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McElroy v. Kennedy (8/1/2003) sp-5719
McElroy v. Kennedy (8/1/2003) sp-5719
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
BRANDYWYN McELROY, )
) Supreme Court No. S-10380
Appellant, )
) Superior Court No.
v. ) 4FA-00-2578 CI
)
ALBERT KENNEDY, ) O P I N I O N
)
Appellee. ) [No. 5719 - August
1, 2003]
_______________________________ )
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Ralph R. Beistline, Judge.
Appearances: Gloria Hanssen Hooper,
Fairbanks, for Appellant. No appearance for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Bryner, and Carpeneti, Justices. {Eastaugh,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
I. Albert Kennedy sued Brandywyn (Bryn) McElroy for return
of child support that he had paid. He lost the case. In a
second lawsuit, Kennedy obtained a judgment against McElroy that
required her to return child support she had received from
Kennedy. McElroy challenges the denial of her motion to dismiss
the second lawsuit. Because we agree with McElroy that res
judicata should have acted as a bar to relitigation of the
restitution issue, we reverse the superior courts denial of her
motion to dismiss. It is therefore unnecessary to reach the
superior courts decision to grant summary judgment in favor of
Kennedy.
II. FACTS AND PROCEEDINGS
Albert Kennedy and Bryn McElroy began dating in high
school and maintained a romantic relationship for several years,
but never married. During the summer of 1994, the couple briefly
split, and McElroy engaged in sexual relations with another man,
Terry Knear. In August or September of 1994 the couple resumed
their relationship. McElroy gave birth to a son, Leon, on July
27, 1995. Kennedy signed papers at the hospital acknowledging
his paternity of Leon, and he was subsequently listed on Leons
birth certificate as his father.
The couple separated in 1998, and apparently maintained
some form of informal joint custody until March of 2000 when
McElroy filed a complaint for child custody with the superior
court in Fairbanks, in Case No. 4FA-00-587 Civil. She asked the
court to award joint legal custody and to grant her child
support. In his answer, Kennedy admitted he was Leons father,
agreed that the parties should share legal custody and
counterclaimed for primary physical custody. While Kennedy and
McElroy awaited the courts order, the Child Support Enforcement
Division (CSED) issued a child support order against Kennedy on
April 26, 2000, requiring him to pay McElroy $404 per month
effective June 1, 2000 and $9,262 in back child support for the
time between July 1998 and May 2000. Kennedy did not contest
either the amount of support or the finding of paternity. He
paid the ordered amounts on May 25. On July 24, 2000 Superior
Court Judge Niesje J. Steinkruger granted McElroys motion for
temporary shared custody, establishing an approximate 43/57
custody split and granting McElroy $93.81 per month in child
support to be paid by Kennedy. The court made the support order
effective February 1, 2000, so it covered six months of back
support by the time it was issued. A trial date was set for
October 23.
In the meantime, at the urging of Kennedys current
wife, Kennedy and Leon underwent voluntary paternity testing in
June of 2000 without McElroys knowledge. In July Kennedy learned
he was not Leons biological father. Based on this information,
Kennedy decided he no longer wanted to be a part of Leons life.
On August 9, 2000 Kennedy moved the court to legally disestablish
his paternity, terminate his legal duty to support Leon, require
McElroy to reimburse him for support paid between February and
June 2000, direct CSED to cease collection efforts against him,
and change Leons last name from McElroy-Kennedy to McElroy. In
the memorandum filed in support of his motion, Kennedy asked the
court to vacate the temporary child custody and support order
under Alaska Civil Rule 60(b)(5),1 thereby providing him with
prospective relief. He also asked for retrospective relief in
the form of reimbursement of either all the financial support
received by McElroy between February 1 and June 1, 2000, or the
difference between the amount Kennedy was ordered to pay by the
court ($93.81 per month) and the amount he was ordered to pay by
CSED ($404 per month).2
McElroy did not object to Kennedys motion to
disestablish paternity, but she did challenge his claim for
reimbursement of support. She argued that because Kennedy was
Leons legal father during the period of time in question, he was
not entitled to reimbursement of child support payments made
prior to the disestablishment of his paternity. After
considering Kennedys and McElroys arguments regarding the
equities in the case, Judge Steinkruger issued an Order Regarding
Paternity and Support, granting Kennedys motion in part, but
rejecting his request for reimbursement from McElroy and refusing
to set aside CSEDs order because CSED was not a party to the
case. In her dismissal order of September 5, 2000, Judge
Steinkruger terminated Kennedys future child support obligations
pursuant to the temporary order she had issued, changed Leons
last name, and dismissed the action with prejudice.
Rather than appealing Judge Steinkrugers decision,
Kennedy moved for reconsideration, arguing that the superior
court had overlooked or failed to consider an applicable statute
in reaching its decision. Because his motion for reconsideration
was late, Kennedy also filed a Motion to Accept Late Filing of
Motion for Reconsideration, arguing that overlooking the relevant
statute constituted good cause for the late filing. The court
determined that this did not constitute good cause, and denied
the motion without prejudice, instructing Kennedy that he could
refile with good cause shown. He did not do so, nor did he
appeal.
On November 16, 2000 Kennedy instituted a new case, No.
4FA-00-2578 Civil. Naming both McElroy and CSED as defendants,
he sought to vacate the CSED administrative order of child
support and obtain restitution of all of the child support he had
already paid. The case was assigned to Superior Court Judge
Ralph R. Beistline. In the complaint, styled as a Petition,
Kennedy cited the newly discovered evidence of Mr. Kennedys non-
paternity [which] now makes it apparent that CSEDs judgment was
obtained by the fraud, misrepresentation or other misconduct of
Bryn McElroy, or by mistake, inadvertence, surprise or excusable
neglect on the matter of Mr. Kennedys paternity. McElroy
answered in January 2001, asserting the affirmative defenses of
res judicata and/or collateral estoppel, laches, waiver, and
failure to state a claim upon which relief may be granted. In
February she filed a motion to dismiss on res judicata grounds.
Judge Beistline summarily denied McElroys motion to dismiss in
March. Kennedy then moved for summary judgment and his motion
was granted on September 17.
McElroy appeals the trial courts denial of her motion
to dismiss and its granting of summary judgment to Kennedy.3
Kennedy has not appeared.
III. STANDARD OF REVIEW
We review a motion to dismiss de novo.4 The question
whether res judicata or collateral estoppel applies is a question
of law, which we also review de novo.5
IV. DISCUSSION
The Superior Court Erred in Denying McElroys Motion To
Dismiss Action as Res Judicata.
Judge Beistline summarily denied McElroys motion to
dismiss Kennedys petition. McElroy argues that Judge
Steinkrugers decision in her Order Regarding Paternity and
Support should have operated as a bar to Kennedys petition for
restitution of child support on any basis. Kennedy has failed to
file a brief in this appeal, but in his Memorandum in Support of
Opposition to Motion to Dismiss Action as Res Judicata filed with
the superior court, he argued that the second action was proper
because he was asserting an independent justification for
reimbursement of child support, he was directly attacking the
final child support order for the first time, and he had added a
second party to the action.
Res judicata consists of both claim preclusion and
issue preclusion.6 Claim preclusion prevents a party from suing
on a claim which has been previously litigated to a final
judgment by that party . . . and precludes the assertion by such
parties of any legal theory, cause of action, or defense which
could have been asserted in that action.7 We have held that a
final judgment in a prior action bars a subsequent action if the
prior judgment was (1) a final judgment on the merits, (2) from a
court of competent jurisdiction, (3) in a dispute between the
same parties (or their privies) about the same cause of action.8
Whereas claim preclusion bars the litigation of any
cause of action arising out of a claim which has already been
litigated, issue preclusion, or collateral estoppel, renders an
issue of fact or law which has already been decided by a court of
competent jurisdiction conclusive in a subsequent action between
the same parties, whether on the same or a different claim.9 To
determine whether issue preclusion applies, we ask whether:
(1) the party against whom the preclusion is
employed was a party to or in privity with a
party to the first action;
(2) the issue precluded from relitigation is
identical to the issue decided in the first
action;
(3) the issue was resolved in the first
action by a final judgment on the merits; and
(4) the determination of the issue was
essential to the final judgment.[10]
Because we hold that Kennedys second action against McElroy is
barred by claim preclusion, we need not reach McElroys argument
regarding issue preclusion.
1. Final Judgment on the Merits
There is no dispute that Judge Steinkrugers Order
Regarding Paternity and Support and Order of Dismissal operated
as a final judgment on the merits. Following briefing by the
parties, Judge Steinkruger disestablished Kennedys paternity,
ordered his name removed from Leons birth certificate, and
legally changed Leons last name to McElroy. In addition, Judge
Steinkruger rejected Kennedys request for reimbursement of child
support in the amount of $1,429.91, declined to order CSED to
cease child support collection efforts against Kennedy since CSED
had not been named as a party to the action, and denied Kennedys
request for appointment of a guardian ad litem to protect Leons
interests. In the accompanying Order of Dismissal, Judge
Steinkruger dismissed the action with prejudice and vacated the
scheduled trial and pre-trial conference. There is no question
that these actions constituted a final judgment on the merits.
2. Court of Competent Jurisdiction
Similarly, there is no question that the superior court
is a court of competent jurisdiction.
3. Same Parties and Same Cause of Action
The same parties were indisputably involved in both
actions. While it is true that Kennedy added CSED as a defendant
in the case seeking to vacate CSEDs administrative order of child
support and for restitution of child support, the mere addition
of a second party does not change the fact that both McElroy and
Kennedy were parties to the first action and both were bound by
its results. And while Kennedy was required to sue CSED to
prospectively prevent collection of child support from him,11 he
could and did request reimbursement of child support paid to
McElroy pursuant to CSEDs order in the context of the first
proceeding. Adding CSED as a party does not lessen the res
judicata effect of Judge Steinkrugers decision.
With respect to the same cause of action requirement,
we employ a transactional analysis to determine what constitutes
a cause of action barred from relitigation by res judicata.12 As
explained in 24(2) of the Restatement (Second) of Judgments
(1982),
[w]hat factual grouping constitutes a
transaction, and what groupings constitute a
series, are to be determined pragmatically,
giving weight to such considerations as
whether the facts are related in time, space,
origin, or motivation, whether they form a
convenient trial unit, and whether their
treatment as a unit conforms to the parties
expectations or business understanding or
usage.[13]
Where more than one claim arises from the same transaction or
series of transactions, they must all be prosecuted in a single
legal action or be lost.
In the action before Judge Steinkruger, Kennedy asked
for partial restitution, either for the amount of child support
paid for the period between February and June 2001 pursuant to
the CSED order, or for the difference between the amount required
by the CSED order and Judge Steinkrugers Order Granting Motion
for Temporary Shared Custody. While Kennedy did not explicitly
state the basis for this request for restitution, he seems to
have been arguing that such reimbursement would be equitable
given the fact that he was found not to be Leons biological
father. As Kennedy explained:
CSED calculated Mr. Kennedys child
support obligation at $404 per month and
based his arrears on this amount. Between
February 1 and June 1, 2000, the plaintiff
received $2,020 in child support. Because
the paternity test shows that Mr. Kennedy is
not the childs father, the plaintiff should
reimburse Mr. Kennedy this entire amount.
If the court will not order the
plaintiff to reimburse Mr. Kennedy all of the
child support she received between February 1
and June 1, she should reimburse Mr. Kennedy
the difference between the amount he was
ordered to pay by this court ($93.81 per
month) and the amount he actually paid ($404
per month).
While Kennedy did not explicitly raise fraud as a basis for
restitution in his motion to disestablish paternity, he did
intimate in his reply brief that it was a factor in his decision
to seek restitution.14
In the second action, before Judge Beistline, Kennedy
asked for restitution of all child support paid pursuant to CSEDs
retroactive order on the ground that he was asserting an
independent justification for reimbursement of child support,
namely that McElroy defrauded him and misrepresented that he was
the childs father. He referred to the basis of his second
complaint as newly discovered evidence of Mr. Kennedys non-
paternity. While this evidence may have been discovered after
the entry of the support order against him, Kennedy was well
aware of that evidence as well as the alleged fraud and
misrepresentation at the time he litigated his motion to
disestablish paternity in Judge Steinkrugers court.
Both of these actions were therefore based on the same
underlying facts and transactions. As McElroy notes:
The facts at the basis of both claims are
closely related, indeed identical, in time,
space, origin, and motivation and form a
convenient trial unit. The precise facts,
evidence and witnesses which would have been
necessary to a trial in the first case (had
Albert requested a hearing on his claim for
partial reimbursement of child support) are
required in the restitution case.
While Kennedy did not explicitly accuse McElroy of fraud in the
context of the first action, his allegations in the second
proceeding were based on information available to him at the time
the first action was filed. Our case law has made clear that
where a party has had ample opportunity to litigate an issue, the
fact that he chose not to, whether because of a strategic
decision or ignorance or other reason, does not exempt him from
the principles of res judicata.15 Because Kennedy could have
pursued his claim of fraud or misrepresentation in the action
before Judge Steinkruger but for whatever reason chose not to, he
is barred by res judicata from doing so here.
Kennedy further argued that the second action was not
barred by res judicata because he was challenging for the first
time the validity of CSEDs child support order. Kennedy found
justification for this position in Dixon v. Pouncy,16 in which the
superior court rejected Irvin Dixons attempt, upon finding out
that he was not a childs biological father, to file a motion for
relief from a divorce decree naming him the father of the child
of the marriage.17 The superior court reasoned that while the
issue of paternity had not actually been litigated in the context
of the divorce proceeding, it could have been, and therefore,
Dixon was precluded from relitigating it at a later point in
time.18 We rejected that analysis, holding that because Dixons
motion constituted a direct attack on the divorce decree of the
type specifically contemplated by Rule 60(b), it could not be
barred by res judicata.19
Kennedy argued below that [t]his case represents a
direct attack on [the CSED] order that is being made now for the
very first time. Mr. Kennedy has not previously sought to attack
any order or decree on child support. The fact that he requested
partial reimbursement of child support due to conflicting child
support orders in no way represents a 60(b) motion or an attack
on any order or judgment. This direct attack argument does not
lend any further support to Kennedys claims against McElroy.
McElroy has never challenged Kennedys right to have CSEDs order
set aside under Rule 60(b). Her only objection has been to
reimbursing child support already paid to her pursuant to that
order. The validity of CSEDs order was not properly before Judge
Steinkruger because CSED was not named as a party to that action,
and therefore the decision in the first action can have no
preclusive effect as to CSED. However, whether McElroy must
reimburse Kennedy for child support paid has already been
decided. Any arguments Kennedy may have had with respect to that
claim should have been brought during the pendency of the first
action.
Whether Judge Steinkruger was correct in her decision
in 4FA-00-587 is not before us at the present time. If Kennedy
disagreed with the courts decision, he could have appealed it.20
Instead he chose to file a second action in 4FA-00-2578 asserting
claims based on the same set of facts and transactions Judge
Steinkruger had already issued a ruling on. Because Kennedy
could have raised the issues of fraud or misrepresentation in the
first proceeding, res judicata bars him from doing so in the
second.
V. CONCLUSION
Res judicata bars any causes of action related to
restitution, which could have been decided by Judge Steinkruger
in 4FA-00-587, from being raised in the new action, 4FA-00-2578,
before Judge Beistline. Accordingly, we REVERSE the denial in
4FA-00-2578 by Judge Beistline of McElroys motion to dismiss on
res judicata grounds. We REMAND with instructions to DISMISS
Kennedys case.
_______________________________
1 Alaska Civil Rule 60(b)(5) provides for relief from a
final judgment, order, or proceeding where it is no longer
equitable that the judgment should have prospective
application[.]
2 While the CSED award became effective on a monthly
basis on June 1, 2000, the lump sum of back support included the
period between February 1 and June 1. Because Kennedy believed
the superior courts judgment had modified CSEDs order, he argued
that he had overpaid child support during that time.
3 Because we reverse the superior courts denial of
McElroys motion to dismiss, we do not reach the superior courts
decision to grant summary judgment to Kennedy.
4 Nunez v. Am. Seafoods, 52 P.3d 720, 721 (Alaska 2002).
5 Rapoport v. Tesoro Alaska Petroleum Co., 794 P.2d 949,
951 (Alaska 1990); Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979).
6 Dixon v. Pouncy, 979 P.2d 520, 523 (Alaska 1999).
7 Id. (quoting Moores Federal Practice 131.10[1][a] (3d
ed. 1997) (alteration in original)). See also Restatement
(Second) of Judgments 24(1) (1982) (expansively defining claim
extinguished by valid and final judgment on merits as including
all rights of the plaintiff to remedies against the defendant
with respect to all or any part of the transaction, or series of
connected transactions, out of which the action arose).
8 Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166
(Alaska 1997) (citing Blake v. Gilbert, 702 P.2d 631, 634-35
(Alaska 1985), overruled on other grounds by Palmer v. State, 770
P.2d 290 (Alaska 1989)).
9 Restatement (Second) of Judgments 27 (1982).
10 Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631,
634 (Alaska 1999).
11 While Kennedy asked Judge Steinkruger to order CSED to
cease child support collection efforts against him, she declined
to do so because CSED was not named as a party to the first
action. Instead, Judge Steinkruger instructed Kennedy to
independently seek relief in his administrative case.
12 Plumber, 936 P.2d at 167.
13 See also White v. State, Dept of Natural Res., 14 P.3d
956, 959-60 (Alaska 2000).
14 In his Reply to Memorandum of Qualified Non-Opposition
to Motion to Disestablish Paternity and Opposition to Child
Support Reimbursement filed before Judge Steinkruger, Kennedy
maintained that [h]ad the plaintiff been forthright and truthful
five years ago, Mr. Kennedy would have pursued this matter much
sooner . . . . He also stated that [h]e had no first-hand
knowledge of any intimate relationships that the plaintiff may
have been involved with at the time Leon was conceived, and in
fact, never questioned the plaintiffs word regarding this issue.
15 White, 14 P.3d at 961-62 (quoting Plumber, 936 P.2d at
168).
16 979 P.2d 520 (Alaska 1999).
17 Id. at 522.
18 Id. at 522-23.
19 Id. at 524.
20 Kennedys motion for reconsideration was brought within
the time for appeal. As such, he could have appealed Judge
Steinkrugers decision rather than requesting reconsideration.
Additionally, Kennedy could have appealed the denial of his
motion for reconsideration. Finally, Kennedy could have brought
a motion to set aside Judge Steinkrugers order under Civil Rule
60(b)(1) on the basis of mistake of law. We express no opinion
on the question whether Kennedy may still seek relief on Rule
60(b) grounds in 4FA-00-587 or on the merits of the underlying
claim.
