dissenting. Because I do not agree that the default judgment entered in the paternity action has preclusive effect under the doctrine of collateral estoppel, I respectfully dissent.
As the majority points out, one required element of collateral estoppel is that the issue sought to be precluded must have been “actually litigated.” “The question of whether an issue has been previously litigated is interpreted very narrowly for purposes of collateral estoppel.” In re Estate of Goston v. Ford Motor Co., 320 Ark. 699, 705, 898 S.W.2d 471, 473 (1995) (citing Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1983)). This court recently held that “actually litigated” means “actually litigated.” Bradley Ventures v. Farm Bureau, 371 Ark. 229, 237, 264 S.W.3d 485, 492 (2007) (guilty plea in a criminal case is not equivalent to a criminal conviction that has been “actually litigated”). Similarly, in State Office of Child Support Enforcement v. Willis, 347 Ark. 6, 16, 59 S.W.3d 438, 445 (2001), we held that where the trial judge stated in a divorce decree that “the parties hereby have one (1) child,” but neither party put paternity at issue and no adversary presentations of evidence on this point were made, the court’s finding of paternity “was not the result of litigation.” By stating that the matter must actually be litigated, we “ emphasize [d] the necessity for trying the issue sought to be estopped.” Willis, 347 Ark. at 16, 59 S.W.3d at 445. This court has never before held that a default judgment satisfies the “actually litigated” prong of the collateral estoppel doctrine. We have held default judgments conclusive for purposes of the related doctrine of res judicata, see, e.g., Bruns Foods of Morrilton, Inc. v. Hawkins, 328 Ark. 416, 944 S.W.2d 509 (1997); however, the doctrine of res judicata does not require that the matter have been “actually litigated.”
There is some disagreement among the courts of our sister states on the question of the preclusive effect of default judgments for purposes of collateral estoppel. The “majority view” has been described as a finding that, with default judgments, nothing is “actually litigated.” Gottlieb v. Kest, 46 Cal. Rptr. 3d 7 (Cal. Ct. App. 2006); see also Lane v. Farmers Union Ins., 989 P.2d 309 (Mont. 1999) (acknowledging the “general rule” that a default judgement carries no collateral estoppel effect). The courts adhering to this view often cite the Restatement (Second) of Judgments to this effect. The case of Blea v. Sandoval, 761 P.2d 432, 435-36 (N.M. Ct. App. 1988), is illustrative:
There is ample authority for the proposition that a default judgement has no collateral estoppel effect. See Restatement (Second) of Judgments § 27e, at 257 (1982); Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466 (7th Cir. 1982), cert. denied, 461 U.S. 958, 103 S.Ct. 2430, 77 L.Ed.2d 1317 (1983); In re McMillan, 579 F.2d 289 (3d Cir. 1978); Lynch v. Lynch, 250 Iowa 407, 94 N.W.2d 105 (1959). The Restatement formulation and the foregoing cases recognize that default judgments do have res judicata effect, but distinguish collateral estoppel from res judicata. The basis of the distinction is the doctrine that res judicata bars consideration, in a subsequent suit, of all matters that could properly have been raised in the prior case, while collateral estoppel bars consideration only of issues actually litigated and determined by a valid and final judgment .... The Restatement and the foregoing federal cases recognize that in a default judgment, the issues are not actually litigated. The Restatement also states that the policy of preventing endless litigation does not apply as strongly in the collateral estoppel context as it does when parties are repeatedly attempting to relitigate the same cause of action. Hence, while it may be proper to accord res judicata effect to a default judgment, it is not appropriate to give such a judgment collateral estoppel effect.
Examples of cases adhering to the general rule are Lee ex rel. Lee v. United States, 124 F.3d 1291 (Fed. Cir. 1997); In re McMillan, 579 F.2d 289 (3d Cir. 1978); State ex rel. Department of Economic Security v. Powers, 908 P.2d 49 (Ariz. Ct. App. 1995); Burns v. A Cash Construction Lien Bond, 8 P.3d 795 (Mont. 2000); Lane, supra; McNair v. McNair, 856 A.2d 5 (N.H. 2004); Slowinski v. Valley National Bank, 624 A.2d 85 (N.J. Super. Ct. App. Div. 1993); Chambers v. City of New York, 764 N.Y.S.2d 708 (N.Y. App. Div. 2003); Martin v. Poole, 336 A.2d 363 (Pa. Super. Ct. 1975); McGill v. Southwark Realty Co., 828 A.2d 430 (Pa. Cmmw. Ct. 2003); State v. Bacote, 503 S.E.2d 161 (S.C. 1998); Horton v. Morrison, 448 S.E.2d 629 (Va. 1994); Christian v. Sizemore, 407 S.E.2d 715 (W. Va. 1991); see also 50 C.J.S. fudgment § 797 (“Although a party against whom a default judgment is entered certainly had an opportunity to litigate, most courts have concluded that an opportunity to litigate should not be given the same effect as actual litigation, unless the application of the estoppel to some subsequent proceeding was forseeable when the default was entered.”); Note, Collateral Estoppel in Default fudgments: The Case for Abolition, 70 Colum. L. Rev. 522 (1970).1
Some courts have carved out limited exceptions to the general rule, “where the party against whom collateral estoppel is sought to be invoked has appeared in the prior action or proceeding and has, by deliberate action, refused to defend or litigate the charge or allegation that is the subject of the preclusion request.” In re Abady, 800 N.Y.S.2d 651 (N.Y. App. Div. 2005); accord Treglia v. MacDonald, 717 N.E.2d 249 (Mass. 1999) (“We can, for example, envision circumstances in which a litigant may so utilize our court system in pretrial procedures, but nonetheless be defaulted for some reason, that the principle and rationale behind collateral estoppel would apply.”) (citing In re Gober, 100 F.2d 1195 (5th Cir. 1996) (default judgments issued as discovery sanctions); In re Bush, 62 F.3d 1319 (11th Cir. 1995) (fraud)); see also In re Docteroff, 133 F.3d 210 (3d Cir. 1997); In re Bursack, 65 F.3d 51 (6th Cir. 1995); Int’l 800 Telecom Corp. v. Kramer, 591 N.Y.S.2d 313 (N.Y. Super. Ct. 1992). We have no such circumstances here.2
Here, the trial court correctly ruled in its July 24, 2006 order that the default judgment “was not, and could not, resolve questions of marital status.” The majority concludes that the issue was “actually litigated” because: (1) the petition for declaration of paternity included the bald and disingenuous assertion that the parties “were not married to each other ... at the time of the conception and birth”; and (2) Jason had a full and fair opportunity to be heard on the issue of the validity of the marriage after he was served with the paternity suit, and chose not to avail himself of the opportunity. This recitation of facts does little more than restate the ordinary factors creating a default judgment, albeit one in which the defendant received actual notice. The doctrine of collateral estoppel is normally inapplicable to such judgments under the general rule. Instead, the majority’s holding is akin to the position adopted by California, as described by the Ninth Circuit Court of Appeals in In re Cantrell, 329 F.3d 1119, 1124 (9th Cir. 2002):
The mere fact that “judgment was secured by default does not warrant the application of a special rale.” California law does, however, place two limitations on this general principle. The first is that collateral estoppel applies only if the defendant “has been personally served with summons or has actual knowledge of the existence of this litigation.” Collateral estoppel, therefore, only applies to a default judgment to the extent that the defendant has actual notice of the proceedings and a “full and fair opportunity to litigate.”
(Internal citations omitted.)3 But see Walter W. Heiser, California’s Confusing Collateral Estoppel (Issue Preclusion) Doctrine, 35 San Diego L. Rev. 509, 556 (1998) (suggesting that if the California Supreme Court really adheres to the four-factor test of the second Restatement of Judgments, it “should disapprove of those decisions that have extended collateral estoppel to default judgments”). I do not agree that this court should adopt this minority position, especially without more analysis as to its desirability or particular applicability to the facts of this case.4
The majority opinion repeatedly relies on the fact that Jason had a “full and fair opportunity” to be heard on the existence or validity of his marriage. I disagree that compliance with this requirement satisfies the “actually litigated” prong of collateral estoppel under Arkansas law. The requirement of a “full and fair opportunity” to litigate “apparently developed as a due process safeguard around the time the mutuality requirement was dropped in Parklane Hoisery Co. v. Shore, 439 U.S. 322 (1979).” Falk v. Falk, 88 B.R. 957, 962 n.5 (Bankr. D. Minn. 1988). The requirement of mutuality of estoppel has been eliminated in most jurisdictions, including Arkansas. Id.; see also Willis, supra; Mary H. Moore, Arkansas’ Position Regarding Defensive Collateral Estoppel and the Mutuality Doctrine, 47 Ark. L. Rev. 701 (1994). Strangers to the first decree may assert collateral estoppel as long as the person against whom it is asserted had a “full and fair opportunity to litigate.” This is necessary to satisfy due process concerns. See Parklane Hoisery, supra. However, this requirement does not obviate the “actually litigated” prong of collateral estoppel in Arkansas. See Willis, supra.
As noted by the court in Falk, supra, 88 B.R. at 962, “[t]he demise of the mutuality doctrine and the development of the full and fair opportunity to litigate concept have lead [sic] to some confusion with respect to the elements necessary to successfully assert collateral estoppel.” The court explained as follows:
Some courts use the traditional elements based on the Restatement of Judgments: (1) The issue sought to be precluded must be the same as that involved in the prior litigation; (2) That issue must have been actually litigated; (3) It must have been determined by a valid and final judgment; and (4) The determination must have been essential to the judgment. Other courts, however, apply somewhat different elements: (1) The issue was identical to one in a prior adjudication; (2) There was a final judgment on the merits; (3) The estopped party was a party or in privity with a party to the prior adjudication; and (4) The estopped party was given a full and fair opportunity to be heard on the adjudicated issue.
Falk, 88 B.R. at 962 (citations omitted).5
We have not, until today, adopted the latter view. Instead, we have previously adhered to the traditional Restatement elements, including that the matter must have been “actually litigated.” See Bradley Ventures, supra. After the demise of mutuality, the full and fair opportunity to litigate represents the bare minimum that must be afforded in light of due process concerns. I would not depart from our historical “actually litigated” test in this regard. As noted in the Restatement (Second) of Judgments § 27 cmt. e (1982), when approaching difficult questions regarding the “actually litigated” requirement, “policy considerations. . . weigh strongly in favor of nonpreclusion, and it is in the interest of predictability and simplicity for such a result to obtain uniformly,” These interests are not fostered by a “case-by-case” approach favored by the majority.
The majority also relies upon the presumption of the validity of a second marriage and states that Jason “failed to overcome the presumption of the validity of the marriage between Davelynn and Wendell.” The majority concludes that the “only argument advanced by Jason is that the second marriage is void because he and Davelynn were still validly married, an argument which he is collaterally estopped from asserting.” As set out above, I disagree that the doctrine of collateral estoppel is applicable on these facts. In addition, the presumption of the legal validity of a second marriage is just that, a presumption, which may be overcome with positive proof. Watson v. Palmer, 219 Ark. 178, 240 S.W.2d 875 (1951) (The “presumption is a rebuttable one, and may be overcome with sufficient proof. . . and must give way to reality when facts opposing the presumption are presented.” (quoting Gray v. Gray, 199 Ark 152, 133 S.W.2d 874 (1939)). We have held that the presumption of the validity of the second marriage can be overcome with proof that the parties to the first ceremonial marriage never obtained a divorce. See, e.g., Cole v. Cole, 249 Ark. 824, 462 S.W.2d 213 (1971). The presumption is not as strong where there has not been a considerable lapse of time between the two marriages, Bruno v. Bruno, 221 Ark. 759, 256 S.W.2d 341 (1953). Here, it appears from the record that Davelynn and Wendell were married approximately two years after Davelynn’s separation from Jason, and the trial court dismissed Jason’s divorce petition in its July 24, 2006 order, even though it held that it was “clear that the parties did participate in a marriage ceremony.”
No matter how lightly or irreverently Davelynn claims to have entered the union, the facts show that she procured, or participated in the procurement of: (1) a license; (2) a minister; (3) a “creme-colored” dress; and thereafter marched down the aisle in front of family and friends and said “I do.” In my judgment, this is sufficient to meet the test for “solemnization” under Arkansas law and to overcome the presumed validity of the second marriage. The fact that the minister did not sign the license or return it is not fatal to the validity of the marriage, and the trial judge erred in so holding. See Fryar v. Roberts, 346 Ark. 432, 57 S.W.3d 727 (2001).6 Because the potential adoptive parents in this instance could not have been validly married, I would reverse the trial court’s grant of the adoption petition and remand for further proceedings. Bruno, 221 Ark. at 762, 256 S.W.2d at 343 (ceremonial marriage to a person who has previously been married and who never obtained a divorce is void). As the court of appeals noted, the trial judge’s decision was based upon the erroneous conclusion that Davelynn and Jason were never validly married.
The doctrine of collateral estoppel should not be expanded, and the presumption of the validity of a second marriage given conclusive effect, in order to resolve a case in which the Arkansas law governing marriage is on one side, and the perceived equities are on the other. Accordingly, I respectfully dissent.
Brown, J., joins this dissent.As indicated above, there are some states, including California and Tennessee, that adhere to a different minority rule. The majority cites the decisions of these states. See, e.g., Gottlieb, supra; Lawhorn v. Wellford, 168 S.W.2d 790 (Tenn. 1943). The two Iowa cases cited by the majority are distinguishable, however. Lynch v. Lynch, 94 N.W.2d 105 (Iowa 1959), which stated that collateral estoppel is usually not available in default cases, turned upon the application of res judicata rather than collateral estoppel, and the court refused to apply the doctrine of collateral estoppel. Matson v. Poncin, 132 N.W. 970 (Iowa 1911), did not involve a default judgment and the issue was whether the court in the previous suit had made a finding on the particular issue sought to be estopped. These Iowa rulings do not clearly depart from the general rule that a default judgment carries no collateral estoppel effect.
Although our court of appeals has applied the doctrine of collateral estoppel in one case involving a default judgment, Reyes v. Jackson, 43 Ark. App. 142, 861 S.W.2d 554 (1993), it did so without the depth of analysis that the weight of authority or matters addressed above command. The application of collateral estoppel to a judgment by default should be not decreed so lightly, either by the court of appeals or by the majority in this case.
The second factor that California requires is that there be an express finding on the point at issue.
Even among the jurisdictions that apply the minority view, it does not appear that any jurisdiction has direcdy held that a default custody or paternity judgment, where the lack of a valid marriage is indicated, can preclude the parties from subsequendy litigating the validity of the marriage under the collateral estoppel doctrine.
The latter view is the law of Montana. See Lane, supra (discussed by the majority).
Additionally, Davelynn and Jason lived together as husband and wife for over eight years after their ceremonial marriage and birth of their son. In Allen v. Wallis, 279 Ark. 149, 152, 650 S.W.2d 225, 227 (1983), this court stated that “[w]here there is cohabitation apparently matrimonial, a strong presumption of marriage arises which increases with the passage of time, during which the parties lived together as husband and wife, especially where the legitimacy of a child is concerned.”