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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,


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

          Before:     Fabe,  Chief  Justice,  Matthews,
          Bryner,  and Carpeneti, Justices.  {Eastaugh,
          Justice, not participating.]

          CARPENETI, Justice.


          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



          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


          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.


          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


     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
          (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


          [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
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


          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



          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

     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

     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

     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