The opinion of the court was delivered by SKILLMAN, J.A.D.
The issue presented by this appeal is whether an unsuccessful paternity action brought by a mother on her child's behalf bars a subsequent action brought in the name of the child herself.
L.J. gave birth to E.I.B. on December 15, 1975. Shortly thereafter, L.J. filed a complaint pursuant to N.J.S.A. 9:16-2 and 3, alleging that J.R.B. is E.I.B.'s father and seeking child support. The case was ultimately tried before a jury, which returned a verdict in J.R.B.'s favor finding that he is not E.I.B.'s father. L.J. appealed to this court, which affirmed. L.J. v. J.B., 150 N.J.Super. 373, 375 A.2d 1202 (App.Div. 1977). The Supreme Court denied L.J.'s petition for certification. 75 N.J. 24, 379 A.2d 255 (1977).
On June 12, 1991, this suit was brought on E.I.B.'s behalf pursuant to the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59, by her grandmother, I.J., again alleging that J.R.B. is her father and seeking both retroactive and prospective support. J.R.B. moved to dismiss on the ground that the present action is barred by the jury verdict in the prior action under principles of res judicata. In an oral opinion, the trial court denied the motion on the grounds that the Parentage Act created a different cause of action than N.J.S.A. 9:16-2 and 3, and that E.I.B. and her mother were not "in privity for the purposes of res judicata on the prior action." The court also appointed a non-family member as guardian ad litem for E.I.B.
We granted J.R.B.'s motion for leave to appeal from the order denying his motion to dismiss and now reverse.
"The application of res judicata doctrine requires substantially similar or identical causes of action and issues, parties, and relief sought." Culver v. Insurance Co. of N. Amer., 115 N.J. 451,
"The doctrine of collateral estoppel is a branch of the broader law of res judicata that bars relitigation of any issue actually determined in a prior action between the same parties and their privies involving a different claim or cause of action." Allesandra v. Gross, 187 N.J.Super. 96, 103, 453 A.2d 904 (App.Div. 1982). For the doctrine to apply, it must be shown that "(1) the issue decided in the prior adjudication was identical with the one presented in the subsequent action, (2) the prior action was a judgment on the merits, and (3) the party against whom it was asserted had been a party or in privity with a party to the earlier adjudication." State v. Gonzalez, 75 N.J. 181, 189, 380 A.2d 1128 (1977). In addition, "the factual issue must actually have been litigated and determined" and the resolution of that factual issue must have been "necessary to support the judgment rendered in the prior action." Allesandra v. Gross, supra, 187 N.J. Super. at 105, 453 A.2d 904.
It is undisputed the issue of paternity decided in J.R.B.'s favor in 1976 is identical to the issue now raised by E.I.B., that that issue was actually litigated and determined in J.R.B.'s favor in the earlier action and that the resolution of that issue was essential to the judgment. It also is undisputed that E.I.B. was not a named party in the earlier action. Therefore, the application of the doctrine of collateral estoppel to bar the present action turns on whether E.I.B. was "in privity" with L.J. in the earlier action.
The prior action against J.R.B. was brought pursuant to N.J.S.A. 9:16-2, which provided that "[a] child born out of wedlock shall be entitled to support and education from its father and mother to the same extent as if born in lawful wedlock," and N.J.S.A. 9:16-3, which provided in relevant part that "[p]roceedings to enforce the obligations imposed by section 9:16-2 of this Title may be maintained by one parent against the other, or by the person having physical custody of the child." Thus, an action under N.J.S.A. 9:16-3 was a representative action brought by a parent or guardian on the child's behalf. B. v. O., 50 N.J. 93, 97, 232 A.2d 401 (1967). Moreover, a child could not bring a proceeding under N.J.S.A. 9:16-3 on its own behalf.
We are satisfied that the prior paternity action brought by L.J. on E.I.B.'s behalf under N.J.S.A. 9:16-2 and 3 was the functional equivalent of and involved the same legal right as the present paternity action brought by her grandmother on her behalf pursuant to N.J.S.A. 9:17-45. The issue in the two actions is identical: is J.R.B. the father? The relief sought also is the same: an adjudication of paternity and the entry of a support order against J.R.B. And both actions were brought on behalf of the same party, E.I.B. Moreover, any collateral benefits which might accrue to E.I.B. from a declaration of J.R.B.'s paternity, such as the right to inherit in the event of intestacy or knowledge of family medical history, would be the same, regardless of whether that declaration were obtained as a result of the mother's action brought under N.J.S.A. 9:16-2 and 3 or the grandmother's action brought under N.J.S.A. 9:17-45.
We recognize that the Parentage Act reflects a legislative determination that a minor child should be made a party to a paternity action and be represented by a person other than its mother in order to be bound by the judgment. However, the Act does not suggest that every paternity action litigated on a child's behalf by its mother pursuant to N.J.S.A. 9:16-3 may now be relitigated simply by filing a new complaint in the name of the child.
The representation which L.J. provided E.I.B. in the prior paternity action is fundamentally different from the circumstances in N.M. v. J.G., 255 N.J.Super. 423, 605 A.2d 709 (App.Div. 1992), in which we found no privity between a mother who successfully alleged in an uncontested divorce action that her child was fathered by her husband and the child who alleged in a later action that his father was actually one of his mother's paramours. We noted that "[i]n order for the doctrine of privity to be invoked, the first litigation must provide substantial protection of the rights and interests of the party sought to be bound by the second." Id. at 429, 605 A.2d 709. However, the mother's divorce action made a different claim — that the husband was the child's father — and sought different relief — the payment of child support by the husband — than the
In contrast, the paternity action brought by L.J. made the same paternity allegation and sought essentially the same relief as the present action and was fully litigated through the New Jersey court system. Consequently, unlike in N.M. v. J.G., there is no basis for concluding that the prior paternity action failed to provide substantial protection of the rights and interests of E.I.B.
Our conclusion that E.I.B. is bound by the results of the prior paternity action brought by her mother on her behalf is supported by the decisions in most other jurisdictions in which the same or a similar issue has been presented. See, e.g., Department of Human Servs. ex rel. Davis v. Seamster, 36 Ark.App. 202, 820 S.W.2d 298 (1991); Bradley v. Division of Child Support Enforcement ex. rel. Patterson, supra; T.R. v. Pearson ex. rel. A.W., 470 N.E.2d 95 (Ind. Ct. App. 1984); O'Bannon ex rel. O'Bannon v. Azar, 506 So.2d 522 (La. Ct. App. 1987), cert. denied, 511 So.2d 1158 (La. 1987); Guziejka v. Desgranges, supra; see also E. LeFevre, Annotation, Judgment In Bastardy Proceeding As Conclusive Of Issues In Subsequent Bastardy Proceeding, 37 A.L.R.2d 836, 839 (1954). For example, in T.R. v. Pearson ex rel. A.W., supra, the court held that a mother's unsuccessful paternity action as the child's representative under the then governing statute barred a later paternity action in the name of the child under subsequently enacted legislation:
With only a few exceptions, the cases which have held that a child was not in privity with a parent have involved prior paternity actions which were not actually litigated. See, e.g., Department of Health and Rehabilitative Servs. ex rel. Ward v. Wyatt, 475 So.2d 1332 (Fla. Dist. Ct. App. 1985) (earlier action dismissed with prejudice by stipulation); Maller ex rel. v. Cohen, 176 Ill.App.3d 987, 126 Ill.Dec. 402, 531 N.E.2d 1029 (1988) (prior suit dismissed for failure to adhere to an unconstitutional statute of limitations), appeal denied, 125 Ill.2d 567, 130 Ill.Dec. 482, 537 N.E.2d 811 (1989); Arsenault v. Carrier, 390 A.2d 1048 (Me. 1978) (prior action settled); Johnson v. Hunter, 447 N.W.2d 871 (Minn. 1989) (prior suit orally dismissed with prejudice when mother failed to appear); Johnson v. Norman, 66 Ohio St.2d 186, 421 N.E.2d 124 (1981) (earlier action dismissed with prejudice at request of mother); State ex rel. Div. of Human Servs. v. Benjamin P.B., 183 W.Va. 220,
Similarly, in Maller ex rel. Maller v. Cohen, supra, the court noted:
And in Johnson v. Hunter, supra, the court concluded that "[u]nless a child's specific interests are addressed on the merits, a separate cause of action will be available to such child in another proper action." 447 N.W.2d at 877.
Other cases which have found a lack of privity between a parent and child have involved situations where the parent failed to join the child as a party, as permitted by that state's statutes, and thus the child in the earlier action did not receive the independent representation contemplated by that state's laws. Thus, in Commonwealth, Dep't of Social Servs. ex rel. Gray v. Johnson, 7 Va.App. 614, 376 S.E.2d 787 (1989), the mother failed to join her child as a party, as permitted by Virginia law, and consequently the court did not appoint a
The only cases brought to our attention in which a subsequent paternity action on behalf of a child has been found not to be barred under principles of res judicata or collateral estoppel by a prior unsuccessful action actually litigated on the child's behalf in conformity with state law are Ex Parte Snow, 508 So.2d 266 (Ala. 1987) and Settle By and Through Sullivan v. Beasley, 309 N.C. 616, 308 S.E.2d 288 (1983). However, these cases represent the minority view and in our opinion fail to accord sufficient weight to the interests of both a putative father and the courts in finality once there has been an adjudication of non-paternity in a proceeding in which the child's interests have been adequately represented. See Note, Privity, Preclusion, and the Parent-Child Relationship, 1977 B.Y.U.L.Rev. 612, 632 (a determination of non-paternity should provide an accused man with some assurance of finality, given that "unnecessary relitigation of the paternity issue is among the most harassing actions imaginable").
In sum, the paternity action brought on E.I.B.'s behalf by her mother pursuant to the former N.J.S.A. 9:16-2 and 3 made the same allegations, sought essentially the same relief and was
Accordingly, we reverse the order denying defendant's motion to dismiss.