Department of Human Resources v. Hurst , 208 Ga. App. 792 ( 1993 )

Smith, Judge.

The Department of Human Resources of the State of Georgia (DHR), acting in the interest of a minor child, initiated this contempt action against Steve Hurst to recover an arrearage in child support payments due pursuant to a prior divorce decree. Hurst filed an answer and counterclaim, asserting that the mother of the child had informed him subsequent to their divorce that he was not the child’s father. In response to Hurst’s request, the trial court ordered blood tests for Hurst, the mother, and the child. The trial court then certified this decision for immediate review because of the conflict with the prior divorce decree, which had established that Hurst was the child’s father. We granted DHR’s application for interlocutory appeal, and DHR filed this appeal.

The parties agree that the final judgment and decree entered in the 1984 divorce action established that appellee was the father of the minor child and set forth visitation rights and child support obligations. Appellant contends this prior judgment constituted a binding determination of paternity so that appellee is barred by the doctrine of res judicata from again litigating the issue of paternity.

OCGA § 9-12-40 provides that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” The prior divorce litigation between appellee and the child’s mother resulted in a final judgment in which the rights and obligations of the divorcing parties to their minor child were established. Appellee acknowledges that this final divorce decree was not appealed or set aside. The issue of paternity therefore was effectively adjudicated in the prior divorce action. See Macuch v. Pettey, 170 Ga. App. 467, 468 (1) (317 SE2d 262) (1984); see also Fleeman v. Dept. of Human Resources, 208 Ga. App. 97 (430 SE2d 135) (1993). As a party to that prior action, appellee is bound by that judgment. The issue of paternity is res judicata as to appellee, and he cannot again litigate the issue of paternity in this proceeding. Dept. of Human Resources v. Brown, 196 Ga. App. 875 (1) (397 SE2d 73) (1990); see Macuch, supra. The order requiring that appellee, the mother, and the minor child submit to blood tests is erroneous and must be reversed. Brown, supra at 876 (1).

Judgment reversed.

Johnson, J., concurs. Blackburn, J., concurs specially.