(concurring and dissenting):
I concur in the majority’s opinion to the extent it holds that the appellant Robert Gary Arnold waived his right to object to the method by which the family court dismissed his counterclaim to the respondent Connie Edens Arnold’s petition for divorce. I do not’agree, however, with the majority’s conclusion that the entry of summary judgment in favor of Mrs. Arnold was inappropriate. Unlike the majority, I do not feel a genuine issue of material fact exists regarding the paternity issue Mr. Arnold seeks to litigate in his counterclaim. I therefore respectfully dissent.
*301According to the allegations of the petition, Mrs. Arnold previously secured an order requiring, among other things, Mr. Arnold to support Tressy Lee Arnold, a child born during the Arnolds’ marriage. In addition to a divorce, Mrs. Arnold’s petition seeks the incorporation and merger of the prior order in any final order issued by the court.
Mr. Arnold’s counterclaim collaterally attacks the prior order, which is dated October 2, 1981, and asks the court to set it aside on the basis of fraud. He now wants to contest the issue of whether he is Tressy’s father.
Mrs. Arnold based her motion for summary judgment, as I read it, on the verified pleadings. Neither party filed any affidavits, depositions, or admissions in support of or in opposition to the summary judgment motion.
Although I agree with the majority that fraud may provide a basis for a collateral attack on a judgment [Ex parte Cox, 280 S. C. 450, 313 S. E. (2d) 320 (App. 1984], the fraud must be “extrinsic” and not “intrinsic.” See Wold v. Funderburg, 250 S.C. 205, 157 S. E. (2d) 180 (1967). “Extrinsic fraud” is fraud preventing one from having a real contest of the suit based on conduct or activities outside of the court proceedings themselves.” Colodny v. Dominion Mortgage and Realty Trust, 142 Ga. App. 730, 236 S. E. (2d) 917 at 918 (1977). The term also “means some intentional act or conduct by which the prevailing party has prevented the unsuccessful party from having a fair submission of the controversy.” Bates v. Bates, 1 Ariz. App. 165, 440 P. (2d) 593 at 597 (1965).
Mr. Arnold’s counterclaim, however, nowhere alleges any fact that would establish, if proved, the existence of extrinsic fraud. The counterclaim simply alleges that Mrs. Arnold on February 25, 1981, which was some seven months prior to the date of the order in the former action, wrote him a letter in which she stated that another man fathered Tressy; that he elected not to make an issue of Tressy’s paternity because he believed Mrs. Arnold’s statement was “made out of anger and in an attempt to sever his ties with his daughter”; and that he learned in November, 1981, after undergoing “specialized testing,” he was sterile and incapable of fathering a child.
Since Mr. Arnold cannot show extrinsic fraud, the verified *302pleadings, as I read them, establish Mrs. Arnold’s entitlement to summary judgment on the basis of res judicata.
Mrs. Arnold attached to anti made a part of her petition the order entered by the Family Court of the Ninth Judicial Circuit on October 2, 1981 in Case No. 81-10-0695, a case involving an action in which Mr. and Mrs. Arnold contested issues relating to property and child support. Mr. Arnold expressly admitted the paragraph attaching and incorporating the order.
One paragraph of the order refers to the child, whose paternity he now disputes, as the “minor child o/the parties.” [Emphasis mine.] The order also gives Mr. Arnold reasonable visiting privileges, directs him to maintain an insurance policy on his life with Tressy as his named beneficiary, and as I noted previously, requires him to pay $300 per month for Tressy’s support. Because the issues of child support and paternity go hand in hand, Mr. Arnold’s duty to support Tressy necessarily depended upon whether he was her parent. See Peebles v. Disher, 279 S. C. 611, 310 S. E. (2d) 823 (App. 1983). Mr. Arnold, therefore, had the opportunity to dispute the paternity issue in the prior claim.
Because Mr. Arnold clearly had, as the verified pleadings show, the opportunity in prior action to contest the paternity issue and chose not to do so, the family court, in my opinion, properly determined that principles of res judicata barred him from litigating issues in the instant action. See Melton v. Melton, 229 S. C. 85, 91 S. E. (2d) 873 (1956); see also Brown v. Superior Court, 98 Cal. App. (3d) 633, 159 Cal. Rptr. 604 (1979); Martin v. Martin, 561 S.W. (2d) 396 (Mo. App. 1977).
I would affirm.