G.E.B. V. S.R.W.
661 N.E.2d 646 (1996)
NATURE OF THE CASE: Mother (M) filed a paternity action for her child (C) against the putative father (F). F appealed a finding of paternity arguing that a previous declaratory action and a money settlement in exchange for M's assent to a stipulation that F was not C's father barred the action.
FACTS: C brought an action for a judgment of paternity. The complaint was amended to name M as a plaintiff in response to F's claim that the child could not litigate on her own behalf but rather only through a next friend. F then moved to dismiss the action on the ground that the action is barred by his previous action for declaratory relief brought in June 1982, against M and by the settlement agreement that followed. F's motion to dismiss was denied. C was born on February 22, 1982, to M, who was not then married and had not been married within 300 days prior to C's birth. M asserts that F with whom she had a sexual relationship for approximately one decade, is the C's father. D disputes this. In June 1982, F sought a declaratory judgment against M that he was not C's father. C was not a party to that action nor was she represented by counsel. Neither a guardian nor next friend was appointed to safeguard C's interests. That case was settled by an agreement for judgment signed by F, and M. M and F signed a settlement agreement under which F was to pay M $25,000 in exchange for M's assent to a stipulation stating that F was not the child's father. The agreement provided that neither party would bring any further action or claim arising out of the facts giving rise to the case being settled. The agreement specifically provided that it 'shall be binding upon the successors, representatives, heirs, and assigns of both parties including, without limitation, the child.' The stipulation was not signed by a judge of the Superior Court nor filed with the Superior Court. On August 2, 1990, C brought this action. Genetic marker tests were performed. C's expert, Dr. David H. Bing, opined that these tests showed the statistical probability of the F's paternity to be 99.8%. The paternity tests performed would have excluded 98.63% of falsely accused men as the father. The trial judge also found a physical resemblance between the F and C in facial bone structure and complexion. A judgment of paternity was entered in favor of C and, in a separate ruling, temporary child support and counsel fees were ordered. F appealed.
ISSUE: Is an action brought by a child to establish paternity barred by principles of estoppel from litigating in her own behalf, where the child was not bound by the settlement of prior paternity proceedings between the mother and father to which the child was not a party and in which the child was not the legal representative of the child?
RULE OF LAW: An action brought by a child to establish paternity is not barred by principles of estoppel from litigating in her own behalf, where the child was not bound by the settlement of prior paternity proceedings between the mother and father to which the child was not a party and in which the child was not the legal representative of the child.
HOLDING AND DECISION: (Abrams, J.) Is an action brought by a child to establish paternity barred by principles of estoppel from litigating in her own behalf, where the child was not bound by the settlement of prior paternity proceedings between the mother and father to which the child was not a party and in which the child was not the legal representative of the child? No. As for res judicata, it is clear that the parties, in signing the settlement agreement, were agreeing to a legal determination of the paternity of the child. We agree with the trial judge that, 'if instead of a settlement agreement, there had been an adjudication on the merits of the 1982 action in F's favor on the question of paternity, there is no doubt that the prior adjudication would not have been a bar to C's claim. That the stipulation as to paternity was entered by agreement of the parties rather than by the court is immaterial in determining whether it can be attacked collaterally. General Laws c. 209C, § 22 (d), specifically erodes the common law policy on finality of judgments and allows readjudication of paternity where there has been a judgment in favor of the alleged father. The 1982 action cannot have a preclusive effect on C who was not a party to that action. As a nonparty, C's rights could not have been prejudiced by the 1982 action. C cannot be bound by M's settlement of M's claims. We cannot conclude that C's interests were fully protected by M. C has her own, independent, interests in determining the identity of her father. F argues that, even if the child were not in privity with M and thereby bound, she should be barred from proceeding in this action because M was acting as 'procheine amie' or 'next friend' on her behalf in the 1982 action and released her rights. C disputes that M can bind C when M was not legally C's representative. C cannot be bound by her mother's bare assertion that she was acting on behalf of the child without a formal recognition of her status as guardian or without the child's being joined as a party to the action. Other jurisdictions are in accord. Privity does not generally arise from the relationship between parent and child. Although a mother's claim and the child's claim relate to the same subject matter, the claims are distinct. C has unequivocally disaffirmed M's purported release in the settlement agreement by instigating the instant suit. Even if M had been properly acting on behalf of C, the agreement was subject to disaffirmance by C who effectively disaffirmed the agreement by filing the instant suit. There is no res judicata effect from the 1982 proceedings. Affirmed.
LEGAL ANALYSIS: No one can litigate the rights of a child unless they are legally appointed the guardian or legal representative of the child.
Commentary: The real evidence we want to see is what both attorneys for M and F told their clients about the first settlement and whether they properly informed their client that C’s rights were not properly being represented. The fact that they excluded the judge from the settlement is extremely important despite what the court says. If a judge saw such a settlement, she would have never signed off on it, as it did not include the child. Or would have signed off on it but would have told both M and F that C still had rights.
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