No. 94-405

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

DAVID ELLIOT FIFE,

STATE OF MONTANA, CHILD SUPPORT FE6 15 1995

ENFORCEMENT DIVISION,

Defendant and Respondent. )

CLERK OF SUPS:?~~E ~~~~~~

STATE OF MCW,Y/~NA

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Paul Neal Cooley, Skelton & Cooley, Missoula,

Montana

For Respondent:

John M. McRae, Dept. of Social & Rehabilitation

Services, Child Support Enforcement Division,

Missoula, Montana

Filed:

Submitted on Briefs: December 22, 1994

Decided: February 15, 1995
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from the denial of David Fife's Petition for

Declaratory Judgment by the Fourth Judicial District Court,

Missoula County. We affirm.

The only issue is whether the District Court was correct in

denying declaratory judgment.

David Fife (Fife) is the putative father of BJM, a child born

to Patricia Lee Martin (Patricia) out of wedlock. The child was

born in 1981, but Patricia did not notify Fife of BJM's birth. She

applied for Aid to Families with Dependant Children in November,

1991, ten years after BJM's birth, and the Child Support

Enforcement Division (CSED) of the Department of Social and

Rehabilitative Services notified Fife of his alleged parentage. He

denied it and an administrative hearing was held at which it was

determined that there was a reasonable probability that Fife was

the father. He was subpoenaed and ordered to submit to a blood

test to determine parentage.

Fife appealed this order to the Fourth Judicial District Court

but failed to perfect the appeal when he did not notice the real

party in interest, CSED, or name them in the action. Fife named

Patricia only as the respondent even though Patricia had signed

over to CSED all rights to support when she applied for Aid to

Families with Dependant Children.

The District Court determined that it did not have

jurisdiction and dismissed the suit. We affirmed the District

Court's lack of jurisdiction and refused to review the substantive

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merits of the case because the District Court had not issued

findings and we, therefore, had nothing to review. Fife v. Martin

(1993), 261 Mont. 471, 863 P.2d 403.

Following his failed appeal, Fife filed the present Petition

for Declaratory Judgment seeking to have his constitutional rights

adjudicated. CSED responded with a motion to dismiss. The Fourth

Judicial District Court dismissed the cause, agreeing with CSED

that Fife was merely attempting to relitigate the requirement that

he have a blood test to determine parentage.

Fife argues that the merits of his case have never been

litigated. However, the record shows that his case was heard by

the appropriate administrative body. As a result of that hearing,

he was ordered to submit to a blood test. That order is the final

disposition of the case because Fife's subsequent appeal was of no

effect. We conclude that Fife's present Petition for Declaratory

Judgment is improper. The District Court determined that it was

improper because of estoppel by judgment. We here determine that

Fife's action must fail because of collateral estoppel.

In Linder v. Missoula County (1992), 251 Mont. 292, 824 P.2d

1004, we set out the three elements of collateral estoppel:

1 . The issue has been decided in a prior adjudication and is

identical to the one presented. Here, the administrative body

decided the issue that Fife now presents--whether he is required to

submit to a blood test.

2 . A final judgment on the merits was issued. The

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administrative body heard the evidence presented by Fife and found

that he could have been the father. He was ordered to submit to a

blood test. As a result of his failure to properly appeal, that

decision handed down by the administrative body is the final

judgment on the merits.

3 . The party against whom the plea is asserted was a party

or privity to the party in the prior adjudication. The concerned

party in both cases is Fife. While he brought the action

originally against the mother of the child, the real party in

interest is CSED. The CSED was in privity to the mother because

she signed over to CSED her rights to support when she accepted

welfare. Therefore, the parties are at the very least, in privity.

Fife is attempting to relitigate his case. Be had the

opportunity to appeal the final disposition of the administrative

body but he failed to properly appeal. The Declaratory Judgment

Act requires a controversy. Flesh v. Board of Trustees (1990), 241

Mont. 158, 766 P.2d 4. Once a controversy has been litigated,

there is no controversy. There is no controversy here--it has been

litigated in the administrative body.

We hold the District Court did not err in granting CSED's

motion to dismiss with prejudice.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of this Court and by a report of its result to the

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West Publishing Company.

Affirmed.

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February 15, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Paul Neal Cooley

Skelton & Cooley

101 E. Main

Missoula, MT 59802

John M. McRae, Esq.

Dept. of Social & Rehabilitation Services

Child Support Enforcement Div.

1610 So. 3rd W., Ste. 201

Missoula, MT 59801

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA