Joycelyn Vanterpool v. David Patton

• Court: Court of Appeals of Georgia
• Decided: October 28, 2019
• Docket: A19A1108
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., COOMER and MARKLE, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

October 28, 2019

In the Court of Appeals of Georgia A19A1108. VANTERPOOL v. PATTON.

COOMER, Judge.

In this paternity case, Joycelyn Vanterpool, M.D. (“Vanterpool”), appeals the

trial court’s order finding that she was estopped from claiming her ex-husband David

Patton (“Patton”) is the father of her child based on their prior divorce decree

deeming that there were no children at issue of the marriage. For the following

reasons, we affirm.

“We conduct a de novo review of a trial court’s ruling on a motion to dismiss.”

Daniel v. Fulton County, 324 Ga. App. 865, 866 (752 SE2d 1) (2013) (citation

omitted).

The record shows that Vanterpool and Patton married in 2010 and separated

in August 2013. In January 2014, Patton filed for divorce. In her answer and counterclaim, Vanterpool stated there were no children born or expected of the

marriage. While the divorce was pending, the parties consented to Vanterpool

undergoing an in vitro fertilization procedure (“IVF”) using donor ova and donor

sperm.1 Vanterpool began receiving preparatory treatment for the IVF procedure in

August 2014. On September 15, 2014, both parties signed an informed consent

agreement with the IVF clinic that included standard, preprinted language stating that

Patton would accept the newborn child as his own with all parental rights and

responsibilities. On November 10, 2014, Vanterpool underwent the IVF procedure

in the Czech Republic.

The trial court held a final hearing on the divorce complaint on November 14,

2014, at which only Patton and his attorney appeared. Later that day, the trial court

entered a final judgment and decree of divorce, which had been signed and consented

to by both parties, and which had been prepared by Patton’s counsel. The divorce

decree itself stated that there were no minor children born of or at issue in the

marriage. It also incorporated the parties’ settlement agreement, which stated that

there were no children born as issue of the marriage, and that the parties desired that

1 Patton has maintained that he consented to the IVF procedure under duress. Whether his consent was given voluntarily or under duress is not at issue in this appeal.

2 the agreement settle “all matters, questions, and controversies . . . of any nature

whatsoever each may have against the other arising from the marital relationship.”

The terms of the agreement were reached at mediation on April 28, 2014; the

agreement itself is dated October 21, 2014, and it shows that Vanterpool signed it on

October 21, 2014, and that Patton signed it on July 2, 2014. Vanterpool did not appeal

the divorce decree.

On June 6, 2015, just shy of seven months after the final divorce decree was

entered, Vanterpool gave birth to twins as a result of the IVF procedure.2

Prior to the birth of the twins, in May 2015, Vanterpool filed a motion to set

aside the divorce decree. She asserted that the decree was the result of fraud or

mistake, as Patton was aware of her state of gestation when he presented the parties’

mediated agreement to the trial court, and the trial court should not have granted the

divorce as presented due to her state of gestation at the time of the final hearing.

At the hearing on the motion to set aside, Vanterpool testified that she told

Patton she had undergone the IVF procedure prior to the entry of the divorce decree.

Patton confirmed this in his testimony, but stated that he was not sure whether to

believe Vanterpool at that time. Vanterpool also testified that she mentioned her plan

2 One of the twins died shortly after birth.

3 to undergo IVF to her attorney during the divorce case, and she did not attend the

final hearing because Patton told her not to go, and her attorney told her she did not

need to appear. She further testified that her first “official” test, a serum test,

confirming her pregnancy occurred on November 24, 2014. However, another reason

she did not appear at the hearing was that she thought she was pregnant based on the

results of a prior home pregnancy test. Vanterpool’s counsel from the divorce case

testified that he did not recall her telling him about her plan to undergo IVF during

the case.

The trial court denied the motion to set aside. First, the trial court found that

there was no evidence Patton committed fraud by proceeding with the divorce as

scheduled on November 14, 2014, as there was no evidence that at the time of the

final hearing he was aware Vanterpool was pregnant, and the parties did not mention

children in their mediated agreement. Second, the trial court found that Vanterpool

could not show Patton’s actions were unmixed with her negligence or fault, as she

failed to mention the IVF treatments to her counsel, there was no language addressing

her IVF treatments in the settlement agreement, and the final hearing was scheduled

at her request. Vanterpool did not appeal the denial of her motion to set aside.

4 In December 2015, Vanterpool filed this paternity action against Patton.

Vanterpool filed a motion for summary judgment on the issue of paternity under § 19-

7-21, which the trial court granted.3 Patton appealed, and the Georgia Supreme Court

reversed, holding that the irrebuttable presumption created with respect to children

conceived by means of “artificial insemination” under § 19-7-21 does not extend to

children conceived by IVF. Patton v. Vanterpool, 302 Ga. 253 (806 SE2d 493)

(2017). The Supreme Court’s decision left open the issue of whether Vanterpool “may

establish legal paternity through other means, such as OCGA § 19-7-20.”4 Id. at 257

n. 7.

Following the Supreme Court opinion, back in the trial court, Patton filed a

motion for summary judgment and motion to dismiss, arguing that Vanterpool was

barred by collateral estoppel and res judicata from bringing her paternity claim

because the issue of a child being born of the marriage had already been litigated

during the divorce, and the trial court had issued a final order in the divorce action

3 OCGA § 19-7-21 provides: “All children born within wedlock or within the usual period of gestation thereafter who have been conceived by means of artificial insemination are irrebuttably presumed legitimate if both spouses have consented in writing to the use and administration of artificial insemination.” 4 OCGA § 19-7-20 (a) provides that “[a]ll children born in wedlock or within the usual period of gestation thereafter are legitimate.”

5 indicating there were no children born of the marriage. Vanterpool responded that any

bar based on collateral estoppel or res judicata would violate OCGA § 19-7-20, as the

statute would effectively have to be re-written if a mother could not establish the

paternity of a child born within the usual period of gestation after the marriage simply

because the divorce documents did not specifically provide for unborn children. She

argued that the issues of paternity and custody were not addressed or litigated in the

divorce case, and this was the first time paternity had been addressed.

The trial court granted Patton’s motion, concluding that Vanterpool was

estopped from proceeding on this paternity action because the issue had been

previously litigated in the divorce proceeding. The trial court noted that Vanterpool’s

answer and counterclaim affirmatively stated there were no children born or expected

of the marriage. The trial court also found that the IVF procedure occurred during the

pendency of the divorce, Vanterpool had knowledge of her pregnancy at the time of

the divorce proceeding, she requested the final hearing in the divorce case and was

aware of the hearing. Finally, the trial court stated that there was no biological

connection between Patton and the children.

Vanterpool then filed an application for discretionary review, which we

granted. This appeal followed.

6 1. Vanterpool argues that the trial court erred by finding that res judicata barred

her claim to establish paternity. We disagree.

OCGA § 9-12-40 provides that “[a] judgment of a court of competent

jurisdiction shall be conclusive between the same parties and their privies as to all

matters put in issue or which under the rules of law might have been put in issue in

the cause wherein the judgment was rendered until the judgment is reversed or set

aside.” See Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865 (1) (463 SE2d

5) (1995) (“The doctrine of res judicata prevents the re-litigation of all claims which

have already been adjudicated, or which could have been adjudicated, between

identical parties or their privies in identical causes of action.” (citations omitted)).

“Three prerequisites must be satisfied before res judicata applies – (1) identity of the

cause of action, (2) identity of the parties or their privies, and (3) previous

adjudication on the merits by a court of competent jurisdiction.” Id. at 866 (1)

(citations omitted).

Here, the final judgment and decree of divorce included a finding of fact by the

trial court that the parties had “no minor children born of or at issue in this marriage.”

We therefore find that the issue of paternity was effectively adjudicated in the divorce

proceeding. Vanterpool relies on Pike v. Armburst, 117 Ga. App. 756, 757 (2) (161

7 SE2d 896) (1968). Pike, however, does not require a different result. In Pike, this

Court held that res judicata did not bar a child from litigating the issue of her

parentage. While the pleadings in the husband and wife’s prior divorce action alleged

that there were no children of the marriage, the final decree made no such finding or

any provisions for a child. By contrast, in this case, a court of competent jurisdiction

rendered a final judgment concluding that Vanterpool and Patton had no children

born or at issue of their marriage. Therefore, res judicata prevents the same parties

from litigating the same issue upon which a court has rendered a judgment. See

Brooks v. Lopez, 350 Ga. App. 390, 392 (1) (829 SE2d 470) (2019) (where “previous

divorce decree . . . recited that the ‘parties shall share joint legal custody of the

parties’ minor child,’ . . . the issue of the paternity of the minor child was effectively

adjudicated in the prior divorce proceedings[.]” (citations omitted)); Fleeman v. Dept.

of Human Resources, 208 Ga. App. 97, 97 (430 SE2d 135) (1993) (paternity claim

barred where the court, in a prior divorce decree, “made a finding of fact that the

parties had ‘no minor children who are the issue of the marriage or the issue of the

parties.’”), overruled on other grounds by Dept. of Human Resources v. Fleeman, 263

Ga. 756 (439 SE2d 474) (1994); Macuch v. Pettey, 170 Ga. App. 467, 468 (1) (317

SE2d 262) (1984) (res judicata barred re-litigating paternity where the divorce decree

8 “referred to “[the couple’s]” minor child in delineating the rights and duties of the

parties.”).

2. Vanterpool next argues that the trial court erred in finding that collateral

estoppel barred her paternity claim. We disagree.

In Georgia, the collateral estoppel doctrine precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim.

Thomas County Bd. of Tax Assessors v. Thomasville Garden Center, Inc., 277 Ga.

App. 591, 593 (2) (627 SE2d 192) (2006).

Based on our analysis in Division 1, collateral estoppel likewise precludes

Vanterpool’s paternity action. The same parties in a prior action (divorce) agreed that

there were no children born of the marriage, and that finding was adopted by the trial

court in a final order. That issue may not now be re-litigated in this proceeding.

Moreover, “[p]arties to stipulations and agreements entered into in the course of

9 judicial proceedings are estopped from taking positions inconsistent therewith[.]”

Macuch, 170 Ga. App. at 468 (1). Vanterpool’s declaration in her answer to the

divorce suit that there were “no children born or expected of [the] marriage” is

inconsistent with her attempt to now legally establish that there were children born

of the marriage. Thus, the preclusion doctrines apply to bar her paternity action.

3. Based on our holding that Vanterpool’s claim is barred, we need not address

her final enumeration in which she argues that the trial court erred in granting

summary judgment to Patton.

Judgment affirmed. Doyle, P. J., and Markle, J., concur.