S.R.D. v. T.L.B.

• Decision Date: 02 September 2005
• Docket Number: No. 2004-CA-001309-MR.,2004-CA-001309-MR.
• Citation: 174 S.W.3d 502
• Parties: S.R.D., Appellant, v. T.L.B., Formerly T.L.D., Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 502

174 S.W.3d 502

S.R.D., Appellant, v. T.L.B., Formerly T.L.D., Appellee.

No. 2004-CA-001309-MR.

Court of Appeals of Kentucky.

September 2, 2005.

Case Ordered Published by Court of Appeals October 14, 2005.

David L. Vish, Louisville, KY, for appellant.

John H. Helmers, Jr., Troy DeMuth, Louisville, KY, for appellee.

Before HENRY, McANULTY, and MINTON, Judges.

OPINION

MINTON, Judge.

A finding in the divorce decree recognized the uncontested assertion that the marriage of S.D. and T.B. produced three minor children. The decree also incorporated a joint custody agreement that designated T.B. as primary residential custodian and obligated S.D. to pay child support. Six years post-decree, S.D. moved the family court to set aside the parentage finding as to the youngest child because DNA testing confirmed that she was not his child. Although S.D. wanted to continue in his role as a father to the child in every way except for the financial support of the child, the family court denied S.D.'s motion to end child support. Relying on equitable estoppel principles, the family court concluded that S.D. waited too long to deny his full role as parent. Consistent with the best interests of the child standard, the family court concluded that any financial or emotional disruption of the parent-child relationship with the youngest child would be seriously detrimental to all three children. We find no abuse of discretion by the family court and affirm the order.

S.D. and T.B. were married in 1988. During the marriage, T.B. gave birth to three children: R.D., born December 9, 1989; B.D., born February 21, 1993; and H.D., born May 17, 1995. Although T.B. "threatened and intimated" to S.D. during their marriage that he was not H.D.'s father, S.D. treated each of the three children as his own. In his petition for dissolution, S.D. alleged that R.D., B.D., and H.D. were all born of the parties' marriage; T.B. did not deny the allegation. And on dissolution of the marriage, S.D. agreed to joint custody and to pay child support for all three children.

For over six years after the divorce, S.D. did not challenge his paternity of H.D. But for reasons undisclosed in the record, in November 2003, S.D. had all three of the children DNA tested. The results indicated that while there was a 99.98 percent probability S.D. was the biological father of R.D. and B.D., there was no chance he was H.D.'s natural father.¹

Despite this knowledge, S.D. entered into an agreed order on January 22, 2004, modifying the existing parenting schedule for all three children and indicating his desire to continue in his paternal role. The parties also agreed to meet with Mitch Charney, a court-ordered parenting coordinator.

In Charney's report to the family court, he acknowledged that DNA testing proved S.D. was not the biological father of H.D. Charney also noted that S.D. stated he was only willing to continue child support for R.D. and B.D. but wanted to have visitation and a parental relationship with all three children. Based on this information, Charney stated he felt it was "too late for [S.D.] to deny his role as a parent." Therefore, Charney recommended that S.D. maintain his present financial and custodial role. Charney further noted that if the court chose to relieve S.D. of his financial responsibilities towards H.D., he should also be relieved of his parental rights and that T.B. should be given the sole care, custody, and control of the child. Under this circumstance, Charney cautioned that the court should arrange for "appropriate mental health intervention" for all three children.

S.D. responded to Charney's report with a CR 60.02 motion to set aside the original finding declaring him to be H.D.'s biological father and with exceptions to the report itself. In his motion, S.D. argued that he "has no legal obligation to pay support for [H.D.], as he is not her biological father. However, [he] is the only father [whom] [H.D.] has ever known and to deny her the right to have visitation with him would cause her irreparable harm." This arrangement, S.D. argued, was in H.D.'s best interest.

The family court denied S.D.'s motion. Agreeing with Charney's recommendations, the court stated that "there is no doubt that the best interest of the child is for the father-daughter relationship to continue in the same manner as it has to this point in time. Any disruption in that relationship, financial or emotional[,] would pose potentially serious ramifications for the child." The court also ruled that S.D. was estopped from seeking relief under CR 60.02(d) and (f) "in light of his own behavior." Because S.D. had held himself out as H.D.'s father for over nine years,² even after the paternity test revealed otherwise, the court concluded that S.D. was H.D.'s legal father. As such, the court denied S.D.'s motion, reasoning that to do otherwise "would not be in the best interest of the child and could result in serious detriment to her, contrary to statutory law and public policy."

S.D. argues on appeal to this Court that the Jefferson Family Court abused its discretion by denying his CR 60.02 motion. S.D. claims "that pursuant to CR 60.02(d) and (f) the trial court had the clear authority to set aside the previous order of support as it pertained to the youngest child [H.D.]."

In two published opinions, this Court has held that a CR 60.02 motion is a proper vehicle for challenging a judgment of paternity. In Cain v. Cain,³ a man filed a motion under CR 60.02(d) twelve years after entry of the decree of dissolution. The motion came in response to allegations made two years earlier by the man's ex-wife that he was not the biological father of their youngest son. We held that the two-year lapse between the man learning of his questionable paternity and the filing of the CR 60.02 motion was a reasonable amount of time. And we concluded that the motion was proper and paternity could be reconsidered.

In Spears v. Spears,⁴ a married couple separated in June 1975 but did not petition for divorce until 1985. The husband testified that the parties had no children; however, the wife filed an entry of appearance wherein she claimed a daughter was born of the marriage in August 1975. The husband allegedly had no knowledge of the child and had never acknowledged the child as his own. The trial court granted the divorce and concluded that because the child was born of the marriage, the husband was presumed to be the biological father. On appeal, we reversed, concluding that because the husband had never held himself out as the child's father and because no demand had ever been made on him for support, "it would be highly unfair and unjust" to refuse the CR 60.02 motion.

The facts of our case are distinguishable from the facts presented in Cain and Spears. In Cain, the father waited two years after learning he may not be his child's natural parent before filing his CR 60.02 motion to reconsider paternity; here, S.D. waited over six years after he was first put on notice that he may not be H.D.'s father before filing his petition. In an affidavit filed before the family court, S.D. noted that T.B. informed him during the course of their marriage when H.D. was two years old that he may not be the child's father. Because he "could not deal with it and chose not to deal with it," he did not have DNA tests performed at that time. In fact, he waited some six years, until 2003, to file his CR 60.02 motion.

In Spears, the father never held himself out as the child's father; rather, he first became aware of his child's existence some ten years after the child was born. In the case at hand, S.D. assumed the role of H.D.'s father from the time she was born.

Moreover, S.D. has not established the grounds necessary under CR 60.02(d) or (f) to relieve him of his child support obligation. Under CR 60.02(d), a party must prove "fraud affecting the proceedings, other than perjury or falsified evidence" to obtain relief from a final judgment. S.D. argues T.B. perpetrated a fraud upon the court by failing to deny in her response to his allegation in the divorce petition that three children were born of the marriage. But S.D. himself made the allegation in his verified petition for divorce, even though he was previously notified by T.B. that he might not be H.D.'s father.

Further, CR 60.02(f) provides relief when there is proof of "any other reason of an extraordinary nature justifying relief." We do not believe this situation is of such an "extraordinary nature" to grant S.D.'s motion. As noted, S.D. had knowledge, albeit constructive knowledge, that H.D. may not be his child. Yet, he continued to portray himself as her father. The fact that he "chose not to deal" with the situation until some six years after he first learned of his questionable parentage does not, in our minds, constitute a reason of an extraordinary nature.

While we agree that the trial court had "clear authority" under CR 60.02 to set aside the previous order of support, it was within the court's discretion not to exercise that authority. Rather than grant S.D.'s motion, the court held that S.D. was "estopped from seeking relief pursuant to CR 60.02(d) and (f) in light of his own behavior." We agree with this conclusion.

Kentucky courts have yet to apply the doctrine of estoppel to a paternity dispute. We believe the matter presents an important issue of first impression; therefore, we will discuss the implications fully.

The substance of S.D.'s argument is best summarized in his own words, as follows:

In the case at bar as [S.D.] is not the biological father of [H.D.] he should not be under a court order to pay support for said child and he should have an order entered stating that he is not her biological father.

However, [notwithstanding] his position on this issue, the [sic] [S.D.] wishes the court to realize that he loves [H.D.] and he wants to continue to have a relationship with her....