UPDATE: Final as of April 17, 2007
Wheat v. Com., --S.W.3d-- (Ky. App. 2007), 2007 WL 490946 (Ky. App) designated to be published.
Issue: Whether there is an exception to the rule that past child support obligations, once accrued, may not be modified. The Court held yes, child support payments are voidable in the event of fraud or misrepresentation.
In 1985 Pruitt, the child’s mother, filed a paternity action alleging Wheat was the biological father of her child. Wheat acknowledged paternity and agreed to pay reasonable child support. An order was entered establishing paternity and Wheat was ordered to pay child support.
Wheat never made any child support payments. In 1997, DNA testing, pursuant to court order, conclusively proved that Wheat was not the father. Wheat then filed a CR 60.02 motion to set aside the paternity judgment, alleging misrepresentation on the mother’s part in inducing him to sign the agreed judgment. He alleged that the mother swore to him that he was the father and then admitted years later that he was not. In 2001 the district court entered an order finding Wheat was not the biological father and set aside the 1985 order and all prospective child support obligations. The issue of arrearages was reserved for further proceedings. Neither party appealed.
In 2004 an order was entered establishing the amount of arrearages to be $13,387.41. In 2005 the local child support office filed a motion to hold Wheat in contempt for failure to pay arrearages. Wheat filed a CR 60.02 motion to set aside the 2004 order for arrearages. The family court denied the CR 60.02 motion and found Wheat in contempt. Wheat appealed.
First, the Court found that Wheat was not equitably estopped from asserting that he is not the legal father. Unlike the case of S.R.D v. T.L.B., Formerly T.L.D., 174 S.W.3d 502 (Ky. App. 2005), there was no presumption of paternity since Wheat was never married to the mother, Wheat did not establish a bond with the child, Wheat did not act as the “psychological father,” and Wheat had no relationship with the child at all. Therefore, there is no equitable reason to require Wheat to pay child support. Moreover, the district court had ruled that Wheat was not the legal father in 2001, and no party appealed.
Second, the Court held that Denzik v. Denzik, 197 S.W.3d 108 (Ky. 2006), created an exception to the rule that past child support obligations, once accrued, may not be modified. In the event of fraud or misrepresentation, child support payments can be voided. The following factors must be shown to establish fraud or misrepresentation: 1) a material misrepresentation, 2) which is false, 3) known to be false or made recklessly, 4) made with inducement to be acted upon, and 5) acted in reliance thereon and causing injury.
The Court noted that all factors may be satisfied in the instant case, but remanded the case back to the trial court for an evidentiary hearing and findings of fact. The Court stated that if the trial court finds that the mother was guilty of fraud or misrepresentation, Wheat’s motion should be granted and both the arrearage and the order of contempt should be set aside. If no fraud is found, then Wheat is legally responsible for the arrearages.
Digest by Sarah Jost Nielsen, Diana L. Skaggs + Associates, www.LouisvilleDivorce.com.
DLJ also posted about this case here.