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Div. Human Services v. Blake
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1993 Term ___________ No. 21605 ___________ STATE OF WEST VIRGINIA EX REL. DIVISION OF HUMAN SERVICES, ON BEHALF OF BREEZY R. M., WHO SUES BY HER NEXT FRIEND, MARY C. M., Plaintiff Below, Appellant, v. BENJAMIN P. B., Defendant Below, Appellee _______________________________________________________ Appeal from the Circuit Court of Lewis County Honorable Thomas H. Keadle, Judge Civil Action No. 89-C-172 REVERSED _______________________________________________________ Submitted: September 21, 1993 Filed: October 18, 1993 Sallie H. Tweel Child Advocate Office Charleston, West Virginia Attorney for the Appellant W. T. Weber, Jr. Weston, West Virginia Attorney for the Appellee JUSTICE BROTHERTON delivered the Opinion of the Court. SYLLABUS BY THE COURT 1. "The dismissal with prejudice of a paternity action initiated by a mother against a putative father of a child does not preclude the child, under the principle of res judicata, from bringing a second action to determine paternity when the evidence does not show privity between the mother and the child in the original action nor does the evidence indicate that the child was either a party to the original action or represented by counsel or guardian ad litem in that action." Syllabus point 5, State ex rel. Division of Human Services v. Benjamin P. B., 183 W.Va. 220, 395 S.E.2d 220 (1990). 2. "A court may order payment by an attorney to a prevailing party reasonable attorney fees and costs incurred as the result of his or her vexatious, wanton or oppressive assertion of a claim or defense that cannot be supported by a good faith argument for the application, extension, modification, or reversal of existing law." Syllabus, Daily Gazette

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Co. v. Canady, 175 W.Va. 249, 332 S.E.2d 262 (1985). 3. Filing a second paternity claim is not per se oppressive where the issue of paternity was never fully resolved. As noted in State ex rel. Division of Human Services v. Benjamin P. B., 183 W.Va. 220, 395 S.E.2d 220, 224 (1990), if privity does not exist between the child and the putative father, the child was not bound in the later paternity action by the prior judgment against the parent. 4. The Child Advocate Office has a duty to assist parents and children in determining paternity and establishing support from the absent parent. W.Va. Code

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