dissenting.
As much as I would like to hold the criminal defendant in this case to the 1991 judgment against him, I cannot do so without ignoring the law and the meaning of common English words in the criminal nonsupport statute.
The question is simple: does a judgment of paternity mean that a child has been “legitimated by legal process?”
For purposes of making nonsupport a crime, the statute, section 568.040.2(1)1 defines “child” as a biological or adopted child, or a child “legitimated by legal process,” or a child whose relationship to the parent has been established in a proceeding for separation or dissolution of marriage. The state’s case against this criminal defendant, Montae Perkins, depends entirely on interpreting the phrase “legitimated by legal process” to include paternity as established by a judgment under the Uniform Parentage Act, sec. 210.817 et seq.
Establishing paternity does not make a child “legitimate.”
“Legitimate,” by the ordinary dictionary definition, means that a child was born in wedlock.2 The statutory phrase includes a judicial determination of legitimacy, which also means that the child was born in wedlock or later determined to be have been born to a married couple.
It is true that the law has tended to remove the stigma of illegitimacy by treating illegitimate children the same as children born of a marriage. The treatment of illegitimate children the same as other children, for many purposes, does not establish that the definition of the word “legitimate” has been changed.
For example, under the Uniform Parentage Act, adopted by Missouri and relied upon by the principal opinion, “[t]he parent and child relationship extends equally to every child and every parent, regardless of the marital status of the parents.” Sec. 210.818. Likewise, the worker’s compensation statute treats children the same for benefits, “whether legitimate or illegitimate.” Sec. 287.240(4)(b). Similarly, legitimate and illegitimate children are treated the same in child custody laws. The terms of the child custody law “apply to children born out of wedlock and to children born in wedlock, and the terms ‘father and mother’, ‘parent’, ‘child’, shall apply without reference to whether a child was bom in lawful wedlock.” Sec. 452.160.
Traditionally, an illegitimate child could not inherit from the father. State ex rel. Canfield v. Porterfield, 222 Mo.App. 553, 292 S.W. 85, 86 (1927). From an early time, Missouri has treated an illegitimate child whose parents later married the same as a legitimate child for purposes of inheritance. Gates v. Seibert, 157 Mo. 254, 57 S.W. 1065, 1068 (1900); Simpson v. Blackburn, 414 S.W.2d 795, 797 (Mo.App.1967). This process, known as “legitimation by marriage,” is codified in section 474.070: “If a man, having by a woman a *242child or children, afterward intermarries with her and recognizes the child or children to be his, they are thereby legitimated.”
The probate code also has a process for determining paternity of illegitimate children. An illegitimate child is considered the child of the father, for probate purposes, if either: (1) the parents were married or attempted to marry either before or after the child’s birth; or (2) paternity is established “by an adjudication before the death of the father,” or after the father’s death by clear and convincing evidence. Sec. 474.060. In the probate context, a finding of paternity is sufficient to allow a child to inherit, but does not “legitimate” the child.
The distinction between legitimate and illegitimate children remains in effect as it relates to birth certificates. The state registrar is required to issue a new birth certificate “upon such evidence as required by the department proving that [a] person has been legitimated.” Sec. 193.135.1(2). The evidence required is proof of the parents’ marriage, either before or after birth. 19 CSR 10-10.120(1). Where this proof is unavailable, a “court-ordered legitimation” may be obtained, requiring a court to find that the parents were married. 19 CSR 10-10.120(2).
A review of these statutes and rules demonstrates that “legitimated by legal process” is not defined. However, “legitimate” generally means that the parents were married before, at the time of, or after the birth of the child. Although some of these statutes purport to grant the same rights to legitimate and illegitimate children, there is still a difference between them, as the terminology indicates.
In recent years, the equal treatment of illegitimate and legitimate children has been required by a series of decisions of the United States Supreme Court prohibiting discrimination against illegitimate children. See, Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Glona v. American Guarantee & Liab. Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968); Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977); Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972). Most pertinently, in 1973, the Supreme Court directly addressed the issue of whether a father could avoid liability for support merely because the children were illegitimate. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), held that where a judicially enforceable right to support was granted to legitimate children, it must also be granted to illegitimate children. This Court reached the same position several years earlier, in R. v. R., 431 S.W.2d 152 (Mo.1968), holding that “illegitimate children [have] a right equal to that of legitimate children to require support by their fathers.” Id. at 154. None of these cases addresses the meaning of “legitimated by legal process,” as that phrase is used in the criminal nonsupport statute.
This is a criminal case. The rights vindicated are those of the state, not the child. The equal protection cases, cited above, do not dictate the result reached in the principal opinion because here there is no discrimination against the child.
Under the criminal nonsupport statute, the father of an illegitimate child is “criminally responsible for the support of the child,” as this Court observed in Cobb v. State Sec. Ins. Co., 576 S.W.2d 726, 734 (Mo. banc 1979). That is certainly true in this case. Perkins, the defendant in the trial court, can be held criminally responsible for nonsupport, if the state establishes that he is the biological father of the child.
In this case, however, the state wishes to bypass the task of establishing that *243Perkins is the biological father of the child and rely solely upon the 1991 judgment, by default, that Perkins is the father of the child.3 In doing so, the state relies on equating paternity with the statutory phrase “legitimated by legal process.” The 1991 judgment did not legitimate the child. It did establish a support obligation by deeming that Perkins is the father of this child. But when the state seeks a criminal conviction, it must prove the elements of the statute. It cannot rely upon the 1991 judgment for the proposition that the child has been “legitimated by legal process,” so the state must prove that the child is the biological offspring of Mr. Perkins.
Because the issue of biological paternity is something the state must prove, the principal opinion errs in foreclosing the trial judge from ordering DNA testing of the child. I therefore dissent.
. All references are to RSMo 2000 unless otherwise indicated.
. As an adjective, “legitimate” means "lawfully begotten: born in wedlock: having full filial rights and obligations by birth.” As a verb, "legitimate” means "to put (a bastard) in the position or state of a legitimate child before the law by legal means (as the subsequent marriage of the parents).” Webster’s Third New International Dictionary (1993).
. The State does not argue that the doctrine of issue preclusion — collateral estoppel — applies. That doctrine does not apply to an issue that has not been fully litigated. Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979). The prior judgment, which was in essence a default, does not establish biological parentage for preclusion purposes.