Marriage of Creswell

NO. 95~324
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE MARRIAGE OF
Petitioner and Respondent, UEC 21 Wg5
and @LJ4jSndhL
CI..ERK OF SL|_PBEI_V_|E,.C UF\‘?
aware w m!e:~xt.es~x ,
MERLA NORENE SEARS,
f/k/a MERLA NORENE CREWSWELL,
MARK ALLEN CRESWELL,
Respondent and Appellant.
APPEAL FROM: DiStrict Court of the FirSt Judioial District,
In and for the County of LewiS and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Cort Harrington, Jr., Attorney at Law,
Helena, Montana
For Respondent:
Peggy Probasco, Special ASSistant Attorney
General, Montana Department of Public Health
and Human Services, Child Snpport Enforcement
Division, Butte, Montana
Submitted on BriefS: November 9, 1995
g@Cide§; Deoember 2l, 1995
Filed:
CleFk
Justice Charles E. Erdmann delivered the opinion of the Court.
Pursuant to Section I, Paragraph 3(c}, Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
Mark Allen Creswell appeals from a decision and order issued
by the First Judicial District Court, Lewis and Clark County,
denying his motion for reaffirmation of the decree of dissolution
between him and Merla Norene Sears f/k/a Merla Norene Creswell. We
affirm.
we address the following issue on appeal:
ls Merla collaterally estopped from attempting to establish
Mark's paternity of the minor child, L.R.C.?
FAC'I'S
Mark and Merla were married on October 10, l9Bl. Merla filed
for a legal separation on March 9, l982, and the marriage was
dissolved on June 9, l983. One child, L.R.C., had been born as
issue of the marriage, although_ Mark denied. paternity' in his
responsive pleadings. Mark and Merla did not have the finances to
obtain blood tests and Merla was planning to marry another man who
wished to adopt L.R.C. The parties therefore entered into an oral
agreement whereby Mark agreed to sign a consent to adoption and
Merla agreed to forego collecting child support from Mark. The
District Court determined that it would be in L.R.C.‘s best
interest to approve the oral agreement. Mark signed the consent to
adoption form and the agreement was incorporated into the decree of
dissolutiOn.
Merla never married the individual who had agreed to adopt
L.R.C. and the adoption never occurred. Apparently, Mark has not
exercised any paternity rights to L.R.C. and has paid no child
support. In January l993, the Child Support Enforcement Division
of the Montana Department of Public Health and Human Services
{CSED) received a referral to assist Merla in establishing and
collecting child support from Mark. In February l994, following an
investigation, CSED served Mark with a notice of financial
responsibilityz On March 28, l994, Mark filed. a motion for
reaffirmation of the decree of dissolution in the District Conrt,
claiming the decree relieved him of any support obligation. The
administrative proceedings were stayed pending the District Court's
ruling on Mark‘s motion.
CSED moved to be joined as a reai party in interest and the
motion was not opposed by Mark. Merla did not appear or
participate in the district court proceeding. The parties agreed
to submit the matter on briefs and on May l0, l995, the District
Court issued a decision and order denying Mark‘s motion. The
District Court held that Mark's consent to adoption was void and
since paternity was not adjudicated in the dissolution action, CSED
was not collaterally estopped from determining Mark‘s paternity of
L.R.C. From that order, Mark appeals.
DISCUSSION
The District Court's decision and order was in response to a
question of law. we review questions of law to determine whether
the district Court's interpretation was correct. ln re Marriage of
Kovash {l995), 270 Mont. 5l7, 52l, 893 P.2d 860, 863 (Citing In re
Marriage of Barnard (l994}, 264 Mont. l03, lO6, 870 P.2d 9l, 93).
Section 40-6-105(l}(a), MCA, states that a man is presumed to
be the natural father of a child if he and the “child's natural
mother are or have been married to each other and the child is born
during the HQrriage . . . J' Mark and Merla were married on
October lO, l98l. L.R.C. was born on April ll, l982, over a year
before the parties were divorced. Mark is therefore presumed by
statute to be L.R.C.‘s natural father.
Section 40-6-lO5(3), MCA, states that "[a] presumption under
this section. may be rebutted in an appropriate action by a
preponderance of the evidence." if the presumed father fails to
rebut the presumption of paternity, then CSED may issue an order
declaring the paternity of the child and establishing the legal
existence of the parent and child relationship for all purposes.
An order establishing paternity confers or imposes all parental
rights, privileges, duties, and obligations. Sections 40-6-l05{4)
and 40-5~235(l), MCA.
Mark argues that CSED is collaterally estopped from attempting
to establish his paternity of L.R.C. based on his oral agreement
with Meria which was adopted into the 1983 divorce decree. We have
articulated the test for collateral estoppel as follows:
1. was the issue decided in the prior adjudication identical
with the one presented in the action in question?
2. Was there a final judgment on the merits?
3. Was the party against whom the plea is asserted a party
or in privity with a party to the prior adjudication? In re
Marriage of Holland (l986}, 224 Mont. 4l4, 4l6, 730 P.2d 410, 4l2;
Aetna Life and Casualty Ins. Co. v. Johnson (l984), 207 Mont. 409,
413, 673 P.Zd 127'7, 3_279.
Mark argues that all three elements of the test are met so as
to estop CSED from attempting to establish his paternity of L.R.C.
Mark claims that the issues of paternity and child support were
raised and resolved on their merits in the 1983 dissolution action.
CSED's position is that the issue of paternity was not previously
adjudicated and there has been no final judgment on the merits of
the paternity' question. CSED maintains there is a statutory
presumption of paternity pursuant to § 40~6-lO5, MCA, and that Mark
has not rebutted that presumption.
We agree with CSED and conclude that the first and second
elements required for collateral estoppel are not satisfied in this
case. The parties entered into the agreement in order to expedite
their divorce proceedings. Mark denied paternity and Merla thought
she was going to marry another individual who would adopt L.R.C.
The issue of Mark's paternity of L.R.C. was not an issue
adjudicated in the 1983 divorce action and there has been no final
judgment on the merits of that issue.
Mark's reliance on Holland is misplaced. In Holland, the
husband did not contest paternity and the issue of paternity was
adjudicated during the dissolution proceeding. lt was only after
the husband was in arrears in child support that he requested blood
tests to determine paternity. we held that since the issue of
paternity had previously been adjudicated, relitigation of the
issue was barred by collateral estoppel. Holland, 730 P.2d at 4l1.
In the present case, Mark denied paternity in the dissolution
action and a final determination of that issue has not been made.
Mark also relies on Butler v. Brownlee {l969), 152 Mont. 453, 451
P.2d 836, and State ex rel. Blakeslee v. Horton (1986), 222 Mont.
35l, 722 P.2d ll48. However, in both Butler and Blakeslee the
issue of paternity had been adjudicated in the dissolution action.
Mark further maintains that when he signed the consent to
adoption on May l0, l9B3, L.R.C. ceased to be his child and that
any obligation he had to support L.R.C. was at that point
extinguished. In l983, § 40-6~l35, MCA (l98l), stated:
(1) Any parent or guardian who proposes to
relinquish custody of a child for purposes of placing the
child for adoption may do so by executing a
relinquishment by which all parental rights to the child
are voluntarily relinquished to an agency of the state of
Montana or a licensed adoption agency.
(5) Upon the filing of a properly and voluntarily
executed relinquishment of a child by a parent or
guardianq the court shall immediately issue au1 order
terminating the rights of that parent or guardian to that
child.
when Mark signed the consent to adoption he did not relinquish his
parental rights to a state agency or licensed adoption agency. Nor
did the district court issue an order terminating Mark's parental
rights and obligations over L.R.C. Mark's execution of the consent
to adoption form in 1983, which he now argues was a relinquishment
of his parental rights and responsibilities, did not comply with
§ 40-6-l35, MCA (198i), and was therefore invalid.
We conclude that CSED is not collaterally estopped from
attempting to determine Mark's paternity of L.R.C. The issue of
paternity has not been previously adjudicated and a final
determination on the merits of that issue has not been made. There
is a statutory presumption that Mark is L.R.C.'s father. If Mark
believes otherwise, he may petition the District Court to determine
paternity pursuant to § 40-6-107, MCA. The agreement the parties
entered into in 1983 does not rebut the presumption of paternity or
legally relieve Mark from his parental rights and obligations. we
conclude that the District Court did not err in denying Mark‘s
motion for reaffirmation of the decree of dissolution and affirm
the District Court's decision and order on the matter.
@Yt,
Justice
We concur:
Justices
Justice Terry N. Trieweiler dissenting.
§ dissent from the majority's conclusion that the claim made
by the Child Support Enforcement Division against Mark Allen
Creswell is not barred by principles of collateral estoppel.
The Division's right to collect anything from Mark is based on
§ 53-2-6l3, MCA, and is necessarily derivative from whatever right
Merla has to assert a claim. That section provides in relevant
part that:
(2) A person by signing an application for public
assistance assigns to the state, to the department of
public health and human services, and to the county
welfare department all rights that the applicant may have
to support and medical payments from any other person in
the applicant‘s own behalf or in behalf of any other
family member for whom application is made.
{Emphasis added.) Whether or not Mark's paternity was adjudicated
in the earlier proceeding, it is at least clear that his right to
be free from a support obligation was adjudicated.
In her petition for legal separation, Merla alleged that:
V
. Petitioner is now pregnant, the birth of the
child to occur in March, 1982.
VIII
That Respondent is financially able to contribute to
Petitioner the sum of One Hundred Seventy-Five Dollars
($175.00) per month for the support, care, and
maintenance of the minor child of the parties
In answer to the petition for legal separation, Mark sought
dissolution of the couple's marriage and denied paternity of any
child born during the marriage. He specifically answered that:
(4) The Respondent denies the allegations of
paragraph V and alleges that there has been one (1) child
born to the Petitioner, and by way of further defense the
Respondent alleges that he lacks sufficient knowledge as
to the truth or falsity of his paternity of said child
and therefore denies the same.
On June 9, l983, the District Court entered its findings of
fact, conclusions of law, and decree which dissolved the couple's
marriage. ln regard to the issues of paternity and child support,
the decree provided as follows:
3. By reason of the oral agreement between the
parties with respect to custody and child support, the
Respondent is relieved of the obligation to make child
support payments to Petitioner unless and until he
revokes the consent to adoption heretofore executed
May 10, 1983, a copy of which consent it attached to this
decree. Upon such happening, Petitioner shall be
entitled to apply for child support. The Court reserves
jurisdiction for that purpose on this subject alone.
lt is undisputed that Mark has never revoked his consent to
adoption and that Merla has never invoked the District Court's
continuing jurisdiction to recover child support on that basis.
Therefore, the issue of Merla's entitlement to child support
was previously decided by a final decree or judgment on the merits
in a case where a person in privity with the Division was a party
to the adjudication. Regardless of the issue of paternity,
principles of collateral estoppel bar the Child Support Enforcement
Division from recovering child support from Mark more than twelve
years after he thought the issue of paternity and child support had
been finally resolved. ln fact, if there was ever an example of a
case where the public policy behind the principles of collateral
estoppel and nnjudwam is illustrated, it is this case. No person
lO
who thinks an important issue in his or her life has been finally
resolved by litigation should have to spend the rest of his or her
life concerned that the same issue might have to be relitigated.
That is especially true in the area of human relationships which
have either been bonded or abandoned based on assumptions that they
do or do not exist.
Furthermore, l conclude that principles of rssjudmanz bar
relitigation of the issue of paternity, whether or not the District
Court's decree specifically addressed that issue. The principles
of nmjmHam1ter not only those issues which were decided by a prior
decree or judgment, but those issues which could have been decided
but were not because they were either waived or not raised by the
party against whom a bar is asserted. .$nmemreL}nnknzhr@umw1DuLv.
Distrl``ct(:``ourt (Niont. 1995), 894 P.2d 943, 946, 52 St. Rep. 36¢3.-, 366.
ln this case, the issue of paternity was squarely before the court
based on Merla's allegation and Mark‘s denial. The fact that Merla
chose to resolve the issue by' agreement, rather than have it
specifically decided by the terms of the court's decree, does not
change the fact that the issue cannot be re-raised in subsequent
litigation.
l find the majority*s disregard for principles of collateral
estoppel and1@ipMmnm particularly curious in light of its sweeping
invocation of those same principles based on another consent decree
in Robz``nson v.First Wyomz'ngBank (Mont. Dec. 19, 1995), No. 95~1'75.
ll
For these reasons, l dissent from the majority opinion, l
would conclude that any claim by the Child Support Enforcement
Division against Mark Allen Creswell, which is first made twelve
years after a final decree absolving him of any obligation to pay
child support, is barred by principles of collateral estoppel and
res judicata .
12
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