Denzik: The Floodgates Are Opening

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Denzik v. Denzik, about which we reported here and digested here, permitted a husband to recoup child support payments many years later, in a civil action for damages, when he was found not to be the biological father of the child born during the marriage. Where will it end? Who knows, but now the Court of Appeals, in a case not yet final but designated to be published, has addressed whether a father who acknowledged paternity has recourse to avoid contempt for non-payment and for recoupment. In short, it was remanded to determine whether there was fraud or misrepresentation, in which case accrued child support may be avoided. Prediction: This is the tip of the iceberg.

Wheat v. Com., Cabinet for Health and Family Services__S.W.3d__, 2007 WL 490946 Ky.App.,2007. February 16, 2007
John Wheat appeals from a Findings of Fact, Conclusions of Law and Order of the Barren Circuit Court, Family Court Division, holding him in contempt of court for failing to pay a child support arrearage. The court imposed a sentence of 180 days in jail, to be suspended on the condition that Wheat begin paying the arrearage. Wheat argues that DNA testing proved that he is not the biological father of the child in question, and that as such the family court erred in ordering him to pay any child support. Pursuant to Denzik v. Denzik, 197 S.W.3d 108 (Ky.2006), issued after the trial court made its ruling, we reverse and remand the matter to the Barren Family Court for further findings of fact on one issue, as set out herein....

If a man is not the biological father of a child and cannot be held on equitable grounds to be the legal father, we acknowledge that there is a strong argument, based on simple fairness, that he should not be required to pay child support. There is, however, another issue in this case, legal rather than equitable, which we must consider. In fact, the trial court in its order did not evaluate this matter from an equitable standpoint at all. It rather indicated a belief that it was bound by a line of cases such as Clay v. Clay, 707 S.W.2d 352 (Ky.App.1986); Stewart v. Raikes, 627 S.W.2d 586 (Ky.1982) and Whitby v. Whitby, 306 Ky. 355, 208 S.W.2d 68 (1948), overruled in part on other grounds, Knight v. Knight, 341 S.W.2d 59 (Ky.1960), which held that past child support obligations, once accrued, may not be modified. In the language of the Whitby court, quoted by the court in Stewart:
"We perceive that no distinction can be made between a judgment based upon a claim for alimony or maintenance and a judgment based upon any other legal right. After the judgment is entered, although it may be subject to modification at a subsequent date, it is binding and final until modified; and any payments which may have become due previous to such modification constitute a fixed and liquidated debt in favor of the judgment creditor against the judgment debtor." Whitby, 208 S.W.2d at 69; Stewart, 627 S.W.2d at 588.

Thus, if there is no exception to this rule, Wheat has no recourse, regardless of the equities of the matter. However, after the trial court issued its order in this case, the Kentucky Supreme Court rendered its opinion in Denzik v. Denzik, supra, holding that a father could recover back from his former wife child support payments previously made to her because the support obligation arose from her fraudulent and years-long claim that he was the child's biological father. Though the facts in Denzik differ somewhat from those at bar-the plaintiff in Denzik did not file a motion to recover past child support payments in his divorce case, but rather in a separate civil suit for fraud-we believe Denzik supports Wheat's contention that past child support payments are voidable in some circumstances.

Denzik did not overrule Clay and the line of cases relied on by the trial court. Neither did it carve out an exception to the rule set out in these cases for every situation where a subsequent paternity test proves that the man paying the child support is not the biological father. However, we believe it did recognize an exception to that rule in the event of fraud or misrepresentation. The Supreme Court in Denzik stated:

"This ruling does not in any way conflict with our precedents on erroneous amounts paid in child support, because error is not fraud.
Cases involving excess child support payments made by judicial error have determined that recoupment or restitution of the excess payments is inappropriate unless there exists an accumulation of benefits not consumed for support. See, e.g., Clay v. Clay, 707 S.W.2d 352 (Ky.App.1986).... However, in the case of fraud and misrepresentation of expenses to the spouse, the court has ordered restitution.... In this case, it was determined that somebody other than the father of the child was paying child support thereby giving this case a different character than the others.
In short, the facts of this case can only be repeated with fraud, not with a floodgate of paternity tests." Denzik, 197 S.W .3d at 112,113.

Thus, since Denzik, if the mother was guilty of fraud or misrepresentation, even child support obligations that have already accrued may be modified. The Commonwealth appears to recognize this and asserts in its brief that, “[t]here is simply no evidence of the unmarried woman deliberately concealing material facts in this case.” This is accurate only in the limited sense that the trial court did not hear any testimony. The parties advised the court that the facts were not in dispute. However, neither the court

nor the parties were aware at that time of Denzik, which opinion had not yet been issued by the Supreme Court. The results of the DNA test, by themselves, offer some indication that the mother did not tell the whole truth. Wheat's affidavit, cited above, further supports this proposition. Additionally, in the Commonwealth's own response to Wheat's 60.02 motion, it conceded,
"The Mother, Christy Pruitt, has some fault in this matter in that she apparently did not disclose the name of the true biological father when she supplied the name of John Wheat as the purported father of Shane Pruitt back in 1985."

The trial court did not hear evidence on this issue because it believed that it did not have any authority to set aside past child support obligations, under Clay, et al. The Supreme Court in Denzik has now established that a trial court does have such authority, on a finding of fraud or misrepresentation, even when the case involves past obligations. We therefore remand this matter for an evidentiary hearing and findings of fact on this issue, whether or not the mother was guilty of fraud or misrepresentation.

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