Husband and wife were married on November 25, 1992 and separated on June 2, 1994. Wife filed for dissolution of marriage on March 24, 1995. Child was born on June 7, 1995. A father was not listed on the birth certificate. Mother applied for state assistance for the minor child on June 12, 1995. The trial court appointed a guardian ad litem. The GAL did not request genetic testing. Husband and wife both testified that husband was not the father of the child. Neither the putative father nor the State of Missouri were joined as parties in the action. The dissolution judgment provided that there were no children born of the marriage and specifically found that husband was not the father of the child.
Nearly seven years later, the Division of Child Support Enforcement filed a petition for declaration of paternity and order of support and a judgment on a state debt in relation to the child. Ex-husband was served with the petition. Ex-husband filed a petition for writ of prohibition seeking to prohibit the trial judge from enforcing an order requiring ex-husband to submit to genetic testing. Ex-husband claims paternity was previously litigated and that collateral estoppel forbids relitigation of the issue of paternity.
A finding of paternity in a dissolution is res judicata on the issue of paternity and subsequent proceedings between the former spouses. Collateral estoppel precludes the same parties from re-litigating the same issues judicially determined in a previous action. Collateral estoppel is appropriate if: (1) the issue to be decided is identical to the issue previously decided; (2) the prior litigation resulted in a final judgment on the merits; (3) the party to be estopped was either a party or in privity with a party in the prior adjudication; and, (4) that party must have had a full and fair opportunity to litigate the issue in the prior suit.
The state was in privity with mother because the interests of the state essentially became the interest of mother on the day mother requested state assistance. Mother and husband were given a full and fair opportunity to litigate, and the child was represented by the GAL. Thus, the issue of paternity was contested and the trial court recognized that husband's and wife's agreement that husband was not the father of the child was contrary to the interests of the child and therefore, the court appointed a GAL. Although a putative father was a necessary party under the Uniform Parentage Act, no putative father was joined as a party. The question for determination is whether failure to join the putative father is reversible error which was waived since it was not raised on appeal, or whether the failure deprived the trial court of jurisdiction to adjudicate the issue of the child's paternity. As between husband, wife and child, the absence of the putative father did not prejudice the putative father's interests. Any prejudice to the parties occurred not because the court exercised jurisdiction and adjudicated paternity, but because of the GAL's failure to protect the child's interests by requiring genetic testing. The factors of Rule 52.04(b) do not warrant a finding that the putative father was an indispensable party. Thus, the failure to join the child's putative father was waived and the judgment is not void. Res judicata, therefore, applies and the writ of prohibition is made absolute.
Source for Post: Missouri Courts Bulletin