Jessica G. v. Hector M.

ELDRIDGE, Judge,

concurring.

I concur with the Court’s judgment but not with its opinion. The purported ground in Part IV of the Court’s opinion for distinguishing this case from Tandra S. v. Tyrone W., 336 Md. 303, 648 A.2d 439 (1994), will not withstand analysis. Nonetheless, largely for the reasons set forth in the dissenting opinion in Tandra S. v. Tyrone W., supra, 336 Md. at 326-331, 648 A.2d at 450-452, I agree with the result reached by the majority in this case.

Tandra S. v. Tyrone W., supra, involved two separate cases in which parties to earlier paternity actions sought, more than thirty days after the entry of final judgments in the paternity actions, to vacate those final judgments. In both cases, the original judgments in the paternity actions had contained declarations of paternity as well as provisions for child support payments. The basis for each attempt to vacate the earlier judgment was that scientific evidence established beyond question that the “adjudged father” was not in fact the biological father of the child. This Court in Tandra S. held that, even though it was scientifically established that the men adjudged to be the fathers were not in fact the fathers of the children, the earlier judgments were nevertheless conclusive because there was no “fraud, mistake, or irregularity” within the meaning of Maryland Rule 2-535(b).

*407This Court in Tandra S. took the position that neither § 5-1007 of the Family Law Article nor § 5-1038 of the Family Law Article authorized the trial courts to vacate the earlier erroneous judgments in paternity actions. Section 5-1007 provides that a rule or statute relating to procedure applies to a paternity action only to the extent that the rule or statute is “practical under the circumstances.”1 The Court in Tandra S. held that § 5-1007 furnished no basis for vacating the earlier judgments because “[a] harsh result or an unfair decision is not equivalent to impracticality.” Tandra S. v. Tyrone W., supra, 336 Md. at 315, 648 A.2d at 445. Section 5-1038(a) of the Family Law Article provides that “a declaration of paternity in an order is final” except to the extent that it is subject to revision under principles of “equity,” and § 5-1038(b) provides that, except for the declaration of paternity, a “court may modify or set aside any order or part of an order” in a paternity action “as the court considers just and proper in light of the circumstances and in the best interests of the child.”2 Despite the reference to equitable principles in § 1038(a) and the broad authority in § 1038(b) to set aside all parts of a judgment in a paternity case except the declaration of paternity, this Court in Tandra S. concluded that “§ 5-1038 *408read in its entirety makes it plain that paternity judgments are governed by the strict revisory rules set forth in Rule 2-535.” 336 Md. at 315, 648 A.2d at 445. Thus, even those parts of the earlier judgments in Tandra S, ordering weekly child support payments were held to be conclusive.3 The Court in Tandra S. appeared to give no effect to either § 5-1007 or § 5-1038.

Turning to the case at bar, Joyce in the paternity action filed in 1986 sought both a declaration of paternity and child support payments. That action was terminated by a final judgment entered on March 1, 1988, dismissing the suit “with prejudice.” Joyce’s action in New York for child support was dismissed “with prejudice” on June 16, 1992. Her July 31, 1992, motion to vacate the 1988 judgment was also terminated by an adverse final judgment on September 9, 1992, followed by a final judgment of the Court of Special Appeals dismissing her appeal. The present suit, brought by Joyce’s daughter Jessica, is a paternity action in which Jessica seeks, inter alia, a declaration of paternity and an order for child support payments. The circuit court held that the judgment entered on March 1, 1988, in the prior paternity action, finally determined the issues of paternity and child support, and that, under the doctrine of res judicata, the instant paternity action was precluded.

In reversing the circuit court and purporting to distinguish this case from Tandra S. v. Tyrone W., supra, the majority does not suggest that the finality bar of Maryland Rule 2-535 operates differently from the finality bar of res judicata under the circumstances presented by the two cases. The majority also refrains from holding that a child is not barred by the judgment in a previous paternity action brought by the mother. Instead, the majority now gives a broad effect to § 5-*4091038 of the Family Law Article, stating “that all paternity orders except declarations of paternity can be modified or set aside,” and that the “ ‘orders’ ” encompassed by § 5—1038(b) “would seem to be all inclusive.” Moreover, the majority holds that the March 1988 judgment, even insofar as it adjudicated the plaintiffs request for a declaration of paternity, does not operate to bar the present request for a declaration of paternity. The majority states that “the orders encompassed” by § 5—1038(b) “should include orders terminating litigation” and that “[t]he prior order in the instant case dismissing the paternity action with prejudice is clearly the type of order envisioned” by § 5-1038(b).

The majority apparently distinguishes this case from Tandra S. on the ground that the original judgments in Tandra S. contained an express declaration regarding paternity whereas the March 1988 judgment in the present case was a dismissal with prejudice. The majority, however, overlooks the settled principle of Maryland law that a dismissal with prejudice “operate[s] as an adjudication on the merits.” Wooddy v. Wooddy, 270 Md. 23, 30, 309 A.2d 754, 758 (1973). See also, e.g., Berrain v. Katzen, 331 Md. 693, 629 A.2d 707 (1993); Moore v. Pomory, 329 Md. 428, 432, 620 A.2d 323, 325 (1993); Williams v. Snyder, Adm’r, 221 Md. 262, 267, 155 A.2d 904, 906-907 (1959). Consequently, the March 1988 judgment adjudicated on the merits Joyce’s request for a declaration of paternity to the same extent as the express declarations involved in Tandra S.

Although I do not agree with part of the majority’s rationale, nevertheless the Court’s opinion and decision in this case is a welcome retreat from the rigidity of the Tandra S. opinion.

As explained in the dissenting opinion in Tandra S., §§ 5— 1007 and 5-1038 of the Family Law Article reflect the General Assembly’s recognition that paternity actions differ significantly from other types of litigation and merit different treatment. Section 5-1007 broadly exempts paternity actions from rules and statutes relating to procedure unless application of a *410particular rule or statute is “practical under the circumstances.” Section 5-1007 should be accorded a broad construction to effectuate the legislative purpose. Therefore, it would seem that the common law rule of res judicata is a rule relating to procedure within the meaning of the statute. As § 5-1007 is worded, there must be a showing that the application of a procedural rule or statute is “practical under the circumstances” for it to be applicable in a paternity proceeding. No sound policy reasons have been advanced in this case which would justify applying the rule of res judicata to bar Jessica’s action under the paternity statute. Thus, § 5-1007 furnishes ample statutory authority for not applying res judicata under the circumstances here.

Section 5-1038 of the Family Law Article is specifically concerned with the finality of judgments and the modification or setting aside of judgments or parts of judgments. In light of its wording, § 5-1038 seems to be concerned with the application of rules like Maryland Rule 2-535 or statutes like Code (1974, 1989 Repl.Vol.), § 6-408 of the Courts and Judicial Proceedings Article, which relate directly to the modification, revision, or setting aside of judgments. The rule of res judicata does not seem to be encompassed by the literal language of § 5-1038. Principles of res judicata are concerned with whether or not a subsequent action may proceed, and not with revision, modification, or the setting aside of an earlier judgment. An earlier judgment is not directly modified or set aside simply because principles of res judicata permit a later action concerning the same subject matter. Nonetheless, the majority’s broad construction of § 5-1038 may well be justified by the legislative purpose underlying the statute and the General Assembly’s recognition of the difference between paternity actions and other types of litigation. I do not, therefore, disagree with the holding that § 5-1038 is applicable to principles of res judicata in paternity actions.

If the statutory provision is applicable, § 5—1038(b) clearly authorizes a relitigation of the monetary child support issue. Furthermore, for the reasons delineated in the dissenting opinion in Tandra S. v. Tyrone W., supra, 336 Md. at 329-330, *411648 A.2d at 452, § 5-1038(a) would permit Jessica to obtain a declaration with regard to paternity.

Even if §§ 5-1007 and 5-1038 of the Family Law Article were not applicable in this case, I would agree with those cases in other jurisdictions holding that the common law doctrine of res judicata does not preclude a paternity action brought by a child after an unsuccessful paternity action brought by the child’s parent. Although a parent and a child have some of the same interests in bringing a paternity action, a child also has different interests. See, e.g., Ex parte Snow, 508 So.2d 266 (Ala.1987); Ruddock v. Ohls, 91 Cal.App.3d 271, 154 Cal.Rptr. 87 (1979); Dept. of Health & Rehab. Services v. Wyatt, 475 So.2d 1332 (Fla.App.1985); Maller v. Cohen, 176 Ill.App.3d 987,126 Ill.Dec. 402, 531 N.E.2d 1029 (1988), appeal denied, 125 Ill.2d 567, 130 Ill.Dec. 482, 537 N.E.2d 811 (1989); Kieler v. C.A.T. by Trammel, 616 N.E.2d 34, 38 (Ind.App. 1993); Johnson v. Hunter, 447 N.W.2d 871, 874-76 (Minn. 1989); R.M.H. by Gabert v. Messick, 828 S.W.2d 226, 229-230 (Tex.Ct.App.1992); Com., Dept. of Social Services v. Johnson, 7 Va.App. 614, 620-623, 376 S.E.2d 787, 790-792 (1989); State ex rel. DHS v. Benjamin, 183 W.Va. 220, 224-225, 395 S.E.2d 220, 223-225 (1990). See also State v. Dean, 56 Wash.App. 377, 783 P.2d 1099 (1989); Johnson v. Norman, 66 Ohio St.2d 186, 190, 421 N.E.2d 124, 127 (1981). In light of the child’s different interests, the child is not in privity with the parent with regard to paternity actions. Consequently, the rule of res judicata should not bar a paternity action by the child after an unsuccessful suit by the parent.

Judge RAKER has authorized me to state that she concurs with the views expressed herein.

. Maryland Code (1984, 1991 Repl.Vol.), § 5-1007 of the Family Law Article, states as follows:

"§ 5-1007. Inconsistent statutes or rules.
Any rule of court or statute that relates to procedure applies to a proceeding under this subtitle only to the extent that the rule or statute is:
(1) practical under the circumstances: and
(2) not inconsistent with this subtitle.”

. Section 5-1038 states as follows:

Ҥ 5-1038. Finality; modification.
(a) Declaration of paternity final.—Except in the manner and to the extent that any order or decree of an equity court is subject to the revisory power of the court under any law, rule, or established principle of practice and procedure in equity, a declaration of paternity in an order is final.
(b) Other orders subject to modification.—Except for a declaration of paternity, the court may modify or set aside any order or part of an order under this subtitle as the court considers just and proper in light of the circumstances and in the best interests of the child.”

. In fact, in this Court, the controversy in Tandra S. was exclusively concerned with the monetary orders contained in the earlier judgments and not with the declarations of paternity. The Attorney General’s office, purporting to represent the petitioners in Tandra S., at the oral argument before this Court justified its standing by arguing that the State had a' financial interest in the outcomes of the two cases.