                            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 O F 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



                            Submitted on Briefs:            December 22, 1994

                                            Decided:        February 15, 1995
Filed:
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
                                          2
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


                                           3
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


                                   4
West Publishing Company.
     Affirmed.




                           5
                                        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
