McGavin v. McGavin ( 1972 )

ELLETT, Justice

(concurring in the result) :

I concur in the result but only because the matter was attempted to be raised by a motion instead of by a suit in equity. Our statute¹ provides for changes in the divorce decree or for new orders to be made in relation to the disposal of children or the distribution of property. That statute permits changes only where circumstances have changed and is not intended to permit new findings of fact to be made in lieu of those originally made.

I am unable to see how this matter is res judicata. The matter attempted to be raised has never been litigated. It is not a fraud upon the court. It is claimed to be extrinsic fraud: that is, it is claimed that by the conduct of the plaintiff in asserting the child was defendant’s, the defendant had no reason to believe to the contrary and was prevented from litigating the issue of paternity in the original suit. If this claim can be established, it would warrant relief in a separate suit in equity.² Had the issue been raised, a blood test could have been had before trial, and then the matter would have been set at rest.

The affidavits referred to in the prevailing opinion are required to be filed in order to assist the trial court in determining the need for temporary support. They deal only with financial matters. The plaintiff’s affidavit reads:

I am pregnant with defendant’s child and will need the expenses of delivery and care which will reasonably equal a monthly sum totaling $300.00.

The affidavit of the defendant was as follows :

Ivan J. McGavin, being first duly sworn upon his oath, deposes and says:

* * ‡ * * *

5. That the contents of the unnumbered 2nd paragraph is not correct and therefore denies the same but alleges that he will take care of any delivery by and through his group insurance plan, which the above named plaintiff well knew.

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I do not think these affidavits raise the issue of paternity, nor do I believe they afford a reasonable basis for believing such an issue existed. Upon the hearing based upon the affidavits the trial court ordered:

That defendant shall pay all costs of the care, and delivery, of their unborn child, for its mother’s care in said delivery, and maintain his insurance for that purpose.

The mere fact that the plaintiff refuses to cooperate in the proposed blood tests leads me to suspect that she fears the result, although the chance of ascertaining that the child is not defendant’s is small even if such be the fact.

I would reverse this matter without prejudice to the raising of the issue of paternity in a separate suit in equity and would award no costs.

CALLISTER, C. J., concurs in the opinion of HENRIOD, J., and concurs in the concurring opinion of CROCKETT, J.

1 . Section 30-3-5, U.C.A.1953.

2 . 49 C.J.S. Judgments § 372(2).