Sampson County ex rel. Child Support Enforcement Agency v. Stevens

WELLS, Judge. Plaintiff assigns as error the trial court’s dismissal of plaintiffs complaint on the grounds of res judicata. “ ‘Res judicata deals with the effect of a former judgment in favor of a party upon a subsequent attempt by the other, party to relitigate the same cause of action. . . .’ ” State v. Lewis, 311 N.C. 727, 319 S.E. 2d 145 (1984) (quoting King v. Grindstaff, 284 N.C. 348, 200 S.E. 2d 799 (1973)). In Masters v. Dunstan, 256 N.C. 520, 124 S.E. 2d 574 (1962), our Supreme Court stated: An estoppel by judgment arises when there has been a final judgment or decree, necessarily determining a fact, question or right in issue, rendered by a court of record and of competent jurisdiction, and there is a later suit involving an issue as to the identical fact, question or right theretofore determined, and involving identical parties or parties in privity with a party or parties to the prior suit. In September 1979, defendant in this case was arrested for allegedly violating G.S. § 49-2, which provides in part: “Any parent who willfully neglects or who refuses to provide adequate support and maintain his or her illegitimate child shall be guilty of a misdemeanor and subject to such penalties as are hereinafter provided.” In order to be found guilty of violating G.S. § 49-2, “[T]wo essential elements must be established: First, that the defendant is a parent of the illegitimate child in question; and second, that the defendant has willfully neglected or refused to support such child.” State v. Hobson, 70 N.C. App. 619, 320 S.E. 2d 319 (1984). On 29 November 1979, the district court judge returned a verdict of not guilty in the form of a general verdict in favor of defendant. On 29 May 1985, plaintiff herein instituted the present action seeking relief pursuant to G.S. § 49-14 and § 49-15. G.S. § 49-14(a) provides in part: “The paternity of a child born out of wedlock [526] may be established by civil action. . . Once paternity is established by civil action under G.S. § 49-14 the father may be compelled by G.S. § 49-15 to provide for reasonable support of the child. A comparison of G.S. § 49-2 and G.S. § 49-14 shows that: “[T]he issue of paternity is the entire thrust of the civil action under G.S. § 49-14, whereas the focus of the crime punishable by G.S. § 49-2 is the wilful failure to pay support for an illegitimate child, not paternity, because the statute does not make the mere begetting of a child a crime.” Stephens v. Worley, 51 N.C. App. 553, 277 S.E. 2d 81 (1981). In Stephens, supra, under facts practically indistinguishable from the facts in this case, this Court held that a general verdict of not guilty of a G.S. § 49-2 charge does not operate as res judicata on the issue of paternity in a subsequent G.S. § 49-14 and -15 action to establish paternity and require support of an illegitimate child. It is therefore clear that the trial court erred in allowing defendant’s motion to dismiss this action on grounds of res judicata. The order of the trial court must be and is Reversed. Judges BECTON and PHILLIPS concur.