Opinion
NO. 2013-CA-001429-ME
06-27-2014
JEFFREY FRANK GABBARD APPELLANT v. JENNY L. COOMER APPELLEE
BRIEFS FOR APPELLANT: Jeffrey Frank Gabbard, Pro Se Beattyville, Kentucky BRIEF FOR APPELLEE: Charnel M. Burton (now Cornett) Booneville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM POWELL CIRCUIT COURT
HONORABLE LARRY MILLER, JUDGE
ACTION NO. 10-CI-00135
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS AND DIXON, JUDGES. DIXON, JUDGE: Jeffrey Frank Gabbard, pro se, appeals from an order of the Powell Circuit Court denying his petition for visitation with C.F.G., the son of Jenny L. Coomer. After careful review, we affirm.
Jeffrey and Jenny were involved in a romantic relationship and lived together from 2004 until July 2009. Jenny learned she was pregnant in the fall of 2007, and she gave birth to C.F.G. in May 2008. Although Jeffrey was named as the father on C.F.G.'s birth certificate, approximately seven months later Jeffrey filed a paternity action and sought DNA testing. In July 2009, Jenny ended the relationship, and Jenny and C.F.G. moved out of the residence. Shortly thereafter, the DNA test results excluded Jeffrey as the biological father, and it was conclusively established that Jeffrey's nephew, Derrick Collier, was C.F.G.'s biological father.
On April 28, 2010, Jeffrey filed a petition for visitation with C.F.G.. Jeffrey alleged that Jenny had led him to believe that he was C.F.G.'s father and that he had bonded with C.F.G. during the fourteen months they resided together as a family. Jenny filed an answer asserting that the Lee County District Court paternity judgment established that Derrick was C.F.G.'s biological father and that Jeffrey lacked standing to seek visitation.
The parties extensively briefed the issues, and the court held an evidentiary hearing. Jeffrey testified that, until the DNA results proved otherwise, he believed he was C.F.G.'s father. After C.F.G. was born, Jeffrey added C.F.G. to his health insurance policy and acted as a father to C.F.G. during the first fourteen months of his life. Jeffrey admitted that two or three months before he learned of the pregnancy, he heard rumors that Jenny was having an affair with his nephew. When Jeffrey asked Jenny about the rumors, she denied the affair and told Jeffrey that he was the baby's father. C.F.G. was approximately fourteen months old when the parties separated, and for a brief period, Jenny allowed C.F.G. to visit with Jeffrey on weekends. Jeffrey last saw C.F.G. in August 2009, as Jenny refused further visitation after the DNA results excluded Jeffrey as the father. Jeffrey conceded that, over the past two years, C.F.G. had probably developed an emotional bond with Jenny's current live-in boyfriend.
According to Jenny, Jeffrey knew she had been involved with Derrick because Jeffrey found them together in August 2007. Jenny further explained that Jeffrey angrily left her ultrasound appointment because her due date indicated she was farther along in the pregnancy than he had expected; however, she admitted that she told Jeffrey he was the father because she thought they could be a family. Jenny also testified C.F.G. had developed a good relationship with her boyfriend of two years, and she did not believe it was in C.F.G.'s best interests to visit with Jeffrey.
In July 2013, the court rendered a lengthy order denying Jeffrey's petition for visitation. This appeal followed.
On appellate review, this Court will not reverse a visitation order unless it constituted "a manifest abuse of discretion, or [was] clearly erroneous in light of the facts and circumstances of the case." Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). "Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision." Allen v. Devine, 178 S.W.3d 517, 524 (Ky. App. 2005).
Jeffrey contends that he was entitled to an award of visitation based on equitable grounds. Essentially, Jeffrey asserts that Jenny intentionally led him to believe he was C.F.G.'s father and that he acted as C.F.G.'s father for fourteen months. Jeffrey argues he developed a bond with C.F.G. and should be permitted to maintain a relationship with him despite the results of the DNA test.
The form and content of Jeffrey's brief falls short of the requirements set forth in CR 76.12. Despite the mandates of CR 76.12(4)(c)(iv)-(v), the brief does not contain any citations to the record, and there are no references to the record showing how the issues were preserved for appeal.
In Kentucky, the theory of paternity by estoppel was first applied in S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky. App. 2005). There, the Court explained:
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.Id. at 506.
Although Jeffrey acted as C.F.G.'s father for the first fourteen months of his life, a paternity judgment established that Derrick, not Jeffrey, was C.F.G.'s biological father. The relationship between Jeffrey and C.F.G. was severed when C.F.G. was very young, and Jeffrey was conclusively excluded as C.F.G.'s biological father. Furthermore, the court's judgment reflects that it fully considered and rejected Jeffrey's equitable estoppel argument. The court found, in relevant part:
[Jeffrey's] doubts as to the paternity of [C.F.G.] made his reliance on [Jenny's] statements regarding said child's paternity unjustified. Although [Jeffery] contends he relied on [Jenny's] leading him to believe he was her son's father to his detriment, [Jeffery] knew [Jenny] wasn't taking birth control; he'd heard rumors 2-3 months before [Jenny] became pregnant that she was with his nephew; [Jenny's] first ultrasound indicated she was further along with her pregnancy than she and [Jeffery] thought; [Jeffery] asked [Jenny] repeatedly during her pregnancy if he was the father of her unborn child[.] . . . [T]he court concludes that under these circumstances [Jeffery's] reliance on [Jenny's] representations were not justified[.]
The parties presented conflicting testimony regarding the circumstances of Jenny's pregnancy and her affair with Derrick. The trial court was in the best position to weigh the evidence and assess witness credibility. CR 52.01. From the testimony presented, the court concluded that estoppel was not applicable and that Jeffrey had not established that Jenny was unfit or that she had waived her superior right to custody of her son. The court also engaged in a detailed analysis of the best interests of the child and concluded that visitation with Jeffrey was not in C.F.G.'s best interest. The court's findings were supported by substantial evidence, and we conclude the court properly denied Jeffrey's motion for visitation.
For the reasons stated herein, we affirm the judgment of the Powell Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Jeffrey Frank Gabbard, Pro Se
Beattyville, Kentucky
BRIEF FOR APPELLEE: Charnel M. Burton (now Cornett)
Booneville, Kentucky