognized that "the mother, the putative father, and the child, each have a compelling interest in an accurate determination of the parent-child relationship." Allen v. Division of Child Support Enforcement, 575 A.2d at 1180 (citing Little v. Streater, 452 U.S. 1, 13, 101 S.Ct. 2202, 2209, 68 L.Ed.2d 627 (1981)). Both Courts have also recognized that the "State has a legitimate interest in the welfare of a child born out of wedlock, who is receiving public assistance, by securing support for the child from those legally responsible through the judicial process." Id. at 1181. Consequently, a paternity proceeding can be initiated by the mother, the father, the child, or a public authority which is providing the child with support.
The private interests of the father, the mother, and the child are at stake in any paternity litigation, even one initiated by the State. Id. at 1180. The issue to be resolved in any paternity proceeding is whether the putative father is, in fact, the child's parent. Therefore, when either a mother or a public authority brings a paternity action, they are "assert[ing] the child's claim or subrogation rights derived therefrom." Opinion of the Justices, 131 N.H. 573, 558 A.2d 454, 458 (1989). Consequently, a mother and/or a public authority are representing the child's interests with respect to paternity and support, whether or not the child is actually made a party. Guziejka v. Desgranges, R.I.Supr., 571 A.2d 32, 34 (1990).
The record in this case reflects that DCSE filed the 1977 paternity petition, based upon an assignment from the Mother. As part of this assignment, the Mother was also required to assign the rights of the Child. The pertinent statute provides, in part:
31 Del.C. § 504(a) (emphasis added). See also, Allen v. Division of Child Support Enforcement, 575 A.2d at 1180.
Some courts have held that the doctrine of privity would bar an action brought on behalf of a child, where a prior action by either the child's mother or a public authority authorized to bring such an action had litigated the issue of paternity. Guziejka v. Desgranges, 571 A.2d at 34; Opinion of the Justices, 558 A.2d 454. See also, 78 A.L.R.3d 846 (1977 and Supp.1989). Conversely, some jurisdictions have held that the doctrine of privity would not bar a subsequent paternity action on behalf of a child, because the "child's interests vary from that of the mother or a public officer and include elements which are different from those parties." Guziejka v. Desgranges, 571 A.2d at 34. See also Department of Revenue v. Jarvenpaa, 404 Mass. 177, 534 N.E.2d 286 (1989); Johnson v. Hunter, Minn.Supr., 447 N.W.2d 871 (1989). DCSE relies upon the rationale in the latter authorities in arguing that this Court should not find that the Child was in privity with her Mother or DCSE in the 1978 proceeding.
This Court has recognized that although the putative father, the mother and the child each have a compelling interest in a paternity proceeding, those interests are not necessarily identical. Allen v. Division of Child Support Enforcement, 575 A.2d at 1179-80. Nevertheless, the mother, the putative father and the child are all directly affected emotionally and economically, albeit differently, by the establishment of paternity or a finding of non-paternity. Id. at 1179. In fact, the United States Supreme Court has found that, notwithstanding their differences, the private interests which are at stake in a paternity proceeding are in equipoise. Rivera v. Minnich, 483 U.S. 574, 107 S.Ct. 3001, 3005, 97 L.Ed.2d 473 (1987). Thus, we are persuaded by those cases which have found a privity relationship between a mother or a public officer who brings a paternity action and the child.
Alternatively, DCSE argues that, as a matter of public policy, the private interests of a child in a paternity proceeding should not be barred by res judicata. However, the doctrine of res judicata is itself primarily one of public policy and only secondarily of private benefit to individual litigants.
Coca Cola Co. v. Pepsi Cola Co., Del.Super., 172 A. 260, 262 (1934).
None of the public or private rights which are at stake in a paternity action become vested or extinguished until that controversy has been resolved. Irrespective of the distinctions between the totality of rights in which a child may be interested, as opposed to the rights that are sought to be enforced by a mother or a public official, the fact remains that the putative father's paternity of the child is the issue being litigated in an action initiated by any one of them. Accordingly, we conclude that once the issue of paternity has been litigated, an application of the well established principles of res judicata, to a subsequent paternity proceeding filed by any party in interest, is required by the public policy which that doctrine is intended to promote.
Delaware Parentage Act
When the Family Court held that res judicata barred the Mother's 1987 paternity petition because of the judgment in the 1978 proceeding filed by DCSE, it dismissed her petition without prejudice to the Child's rights under 13 Del.C. Ch. 8. Thereafter, DCSE filed its current paternity petition on behalf of the Child. The Family Court denied Bradley's motion to dismiss the Child's petition, holding that it was authorized by 13 Del.C. Ch. 8, the Uniform Parentage Act, as adopted in Delaware ("Delaware Parentage Act").
DCSE acknowledges that the 1978 paternity proceeding in this matter was concluded prior to the enactment of the Delaware Parentage Act. DCSE also acknowledges that the Delaware Parentage Act did not create a new cause of action for parties who had previously litigated paternity. However, DCSE contends that the Family Court properly decided the question in the case sub judice, i.e., not whether a party to an earlier hearing can relitigate paternity, but whether the Child, who was not a party to the prior proceeding, can file a subsequent action to establish paternity pursuant to Delaware's version of the Uniform Parentage Act. Bradley does not disagree with DCSE's formulation of the question. Instead, Bradley argues that the Delaware General Assembly has answered the question in the negative.
The Family Court recognized that the Delaware Parentage Act is significantly different from the Uniform Parentage Act promulgated by the National Conference of Commissioners on Uniform State Laws. In particular, the Family Court noted that 13 Del.C. § 805(a) did not include the statute of limitations for commencing paternity proceedings, which had been suggested in the Uniform Parentage Act. 13 Del.C. § 805(a) provides:
The Family Court relied upon this section in concluding that the Child's present paternity petition was authorized by the Delaware Parentage Act.
We have carefully compared all of the provisions of the Delaware Parentage Act with their counterparts in the Uniform Parentage Act. We find that the Family Court correctly concluded that the Delaware Parentage Act has rejected the time limitations suggested by the Uniform Parentage Act for commencing a paternity proceeding. However, to the extent that the Family Court based its decision exclusively upon 13 Del.C. § 805(a), its analysis of the Delaware Parentage Act was incomplete.
An examination of the entire Delaware Parentage Act reflects an unambiguous intention by the Delaware General Assembly not to have multiple paternity proceedings, whether or not the child is a party to the initial proceeding. The Uniform Parentage Act provides that the child must be joined as a party in a paternity proceeding and prohibits the father or mother from acting as the child's guardian ad litem.
UPA § 9 (emphasis added). However, the corresponding provision which was enacted in Delaware makes the joinder of the child, as a party in a paternity proceeding, discretionary and does not include the recommended prohibitions against the father or mother acting as the child's guardian. 13 Del.C. § 808, in part, provides:
Notwithstanding the modification in the Delaware statutory scheme to make the Child's joinder as a party discretionary, the Delaware Parentage Act does include the language recommended in the Uniform Parentage Act which provides that: "[a] judgment and order of the [Family] Court determining the existence or nonexistence of the parent-and-child relationship is determinative for all purposes." 13 Del.C. § 812(a) (emphasis added). Moreover, Delaware's Parentage Act differs significantly from the Uniform Parentage Act in that it contains a provision which does not appear in the Uniform Parentage Act. The Delaware Parentage Act states:
13 Del.C. § 809(c).
The General Assembly was not required, as a matter of due process or equal protection, to afford a child an independent opportunity to relitigate the issue of paternity. Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). See also, Rivera v. Minnich, 107 S.Ct. at 3006; Petitioner F. v. Respondent R., Del. Supr., 430 A.2d 1075 (1981). Delaware's modifications to the Uniform Parentage Act evidence a conscientious determination by the General Assembly to bind a child by a finding of paternity or nonpaternity in a judicial proceeding, whether or not the Child was joined as a party in the initial
The current paternity petition by DCSE, on behalf of the Child, was barred by the doctrine of res judicata and the Delaware Parentage Act. The decision of the Family Court is REVERSED.