"The definition of an independent action, as contemplated by [Rule] 60(b), is an equitable action that does not relitigate the issues of the final judgment, order or proceeding from which relief is sought and is one that is limited to special circumstances." Syllabus Point 2, N.C. v. W.R.C., 173 W.Va. 434, 317 S.E.2d 793 (1984).

"In order to obtain relief from a final judgment, order or proceeding through an independent action, the independent action must contain the following elements: (1) the final judgment, order or proceeding from which relief is sought must be one that, in equity and good conscience, should not be enforced; (2) the party seeking relief should have a good defense to the cause of action upon which the final judgment, order or proceeding is based; (3) there must have been fraud, accident or mistake that prevented the party seeking relief from obtaining the benefit of his defense; (4) there must be absence of fault or negligence on the part of the party seeking relief; and (5) there must be no adequate legal remedy." Syllabus Point 3, N.C. v. W.R.C., 173 W.Va. 434, 317 S.E.2d 793 (1984). In syllabus point one of Downing, we further held that an independent action under Rule 60(b) was "limited to special circumstances" and, like a motion filed pursuant to that rule, was not to be used to "re[-]litigate the issues of the final judgment, order or proceeding from which relief is sought."

This Court has held that "[t]he definition of an independent action as contemplated in W. Va. R. Civ. P. 60(b) is an equitable action that does not relitigate the issues of the final judgment order or proceeding from which relief is sought and is one that is limited to special circumstances." Syl. pt. 2, N.C. v. W.R.C., 173 W. Va. 434, 317 S.E.2d 793 (1984). We also have held:

Bankers Mortg. Co. v. U.S., 423 F.2d 73, 77 (5th Cir.1970). Accord, N.C. v. W.R.C., 173 W.Va. 434, 437, 317 S.E.2d 793, 796 (1984). See also, Franklin D. Cleckley, Robin Jean Davis & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure 1294–95 (4th Ed.2012) (same).

Bankers Mortg. Co. v. U.S., 423 F.2d 73 , 77 (5th Cir.1970). Accord, N.C. v. W.R.C., 173 W.Va. 434 , 437; 317 S.E.2d 793 , 796 (1984). See also, Franklin D. Cleckley, Robin Jean Davis & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure 1294-95 (4th Ed.2012) (same).

” Id. at 706, 474 S.E.2d at 886. As we recognized in N.C. v. W.R.C., 173 W.Va. 434, 317 S.E.2d 793 (1984) : “ ‘The provisions of this rule [ (60(b)) ] must be carefully interpreted to preserve the delicate balance between the sanctity of final judgments, expressed in the doctrine of res judicata, and the incessant command of the court's conscience that justice be done in light of all the facts.’ ” 173 W.Va. at 437, 317 S.E.2d at 796 (quoting Bankers Mortgage Co. v. U.S., 423 F.2d 73, 77 (5th Cir.1970) ).

I cannot sanction such a result, nor do I think that Rule 60(b) requires such a harsh result. As we recognized in N.C. v. W.R.C., 173 W. Va. 434, 317 S.E.2d 793 (1984): "`The provisions of this rule [60(b)] must be carefully interpreted to preserve the delicate balance between the sanctity of final judgments, expressed in the doctrine of res judicata, and the incessant command of the court's conscience that justice be done in light of all the facts.'" 173 W. Va. at 437, 317 S.E.2d at 796 (quoting Bankers Mortgage Co. v. U.S., 423 F.2d 73, 77 (5th Cir. 1970)).

184 W. Va. at 450, 400 S.E.2d at 885. This Court in Nancy Darlene also relied upon principles enunciated in N.C. v. W.R.C., 173 W. Va. 434, 317 S.E.2d 793 (1984), in which the husband had petitioned the circuit court for relief from child support payments, alleging that he was not the father of the parties' child. In N.C., this Court affirmed the circuit court's decision that the husband was not entitled to relief because he had failed to raise "the issue of paternity through appropriate proceedings prior to the final disposition" of the divorce.

See Nancy Darlene M., 184 W. Va at 449 n. 5, 400 S.E.2d at 884 n. 5. Moreover, with regard to the third point, the appellee testified at the hearing below upon his Rule 60(b)(5) motion that, although his attorney during the divorce proceedings informed him that there were no grounds for an appeal, the appellee could have contacted other attorneys in the Marion County area. Specifically, the appellee indicated that he knew that the opinions of other attorneys were available. In N.C. v. W.R.C., 173 W. Va. 434, 317 S.E.2d 793 (1984), a husband and wife continued to have sexual relations following their divorce. The wife became pregnant, and the parties remarried. During subsequent divorce proceedings, the husband appeared in the action but did not contest paternity.

This Court has addressed a challenge to a paternity determination on a similar point. In N.C. v. W.R.C., 173 W. Va. 434, 317 S.E.2d 793 (1984), the parties, following a first divorce from each other, continued to have sexual relations, and then remarried upon learning that the wife was pregnant. The parties were then divorced a second time, and the husband was ordered to pay child support.