Simpson County Circuit Court

Husband and Wife married in 2011 and three children were born during their marriage. The youngest was S.W. Wife was having an affair with Boyfriend when she became pregnant with S.W. and told Boyfriend that he could be the father of the child. No DNA testing was done prior to S.W.’s birth in November 2015. In 2017, Husband discovered through an over-the-counter DNA test that he was not S.W.’s biological father. Boyfriend subsequently took a DNA test that confirmed his paternity and expressed that he wanted to be involved with S.W. Wife quit communicating with Boyfriend. In 2019, Husband filed a petition for dissolution which stated the three children were born of the marriage and requested the parties share custody and timesharing. Wife admitted to the allegations in the petition and filed her response and the parties’ settlement agreement simultaneously. No issues of S.W.’s paternity were raised in the dissolution proceedings. A decree was entered in September 2019, adopting the parties’ settlement agreement. Boyfriend later learned that paternity of S.W. had been adjudicated pursuant to Husband and Wife’s decree. In October 2020, Boyfriend filed simultaneous motions to intervene and amend the final judgment in the dissolution action pursuant to CR 60.02, arguing that he was the biological father of S.W. and sought a finding to that effect so that he could pursue custody and timesharing. Husband opposed those motions and Wife took no position. The family court summarily granted Boyfriend’s motion to intervene and continued his motion to amend, scheduling it for a hearing. Husband filed a motion to alter, amend or vacate that order.

In July 2021, two orders were entered in the dissolution proceeding: an order denying Husband’s motion and an order sustaining Boyfriend’s motion to amend the final judgment pursuant to CR 60.02. The family court considered the factors enumerated in Carter v. Smith, 170 S.W.3d 402, 408 (Ky. App. 2004) regarding whether intervention was warranted post-decree, and the history as to what had transpired in the dissolution and paternity cases. The family court concluded that Boyfriend’s special burden for post-judgment intervention was met, and granted Boyfriend’s motion to amend the final judgment. Husband appealed from the order allowing Boyfriend to intervene and the order granting Boyfriend’s motion to amend the final judgment, arguing that the family court abused its discretion in allowing his intervention because his motion to intervene was untimely filed under CR 24.01 and CR 24.02. Specifically, he argued that Boyfriend was aware he could have been S.W.’s father during Wife’s pregnancy, actually was aware of that fact prior to Husband and Wife’s divorce, waited too long to attempt to intervene and had no meaningful relationship with the child.

The Court used the Carter five factor test to determine the timeliness of Boyfriend’s motion to intervene and concluded that the family court adequately addressed the Carter factors and acted appropriately in determining that Boyfriend’s intervention was timely. The Court held that although Boyfriend was aware he could be S.W.’s father before S.W. was born, his intervention was not precluded under these circumstances as untimely due to the constitutional dimension of his interest, his lack of knowledge that paternity could be and was in fact resolved in the dissolution without any notice, and the fact that Husband and Wife knew of the question as to S.W.’s paternity but did not make the family court aware of that.

The Court of Appeals also affirmed Boyfriend’s intervention in the dissolution proceeding. It was clear to the Court that Boyfriend had an interest in the divorce proceeding which none of the existing parties could or did adequately protect. The Court found that relief was appropriate pursuant to CR 60.02(f) based on Boyfriend’s constitutional rights as S.W.’s biological parent and that he had not had an opportunity to present his claim that he should be determined as S.W.’s father on the merits. The Court determined that fraud had occurred against Boyfriend as he was never joined as a party or informed that he needed to intervene during the dissolution proceeding or else Husband would become S.W.’s father, and thus he was prevented from appearing and asserting his rights. Further, a fraud had occurred against the family court, as it was prevented from knowing the facts, which would have required it to join Boyfriend as a party or delay entry of the judgment pending a separate paternity action.

Carter Anderson

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Clark Circuit Court

In 2016, a child was born to mother K.S. Prior to the child’s birth, K.S. had an intimate relationship with B.N.T., a married man and, at the time, Clark County Attorney. Based on the timing of their relationship, B.N.T. wished to establish paternity of the child. Utilizing the Montgomery County Attorney to avoid any conflict, the Cabinet for Health and Family Services, ex rel. Child Support Enforcement (the “Cabinet”) filed a paternity complaint concerning B.N.T. and the child. During the investigation, K.S. stated that B.N.T. was not the father of her child, insisting her fiancé was the biological father. The fiancé was never named, nor was genetic testing done to corroborate the claim. Nevertheless, the Clark County Family Court entered an agreed judgment stating that B.N.T. was not the natural father of the child. Four years later, K.S., who was receiving public benefits for the child at that time, filed an application for child support services. Receiving the application, the Cabinet initiated child support and paternity actions against B.N.T. After discovering the oddity of the “non-paternity” agreed judgment, however, the Cabinet filed a motion to set the judgment aside via CR 60.02, alleging fraud. The Clark County Family Court, however, found the motion was untimely under CR 60.02. The Cabinet appealed, and the Court of Appeals affirmed the family court’s findings.

On review, the Court found through the general rules of statutory interpretation, KRS 406.021 grants the family court the jurisdiction to determine paternity – here, the family court only attempted to determine non-paternity­ of B.N.T. The Court stated that such an order lacks “any support from the statute that empowers courts to hearing paternity actions[.]” Likewise, the statute demands that establishing paternity requires information such as the father’s name, social security number, an admission of paternity, and genetic testing. The family court failed to acquire such information in its proceedings. Accordingly, the Court determined the entire judgment lacked subject matter jurisdiction, and rendered it void. Because a voided judgment is a “legal nullity, and a court has no discretion in determining whether it should be set aside”, the analysis of timeliness under CR 60.02 was irrelevant. After stressing the public policy concerns in allowing this “impermissible use of the court system and the services that the Cabinet provides”, the Court reversed and remanded the matter with instruction to resume the proceedings with the underlying judgment rendered void and to conduct genetic testing.

K. Spencer Pierson

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In the recent case of Tucker v. Tucker, the Kentucky Court of Appeals addressed this very issue.  In that case, a wife had a child just a few months after her marriage to the husband.  A few years later, the parties started divorce proceedings and a child support case was initiated.  Despite being listed as the father on the child’s birth certificate, DNA testing proved that the husband was not the child’s biological father.  Even after the parties’ divorce, the stepfather remained very close with the child.  They continued to call one another “father” and “son,” stayed in regular contact, and the husband provided financial support for the child.  At no point did the stepfather adopt the child.  The child claimed that he did not learn the truth about the paternity issue until after he reached adulthood, but even after discovering this information, he continued to call the man “father.”  When the stepfather died without a will (under the law, this is called “intestacy”) years later, the child attempted to pursue a share of the inheritance from the stepfather’s estate.

The child argued that despite the lack of a biological link between the two, the stepfather should be considered the child’s actual father for purposes of inheritance.  The child argued that because they maintained such a tight bond, the stepfather was on the child’s birth certificate, and because he was born during the parties’ marriage, he should still be entitled to a share of the estate.  The administrator of the estate disagreed due to the results of the DNA test.

Kentucky law is clear that a child born during a lawful marriage or within ten months of the divorce of the parties is presumed to be the child of the husband.  The key language here is that this is merely a presumption, meaning it can be refuted by other evidence.  This most commonly comes in the form of a DNA test done in the contest of a paternity case brought for child support purposes.

In this case, the determination that the stepfather was not the child’s biological father established that fact for any and all future purposes, including when an individual dies without a will.  Simply put, the results of a paternity test will dictate the outcome of any future legal matter that depends on paternity.  The Court of Appeals was very clear that in order to inherit, the child would have needed to be adopted by the stepfather.  The procedures for this are very complicated and must be followed to the last detail for it to be valid.  Since an adoption did not occur, the Court ruled that the child was not entitled to a share of the stepfather’s estate.

Issues like this can be avoided.  In any situation where there is any doubt whatsoever as to the identity of a child’s father, it is important to seek legal advice.  The attorneys at Goldberg Simpson, LLC can advise you as to the impact on child support and related matters when it comes to having paternity established via DNA testing.  We can also discuss with you how an adoption works and the impact it would have on your family.  Finally, we can explain how family law intersects with estate planning and probate law so that you can make the best decisions for the wellbeing of your loved ones.

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Unmarried mother filed an action to establish paternity and set child support. On May 24, 2012 the District Court set child support, and awarded pre-petition support. The District Court ordered that the child’s social security dependent benefits satisfied Father’s child support obligation, and ordered that the surplus dependent benefit could act as a monthly credit towards Father’s pre-petition support liability. The District Court also held it was without the authority to award attorney fees. Father and Mother both appealed to Circuit Court which affirmed as to fees and the current child support obligation, but concluded that the child’s excess dependent social security benefits could not act as a monthly credit towards Father’s pre-petition support liability. The Court of Appeals granted discretionary review.

The Court of Appeals held that although Father was ordered to pay a pre-petition child support, he was not in arrears because there was no order for support in place until the May 24, 2012 Judgment. Thus, the child’s social security dependent benefits could be applied to Father’s pre-petition support liability. Moreover, the Court of Appeals held that because Mother was represented by a private attorney and her request for child support fell “squarely under KRS Chapter 403” the Court could consider an award for attorney fees pursuant to KRS 403.220.

Both parties moved the Supreme Court for discretionary review on separate issues, which was granted.

The Supreme Court first addresses Father’s jurisdictional argument that a paternity action cannot be brought by a private attorney pursuant to KRS 406.021. The Supreme Court holds that “complainants under KRS 406.021 are authorized to bring a paternity action through private counsel, if they so choose.” The mandatory language in the statute relates to the obligations of the County Attorney or Cabinet, and not how the Complaint can proceed.

The Supreme Court second turns to the attorney fees issue, first disagreeing with the Court of Appeals holding that “KRS 403 does not provide an avenue for a party in a paternity action to recover attorneys’ fees.” The Supreme Court believes the plain language of KRS 403.220 clearly refers to only proceedings “under this chapter” which does not include the paternity statutes.

The Supreme Court then looks to Mother’s next argument on attorney fees, that KRE 407 which provides for attorney fees applies because KRS 406.051 states that “All remedies under the uniform reciprocal enforcement of support act are available for enforcement of duties of support under this chapter.” The Supreme Court holds that “KRS 407 does not provide an avenue for a prevailing obligee to recover attorneys’ fees in a paternity action.” As the paternity statutes pre-dated the KRS 407 UIFSA provision regarding attorney fees, the legislature could not have intended the attorney fee remedy when it enacted KRS 406.051.

The Supreme Court goes on to hold that “A court is no longer imbued with equitable power to award attorneys’ fees.” The American Rule applies unless there is a statutory exception for fees. “While attorneys’ fees are awardable as a sanction ‘when the very integrity of the court is in issue, trial courts may not award attorney’s fees just because they think it is the right thing to do in a given case.’” Thus, if the Court believe equity dictated Mother was entitled to attorney fees, it is without authority to award them to her.

Third, turning to the issue of excess social security benefits, the Supreme Court agrees with the Court of Appeals in holding that a trial court may use its discretion to “apply excess social security retirement dependent benefits as a credit against the pre-petition liabilities a father incurs when a paternity action is initiated before a child turns four years old.” The Supreme Court notes that its holding only applies in narrow cases when “a debt owed for past costs… only become legally due after adjudication and decision by the court.” The Supreme Court empowers trial courts to use discretion to “equitably determine whether credit for prepetition liabilities…should be gleaned from excess benefit” instructing courts should consider the KRS 403.211 (3) factors in their equity analysis. “Thus, the guiding light in making this decision should be: what best protects the interests and needs of the child?” The Supreme Court remands this issue back to the trial court for fact-finding consistent with its decision.

Justice Wright dissents, in part, arguing trial courts should not have equitable discretion to offset pre-petition liabilities with the excess social security income because the funds belong to the child and the court does not have authority to take a child’s assets to pay a parent’s debt.

Digested by Elizabeth M. Howell

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Unmarried mother filed an action to establish paternity and set child support. On May 24, 2012 the District Court set child support, and awarded pre-Petition support. The District Court ordered that the child’s social security dependent benefits satisfied Father’s child support obligation, and ordered that the surplus dependent benefit could act as a monthly credit towards Father’s pre-Petition support liability. The District Could also held it was without the authority to award attorney fees. Father and mother both appealed to Circuit Court which affirmed as to fees and the current child support obligation, but concluded that the child’s excess dependent social security benefits could not act as a monthly credit towards Father’s pre-Petition support liability. The Court of Appeals granted discretionary review.

The Court of Appeals first turns to the question of whether the surplus social security dependent benefits could be used to pay Father’s pre-Petition support liability. As the paternity action was initiated before the child turned four, pursuant to KRS 406.031(1) the district court appropriately awarded pre-petition support. The Court of Appeals holds that although Father was ordered to pay a pre-Petition liability, he was not in arrears because there was no order for support in place until the May 24, 2012 Judgment. The Circuit court erred in considering the pre-Petition liability an arrears. On May 24, 2012, the child was already collecting social security depended benefits, which could be applied to Father’s pre-Petition support liability.

The Court moves on to consider the question of attorney fees. KRS Chapter 403.220 allows for an award attorney fees for any proceeding under Chapter 403, but both the District and Circuit Court found there was no statuary authority to permit an award of attorney fees as the paternity case was initiated under KRS Chapter 406. The Court of Appeals holds that because Mother was represented by a private attorney and her request for child support fell “squarely under KRS Chapter 403” the Court could consider an award for attorney fees pursuant to KRS 403.220.

Digested by Elizabeth M. Howell

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In Family Court, father made a CR 60.02 motion more than three years after entry of a paternity judgment, arguing the biological mother made material misrepresentations to him to induce him to agree to a paternity judgment. The Family Court denied the CR 60.02 motion and discontinued child support.

The Appellate Court affirmed the Family Court’s denial of father’s CR 60.02 motion. Father was equitably estopped from setting aside the paternity judgment, as the he allowed the children (twins) to call him “daddy,” maintained a relationship with the children, waited over three years to make a CR 60.02 motion, and evidence at trial demonstrated he knew he was not the biological father at the time he agreed to paternity, but did so for tax benefits. The Appellate Court reversed the Family Court discontinuation of child support, holding as the legal father he is required by statute to pay support. The fact that he is not the biological father of the children is not cause for deviation from the child support guidelines.

Digested by Elizabeth M. Howell

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Published: Affirming

J.K. v. N.J.A.; Honorable Linda Bramlage,
Boone County Family Court Judge; and Honorable Bailey Taylor, 2012-CA-000897-ME

Published: Affirming

County: Boone

ISSUE:
Whether a man, with whom Mother admits having an affair and living with for
about fifteen months-until mere days before Child’s birth-is entitled to know
whether Child is his biological son.

FACTS:

Mother
gave birth to Child May 16, 2011. Mother claims that her Ex-Husband, with whom
she plans to remarry, is the father and listed him as such on Child’s birth
certificate. Despite an order from the Family Court compelling Mother to
undergo genetic testing for herself and Child, neither was tested due to
Mother’s maneuverings.  The
Family Court entered an order following a hearing on a paternity complaint by
Putative Father.

The Family Court found Mother in contempt of multiple  orders from the Family Court, which ordered
her to submit herself and Child to genetic testing by a later date or serve 180
days in jail. Mother refused to comply with the Family Court’s orders.

 ANALYSIS:

 Mother alleged that she and Child
should not have been ordered to complete the genetic testing because no state
action was involved; Putative Father did not qualify as such under KRS 406.21
and could not challenge paternity; Ex-Husband was presumed to be Child’s father
because Child was born less than five months before the parties’ divorce; the
Family Court’s order violated Mother and Child’s constitutional right to
privacy; and the Family Court should not have ordered the maximum contempt penalty
for Mother’s failure to comply with the court’s order.

 KRS Chapter 406 is the means by
which courts determine fatherhood. While a child born during lawful wedlock may
be presumed to be the husband’s child under KRS 406.11, that presumption is
rebuttable, so that a legal finding of paternity is not denied to a putative
father. KRS 406.091(2) mandates genetic testing upon a request of a party
supported by an affidavit. Putative Father in this case made such a request,
and it was the Family Court’s duty to order the genetic testing. Mother should
have requested written findings of fact and conclusions of law from the Family
Court regarding whether Putative Father qualifies as a putative father under
the statute and whether he had standing to assert a claim of paternity.
However, Putative Father presented sufficient evidence on the record that he
had sufficient access to Mother to make him Child’s father. Mother and Putative
Father lived together at the time of conception and engaged in sexual relations,
and Putative Father was present when Mother took a pregnancy test, which was
subsequently confirmed by a doctor. Mother told Putative Father repeatedly that
he was Child’s father during the pregnancy, and Putative Father provided Mother
with food, shelter, clothing and medical care during the pregnancy. Putative
Father also opposed abortion and adoption options when they were presented by
Mother. Thus, Putative Father had standing to challenge paternity and request
genetic testing. Holding otherwise would deny Putative Father the right to
prove his claim of paternity and deny Child the right to develop a relationship
with his biological father. Furthermore, Mother offered no proof that would
exclude Putative Father as a potential father of Child, especially since she
told an Ohio family court in proceedings with Ex-Husband that she was not
pregnant.

 Mother was ordered to complete
genetic testing on herself and Child on four separate occasions and violated
each order. The 180 day jail sentence for contempt was completely appropriate.
Her attempts to halt Putative Father’s claims and the fact that she could have
purged the contempt by complying with the Family Court’s order was sufficient
to uphold the sentence. Digested
by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates

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Published:   Affirming  

County:  Jefferson

Ex-Husband
appealed FC’s order denying his CR 60.02 to terminate child support for child
not biologically related to him.

FACTS:

Hughes v. Hughes, 2012-CA-000077-ME

Published:   Affirming  

County:  Jefferson

Ex-Husband
appealed FC’s order denying his CR 60.02 to terminate child support for child
not biologically related to him.

FACTS:

While Husband was serving in the Navy,
Wife filed for divorce.  Paternity of the
four minor children was not placed an issue in the petition.  Subsequent to the filing of the petition, but
prior to entry of the decree, the parties submitted privately to paternity
testing of the youngest child.  The
Decree of Dissolution was entered prior to the parties’ receipt of the result
of the paternity test.  The Decree
ordered child support for all four children. 
Subsequently, the parties received the results of paternity testing indicating
that the youngest child was not the biological child of Ex-Husband.  Ex-Husband continued to pay full amount of
child support.  Some years later all four
children learned that Ex-Husband was not youngest child’s biological father. 

All of Ex-Husband’s biological
children were emancipated by 2010. 
Ex-Husband nonetheless continued to pay the full amount of child support
for his unemancipated, not biologically related child.  Ex-Husband’s income had increased
substantially at this time, while Ex-Wife was receiving state assistance due to
her status as a full-time student with a part-time job.  Thus, in 2011, the Cabinet filed a motion to
intervene and to modify child support on Ex-Wife’s behalf.  In response, Ex-Husband filed a CR 60.02
motion to terminate child support based on emancipation of his three biological
children and the fourth child being not biologically related.  FC denied 60.02 motion, finding that it was
not filed within a reasonable time, and Ex-Husband was therefore estopped from
seeking relief from his child support obligation.  FC also increased child support from $863.64
to $1,009.00 per month for the nonbiologically related child. 

ANALYSIS:

“Reasonable time” requirement of CR
60.02 is within FC’s discretion.  Given
that Ex-Husband had known since 2001 that he was not the biological father of
the youngest child but continued to act as her legal father, FC did not abuse
its discretion in denying his motion. 
Further, it was not necessary for FC to consider whether doctrine of
paternity by estoppel was implicated, as requested in Ex-Husband’s CR 52.04 motion.  CA held that FC correctly ascertained that
the legality of Ex-Husband’s fatherhood is sufficient in this case to allow for
the payment of child support.  It is in
youngest child’s best interest for her legal father, Ex-Husband, to contribute
adequate child support and supportive parenting.

Affirmed.

Digested by Michelle Eisenmenger
Mapes, Diana L. Skaggs + Associates

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Published:   Reversing and Remanding   

County:  Barren

Putative Father appealed FC’s judgment
of paternity, claiming he should have been granted evidentiary hearing.    

FACTS:

J.D.C v. CHFS, 2012-CA-000670-ME

Published:   Reversing and Remanding   

County:  Barren

Putative Father appealed FC’s judgment
of paternity, claiming he should have been granted evidentiary hearing.    

FACTS:

Mother of Child filed paternity
complaint against Putative Father. 
Genetic testing confirmed that Putative Father was the biological father
of Child, and Putative Father did not contest the validity of this
testing.  He continued to contest the
finding of paternity and requested an evidentiary hearing, contending that he
did not have consensual sexual relations with Child’s Mother but that, while a
guest in his and his wife’s home, she had unlawfully obtained his sperm from a
used condom after he had sexual relations with his wife and inseminated herself
with it.  FC denied Putative Father’s
request for evidentiary hearing and entered a judgment of paternity.

ANALYSIS:

Putative Father contended to CA that
FC’s refusal to grant him an evidentiary hearing was contrary to KRS Chapter
406.  CA agreed, holding that genetic
testing alone is insufficient to establish paternity if the father were to
raise a legally sufficient reason as to why paternity should not be entered
against him.  Per KRS 406.111, genetic
testing of 99% probability of paternity is only a “rebuttable presumption”
which may be rebutted by a preponderance of the evidence.  Thus, putative fathers are entitled to an
evidentiary hearing to attempt to rebut the presumption. 

CA also held that Putative Father’s
argument that he did not engage in consensual sexual relations with Child’s
Mother and did not consent to the use of his sperm would trump any public
policy arguments requiring fathers to support their out-of-wedlock children or
holding a man strictly liable for his sperm if he engages in consensual sexual
conduct. 

Reversed and Remanded for an
evidentiary hearing.

Digested by Michelle Eisenmenger
Mapes, Diana L. Skaggs + Associates  

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No. 2011-CA-000516-ME

Published: Opinion Vacating and Remanding

County: Pulaski

J.P. appeals an Order of Pulaski Circuit Court denying his petition to establish paternity, custody, visitation, and child support.

J.P. v. S.B.B. and B.B.

No. 2011-CA-000516-ME

Published: Opinion Vacating and Remanding

County: Pulaski

J.P. appeals an Order of Pulaski Circuit Court denying his petition to establish paternity, custody, visitation, and child support.

J.P. and S.B.B. had an affair that lasted several years, from approximately 2001 until 2007. S.B.B. was married the entire time and sexually active with J.P. and her husband. S.B.B. gave birth in January 2004 to T.C.B. and J.P. was involved in the child’s life until S.B.B. ended the affair in 2007. When S.B.B. terminated his visits, J.P. filed a petition to establish paternity, custody, visitation, and child support in July, 2009. In September, 2009, J.P. filed a petition for genetic testing to establish paternity.

The Pulaski Circuit Court held a hearing in November, 2010 and entered its findings of fact and conclusions of law in February, 2011. The trial court found that since the marital relationship between S.B.B. and her husband had not ceased during the ten month period preceding the birth of T.C.B., that J.P. lacked standing to pursue a paternity action and further held that it did not have subject matter jurisdiction.

Standing is defined as a party’s right to make a legal claim or seek judicial enforcement of a duty or right, and the requirement is met if the party has a real and substantial interest in the subject matter of the litigation. Whether a party has standing is determined by the facts of the case.

The trial court relied on J.N.R. v. O’Reilly, 264 S.W. 3d 587 (Ky. 2008) which focused on the date the marital relationship ceased. The legal presumption was that a child born to a married woman was the child of her husband unless evidence shows the marital relationship ceased ten months before the child’s birth. 

Several months after this case, the Supreme Court overruled O’Reilly in J.A.S. v Bushelman, 342 S.W. 3d 850 (Ky. 2011), and shifted the legal analysis away from the status of the woman’s marriage and instead scrutinized whether the woman’s lover presented sufficient evidence to support the possibility of a paternity claim. Because Bushelman superseded O’Reilly, the Court of Appeals held that J.P. had presented enough evidence to proceed with his paternity claim. Accordingly, pursuant to the more recent authority set forth in Bushelman, the order of the trial court is remanded for additional proceedings.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

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