Opinion
NO. 2011-CA-002310-MR
01-11-2013
AMANDA LEE NEWCOMER APPELLANT v. JAMIE JONES APPELLEE
BRIEF FOR APPELLANT: G. William Bailey, Jr. Elizabethtown, Kentucky BRIEF FOR APPELLEE: Lori A. Kinkead Elizabethtown, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 05-CI-00397
OPINION
AFFIRMING
BEFORE: MAZE, MOORE, AND TAYLOR, JUDGES. MOORE, JUDGE: Amanda Lee Newcomer appeals the order of the Hardin Family Court finding that Jamie Jones is not the biological father of her minor child and terminating his child support obligation. After a thorough review of the record, we have no choice but to affirm.
Jamie and Amanda had a brief sexual relationship during which Amanda became pregnant. Although they were never married, Jamie signed the child's birth certificate as the father based upon Amanda's representation to him throughout her pregnancy that he was the child's father. Amanda never informed Jamie that there was a possibility that he was not the father.
Amanda subsequently filed for custody and child support. Amanda submitted a sworn petition to the family court representing that Jamie was the natural father of the child. The family court entered an order on March 7, 2006, granting Amanda sole custody of the child, finding that Jamie was the natural father of the child, and ordering him to pay monthly child support. Jamie was serving in Iraq with the United States Army at that time.
On January 26, 2011, Jamie filed a motion with the family court requesting that the court enter an order excluding Jamie as the biological father of the child and terminating his child support obligation. In his sworn affidavit, Jamie informed the family court that he had an independent paternity test conducted after realizing that the child did not bear any resemblance to him or his family and that the paternity test (dated January 4, 2011) revealed that he was excluded as the biological father of the child. Jamie further indicated that Amanda had misrepresented to him that he was the child's father and never informed him of the possibility that he may not be the child's father.
A subsequent paternity test ordered by the family court confirmed that Jamie was not the biological father of the child. Accordingly, despite Amanda's objection, the family court entered an order declaring that Jamie "is not the biological or legal father of the minor child." The court directed Amanda to have Jamie's name removed from the child's birth certificate and terminated Jamie's child support obligation. Amanda now appeals.
On appeal, Amanda asserts that the family court did not have jurisdiction to set aside the March 7, 2006 paternity and child support order because Jamie's CR 60.02 was untimely. We disagree.
Kentucky Rule of Civil Procedure.
Our review of the family court's grant of a CR 60.02 motion is for an abuse of discretion. See Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454, 456 (Ky. 2002). The test for an abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
Amanda cites to CR 60.02 (b) and (c) concerning newly discovered evidence and perjury or falsified evidence, respectively. Amanda correctly observes that a motion under each of these provisions must be brought within one year after entry of the judgment. CR 60.02. However, Jamie alleged that Amanda's misrepresentations constituted fraud affecting the proceedings pursuant to CR 60.02(d). Thus, it was not an abuse of discretion for the family court to exercise jurisdiction because a party is only required to bring a motion pursuant to CR 60.02(d) within a reasonable time. Amanda makes no assertion that Jamie failed to bring the motion within in a reasonable time under CR 60.02(d). Even so, the record reflects that Jamie brought his motion within one month of receiving the results of the initial paternity test.
Amanda does not deny that she continued to misrepresent to Jamie that he was undoubtedly the biological father of the child. Further, there is no evidence of record that Jamie should have been aware of the possibility that he was not the biological father of the child at an earlier time. Based on the facts of this case, the family court did not abuse its discretion in adjudicating Jamie's CR 60.02 motion, as the motion was filed within a reasonable time.
Amanda further argues that Jamie should be equitably estopped from denying his paternity. As stated in S.R.D. v. T.L.B., 174 S.W.3d 502, 506 (Ky. App. 2005),
[t]he doctrine of equitable estoppel is predicated upon the theory that
[w]here one has, by a course of conduct, with a full knowledge of the facts with reference to a particular right or title, induced another, in reliance upon such course of conduct, to act to his detriment, he will not thereafter be permitted in equity to assume a position or assert a title inconsistent with such course of conduct, and if he does he will be estopped to thus take advantage of his own wrong. [citing Farmer v. Gipson, 201 Ky. 477, 257 S.W. 1, 2 (Ky.1923)].
The doctrine is often stated in terms of the following factors: (1) Conduct, including acts, language and silence, amounting to a representation or concealment of material facts; (2) the estopped party is aware of these facts; (3) these facts are unknown to the other party; (4) the estopped party must act with the intention or
expectation his conduct will be acted upon; and (5) the other party in fact relied on this conduct to his detriment. [citing J. Branham Erecting & Steel Service Company, Inc. v. Kentucky Unemployment Insurance Commission, 880 S.W.2d 896, 898 (Ky.App. 1994)].
Regarding paternity issues, the defense of equitable estoppel provides that despite clear evidence that a party is not the biological father, he may nevertheless be held to be the legal father of the child as a matter of equity based upon the father's continued act of holding himself out as the father and the child's reliance upon that conduct. S.R.D., 174S.W.3d at 504-06 (legal father estopped from denying paternity in order to obviate support payments where he waited six years after learning that the child may not be his and otherwise wished to continue the relationship with the child). Research of this body of law shows that while the cases may have similarity, they are factually intensive. Nonetheless, application of equitable estoppel requires, at a minimum, some evidence of a father/child relationship. Wheat v. Commonwealth, 217 S.W.3d 266, 269 (Ky. App. 2007) (alleged father did not establish bonds of love and affection or act as the psychological father of the child - despite the fact that he initially acknowledged paternity and agreed to pay child support based upon the mother's representations that he was the father - so as to justify estopping him from denying paternity); Calfee v. Commonwealth, 230 S.W.3d 601, 603 (Ky. App. 2007) (estoppel not applied where parties were not married and nothing in the record supported that any representation was made that appellant was the biological father despite the fact that he was listed as the father on the child's birth certificate); Spears v. Spears, 784 S.W.2d 605, 608 (Ky. App. 1990) (husband not barred from seeking an order rebutting presumption that child born during marriage was his where he had never held out the child as his and had never paid support). Therefore although the doctrine has been applied in cases such as the present one, its application is highly fact driven.
The facts developed in this case do not rise to the level of those cases where the equitable estoppel has been applied by the courts. Herein, Amanda presents no evidence of an ongoing father-child relationship akin to other cases wherein an equitable estoppel claim survived. In fact, with the exception of the fact that Jamie had knowledge of the child's physical characteristics and was able to obtain a sample for the initial paternity test, there is no evidence that Jamie and the child have any consistent relationship whatsoever. We cannot infer this relationship. Rather, the most that can be gleaned from the sparse record before the Court is that the parties have resided in separate non-contiguous states for at least part of the child's life and also that Jamie was deployed for military service for a period of time after the child was born. The record does not include evidence of an on-going relationship, visitation or steady involvement in the child's life on Jamie's part. While we abhor severing the only father-child relationship this child has ever known, the facts of this case leave us no choice.
Accordingly, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: G. William Bailey, Jr.
Elizabethtown, Kentucky
BRIEF FOR APPELLEE: Lori A. Kinkead
Elizabethtown, Kentucky