COURT OF APPEALS DECISION DATED AND FILED March 30, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Fine, Brennan and Kessler, JJ.
¶1 PER CURIAM. Tyrond B. appeals the circuit court’s order denying his motion to reopen a paternity judgment. The issue is whether Tyrond B.’s action is barred by issue preclusion. We affirm.
¶2 Ashley I. was born on September 10, 1992. On July 7, 1993,
Tyrond B. was adjudicated to be her father.
On April 28, 1999, Tyrond B. moved to reopen the paternity
judgment. On July 28, 1999, the circuit
court denied the motion. Tyrond B. did
not appeal. On May 7, 2001, Tyrond B.
again moved to reopen the judgment based on the results of a paternity test. On July 25, 2001, after a hearing at which Tyrond
B., the mother and the guardian ad litem appeared, the circuit court denied the
motion on the grounds that it would not be in the best interest of Ashley I. to
reopen the judgment based on the apparent bonding between Tyrond B. and Ashley
I. Tyrond B. did not appeal. On October 3, 2008, Tyrond B. moved to reopen
the paternity judgment for the third time.
On December 17, 2008, the circuit court concluded that the judgment
should not be reopened based on issue preclusion.
¶3 Issue preclusion “is a doctrine designed to limit the
relitigation of issues that have been contested in a previous action between
the same or different parties.” Michelle
T. v. Crozier, 173
¶4 In determining whether it would be fundamentally fair to apply issue preclusion, courts may consider the following factors:
(1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment; (2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; (3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue; (4) have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or (5) are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?
Paige K.B. v. Steven G.B.,
226
¶5 Ashley I.’s paternity was established nearly seventeen years
ago. Since then, the circuit court has decided
three times that the judgment should not be reopened. Tyrond B. did not appeal either of the two
prior orders denying his motions to reopen and the current motion, Tyrond B.’s
third, was not brought until over seven years after the second motion. Before the second motion to
reopen was denied, the circuit court held an evidentiary hearing at which all
of the parties were present and Tyrond B. was able to fully present his evidence
and arguments. We will not disturb the
finality of this paternity judgment after such an extensive period of time
where the parties previously presented the same evidence and arguments
regarding the merits. There has been no
change since then that makes it fundamentally unfair to apply issue preclusion
here. Therefore, we conclude that this
claim is barred based on issue preclusion.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.