Egan v. Egan , 1977 Utah LEXIS 1047 ( 1977 )

CROCKETT, Justice

(dissenting, concurring in part).

I dissent from the holding which allows the plaintiff, many months after the findings and judgment had been entered in the divorce action, to attack it on the grounds shown. The person whose welfare and happiness throughout his whole lifetime will be most affected is the child, who it now appears is practically defenseless in this proceeding. The question of his paternity was an issue which was triable and was tried and determined in the divorce proceeding. It should be res judicata. See Wheadon v. Pearson, 14 Utah 2d 45, 376 P.2d 946, and authorities cited therein.

In matters involving the welfare of little children, their welfare should be the paramount consideration, see Walton v. Coffman, 110 Utah 1, 169 P.2d 97; and should take precedence over the interests and contentions of quarreling adults. There ought to be some better way of serving that welfare than imposing such a burden upon an innocent and unoffending little child as a sacrifice to their selfish desires and disputations. I can set forth my views in such a matter no better than I have done in my concurring opinion in the cited case of McGavin v. McGavin; see footnote 1, main opinion, to which I refer. To echo Justice Henriod in that case: one wonders if the term commonly applied to the thus illegiti-mitized child, should perhaps more aptly be applied to the warring adults, see 494 P.2d 284.

As to the other aspects of the decision, I concur.

HENRIOD, C. J., does not participate herein.