Dismissal/ Burden of Proof

[annemichellesdad]

This is a followup to several posts I've had over the past few months. I filed for a declaratory judgment seeking recognition of my parental rights in GA as established in VA.

Quick background. Child was born and legitimated in the state of VA in 1997. We were both recognized as "fully equal guardians, with equal legal rights and equal legal powers in regards to [our] child." . Fast-forward to GA in 2000. Mommy decided to leave and take child with her. She says that child is illegitimate and that she has "all the rights". We co-parent voluntarily for about 2 1/2 years. Over the next six months, she begins withholding child. I file for an order of joint legal and physical custody. In her response, mother says that child is illegitimate and asks that the petition be dismissed.

There is no formal hearing. We meet in judges chambers (NEVER again!). Her attorney says case should be dropped because child is illegitimate. I show (as stated in my petition) that the child was FULLY legitimate in VA, and that federal law specifically requires all states to provide full faith and credit to determinations of paternity to all others states with the same force and effect as they enjoyed in their original state. Judge arrogantly states (verbatim): "I don't follow Virginia law. And I don't follow federal law."

(GA statute provides that stating the foreign law for which the litigant desires recognition in pleadings constitutes sufficient judicial notice for full recognition. Both VA and Fed laws were stated in the original pleading.)

There's no question that the child was legitimate in VA. The problem is having her recognized as such in GA. The pleadings of foreign law should have been sufficient. In addition, GA public policy expressly prohibits the "de-legitimation" of a legitimate child.

The hearing in chambers lasted about 90 seconds. The order states:

"Plaintiff contends that the child is legitimate and he brings this Petition to gain recognition of his rights by what he contends is Virginia law. The Court finds that the Plaintiff has not met his burden of proof and the Petition for Joint Custody is dismissed."

In response to my petition for declaratory judgment, respondent states:

"Plaintiff's Complaint is barred in whole or in part by the doctrine of res judicata due to the previous order entered on November 19, 2003, which dismissed Plaintiff's claims for custodial rights of the minor child based upon VA law. The Court found that Plaintiff had failed to meet his burden of proof for attaining custodial rights, based upon VA law, and dismissed his action. Plaintiff is now attempting to take a second bite at the apple in bringing this action against Defendent based upon his alleged custodial rights."  [END OF QUOTED RESPONSE]


Supreme Court Rule 67.03 states:

"Any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify." The general rule is . . . that "a dismissal without prejudice is not a final judgment," and, therefore, cannot be appealed." In a case of a dismissal without prejudice, a plaintiff typically can cure the dismissal by filing another suit in the same court; hence, a dismissal without prejudice is not a final judgment for purposes of appeal. In most instances, a dismissal without prejudice does not constitute an adjudication on the merits."

1a - The order does not specify that it is dismissed with prejudice. Seen in this light, and considering Supreme Court Rule 67.03, does the above order seem to be a final order subject to res judicata, serving as a bar in any way to future litigation? Or, is it dismissed without prejudice?

1b - Seems to me that "failure to meet a burden of proof" constitutes a dismissal of the petition, but not one of the merits of the action itself. Thus, a dismissal on the basis for such a failure would not automatically preclude a plaintiff from reasserting the claim based upon new factual allegations. Correct?

2a - The Order says the request for joint custody is dismissed. It does not, in my view, order that the child is illegitimate, but rather that the proof of legitimacy as a PRE-CONDITION to petitioning for custody was simply not met. So what is it really saying? (Or, if it's truly not appealable, does it really matter?)

2b - My original complaint was merely one for joint physical and legal custody in response to the separation of the mother and I. The paternity action in VA is protected under the principle of res judicata. Has the judge here actually adjudicated (or "re-adjudicated") the paternity issue? Or I am just reading something into it which isn't there? If so, what are the implications?

3 - Eventually, obviously, I want to petition for custody. But right now, I need the declaratory judgment for recognition of my parental rights. How does this order seem to affect a potential petition for declaratory judgment?



About a year following these proceedings, the mother brought a support modification against me. Although she voluntarily dismissed the action, she still (???) demanded attorney fees. During mediation, I acquesced in return that our child be recognized as legitimate. She agreed. The SIGNED mediation statement, written by her attorney, says: "Both parties recognize the legitimacy of their child as established in the state of Virginia at the time of her birth."  However, when her attorney prepared the order, he included the dismissal, and he included the part where I agree to pay half the fees, but he omitted the agreed upon condition of the recognition of legitimacy. He was supposed to send me a copy for inspection before going to the judge. He did not. The judge signed it not even knowing of the agreed-upon condition.

5 - In pursuit of recognition of my parental rights, is this document worth the paper it's printed on in some way? :) That is, while it's not an order of any type, can it be used in ANY way useful as evidence?

I ask all of these things because I KNOW that the mother is going to vehemently DISPUTE and FIGHT and attempt by me to exercise or obtain recognition of parental rights. She once suggested that her attorney told her that, according to the original final order (above), I have "no rights", and that the issue can never be re-litigated (due to res judicata). Naturally, I'm not depending upon her for legal advise, but I can use her statement as a defense to prepare for.

Much thanks!

[socrateaser]

>1 - The order does not specify that it is dismissed with
>prejudice. Seen in this light, and considering Supreme Court
>Rule 67.03, does the above order seem to be a final order
>subject to res judicata, serving as a bar in any way to future
>litigation? Or, is it dismissed without prejudice? Seems to me
>that "failure to meet a burden of proof" constitutes a
>dismissal of the petition, but not one of the action itself.
>Correct?

Res judicata bars a party from reasserting a claim, fully and fairly determined on the merits, in a subsequent action between the same parties or privies, including claims that should have been raised during the original action.

If your prior action was dismissed without prejudice, and no trial on the merits was allowed, then res judicata should not bar your action for declaratory relief. However, GA appellate law may reach some other conclusion, in similar circumstances to your own, so you need to research the case law.

As it stands right now, I think your opponent's answer is blowing smoke.

>
>2 - The Order says the the case is dismissed. It does not, in
>my view, say that the child is illegitimate. So what is it
>really saying? Or, if it's truly not appealable, does it
>really matter?

See above.

>
>3 - Eventually, obviously, I want to petition for custody. But
>right now, I need the declaratory judgment for recognition of
>my parental rights. How does this order seem to affect a
>potential petition for declaratory judgment?

See above.

>
>4 - My original complaint was merely one for joint physical
>and legal custody in response to the separation of the mother
>and I. The paternity action in VA is protected under the
>principle of res judicata. Has the judge here actually
>adjudicated (or "re-adjudicated") the paternity issue? Or I am
>just reading something into it which isn't there? If so, what
>are the implications?

No. The judge dismissed the case deteriming that you did not prove that the child was legitimate under GA law. He ignored VA law. There is nothing on the court record other than the finding that you didn't meet your burden of proof. There is no evidence of a full and fair hearing on the merits, because the hearing was all in chambers, right? And, chambers is off the record. Assuming I'm correctly stating the facts, there is no bar. Hopefully, you're getting a different judge this time. If not, then you need to use a peremptory motion to disqualify the judge (most jurisdictions allow you to get rid of one judge, as long as no order has been entered yet in the case.

>
>About a year following these proceedings, the mother brought a
>support modification against me. Although she voluntarily
>dismissed the action, she still (???) demanded attorney fees.
>During mediation, I acquesced in return that our child be
>recognized as legitimate. She agreed. The SIGNED mediation
>statement, written by her attorney, says: "Both parties
>recognize the legitimacy of their child as established in the
>state of Virginia at the time of her birth."  However, when
>her attorney prepared the order, he included the dismissal,
>and he included the part where I agree to pay half the fees,
>but he omitted the agreed upon condition of the recognition of
>legitimacy. He was supposed to send me a copy for inspection
>before going to the judge. He did not. The judge signed it not
>even knowing of the agreed-upon condition.

If it wasn't in the order, then it wasn't agreed on. You blew that round, so forget about it.

>
>5 - In pursuit of recognition of my parental rights, is this
>document worth the paper it's printed on in some way? :) That
>is, while it's not an order of any type, can it be used in ANY
>way useful?

Not useful in my opinion, because you didn't ask to have the order corrected to reflect the agreement. But, it depends on whether GA courts permit a set aside of a judgment for good cause after an extended period. Many jurisdictions will not vacate an order after 6 months to a year.

>
>I ask all of these things because I KNOW that the mother is
>going to vehemently DISPUTE and FIGHT and attempt by me to
>exercise or obtain recognition of parental rights. She once
>suggested that her attorney told her that, according to the
>original final order (above), I have "no rights", and that the
>issue can never be re-litigated (due to res judicata).
>Naturally, I'm not depending upon her for legal advise, but I
>can use her statement as a defense to prepare for.

If the second order was silent on your parental rights, then the issue was not determined, either on the merits or otherwise. If the second order said that you have no rights, and you signed it, and didn't immediately try to correct it, then you're probably SOL.