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Virginia Beach Divorce Lawyers Norfolk Court Marriage Children Support Norfolk Hampton Portsmouth Chesapeake Hampton Roads Tidewater Area

Deborah Maher v. Gary Alcon

CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, VIRGINIA

40 Va. Cir. 238

The defendant in the divorce action, Joseph Wozniak, was not personally before the court, having been served by Order of Publication. Appellant now claims that the respondent in this action, Gary Alcon, is the father of the child and seeks a determination ofpaternity and an order of child support. The Virginia Beach Juvenile and Domestic Relations District Court (Ronald H. Marks, Judge) dismissed appellant's petition for child support.

Issue:

Whether the finding of paternity in a divorce decree was res judicata against the mother?

Whether the lack of personal jurisdiction over the husband in the divorce action?

1) Whether the finding of paternity in a divorce decree was res judicata against the mother?

The court held that "it is likely thatthe juvenile court used the term res judicata broadly and actually based its ruling on the doctrine of collateral estoppel. Collateral estoppel is a form of res judicata that does not require that the two actions be identical, but precludes the relitigation of a factual issue that was actually litigated in the first action. "The doctrine of collateral estoppel provides that parties to an action and their privies are precluded from litigating in a subsequent action any issue of fact actually litigated and essential to a valid and final personal judgment in the first action'." It is clear that neither the doctrine of res judicata nor the doctrine of collateral estoppel is available as defenses to this action. The respondent in this action was not a party to the first action, nor can the court find any basis for declaring respondent and petitioner's ex-husband to be "privies.""

2)Whether the lack of personal jurisdiction over the husband in the divorce action?

This court holds that this respondent lacks standing to raise the defenses of res judicata and collateral estoppel, that issue will not be addressed.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.

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