Opinion
NO. 2012-CA-001303-ME
06-14-2013
RACHEL DUNN (NOW ROE) APPELLANT v. BRANT A. DUNN APPELLEE
BRIEF FOR APPELLANT: Wm. Clint Prow Providence, Kentucky BRIEF FOR APPELLEE: Zack N. Womack Henderson, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM UNION CIRCUIT COURT
HONORABLE WILLIAM E. MITCHELL, JUDGE
ACTION NO. 04-CI-00069
OPINION
AFFIRMING
BEFORE: COMBS, MAZE, AND NICKELL, JUDGES. NICKELL, JUDGE: Rachel Dunn (now Roe) has appealed from the order of the Union Circuit Court requiring her to reimburse Brant Dunn, her ex-husband, for past child support payments made by him after paternity testing conclusively established he was not the father of the child. We affirm.
Rachel and Brant were married on June 7, 1997, and divorced on May 4, 2005. Two children were born during the marriage, one in 1998 and the other in 2002. A Property Settlement Agreement executed in conjunction with the dissolution action established child support for the two children. Brant was required to pay Rachel $783.41 per month in child support. On June 20, 2011, Rachel sought and received an increase in support payments to $1,111.88. At all times, Brant believed he was the father of both children.
Shortly after the motion for increased support was filed, Brant received troubling information that the younger child may have been the product of an illicit affair between Rachel and an unknown third party. Based on this information, Brant moved the trial court for DNA testing of the younger child. Subsequent paternity testing conclusively excluded Brant as the child's father. As a result, the child support order was amended to reflect Brant's obligation to support only the single child of the marriage, setting his support at $737.66, effective August 1, 2011.
Brant subsequently moved the trial court for reimbursement or offset of child support payments he had made for the younger child based on the fraud perpetrated by Rachel. At the hearing of the matter, it was established that the parties had separated in 2000 because of Rachel's infidelity but reconciled later in the year. It was further established that Rachel engaged in another extramarital affair in late 2001 to early 2002. Rachel testified that when she became pregnant, she was aware there was a possibility that someone other than Brant was the father but did not share that information with Brant. She stated she had a "good faith belief" that the child was Brant's, but was unable to articulate any reasons for her belief. At the conclusion of the hearing, the trial court found Rachel had engaged in reckless misrepresentation as to the paternity of the child and, citing Denzik v. Denzik, 197 S.W.3d 108 (Ky. 2006), was responsible for the economic losses suffered by Brant. The court determined Brant had overpaid $162.98 per month in support for a period of 84.5 months. As the statute of limitations for fraud was five years under KRS 413.130, the trial court ordered Rachel to repay Brant $9,778.80, which represented the amount of overpayments she had received during the limitations period. Rachel's subsequent motion to alter, amend or vacate the order was denied. This appeal followed.
Kentucky Revised Statutes.
Rachel now contends the trial court erred in granting Brant any child support reimbursement. Alternatively, she argues the trial court incorrectly calculated the amount to be reimbursed. We disagree with Rachel's allegations of error.
Factual findings of a trial court will not be set aside on appeal "unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." CR 52.01. "Factual findings are not considered clearly erroneous if they are supported by substantial evidence. Appellate review of legal determinations and conclusions from a bench trial is de novo." Goshorn v. Wilson, 372 S.W.3d 436, 439 (Ky. App. 2012) (internal citations and quotation marks omitted).
Kentucky Rules of Civil Procedure.
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First, Rachel asserts the trial court incorrectly ordered her to repay Brant based on the erroneous conclusion that the factors set forth in Denzik had been met. In Denzik, our Supreme Court held a claimant must establish five factors to establish fraudulent misrepresentation: 1) a material misrepresentation; 2) that is false; 3) known to be false or made recklessly; 4) made with inducement to be acted upon; and 5) acted in reliance thereon and causing injury. Id., 197 S.W.3d at 110 (citing United Parcel Service Co. v. Rickert, 996 S.W.2d 464 (Ky. 1999)). Upon successfully proving these factors, a claimant becomes entitled to reimbursement of child support paid in reliance on the misrepresentation. Id. Rachel argues she made no material misrepresentation as she believed in good faith Brant was the biological father of the child, and even if she did make a misrepresentation, she did not know it was false when it was made.
We have reviewed the record and determined this contention is nothing more than a rehash of the argument made before the trial court. The trial court heard all of the testimony, had ample opportunity to judge the credibility of the witnesses, and concluded the Denzik factors were present and applicable. Rachel admitted to engaging in the extramarital affair that produced the child; having knowledge the third party could be the father of the child; intentionally withholding that information from Brant; assuring Brant she had not engaged in any extramarital affairs apart from the one in 2000 which lead to their separation; and representing to the courts, child support officials, and others on numerous occasions that the child was the product of the marriage. This testimony alone is sufficient to support the trial court's factual findings, and we will, therefore, not disturb them. We likewise are unconvinced the trial court erred in its application of the law to those factual findings. Denzik is clearly applicable and controlling as the trial court correctly noted.
Finally, Rachel contends the trial court incorrectly calculated the amount of support reimbursement due. She claims Brant suffered no injury as his support had been set too low for a number of years. Thus, the difference in what he had been paying for both children was minimally different from his new obligation to support only the older child. She argues Brant's income had steadily risen and the trial court should, therefore, have analyzed the parties' earnings from 2004 through 2011, calculated the support which would have been due based on those earnings for one and two children, calculated the differences and set any reimbursement amounts based on those figures. Her argument, if accepted, would essentially require trial courts to engage in mathematical gymnastics solely for the benefit of the party charged with perpetrating the fraud. If Rachel believed Brant's child support obligation was too low, she should have, but did not, sought a timely modification. We believe her contention is unreasonable, without legal support, and wholly without merit. Suffice it to say, the trial court correctly calculated the amount of support Brant overpaid and was entitled to be reimbursed based on the record before it.
For the foregoing reasons, the judgment of the Union Circuit Court is affirmed.
MAZE, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Wm. Clint Prow
Providence, Kentucky
BRIEF FOR APPELLEE: Zack N. Womack
Henderson, Kentucky