Stitham v. Henderson
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 52
Docket: 	Aro-00-473
Submitted 
  on Briefs:  	January 18, 2001
Decided:	April 3, 2001

Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
Majority:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
Concurring:DANA, SAUFLEY, and ALEXANDER, JJ.

DAVID B. STITHAM

v.

JOHN C. HENDERSON

CALKINS, J.
	[¶1]  John C. Henderson appeals from the summary judgment of the
Superior Court (Aroostook County, Pierson, J.) in favor of David B. Stitham,
declaring that Henderson is not the biological father of the minor child
K.M.H. and declaring that Stitham is the child's biological father. 
Henderson further appeals from the order denying his motion to dismiss in
which he requested a dismissal of Stitham's complaint on the basis of res
judicata.  Henderson also appeals the order dismissing his counterclaim in
which he sought to establish his equitable parental rights.  We affirm the
judgment and orders of the Superior Court.

I.  BACKGROUND

	[¶2]  Henderson and Norma{1} were married in 1986.  Norma gave birth
to K.M.H. in 1993.  Henderson was present at the birth and is named on the
birth certificate as the father of K.M.H.  He believed that he was the child's
father, and he established and maintained a father-daughter relationship
with her.  His parents and the child had a grandparent-grandchild
relationship.  Henderson and Norma divorced in 1996, and they agreed to
the terms of the divorce in a written document that was incorporated into
the divorce judgment.  The divorce judgment, entered in the District Court
(Houlton, Griffiths, J.), awarded shared parental rights of the child to
Henderson and Norma; granted primary physical residence of the child to
Norma; awarded Henderson contact with the child at all reasonable and
proper times; ordered Henderson to maintain health insurance for the
child; and ordered Henderson to pay child support to Norma.  Henderson
has continued to pay Norma child support.
	[¶3]  A few months after the divorce, Norma and Stitham married, and
they, along with the child, submitted to DNA testing to determine if Stitham
is the child's biological father.  The test results show Stitham's probability of
paternity to be 99.96%.  Thereafter, Norma filed a post-divorce motion in
District Court in which she sought to obtain a declaration that Henderson
was not the child's biological parent.  Henderson objected, and the District
Court denied Norma's motion on the ground of res judicata.
	[¶4]  In 1998, Stitham filed the instant action in Superior Court
against Henderson.  The complaint states that the action is brought pursuant
to the Uniform Act on Paternity, 19-A M.R.S.A. §§ 1551-1570 (1998 &
Supp. 2000), and requests that Stitham be declared the child's biological
father.{2}  Henderson moved to dismiss the complaint on the ground of res
judicata, and the court denied the motion.  The court ordered Henderson to
submit to DNA testing, and the test results exclude Henderson as the
biological father of K.M.H.
	[¶5]  After the DNA test results were obtained, Henderson brought a
motion to allow a counterclaim to establish his equitable parental rights. 
Stitham objected to the motion on the ground that the counterclaim was
untimely.  Stitham moved for summary judgment on his complaint to which
Henderson objected.  The court granted Stitham's summary judgment
motion and Henderson's motion to file the counterclaim, but it dismissed
the counterclaim without prejudice as not being ripe for adjudication.  The
judgment declares that Henderson is not the child's biological father and
that Stitham is the biological father.

II.  RES JUDICATA

	[¶6]  Henderson contends that Stitham's complaint for a declaration
of paternity is barred by res judicata because the 1996 divorce judgment
between Henderson and Norma determined that Henderson is the father of
the child.  We have said that res judicata bars relitigation if:  "(1) the same
parties or their privies are involved in both actions; (2) a valid final
judgment was entered in the prior action; and (3) the matters presented for
decision in the second action were, or might have been, litigated in the first
action."  Dep't of Human Servs. ex rel. Boulanger v. Comeau, 663 A.2d 46, 48
(Me. 1995).
	[¶7]  Stitham was not a party to the divorce between Norma and
Henderson, and therefore, he is not barred from litigating his paternity
claim unless he was in privity with Norma.  For the doctrine of res judicata
to apply on the basis of privity, Henderson must demonstrate that the rights
and interests of Stitham were substantially represented and protected by
Norma in the divorce proceeding.  See id.  For there to be privity between
Norma and Stitham at the time of the divorce, the two had to have a mutual
relationship that established a commonality of interest.  Their interests in
the divorce litigation had to be such that they represented one single right. 
Id.  We have held that neither a child nor the Department of Human
Services is in privity with the child's mother when she settles an action to
determine the paternity of the child.  Dep't of Human Servs. v. Webster, 398
A.2d 792, 794 (Me. 1979).  But see Dep't of Human Servs. v. Richardson,
621 A.2d 855, 856-57 (Me. 1993) (holding Department in privity with
mother where Department on notice of alleged father's pending paternity
action in which judgment of nonpaternity entered).
	[¶8]  The interests of a biological mother and a biological father are
not identical in actions in which paternity may be determined.  The
biological mother may not want the paternity of the biological father
determined because she does not want him to establish a relationship with
the child, or she does not want him to be allocated rights in the upbringing
of the child.  The determination of paternity can include, or at least lead to,
visitation with the child, decision-making regarding the education and
medical care of the child, and various legal and moral duties.  The finances
of the mother, her husband, and the biological father may be such that the
mother's best hope for ongoing financial support for a child is from the
husband rather than the biological father.  The mother may choose not to
complicate divorce proceedings by injecting a disputed paternity claim into
the action.  Henderson, as the party claiming res judicata, has offered
nothing to indicate that the actual situation of Norma and Stitham, at the
time of the District Court divorce judgment, was such that Norma was in fact
representing Stitham's interest.  Although Norma and Stitham are married
now, and it may be safe to assume that their interests currently are aligned,
no such assumption can be made that their interests were identical at the
time Norma and Henderson were divorced.
	[¶9]  We have held that a court-approved settlement of a paternity
action between the biological parents is not binding on nonparties and does
not bar either the child or the Department of Human Services from
litigating paternity.  Webster, 398 A.2d at 794.  The divorce between
Henderson and Norma was by agreement, and the issue of paternity was not
raised before the court.  This fact alone demonstrates the divergence of
interests between Stitham and Norma.  Norma did not represent Stitham's
interest during the divorce proceeding.  Norma and Stitham were not in
privity, and for this reason the doctrine of res judicata does not act as a bar
to Stitham's action to determine his paternity.

III.  SUMMARY JUDGMENT

	[¶10]  It is well-established that when we review the grant of summary
judgment, we consider the evidence in the light most favorable to the party
against whom the judgment is issued, and we will only affirm the judgment
if a review of the record demonstrates that there is no genuine issue of
material fact and the grant of the judgment was correct as a matter of law. 
Cyr v. Adamar Assocs., 2000 ME 110, ¶ 4, 752 A.2d 603, 604.  Henderson
claims that summary judgment should not have been granted against him for
three reasons:  (1) the Maine Uniform Act on Paternity does not allow a
paternity action when the child was born to a married woman; (2) the DNA
test results are not dispositive, and there was a genuine issue of fact as to
the paternity of the child; and (3) Henderson was entitled to the
presumption of legitimacy.
	[¶11]  Henderson first contends that Maine's version of the Uniform
Act on Paternity does not allow Stitham to bring the action because the Act
was not intended to allow a party to establish that the father of a child born
to a married woman is anyone other than the woman's husband.  He points
to the definition, included in the uniform act, but omitted from the Maine
version, that "a child born out of wedlock includes a child born to a married
woman by a man other that her husband."  Unif. Act on Paternity § 1, 9B
U.L.A. 350 (1987).  However, in Denbow v. Harris, 583 A.2d 205, 207 (Me.
1990), we concluded that the definition in the uniform act is "mere
surplusage."  There, the mother of a child born while the mother was
married brought a paternity action against a man to whom she had not been
married.  He defended on the ground that the Maine Legislature, by its
failure to enact the uniform act's definition of "born out of wedlock,"
intended to limit paternity actions to circumstances where children were
born to unmarried women.  We rejected that argument and noted that the
dictionary definition of "out of wedlock" is "with the natural parents not
legally married to each other."  Id. (quoting Webster's Third New
International Dictionary Unabridged 2592 (1986)).  The precise holding in
Denbow was:  "The Uniform Act on Paternity allows a paternity action even
when the child is born to a mother who is married."  Denbow, 583 A.2d at
207.  Although the present action is brought by a father to establish
paternity, rather than a mother as in Denbow, the holding of Denbow is
controlling.  
	[¶12]  Henderson next claims that summary judgment was
inappropriate because the DNA test results are not dispositive and there
remains a genuine issue as to the paternity of the child.  Henderson has not
presented his own expert or otherwise challenged the validity of the DNA
tests.  Those test results exclude Henderson as the biological father and
state that the probability that Stitham is the biological father is 99.96%.  The
test result provision in the Uniform Act on Paternity, 19-A M.R.S.A. § 1561
(1998), declares that if the tests demonstrate that the "alleged father" is
not the father, "the question of paternity must be resolved accordingly."  Id.
§ 1561(1)(A).{3}  Given that the test results are not disputed, there is no
genuine dispute that Henderson is not the biological father.  Thus, a
summary judgment declaring that Henderson is not the child's biological
father was proper.  
	[¶13]  The summary judgment declaring that Stitham is the child's
biological father was also proper.  Under the Act, because Stitham is not
excluded by the DNA tests as the father and because the percentage of
probability of his paternity is higher than 97%, he is presumed to be the
father.  Id. § 1561(1)(D).  Pursuant to 19-A M.R.S.A. § 1562 (1998), the
presumption of paternity can only be overcome by clear and convincing
evidence.  Nothing in Henderson's statement of material facts, submitted
pursuant to M.R. Civ. P. 7(d), shows any evidence to rebut the presumption.{4} 
The Superior Court did not err in concluding that there were no facts to
rebut the presumption of Stitham's paternity.
	[¶14]  Finally, Henderson contends that he was not given the benefit
of M.R. Evid. 302 on the presumption of legitimacy.  Rule 302 states that a
party asserting the illegitimacy of a child born to, or conceived by, a married
woman has the burden of proving illegitimacy beyond a reasonable doubt. 
However, 19-A M.R.S.A. § 1564 (1998) states that Rule 302 is not applicable
when "reliable blood or tissue tests show that the presumed father is not
the biological parent," id. § 1564(1)(A), or the "tests show that the alleged
father is not excluded and that the probability of the alleged father's
paternity is 97% or higher," id. § 1564(1)(B).  This statute plainly excludes
the applicability of the Rule 302 presumption, and Henderson is not entitled
to the presumption of legitimacy.

IV.  COUNTERCLAIM TO ESTABLISH EQUITABLE PARENTAL RIGHTS

	[¶15]  The Superior Court allowed Henderson to file a late
counterclaim to establish his equitable parental rights, but dismissed it
without prejudice because (1) Norma is not a party; (2) Stitham did not
request any relief concerning his rights with the child other than the
declaration of paternity; and (3) a post-divorce motion, brought by
Henderson to enforce visitation, is pending in the District Court.  The court
concluded that in order "to afford [Henderson] a full panoply of remedies in
the District Court," it would dismiss the counterclaim without prejudice.{5} 
We conclude that the Superior Court was correct in dismissing the
counterclaim.
	[¶16]  Henderson argues that he is entitled to a jury trial on his
counterclaim, and the Superior Court is the only forum in which he can have
a jury trial.  He has failed, however, to cite any authority for an entitlement
to a jury trial on a claim of equitable parental rights.  To the extent that he
has equitable parental rights with regard to K.M.H., the exercise of such
rights is totally dependent upon a determination of the best interests of
K.M.H.  Matters involving the custody or best interests of a child are
equitable in nature and are not for determination by a jury.  See In re
Shane T., 544 A.2d 1295, 1296-97 (Me. 1988) (holding father not entitled
to jury trial in termination of parental rights case and discussing the
equitable origins of custody determinations).
	[¶17]  A post-divorce motion is pending in the District Court
concerning Henderson's right of contact with the child.  The District Court
has jurisdiction to determine the parental rights regarding the children
before it in divorce and post-divorce matters.{6}  19-A M.R.S.A. §§ 1001,
1653(10) (1998).  Until the Superior Court's declaration that Henderson is
not the biological father, Henderson was the legal father to K.M.H.  The
parent-child relationship, shown by the undisputed facts and by his affidavit,
places him in the position of a de facto parent.  Because of his prior legal
relationship to the child and his current role as a de facto parent, the
District Court has jurisdiction to decide whether it is in the best interests of
K.M.H. for Henderson to have a continuing role in her life and what that role
should be.  
	[¶18]  Hopefully, these parties, keeping the best interests of the child
uppermost in their minds, either on their own, or with the assistance of an
able case management officer and/or mediator, will agree upon the best
arrangement for the child.  We recognize that Stitham is not a party in the
District Court proceeding, but the District Court may find it appropriate to
permit Stitham, who has now been declared to be the biological father, to
intervene if he so requests.{7}
	The entry is:
			Judgment affirmed.
                                              

SAUFLEY, J., with whom ALEXANDER, J. and DANA, J., join, concurring.

	[¶19]  I concur in the Court's analysis and the result in this matter.  I
write separately to address the Court's reference to the de facto parenthood
of Henderson and the area of law that is emerging from the intersection of
traditional social policies and modern biological testing abilities.
	[¶20]  For centuries, a child born during a marriage was considered
the child of the parties to the marriage, regardless of contrary allegations of
paternity.  See Ventresco v. Bushey, 191 A.2d 104, 106 (Me. 1963).  As a
matter of public policy, this approach was necessary to prevent
"bastardization" and to preclude unwarranted intrusions into family peace
and harmony.  See Atkinson v. Atkinson, 408 N.W.2d 516, 518 (Mich. Ct.
App. 1987).  From a practical perspective, evidentiary proof of paternity was
also difficult and unreliable.{8}  See Denbow v. Harris, 583 A.2d 205, 206 (Me.
1990) (noting that prior to blood tests, a baby was exhibited to the jury to
show family resemblance).{9}  As blood testing and methods of proof
progressed, we repudiated the absolute presumption of paternity in 1963,
allowing the rebuttal of the presumption by proof beyond a reasonable doubt. 
See Ventresco, 191 A.2d at 108-09.  That presumption was eventually
embodied in the Rules of Evidence.  See M.R. Evid. 302; Denbow, 583 A.2d
at 206.  
	[¶21]  With the recent advances in biotechnology and human genetics,
family law is undergoing further evolution.  Because testing is now
sufficiently accurate, the presumption of paternity, a hurdle once very
difficult to overcome, can now be swept aside by a simple test.  See 19-A
M.R.S.A. § 1561 (1998).  As a result, there now exists the real possibility, as
this case demonstrates, that one man may become the legally acknowledged
biological father of a child, while another, through marriage to the mother,
has been the legally acknowledged and factually involved father.  
	[¶22]  The status of the father "by marriage," following an adjudication
declaring that another man is the biological father, is not addressed
consistently throughout the country.  Some states have enacted statutes
explicitly recognizing that a man married to a child's mother at the time of
the child's birth is a legal parent, regardless of the legal recognition of a
different biological father.{10}  
	[¶23]  Maine statutes are silent on the issue.{11}  Maine law does,
however, create an avenue for biological fathers to assert a claim of
paternity, see 19-A M.R.S.A. § 1553 (1998), even when the child has a
father who was previously understood to be the father because he was
married to the mother at the time of the child's birth.{12}  Thus, although the
law recognizes the legal rights and responsibilities of the newly established
biological father, it does not directly address the consequences of that legal
recognition for the person who had previously thought himself to be the
father.
	[¶24]  Although DNA testing may provide a bright line for determining
the biological relationship between a man and a child, it does not and cannot
define the human relationship between father and child.  When a man has
been newly determined to be the biological father of a child, the courts have
a responsibility to assure that the child does not, without cause, lose the
relationship with the person who has previously been acknowledged to be
the father both in the law, through marriage, and in fact, through the
development of the parental relationship over time.{13}
	[¶25]  In this developing area of law, and in the absence of legislative
action, many questions remain unanswered.{14}  However, we have today
recognized that Henderson's previously existing legal and factual
relationship to K.M.H. gives the District Court the authority to recognize
Henderson as a de facto parent{15} and to act in the best interests of K.M.H.
See American Law Institute, Principles of the Law of Family Dissolution:
Analysis and Recommendations, § 2.03 (1)(c) (Tentative Draft No. 4,
April 10, 2000).{16} 
	[¶26]  Accordingly, one question has been resolved.  When a man has
been understood at law to have been the father of a child, through marriage
to the child's mother, and the courts have determined that a different man
is the biological father of the child, the District Court has the authority to
determine, in the best interests of the child, whether the father by marriage
shall continue as a de facto parent and have a continuing relationship with
the child.  
	[¶27]  Thus, I concur in the opinion of the Court.