This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. sec. 480A.08, § 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-96-183

Theresa Faye Nicholson,
Appellant,

vs.

Jerry Michael Getchell,
Respondent.

Filed September 17, 1996
Affirmed
Randall, Judge

Scott County District Court
File No. F-95-12600

Geraldine C. Steen, Steen & Troesch, 206 First Minnetonka City Bank, 14550 Excelsior Blvd., Minnetonka, MN 55345 (for appellant)

Gerald F. Freeman, Freeman & Alton, 5500 Wayzata Blvd., Suite 900, Minneapolis, MN 55416 (for respondent)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schultz, Judge. 1

U N P U B L I S H E D O P I N I O N

RANDALL , Judge
Appellant, individually and on behalf of her minor child, A.L.G., challenges a district court ruling that a prior dissolution decree bars this paternity action. We affirm in part and vacate in part.
FACTS

Appellant Theresa Nicholson, f/k/a Theresa Getchell, and respondent Jerry Getchell were married on February 1, 1992. On November 28, 1992, appellant gave birth to A.L.G. The parties' marriage was dissolved pursuant to an order for judgment entered January 19, 1995. Pursuant to that dissolution decree, the trial court found that A.L.G. was born as issue of the marriage. There was a stipulation and both parties agreed at all times that A.L.G. was born of the marriage. Respondent was awarded physical custody of A.L.G. for a period of 18 months while appellant sought treatment for her chemical dependency problems.
In July 1995, appellant, individually and on behalf of A.L.G., commenced a paternity action. Appellant did not request a guardian ad litem to be appointed for A.L.G. In her paternity complaint, appellant claimed, among other things, that she now recalls having had sexual relations with two other men besides respondent at or about the time of A.L.G.'s conception. She alleges now that she is "not sure" that respondent is A.L.G.'s biological father. She filed a motion asking the court to require respondent to submit to blood testing and for the appointment of a guardian ad litem. In December 1995, the district court granted respondent summary judgment on all issues. The court determined that the prior dissolution decree was res judicata for appellant individually and res judicata for the minor child, A.L.G. This appeal followed.
D E C I S I O N

On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French , 460 N.W.2d 2, 4 (Minn. 1990). This court views the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo , 504 N.W.2d 758, 761 (Minn. 1993).
I.

Res Judicata As to Appellant, Theresa Faye Nicholson
Under the doctrine of res judicata or "claim preclusion," a final judgment on the merits bars a subsequent suit for the same claim by the same parties or those in privity. Johnson v. Hunter , 447 N.W.2d 871, 873 (Minn. 1989). On appeal, this court reviews de novo whether the doctrine of res judicata can apply to a given set of facts. Erickson v. Commissioner of Dep't of Human Servs. , 494 N.W.2d 58, 61 (Minn. App. 1992). "If the doctrine applies, the decision whether to actually apply it is left to the discretion of the trial court." Id.
Here, A.L.G. was born during the marriage. Both appellant and respondent repeatedly acknowledged A.L.G. as theirs. The dissolution decree constituted a final judgment on the issue of A.L.G.'s parentage. Finding number 7 of the January 1995 dissolution decree states that "there is one minor child born as issue of this marriage, namely: [A.L.G.], born November 28, 1992." Appellant was a party to the dissolution proceeding and final decree. Neither party appealed from that judgment. The parties to this action are the same. Since the appeal time has now expired, the doctrine of res judicata bars the paternity action appellant brought on her own behalf. See State ex rel. Ondracek v. Blohm , 363 N.W.2d 113, 115 (Minn. App. 1985) (paternity findings in a final dissolution decree constitute a final judgment on the merits for purposes of res judicata).
II.

Res Judicata As to A.L.G.
As to A.L.G., appellant Nicholson basically argues that A.L.G.'s "cause of action" against respondent to determine paternity should not be barred by the doctrine of res judicata. We agree, but not for any of the reasons advanced by appellant Nicholson. Rather, we conclude that appellant Nicholson, on this set of facts, is completely without standing to bring this most serious action on behalf of A.L.G., a minor too young to comprehend what rights are involved. Thus, we simply vacate and dismiss that portion of appellant's action that purports to state a claim on behalf of A.L.G.
To support her argument that A.L.G. has a cause of action and that we should reverse the trial court, appellant cites to Johnson for the proposition that A.L.G. was not in privity with appellant because A.L.G.'s interests were not represented in the earlier adjudication. Johnson , 447 N.W.2d 871. Thus, appellant argues she can bring this action on behalf of A.L.G. and that A.L.G. is not precluded by appellant's failure to appeal the dissolution decree. In Johnson , the supreme court did hold that "[u]nless a child's specific interests on paternity are addressed on the merits, a separate cause of action will be available to such child in another proper action." Id. at 877. The court noted that the existence of privity requires an evaluation of the "commonality of interests" of the relevant persons. Id. at 874.
We are instructed by Johnson . Specifically Johnson states, "in another proper action." Id. This action brought by appellant Nicholson, at least insofar as it purports to include A.L.G., is not proper. See Minn. Stat. § 257.60 (1994) (providing that a guardian ad litem, and not the child's mother or father, should represent a minor child in a paternity action). Also, in Johnson there were different facts. There, at the time of the initial paternity action, the child was a six-month old infant unrepresented by independent counsel and without a guardian ad litem. The mother failed to appear for trial and the court dismissed the case with prejudice, and the issue of parentage was never reached. Id. at 874-76. Here, none of these facts exists. The issue of parentage was previously reached and decided, and never appealed. Respondent in all respects is the legal father of A.L.G. and the record supports no inference other than that he is also the biological father.
Appellant Nicholson, by affidavit, claims now that she is not sure of paternity, and has curiosity as to who the father might be. The record is devoid of any facts, and lacks any showing of proof by appellant, that she has any idea who A.L.G.'s father might be, if it is not respondent.
Appellant cites to an unpublished case, County of Chisago v. L.J.B. , No. C8-95-669 (Minn. App. Sept. 5, 1995), review denied (Minn. Nov. 15, 1995), to support her argument that we should reverse the trial court and rule that appellant can continue on behalf of A.L.G. to proceed with her demands for blood testing. We note that Chisago , like Johnson , dealt with a situation where the minor child was born outside of a marriage. In Chisago , as a result of a paternity action brought by the mother and the County of Chisago, L.J.B. was adjudicated the father of the child. Subsequent blood tests unequivocally excluded L.J.B. from being the child's biological father. L.J.B. then moved to vacate the paternity judgment. This court allowed the child, represented by a guardian ad litem, to pursue a separate paternity action to determine the child's biological father.
Chisago makes sense because there the so-called "unwed legal father" had been unequivocally excluded by subsequent blood testing from being the child's father. In Chisago , we were trying to avoid a situation where the child could have ended up with "two legal fathers." That fact situation is 180 degrees different from the fact situation before us here. Here. we have an intact legal relationship going back to the birth of A.L.G. during the marriage. At all times both appellant and respondent acknowledged A.L.G. to be their child, raised her as such, and in their dissolution, and after, they have continued to provide for A.L.G.'s care and nurturing as parents.
It is only now, when appellant has become frustrated in her attempts to wrest legal and physical custody of A.L.G. away from respondent, that she remembers that back at the time of A.L.G.'s conception, she thinks she had intercourse with two men other than respondent. Her own sworn affidavit, a part of the record, sets out her curiosity, and sets out her claim that she was afraid to talk about this when it might have been timely because of her admitted drug addiction. She now avers that she is not sure who A.L.G.'s biological father might be and avers that she thinks she would like to know for sure. Thus, years after the appeal time from the dissolution decree expired, and with no proof whatsoever of whom A.L.G.'s father might be, if it is not respondent, she makes this motion on behalf of herself and as a self-styled guardian on behalf of A.L.G. to ask the court now for blood testing to satisfy her curiosity. As noted above, we affirm the trial court's dismissal of her paternity complaint as to her on the grounds of being barred by the doctrine of res judicata.
As to A.L.G., if the facts were that another unidentified man had already stepped forward, admitted that he was the father, and a blood test had been done unequivocally excluding respondent, we are not saying what our decision would be. Those facts are a hypothetical we need not answer. But that set of facts could arguably give rise to Johnson and Chisago equities that are lacking here.
All cases cited by appellant Nicholson are distinguishable. They typically involve a mother and/or the minor child, and/or a state agency paying AFDC attempting to locate and identify a reluctant father. Realistically, that is the procedural posture in which virtually all paternity law has been established in this state and others. Here, we have the direct opposite. Appellant is intentionally trying to drive off her child's adjudicated father, who stands ready, willing, and able to provide continued love, care, and child support that he has been supplying since A.L.G.'s birth.
Had a consensual blood test been taken months or years ago that with certainty excluded respondent as the biological father, and had the district court, being advised of that fact, ignored it, again without knowing what our decision would be, the equities outlined in Johnson would come to the surface. But they have not. That is a hypothetical we do not reach.
We need not decide whether the so-called paternity complaint in A.L.G.'s name filed by her mother on A.L.G.'s behalf is forever barred by res judicata. We do not need to decide that because we simply vacate that portion of appellant Nicholson's complaint that purports to relate to A.L.G. Only the portion of appellant Nicholson's complaint that relates to herself is before us for a decision on the merits. As to appellant Nicholson, we affirm the trial court's granting of summary judgment against her and in favor of respondent. But we vacate that portion of appellant Nicholson's complaint that purports to set out a cause of action on the part of A.L.G. with the following analysis: Appellant Nicholson's vested interest is only to remove respondent from the picture and take legal and physical custody away from respondent. See Minn. Stat. § 257.60 (1994) (providing that a guardian ad litem, and not the child's mother or father, should represent a minor child in a paternity action).
It cannot be argued that appellant Nicholson has A.L.G.'s best interests in mind. Respondent has been a loving and caring parent and has borne his share of responsibility for A.L.G.'s upbringing since birth. Appellant Nicholson has brought forth neither a responsible person who claims to be A.L.G.'s biological father, nor one shred of evidence that respondent is not. She has stated in her affidavit that she is curious as to who A.L.G.'s father might be, did not bring up the issue before because she was in treatment, and thinks now she would like to "be sure." That is the sum total of the evidence she presented to the trial court as part of her motion to compel blood testing years after the appeal time from the marriage dissolution decree expired.
Appellant's attorney argues that A.L.G. was not in privity with her mother on the prior dissolution between appellant and respondent. What is crucial to us is that on these facts A.L.G. has no privity, no commonality with her mother so as to make her mother a competent person to decide whether to bring this action on A.L.G.'s behalf. A true court-appointed guardian ad litem, whether for a minor or an adult, under any kind of disability, acts truly on behalf of the client, and that can involve coming between the client and his parents, his spouse, his children, and the world. As stated above, appellant Nicholson is not bringing this action for A.L.G., but rather for her own self-serving motives. As of the date of this opinion, A.L.G. is not yet four years old, and was not even three when appellant Nicholson dated the summons and complaint. Thus, by definition, A.L.G. is far too young to have any comprehension, any understanding, and is not capable of any acquiescence in what her mother is attempting to do "on her behalf." It is for that reason we vacate that portion of appellant Nicholson's complaint that purports to state a cause of action on behalf of A.L.G.
It is not our intention to affect any rights of A.L.G. that she may have in the future, setting aside the question whether she would want to exercise any, if any exist. When A.L.G. is of sufficient age, perhaps 12 to 14 (and that is an issue for another court at another time), and in a position to discuss her options knowledgeably with an objective guardian ad litem outside of her own family, she will then be in a position to decide whether she wishes to pursue the question her mother raises today. Should A.L.G. wish to pursue that question, it would be foolish and unenforceable of this court today to state that she can or cannot. She will make her own decision then. She may do nothing and continue her relationship with her father, respondent. It may be that if tests are taken, respondent will continue to be shown to be her father. Those issues are not before us. We leave them to another day and to another court, and until a time when A.L.G. herself can have a chance to be heard. But we do speak to them because it would be unwise to be silent. Because appellant Nicholson has brought this action in a trial court of public record, and because this opinion is in a court of record, it is a certainty that when A.L.G. is of cognitive age, her mother, or some other person, will bring this case to her attention. It would be misleading at best, arrogant at worst, for this court to assume that by a simple affirmance, (which is tempting) the issue appellant raised would disappear forever. Appellant, not this court, has brought this issue into A.L.G.'s life.
In sum, we have affirmed the trial court order dismissing appellant Nicholson's claim as to her cause of action as to herself on the grounds of res judicata.
Neither party is awarded any attorney fees or costs for this appeal. The trial court's denial of attorney fees and costs to either party is affirmed.
A.L.G. is not properly represented in this lawsuit nor properly brought into it. Thus, we have vacated that part of the summons and complaint, that part of the lawsuit relating to any purported cause of action on behalf of A.L.G. No rights that she has can be affirmed or denied, or precluded, or in any way affected by this decision.
The status quo as to A.L.G.'s paternity continues. Respondent is her father. We do not reach any speculative issues concerning her paternity.
Affirmed in part, vacated in part.


1
  • *
Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.