Calfee appealed an order denying his request for modification of accrued child support. Calfee’s ex-girlfriend filed an action seeking child support. In support she filed an affidavit admitting that the child could have been another man’s, that Calfee never claimed to be the child’s father, and that the child did not resemble Calfee. In response, Calfee requested a DNA test. However, Calfee could not afford the test. It was rescheduled and again Calfee could not afford the test. Therefore, a default judgment was entered and Calfee was ordered to pay child support. Finally, five years later a DNA test revealed Calfee was not the child’s father. Regardless, the Commonwealth sought to collect the arrearages that had accumulated since the default judgment was entered. The Circuit Court held Calfee was responsible for the arrearages that had accumulated before the default judgment was set aside. The CA remanded and held that the Circuit Court must re-exam the facts and determine whether the mother’s actions amounted to fraud or misrepresentation. If so, Calfee should not be held liable for the arrearages.
CA distinguished the instant case from S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky.App.2005). In S.R.D., a former husband, who waited six years after learning he might not be the child’s father, was estopped from denying paternity and support obligations. In the instant case, however, the child was not born of a marriage. Calfee never held himself out to be the child’s father and there was no legal presumption he was the child’s father. For these reasons Calfee was not estopped from asserting that he was not the child’s father and therefore not obligated to pay support.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates