J.A.S. v. Bushelman

• Citation: 342 S.W.3d 850
• Decision Date: 19 May 2011
• Docket Number: No. 2010–SC–000045–MR.,2010–SC–000045–MR.
• Parties: J.A.S., Appellant,v.Hon. Lisa O. BUSHELMAN, Judge, Kenton Circuit Court, AppelleeandC.H.E., Real Party in Interest.
• Court: United States State Supreme Court (Kentucky)

342 S.W.3d 850

J.A.S., Appellant,

v.Hon. Lisa O. BUSHELMAN, Judge, Kenton Circuit Court, AppelleeandC.H.E., Real Party in Interest.

No. 2010–SC–000045–MR.

Supreme Court of Kentucky.

May 19, 2011.

Roger Matthew Moore, Hornbeck & Moore, Covington, KY, Counsel for Appellant.Hon. Lisa Osborne Bushelman, Kenton County Family Court Judge, Covington, KY, Counsel for Appellee.Mary Erin Wilkins, Newport, KY, Counsel for Real Party in Interest.Opinion of the Court by Justice VENTERS.

Appellant, J.A.S., is the mother of an infant child, N.R.S. She appeals as a matter of right from a decision of the Court of Appeals denying her petition for a writ of prohibition. She sought the writ to bar Appellee, Judge Lisa O. Bushelman, from proceeding with the adjudication of an action filed in the Kenton Family Court by Real Party In Interest, C.H.E., to determine the paternity of N.R.S. Appellant claimed the courts have subject matter jurisdiction in paternity cases only when a “child born out of wedlock” was involved and that N.R.S. is not a “child born out of wedlock” as defined in KRS 406.011. The Court of Appeals declined to grant Appellant's petition. It affirmed Judge Bushelman's conclusion of law that N.R.S. was born out of wedlock because Appellant's extra-marital affair with C.H.E. constituted a cessation of her marital relationship more than ten months before N.R.S.'s birth, and therefore under KRS 406.011 the trial court had subject matter jurisdiction.

In context of the familiar writ standards explained in Hoskins v. Maricle, 150 S.W.3d 1, 6 (Ky.2004), the question is whether the trial court has subject matter jurisdiction over a claim brought under KRS Chapter 406 to establish the paternity of a child born to a married woman and conceived while she maintained sexual relations with her husband. To address directly the basic procedural issue of whether Appellant met the writ standard, we once again confront the substantive questions of whether the paternity of a child born to a married woman may be challenged, and if so, by whom. The specific question posed in this appeal is whether the paternity of a child born to a married woman, who throughout the relevant time period maintained a sexual relationship with her husband, may be adjudicated in Kentucky courts upon the petition of a man who, by the apparent results of a DNA test, is virtually certain to be the biological father of the child.

It is to be regretted that questions like these should ever arise in the courts of this commonwealth. Kentucky's matrons are famed for their high sense of virtue and exemplary conduct; and it is to be regretted that the conduct of Mrs. Minnie R. Froman was so radical a departure from this fair fame as to impel us to declare her son, Soloman White Froman, illegitimate.

Thus spoke Kentucky's highest court in 1889, in the case of Goss v. Froman, 89 Ky. 318, 12 S.W. 387, 388 (1889), declaring that a child conceived by Minnie R. Froman during her marriage was illegitimate because it was not the child of her husband. The Court opined that “[t]he proof of the illegitimacy of the child, begotten in wedlock, is a direct attack upon the mother's virtue, and an accusation of a wanton violation of her wedding vows, and is a stigma upon the child, and taints its blood, if the charge be true.” Id. at 390.

Much has changed since 1889, when paternity matters were known as “bastardy cases” and illegitimate children were denied a respectful place in decent society. Then, paternity litigation existed almost exclusively to enable a man (or his estate) to disavow an alleged paternal responsibility or to force him to accept paternal responsibility. Only in the last quarter of the twentieth century did we begin to see cases involving men seeking to acknowledge and accept a paternal obligation. Obviously, the stigma of being an “illegitimate” child or the parent of an “illegitimate child” is, within the greater part of society, gone. Some may lament the change as indicative of a decline in the moral fiber of American society. Others may celebrate the change for, among other things, its unbiased treatment of “illegitimate” children or the doors of opportunity it has opened for women, such as the destigmatization of bearing an out-of-wedlock child. But none may deny that the change has occurred. One thing has not changed: questions regarding the paternity of children born to married mothers still arise and must be resolved in the courts of this Commonwealth.

I. FACTUAL AND PROCEDURAL BACKGROUND

The preliminary facts are essentially uncontested. Appellant married R.S. on October 9, 1999. They have lived together ever since. They slept in the same bed, regularly engaged in sexual intercourse, and prior to 2008 had one child, whose paternity is not at issue. From August 2007 through the spring of 2008, Appellant was involved in an intimate and secret affair with Real Party In Interest, C.H.E., who was also married but was in the process of divorce. Appellant and C.H.E. had sexual intercourse on numerous occasions between October 2007 and March 2008. Throughout the affair, however, Appellant and her husband continued having sexual intercourse on a regular basis.

According to Appellant, the affair began because her marital relationship was troubled. She professed her love to C.H.E. and told him that she wanted to leave her marriage to be with him. He professed his love for her. She lied to her husband about her whereabouts when she was with C.H.E., and she lied about the reason his phone number often appeared on her phone bill.

In early 2008, Appellant discovered she was pregnant. By March of 2008, she decided to end the illicit affair, but admits that she did not clearly communicate that to C.H.E. Instead, she continued to have frequent, non-sexual contact with him. She met some of his family members and kept him informed about her prenatal medical care. Appellant's husband remained unaware of the affair. He testified that had they not been having regular sexual intercourse, her pregnancy would have been a “huge problem” that he would have addressed immediately.

On September 8, 2008, Appellant gave birth in Kentucky to a baby girl, N.R.S. Two weeks later, she and C.H.E. arranged for a DNA test to determine if he was the father of N.R.S. The DNA test revealed a 99.9429% probability that C.H.E. was the baby's father. When C.H.E. expressed a desire to acknowledge his daughter and to be a part of her life, Appellant informed her husband of the affair.

On October 14, 2008, C.H.E. filed a paternity action in the Kenton Family Court pursuant to KRS Chapter 406. In response, Appellant denied that C.H.E. was the father of N.R.S. She also affirmatively pled that the court lacked subject matter jurisdiction and that C.H.E. had no standing to assert his paternity claim. Upon those grounds, she moved to dismiss the paternity action, relying exclusively upon the lead opinion in J.N.R. v. O'Reilly, 264 S.W.3d 587 (Ky.2008), which, under facts substantially similar to those before us now, posited the view that KRS Chapter 406 deprived Kentucky courts of subject matter jurisdiction to adjudicate a paternity issue involving a married woman whose child was conceived and born amid no cessation of her marital relationship.¹

J.N.R. resulted in separate opinions by five of the seven justices on this Court. We refer to the opinion of Justice Minton (now Chief Justice Minton) as the “lead” opinion simply because it is first in line of the five opinions. While a majority of four justices concurred in the result reached by the lead opinion, they arrived at that result by at least two very different routes of legal analysis. None of the J.N.R. opinions garnered the support of more than two justices. Specifically, only one justice (Lambert) concurred with the rationale expressed in Justice Minton's lead opinion. Ware v. Commonwealth, 47 S.W.3d 333, 335 (Ky.2001) (quoting 20 Am.Jur.2d Courts § 159 (1995)), reminds us that “[a] minority opinion has no binding precedential value ... [and] if a majority of the court agreed on a decision in the case, but less than a majority could agree on the reasoning for that decision, the decision has no stare decisis effect.” While J.N.R. provides five thoughtful and thought-provoking opinions, it offers no guiding principle or rationale supported by a majority of the Court, and therefore its use as an authoritative platform upon which to build a solid legal argument is completely undermined. While the persuasive influence of any of the J.N.R. opinions remains worthy of consideration, none should be cited as a holding of this Court. To the extent that J.N.R. is perceived or deemed to have binding precedential authority, it is overruled.

Judge Bushelman, guided by the J.N.R. opinions, concluded that the question of subject matter jurisdiction turned on whether evidence established that Appellant's “marital relationship” with her husband ceased ten months before the birth of N.R.S. Accordingly, an evidentiary hearing was conducted, and based largely on Appellant's testimony about her affair with C.H.E., the trial court found that “the marital relationship,” had ceased more than ten months prior to the baby's birth. Judge Bushelman essentially adopted the rationale of Justice Abramson's J.N.R. opinion,² that “marital relationship” as used in KRS 406.011 is not merely a synonym for sexual intercourse between a husband and wife, but is instead a collective reference to a monogamous relationship with traditional qualities, such as love, fidelity, and trust, to forge the marital bond between a husband and wife. In the trial court's view, the “marital relationship” ceased when Appellant broke the monogamous marital bond and began the intimate sexual and secret relationship. Upon that finding, the trial court concluded that it had subject matter jurisdiction because N.R.S. could be classified as a “child born out of wedlock” per KRS 406.011....