Jones v. Murphy

Annotate this Case

Jones v. Murphy (2000-067); 172 Vt. 86; 772 A.2d 502

[Filed 02-Mar-2001]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 2000-067

Julie Jones Supreme Court

On Appeal from
v. Orange Family Court

Richard J. Murphy October Term, 2000

Alan W. Cook, J.

Karen Miller of Miller & Tonelli, Randolph, for Plaintiff-Appellee.

Peter M. Nowlan of Nowlan & Meyer, Randolph, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

AMESTOY, C.J. Defendant Richard Murphy appeals a parentage order
finding him to be the biological father of Eric Jones, the youngest son of
plaintiff Julie Jones. Defendant asserts that the Orange Family Court was
without jurisdiction to consider plaintiff's parentage complaint against
him because: 1) a final divorce judgment between plaintiff and her
ex-husband Jeffrey Jones had determined that Mr. Jones had parental rights
and responsibilities for Eric; 2) a subsequent "amended" divorce order, in
which plaintiff and Mr. Jones acknowledged that he was not Eric's
biological father, was without effect because it was issued after the
expiration of the nisi period, and was neither an amendment to the
original judgment pursuant to V.R.C.P. 59(e), nor relief from the judgment
pursuant to V.R.C.P. 60(b); and 3) the compelling public interest in the
finality of paternity determinations requires us to apply the doctrine of
res judicata to the facts of this case.

We reject defendant's assertion that res judicata applies to this
case, but nonetheless reverse the trial court's order of parentage,
finding defendant to be the biological father of Eric Jones, because it
conflicts with an existing judgment of the Orange Family Court which found
Mr. Jones responsible for Eric's support.

I. Background

Eric Jones was born on May 16, 1997. At the time of his conception
and birth, Eric's mother, plaintiff Julie Jones, was married to Jeffrey
Jones. Mr. Jones was designated the father on Eric's certificate of
birth. In August 1998, the Joneses obtained a final divorce order which
granted the parties "shared legal rights and responsibilities for their
minor children," including Eric.

In September 1998, plaintiff, defendant and Mr. Jones underwent
genetic testing which determined the possibility of defendant's paternity
to be 99.998%. Mr. Jones's probability of paternity was 0%. On September
29, 1998, Julie and Jeffrey Jones entered into an "amended final
stipulation," in which they acknowledged the fact that Mr. Jones is not
Eric's biological father. One day later, plaintiff filed a complaint for
parentage against defendant.

Neither plaintiff nor Mr. Jones moved to amend the original August 21,
1998 divorce order within the ninety day nisi period, which expired in
November 1998. Instead, in December 1998, the Jones's final divorce order
was amended pursuant to the September 29, 1998 stipulation of the parties
to reflect the fact that "recent testing" had established that Mr. Jones is
not the biological father of Eric, and he is therefore "granted no
parental rights and responsibilities with respect to Eric." The Jones's
final divorce order was amended by the same assistant judge who issued the
original August 1998 divorce order pursuant to the parties' first
stipulation.

In response to the complaint of parentage made against him, defendant
moved for summary judgment, contending that the Orange Family Court was
without jurisdiction to consider plaintiff's parentage complaint because
plaintiff and Mr. Jones were bound by the August 1998 divorce decree in
which they had agreed to shared legal rights and responsibilities for their
minor children, including Eric. The court denied defendant's motion.
Defendant then stipulated to a final order of parentage finding him to be
the father of Eric, while preserving his argument that the court was
without

jurisdiction to enter the judgment of parentage.

Defendant contends on appeal that: (1) the Orange Family Court was
without jurisdiction to consider plaintiff's parentage complaint against
defendant because no relief from the original divorce decree in the matter
of Jones v. Jones had been obtained; and (2) res judicata bars plaintiff
from filing a complaint of parentage against defendant.

II. The Divorce Decree

In February 1998, Julie Jones filed an action for divorce from Jeffrey
Jones with the Orange Family Court. In the complaint for divorce, Ms.
Jones alleged that Eric Jones, and his brother Evan Jones, were born of
the marriage. In June 1998, a child support order was entered by the
family court in the matter of Jones v. Jones. Jeffrey Jones was found to
be the obligor for both children. On August 21, 1998, the family court
issued a final order in the matter of Jones v. Jones, which was signed by
Donald Hisey, assistant judge for Orange Country. The final order
provided, in relevant part:

PARENTAL RIGHTS AND RESPONSIBILITIES
1. The parties shall be granted shared legal rights and
responsibilities for their minor children, Evan Parker Jones,
d.o.b. July 24, 1996 and Eric M. Jones, d.o.b. May 16, 1997.

Within a short time after the final uncontested divorce hearing,
plaintiff and Mr. Jones underwent genetic testing. As a result,
plaintiff and Mr. Jones entered into an amended stipulation in which
plaintiff acknowledged that Mr. Jones was not Eric's biological father, and
relieved him of parental rights and responsibilities for Eric. Although
the Joneses entered into the stipulation on September 29, 1998, and Julie
Jones filed a complaint of parentage against defendant one day later, the
Jones's original divorce judgment was not amended to reflect the stipulated
agreement until December 4, 1998, more than ninety days after the original
divorce order of August 21, 1998.

A trial court's jurisdiction to amend a divorce decree is ordinarily
limited to the nisi period. Downs v. Downs, 150 Vt. 647, 647, 549 A.2d 1382, 1382 (1988) (mem.) (no jurisdiction to issue an amended order after
the decree had become absolute). In Vermont, the nisi period is three
months from the entry of the order. 15 V.S.A. § 554. The nisi period for
the Jones's divorce order expired

in November 1998. After the expiration of the nisi period, the parties may
move to alter or amend the judgment pursuant to 60(b) of Vermont's Rules
of Civil Procedure. Cameron v. Cameron, 150 Vt. 647, 648, 549 A.2d 1043,
1043-44 (1988) (mem.). Rule 60(b) allows a party to obtain relief from a
final judgment for reasons of, inter alia, mistake, newly-discovered
evidence, and equitable considerations. V.C.R.P. 60(b). Neither party to
the divorce sought to amend the original judgment order under either Rule
60(b) or 59(e). (FN1) Therefore, the December 4, 1998 amended order is a
nullity. (FN2)

III. Res Judicata

Although we accept defendant's view that the August 21, 1998 divorce
order in Jones v. Jones was not properly amended, we do not agree that res
judicata insulates defendant from a parentage action by plaintiff. First,
defendant was not a party to the Jones's divorce action. See Opland v.
Kiesgan, 594 N.W.2d 505, 510 n.7 (Mich. Ct. App. 1999) (putative father
"cannot assert res judicata or collateral estoppel because he was not a
party to or the privy of a party to the divorce action"); Annotation,
Effect, in Subsequent Proceedings, of Paternity Findings or Implications in
Divorce or Annulment Decree or in Support or Custody Order Made Incidental
Thereto,78 A.L.R.3d 846, 852 (1977) ("[P]aternity findings or implications
in a divorce decree . . . are not binding on a stranger to the divorce
action in a later proceeding between the stranger and a husband or wife.").

Second, as defendant concedes in attacking the validity of the
December 1998 "amended" final order, relief from the August 1998 original
divorce judgment may be sought under V.R.C.P. 60(b). A direct attack on a
judgment pursuant to Rule 60(b) cannot be barred on res judicata grounds.
"The doctrine of 'res judicata does not preclude a litigant from making a
direct attack [under Rule 60(b)] upon the judgment before the court which
rendered it.'" Dixon v. Pouncy, 979 P.2d 520, 524 (Alaska 1999) (quoting
1B J. Moore, Moore's Federal Practice 0.407 at 931 (2d

ed. 1973)).

Third, although defendant seeks refuge under the umbrella of our
analysis in Godin v. Godin, 168 Vt. 514, 725 A.2d 904 (1998), this is not
a case which implicates the principles which are the foundation of Godin.
Significantly, there is not in the present case an established long-term
paternal relationship of the type we sought to protect in Godin. In
Godin, we held that a presumptive father could not disavow paternity six
years after a divorce proceeding to which he was a party. Id. at 515, 725 A.2d at 905. In fact, all of our previous rulings on this issue,
Godin,168 Vt. at 523, 725 A.2d at 910, St. Hilaire v. Deblois, 168 Vt.
445, 448, 721 A.2d 133, 136 (1998) and Lerman v. Lerman, 148 Vt. 629, 629,
528 A.2d 1121, 1122 (1987) (mem.), sought to ensure the financial and
emotional security of paternal bonds in cases where the presumptive father
had held himself out as the child's parent over a number of years.
Indeed, all of the cases which defendant cites to support his position,
with one exception, involve presumptive fathers attempting to disavow
paternity years after divorce or parentage proceedings to which they
themselves were a party. See Godin, 168 Vt. at 515, 725 A.2d at 905 ; St.
Hilaire, 168 Vt. at 446, 721 A.2d at 134; Lerman 148 Vt. at 629, 528 A.2d
at 1122; Hackley v. Hackley, 395 N.W.2d 906, 913 (Mich. 1986); A.K. v.
S.K., 624 A.2d 36, 37-38 (N.J. Super. Ct. App.Div. 1993); Richard B. v.
Sandra B.B., 625 N.Y.S.2d 127, 128-29 (App. Div. 1995) (where presumptive
father attempted to disavow paternity five months after divorce
proceedings); In re Paternity of J.R.W., 814 P.2d 1256, 1257-58 (Wyo.
1991).

This case does not present the specter of a "liberal reopening of
paternity determinations," nor the instance of a parent seeking "for
financial or other self-serving reasons" the dissolution of the parental
bond. Godin, 168 Vt. at 524-25, 725 A.2d at 911-12. Neither are we
confronted here with an action by a presumptive father to retroactively
modify or annul child support obligations where as we have noted, the
underlying policy baring relitigation of paternity "applies with even
greater force." St. Hillaire, 168 Vt. at 448; 721 A.2d at 136.

Godin's underlying policy has little force here. Defendant concedes
that res judicata would not be a viable argument if the divorce judgment
had been amended within the nisi period. We are confronted-not with a
presumptive father attempting to avoid child support obligations or
destoying

a child's long-held assumptions in his own self-interest-but with a
biological father's attempt to invoke a doctrine intended to serve the
best interests of the child.

Under these circumstances, reversal is compelled not by public
interest in the finality of paternity determinations, but by the legal
complication occasioned by two conflicting family court determinations,
each of which establishes a different obligor-father to support the same
child.

It is from the failure to amend the original divorce judgment within
the nisi period or to otherwise seek relief from judgment pursuant to
V.R.C.P. 60(b) that complications from this case flow. (FN3) We cannot
accept the trial court's characterization that this failure is merely a
"form over substance type of issue" when the effect of the court's
decision is to establish two conflicting family court determinations, each
of which establishes a different obligor-father to support the same child.

Reversed.

FOR THE COURT:

________________________________
Chief Justice

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Footnotes

FN1. Rule 59(e) requires a motion to alter or amend the judgment
within 10 days after its entry. V.R.C.P. 59(e).

FN2. Because we hold that the Jones's December 4, 1998 divorce order
is a nullity, we need not reach defendant's claim regarding the assistant
judge's jurisdiction to amend the order.

FN3. Rule 60(b)(5) permits relief from a final judgment when "the
judgment has been satisfied, released, or discharged, or a prior judgment
upon which it is based has been reversed or otherwise vacated, or it is no
longer equitable that the judgment should have prospective application."
V.R.C.P. 60(b)(5). Although we caution that in the context of paternity
determinations relief from judgment pursuant to Rule 60(b)(5) will rarely
be appropriate, see Nancy Darlene M. v. James Lee M., Jr., 464 S.E.2d 795,
799 (W. Va. 1995), the inequitable prospective application clause of Rule
60(b)(5) may sometimes permit relief. Dixon, 979 P.2d at 526-27 (case
remanded for determination as to whether request for relief from Rule
60(b)(5) was filed within a reasonable time, and if so, whether
prospective application of the portion of the decree requiring ex-husband
to support child is no longer equitable); Ferguson v. State Dept. of
Revenue, 977 P.2d 95, 98 (Alaska 1999) (relief from an order pursuant to
Rule 60(b)(5) may be appropriate when special circumstances demonstrate
that it is "no longer equitable that the judgment have prospective
application.").

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Concurring

No. 2000-067

Julie Jones Supreme Court

On Appeal from
v. Orange Family Court

Richard J. Murphy October Term, 2000

Alan W. Cook, J.

Karen Miller of Miller & Tonelli, Randolph, for Plaintiff-Appellee.

Peter M. Nowlan of Nowlan & Meyer, Randolph, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

DOOLEY, J., concurring. I concur that the family court, acting
through an assistant judge, improperly reopened the divorce judgment
between plaintiff and her former husband after the expiration of the nisi
period, and that res judicata does not prevent a motion for relief from
judgment pursuant to Rule 60(b). Indeed, as I expressed in a dissent in
Godin v. Godin, 168 Vt. 514, 533, 725 A.2d 904, 916 (1998), it is far
preferable that the biological father bear the financial responsibility for
the support of his child rather than the husband of the mother, who
mistakenly believing he is the biological father, fails to protect his
interest in the divorce proceeding.

We need, however, to step back and recognize the situation that Godin
and this decision have created. The mother of the child now has the
virtually unfettered choice whether to obtain child

support from the biological father or her former husband, and there is no
requirement that this decision be based on the best interest of the child.
If, for example, the mother decides that her former husband's demands for
visitation are unacceptable, she can disclose that he is not the
biological father and bring a paternity action against the biological
father. The paternity action will create the exact conflict that warrants
relief from judgment in this case. I suspect that a stipulated relief
from the divorce judgment will be granted as a matter or course if there is
an outstanding parentage order against the biological father.
Alternatively, the mother can conceal that there is a different biological
father and pursue only her former husband for support. These are, of
course, the facts of Godin.

I recognize that in the last few paragraphs of the majority decision
is a suggestion that Godin applies only in limited circumstances, "where
the presumptive father had held himself out as the child's parent over a
number of years," ante at 5, and that the limitation makes it more fair.
In fact, the attempt to limit Godin is a fiction. The only relevant
period is that between the time of the divorce and the "presumptive"
father's realization that he is not the biological father. If he brings a
motion for relief from judgment within a year, see V.R.C.P. 60(b); V.R.F.P.
4(a)(1) (Rules of Civil Procedure apply to divorce actions except as
otherwise provided), he has some chance of reopening the divorce judgment.
Otherwise he does not, at least if the 60(b) motion is opposed.

In this case the marriage was short; the divorce filing came only a
year after the birth of the child. That fact is, however, irrelevant to
this decision. Even if the child were ten years old at the time of the
divorce, the mother could bring this parentage action and require the
biological father to support the child. Nothing in Godin limits its
holding to short marriages or very young children.

The majority's choice of words magnifies the fiction. According to
the majority's decision, the problem Godin addresses is that "the
presumptive father had held himself out as the child's

parent." Ante at 5. The implication is that the presumptive father,
knowing he is not actually the biological father, acts as the father
anyway, creating some sort of estoppel. In fact, in each of the cases the
majority cites, the presumptive father is misled into believing he is the
biological father, and acts accordingly until he realizes the true facts.
I reiterate my view, expressed in the Godin dissent, that the majority has
built a policy around blaming the victim. Godin, 168 Vt. at 526, 725 A.2d
at 912.

As we continue to explain the meaning and consequences of Godin, I
hope the Legislature will recognize that the policy judgment underlying it
is wrong and needs substantial modification. In all cases, biological
fathers should have the obligation to support their children unless all
parties involved knowingly and intentionally agree to a different
financial arrangement. Creating a choice in the mother to seek support
either from her ex-husband or from the biological father is neither fair to
the ex-husband nor in the best interest of the child.

________________________________
Associate Justice

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