J.N.R. v. O'Reilly, No. 2007-SC-000175-MR.

• Decision Date: 24 April 2008
• Docket Number: No. 2007-SC-000175-MR.
• Citation: 264 S.W.3d 587
• Parties: J.N.R. and J.S.R., Appellants, v. Honorable Joseph O'REILLY, Judge, Jefferson Family Court; and J.G.R., Real Party in Interest, Appellees.
• Court: United States State Supreme Court — District of Kentucky

264 S.W.3d 587 J.N.R. and J.S.R., Appellants,
v.
Honorable Joseph O'REILLY, Judge, Jefferson Family Court; and J.G.R., Real Party in Interest, Appellees. No. 2007-SC-000175-MR. Supreme Court of Kentucky. April 24, 2008. Rehearing Denied October 23, 2008.

Charles E. Ricketts, Jr., Ricketts & Platt, PLLC, Louis I. Waterman, Fore, Miller & Schwartz, Louisville, KY, Counsel for Appellants.

[264 S.W.3d 588]

Honorable Joseph W. O'Reilly, Jefferson Family Court, Division 7, Louisville, KY, Counsel for Appellee, Joseph W. O'Reilly.

Troy D. DeMuth, John H. Helmers, Jr., Helmers, DeMuth & Walton, PLC, Louisville, KY, Counsel for Appellee, J.G.R., Real Party in Interest.

Opinion of the Court by Justice MINTON.

The Court of Appeals denied relief to a wife and her husband who petitioned to prohibit the family court from adjudicating the paternity of a man who claimed to be the biological father of a baby born to the wife. On appeal, the principal issue is whether Kentucky's courts have jurisdiction to decide a man's claim of paternity of a child born to a woman who, at the time of the child's birth, was married to another man. We hold that Kentucky's paternity statutes do not grant subject-matter jurisdiction to our courts to determine paternity claims where, as here, there is no evidence or allegation that the marital relationship ceased ten months before the child's birth. Therefore, we conclude that the family court was attempting to proceed without jurisdiction and that the Court of Appeals erred when it failed to grant the writ of prohibition.

I. FACTS.

J.G.R. filed a Petition for Custody and Support in the family court, alleging that DNA tests confirmed him to be the biological father of J.A.R (Child), a three-month-old baby boy, who lived with his mother, J.N.R. (Wife).

Wife moved to dismiss the petition, arguing that J.G.R. lacked standing to bring it and that the family court had no jurisdiction to determine (1) custody of Child because J.G.R. had not been lawfully adjudicated to be his father and (2) paternity of Child because Child was not born out of wedlock since Wife was married to J.S.R. (Husband) when Child was born and at the time the petition was filed. Wife further asserted the continued vitality of the legal presumption that a child born to a married woman is presumed to be the child of her husband. She argued that the presumption could not be rebutted by "a stranger to the marriage." The family court refused to dismiss J.G.R.'s petition.

Wife and Husband then sought a writ from the Court of Appeals to prohibit the family court from proceeding on J.G.R.'s claims.¹ The Court of Appeals denied the writ, holding that Wife and Husband failed to show irreparable injury and lack of adequate remedy by appeal. The Court of Appeals further stated that "the only decision made by the [family] court pertaining to J.G.R.'s petition is that it will go forward on the paternity docket" and noted the family court had not made any rulings adjudicating any claims.

II. ANALYSIS. A. Court of Appeals Applied Wrong Standard to Writ of Prohibition Issue.

The Court of Appeals denied the writ of prohibition based upon Wife and Husband's failure to show irreparable injury and lack of adequate remedy by appeal. If the Wife and Husband had alleged only that the family court was acting erroneously within its jurisdiction, a showing of irreparable injury and lack of adequate remedy by appeal would have been required for the writ to issue.² But recent case law has made clear that a showing of irreparable injury and lack of adequate

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remedy by appeal is not required for issuance of a writ of prohibition when the trial court is acting outside its jurisdiction.³ A court vested with supervisory control should grant a writ of prohibition when the lower court is acting outside its jurisdiction and "there is no remedy through an application to an intermediate court." Despite Wife and Husband's arguments that the family court lacked jurisdiction to hear the case, the Court of Appeals denied the writ on the erroneous grounds of Wife and Husband's failure to show irreparable injury and lack of adequate remedy by appeal. The Court of Appeals failed to analyze whether the family court had jurisdiction to hear and decide J.G.R.'s petition.

B. Family Court Lacked Subject-Matter Jurisdiction to Hear Case.

Since personal jurisdiction is not at issue, we focus on whether the family court had subject-matter jurisdiction over this case. Subject-matter jurisdiction is defined as "[j]urisdiction over the nature of the case and the type of relief sought[,] the extent to which a court can rule on the conduct of persons or the status of things."⁴ From the outset, Wife and Husband have disputed the family court's subject-matter jurisdiction to accept a petition in which the alleged biological father of a child, born to a woman who is married to another man, seeks to establish paternity, custody, support, and visitation of the child.

We must look to our statutes to see whether our trial courts have been granted subject-matter jurisdiction over a case like this one. We do not explore whether our statutes conferring subject-matter jurisdiction effectuate sound public policy, reflect the modern realities of DNA testing, or recognize the disappearance of ancient legal disabilities associated with being born out of wedlock. And we do not address the constitutionality of the statutes as written. Although the parties have debated whether an unmarried biological father has due process or equal protection rights to seek the relief J.G.R. seeks here, J.G.R. has not argued the unconstitutionality of the paternity statutes as written nor served Kentucky's Attorney General to challenge the constitutionality of any statute.⁵ So we are left to examine the words of our statutes to see whether the family

264 S.W.3d 590

court had jurisdiction to hear and adjudicate J.N.R.'s paternity petition.

C. No Subject-Matter Jurisdiction Over This Case Under KRS Chapter 406.

Subject-matter jurisdiction over paternity proceedings for all of our trial courts is governed by Kentucky Revised Statutes (KRS) Chapter 406, also known as the Uniform Act on Paternity.⁶ KRS 406.051(1) provides the district court with subject-matter jurisdiction over "an action brought under this chapter" to establish support for "children born out of wedlock." KRS 406.051(2) states that the circuit court and district court share concurrent jurisdiction over custody and visitation issues "in cases where paternity is established as set forth in this chapter." And KRS 23A.100(2)(b) confers the general jurisdiction of the circuit court on a family court division of the circuit court for proceedings under the Uniform Act on Paternity.

Despite the fact that KRS 406.021 states that a paternity complaint may be filed by a "putative father,"⁷ a term not defined in KRS Chapter 406, the instant case is not an action "under this chapter"; and KRS 406.021 does not allow for paternity to be established because KRS Chapter 406 limits its applicability to cases of children "born out of wedlock" and establishes a definition of "born out of wedlock" that the facts of this case do not satisfy. KRS 406.180 (governing applicability of Chapter 406) states, in pertinent part, that "[t]his chapter applies to all cases of birth out of wedlock: (1)[w]here birth occurs within this state[.]" And KRS 406.011 defines who is included and who is not included in the term "born out of wedlock:"

A child born during lawful wedlock, or within ten (10) months thereafter, is presumed to be the child of the husband and wife. However, a child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child.

We note that the General Assembly chose to enact a narrow definition of an out-of-wedlock birth that differs distinctively from the proposed definition of an

264 S.W.3d 591

out-of-wedlock birth proposed by the drafters in the 1960 Uniform Act on Paternity. Section 1 of the Uniform Act on Paternity (1960) states that: "[a] child born out of wedlock includes a child born to a married woman by a man other than her husband."⁸ The official commentary to this section mentions Kentucky's variation from the Uniform Act draft.⁹

By the plain language of Chapter 406, that chapter only applies to births out of wedlock. And it defines births out of wedlock as including births to married women where evidence shows that the husband and wife's "marital relationship" ceased ten months before the child's birth.¹⁰ In the instant case, we have no allegation that Wife and Husband's marital relationship had ceased ten months before Child's birth. So Child does not meet the statutory definition of a child born out of wedlock, and Chapter 406 does not grant the family court subject-matter jurisdiction or give J.G.R. standing to seek a paternity determination under Chapter 406.¹¹

We recognize that the Court of Appeals rejected an argument in Montgomery v. McCracken¹² that "a child born to a married woman can be found to have been born out of wedlock only if the spouses' marital relationship ended at least ten months prior to the child's birth."¹³ But the holding in Montgomery depended in large part upon the effect of a non-appealed judicial finding from an earlier divorce proceeding to the effect that the woman's husband was not the father of the child:

Here, although the spouses' marital relationship did not fall into the category of having ceased ten months prior to the child's birth, it is uncontroverted that the husband was found in an earlier circuit court proceeding to not be the child's father. That finding is not before us on appeal. That being so, the trial court certainly did not err by concluding that the presumption of legitimacy had been overcome by evidence "so clear...