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Franco v. Davis

Decided: December 9, 1970.

MELODY DALE FRANCO, PLAINTIFF,
v.
JAMES GLYNN DAVIS, DEFENDANT



Barrett, J.s.c.

Barrett

[112 NJSuper Page 497] This is a motion for summary judgment in favor of defendant. Briefs were submitted by counsel and oral argument was heard. This is one of the many cases of a child suing a parent in light of France

v. A.P.A. Transport Corp. , 56 N.J. 500 (1970), which abolished the doctrine of child-parent immunity. In addition to the question of whether that decision is retrospective in application, this case also involves the applicability of the doctrine of res judicata. The same parties were involved in a prior case on the same set of facts and issues. At that time a motion for summary judgment in favor of defendant was granted in light of the immunity doctrine as set forth in Reingold v. Reingold , 115 N.J.L. 532 (E. & A. 1935), and reaffirmed in Hastings v. Hastings , 33 N.J. 247 (1960) and Heyman v. Gordon , 40 N.J. 52 (1963). The decision was appealed to the New Jersey Supreme Court, which affirmed Franco v. Davis , 51 N.J. 237 (1968). That was the last case upholding the doctrine until its abolition in France, supra. The latter case (at 507) expressly overruled Franco , the first case between these parties.

Plaintiff child brings this action and defendant moves for summary judgment on the basis of res judicata. Whether or not the France decision is retrospective in application, I hold the doctrine of res judicata applies. " Res Judicata is an ancient judicial doctrine which contemplates that when a controversy between parties is once fairly litigated, and determined, it is no longer open to relitigation." Lubliner v. Bd. of Alcoholic Bev. Control , 33 N.J. 428, 435 (1960). It is also well established that,

There is no claim that those criteria do not apply here. Plaintiff claims, however, that because of the France decision, supra , res judicata does not apply. This, she alleges, is because "the principle of res adjudicata , however, does not bar relitigation where, after the rendition of the judgment,

subsequent events or conditions occur, thus creating a new legal situation or altering the legal rights or relations of the parties." Lasasso v. Lasasso , 1 N.J. 324, 328 (1949). The principle was also expressed in Washington Tp. v. Gould , 39 N.J. 527, 533 (1963), citing Lasasso. The latter case, however, clearly presented a change of factual situation in a child support case and did not contemplate a change in decisional law. In such cases a change of factual situations has always been the basis for altering the amount of a support decree. In any event, I feel this principle generally applies only to a change in the factual situation and does not apply to changes in law.

There are no New Jersey cases directly applicable to this situation. The only authority directly on point is that a "judgment remains res judicata , although overruled in a subsequent case between other parties," 50 C.J.S. Judgments § 704, n. 56. The source for that statement is City of Watertown, S.D. v. Eastern Dakota Electric Co. , 296 F. 832 (8 Cir. 1924), where the court stated (at 835), "A sufficient answer to this is that overruling a former decision does not reverse the judgment duly rendered in the case overruled, or affect the rights of the parties to that decree."

It is a well established principle that a decision revealing a prior decision to be in error in law or fact does not preclude the application of the doctrine of res judicata, e.g., Delaware River Port Authority v. Pennsylvania Public Utility , 408 Pa. 169, 182 A.2d 682 (Sup. Ct. 1962); 50 C.J.S. Judgments § 704, n. 56. Perth Amboy Dry Dock v. Crawford , 103 N.J.L. 440 (E. & A. 1927), held that

It is also recognized in some cases that "the doctrine of res judicata is regarded as operative notwithstanding a change in law after the rendition of the judgment even though the amendment is declared by the legislature to be retroactive." 46 Am. Jur. 2d, Judgments , § 444. The source of this principle is a series of related Iowa cases, the facts of which are as follows. A Mr. Young was the husband of a policewoman in Sioux City. She died, and he attempted to obtain certain death benefits and pension fund rights under a statute. In the first case the Supreme Court of Iowa held that he was not entitled to the benefits because the statute mentioned only surviving "widows" and not "widowers." Young v. O'Keefe , 246 Iowa 1182, 1187, 69 N.W. 2d 534 (1955). The Iowa legislature, in an obvious response to that decision, amended the statute to include widowers. Young again attempted to collect the benefits. The Supreme Court of Iowa again held he could not obtain the benefits, basing its decision on two grounds: first, that in the absence of clear legislative intent the statute was not retroactive, and second, even if it was, he would be barred by the doctrine of res judicata. Young v. O'Keefe , 248 Iowa 751, 82 N.W. 2d 111 (1957). The court said:

If the purpose of res judicata be to add finality to judicial decisions, the propriety of its presence here cannot be doubted. A judgment based on plain statutory construction, as was our earlier decision, would not be exactly final if the legislature could by subsequent retroactive (nunc pro tunc) change of statute reopen the identical controversy for the benefit of a losing litigant. [82 N.W. 2d at 114].

Again, in obvious response to the second opinion, the legislature of Iowa amended the statute, this time to expressly make it retroactive. Young again attempted to obtain the benefits, but to no avail. The Supreme Court of Iowa ...


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