Opinion
NO. 2020-CA-1529-ME
05-14-2021
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, EX REL., CHILD SUPPORT ENFORCEMENT APPELLANT v. B.N.T. AND K.S. APPELLEES
BRIEF FOR APPELLANT: William D. Elkins Clark County Attorney Winchester, Kentucky BRIEF FOR APPELLEE B.N.T.: Anita M. Britton Lexington, Kentucky NO BRIEF FOR APPELLEE K.S.
NOT TO BE PUBLISHED APPEAL FROM CLARK CIRCUIT COURT
HONORABLE LISA MORGAN, JUDGE
ACTION NO. 16-J-00311 OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, MAZE AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: The Commonwealth of Kentucky, Cabinet for Health and Family Services, ex rel., Child Support Enforcement (hereinafter referred to as Cabinet) appeals from an order denying a motion to set aside an agreed judgment regarding paternity. The Cabinet argued that the agreed judgment was entered due to fraud and should be set aside pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. We find that the trial court did not err in denying the motion; therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
In 2016, K.S. (hereinafter referred to as Mother) gave birth to a child. On June 7, 2016, B.N.T. (hereinafter referred to as Alleged Father) completed an Application for Child Support Services. This application allowed the Cabinet, through the county attorney, to initiate child support and paternity actions on behalf of Alleged Father. Mother and Alleged Father were not married and paternity of the child had not yet been established.
This case involves a minor child; therefore, we will not use the names of the parties.
On October 28, 2016, a paternity complaint was filed by the Cabinet on behalf of Alleged Father. Mother was served with the complaint, but did not respond. Later, the office of the county attorney who initiated the action contacted Mother and informed her of the proceedings and of her options. Mother informed the county attorney's office that Alleged Father was not the father of the child, but that the father was her then fiancé. Mother did not disclose the name of the fiancé. She then agreed to sign an agreed order indicating that Alleged Father was not the biological father of the child. On December 27, 2016, an agreed judgment regarding paternity was entered. The judgment stated that Alleged Father was not the biological father of the child, that Mother's fiancé was the biological father, that the parties waived genetic testing, and that the document was entered into freely. Mother and Alleged Father both signed the document in front of a notary public.
On May 12, 2020, almost four years after the birth of the child, Mother filed an Application for Child Support Services. In that application she claimed that Alleged Father was the biological father of the child. On May 15, 2020, the Cabinet filed a motion to set aside the previous agreed judgment. The motion also requested genetic testing to establish paternity and requested that child support be established. The motion claimed that Alleged Father knew he was the biological father; Alleged Father pressured Mother into signing the agreed judgment; and that Mother's fiancé, who was mentioned in the agreed judgment as the biological father, did not exist. The motion argued that the judgment should be set aside pursuant to CR 60.02(d) and (f).
Requesting relief due to fraud affecting the proceedings, other than perjury or falsified evidence.
Requesting relief due to any other extraordinary reasons.
An amended complaint and response from Alleged Father were later filed. A hearing was set and both parties filed pre-hearing memoranda. A hearing was held on October 30, 2020. At the beginning of the hearing, counsel for Alleged Father argued that the motion to set aside the agreed judgment was untimely under CR 60.02. The trial court then decided to take a recess to consider whether the motion to set aside was timely and whether the hearing on the facts should go forward. The court returned on the record about an hour later and the judge made a ruling from the bench that the CR 60.02 motion was untimely.
This oral ruling was then memorialized into a written order and entered on November 4, 2020. The trial court held that the agreed judgment might have been based on perjury or falsified evidence, specifically the statements made to the Cabinet and sworn to in the agreed judgment by Mother that Alleged Father was not the biological father of the child. Those issues fall under CR 60.02(c) and must be brought within one year; therefore, the court held the motion was untimely. Alternatively, the trial court held that the agreed judgment could not be set aside pursuant to CR 60.02(d) and (f). Those two sections must be brought within a reasonable time, but the court held that the almost four-year time period was not reasonable. The court reasoned that, assuming Alleged Father is the biological father, Mother knew this fact from the beginning, but still waited four years before raising the issue. The court found that unreasonable.
This appeal followed.
ANALYSIS
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.CR 60.02. "Our standard of review of a trial court's denial of a CR 60.02 motion is whether the trial court abused its discretion. The test for abuse of discretion is whether the trial court's decision was 'arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Age v. Age, 340 S.W.3d 88, 94 (Ky. App. 2011) (citations omitted).
The decision as to whether to grant or to deny a motion filed pursuant to the provisions of CR 60.02 lies within the sound discretion of the trial court. The rule provides that a court may grant relief from its final judgment or order upon various grounds. Moreover, the law favors the finality of judgments. Therefore, relief may be granted under CR 60.02 only with extreme caution and only under the most unusual and compelling circumstances.Id. (citations omitted).
CR 60.02 "is designed to provide relief where the reasons for the relief are of an extraordinary nature." A very substantial showing is required to merit relief under its provisions. Moreover, one of the chief factors guiding the granting of CR 60.02 relief is the moving party's ability to present his claim prior to the entry of the order sought to be set aside.U.S. Bank, NA v. Hasty, 232 S.W.3d 536, 541-42 (Ky. App. 2007) (citations omitted).
While most of the Cabinet's brief focuses on CR 60.02 issues, the Cabinet raises some statutory arguments. We will address those first. The Cabinet's first argument concerns Kentucky Revised Statutes (KRS) 406.021(1), which states in relevant part that "[p]aternity may be determined upon the complaint of the mother, putative father, child, person, or agency substantially contributing to the support of the child." The Cabinet argues that Alleged Father was not substantially contributing to the support of the child; therefore, he was ineligible to bring the original paternity action. It further argues that if he was ineligible to bring the paternity action, the agreed judgment must be set aside. This argument was not raised in the trial court and we deem it waived. "The Court of Appeals is without authority to review issues not raised in or decided by the trial court." Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989); see also Shelton v. Commonwealth, 928 S.W.2d 817, 818 (Ky. App. 1996). "[E]rrors to be considered for appellate review must be precisely preserved and identified in the lower court." Skaggs v. Assad, by and through Assad, 712 S.W.2d 947, 950 (Ky. 1986) (citation omitted).
The Cabinet also argues that Alleged Father's paternity action was not an action to determine paternity, but an action to acquire an order stating he was not the father. The Cabinet claims that if this was not a legitimate action to determine paternity, then KRS 406.021(1) does not apply and the agreed judgment should be set aside. This argument is without merit. Had Mother not made false statements or executed the agreed judgment, then a DNA test could have established paternity. Alleged Father's paternity was established by the agreed judgment and the judgement is not void.
We now move on to CR 60.02 issues. The Cabinet alleges that the false statements of Mother and alleged false statements of Alleged Father constitute fraud affecting the proceedings and that the motion to set aside was timely filed. We disagree. We believe the trial court's analysis was on point. First, we agree with the trial court that perjury or false evidence was the actual issue raised in the CR 60.02 motion. Had mother not made false statements to the Cabinet and perjured herself in the agreed judgment, Alleged Father would likely have been required to take a DNA test back in 2016 and the paternity issue would have been resolved. Since this CR 60.02 motion is based on perjury and false evidence, it should have been raised in 2017. It was not; therefore, the motion is untimely.
We also agree with the trial court's alternative reasoning. Even if we did believe there was fraud affecting the proceedings, the issue was not timely raised. Assuming Alleged Father is the biological father and Mother's fiancé did not exist, Mother knew these facts for almost four years and made no effort to reopen the paternity issue. We do not believe the trial court abused its discretion in holding four years was an unreasonable amount of time to bring the CR 60.02 motion based on the facts of this case.
The Cabinet also argues that it, and not Mother, was the real party in interest; therefore, her false statements cannot be attributed to it and it can still raise the fraud affecting the proceedings issue. The Cabinet's reasoning is that if it did not know about Mother's false statements at the time the agreed judgment was entered, then it was prevented from fully adjudicating its paternity case. Further, when it learned about Mother's false statements, the Cabinet filed the CR 60.02 motion within a week; therefore, it was timely filed.
This argument was raised before the trial court; however, the court did not address it in its order denying the Cabinet's motion to set aside. We conclude that this issue was waived because the Cabinet did not request additional findings.
A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding
of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.CR 52.04; Vinson v. Sorrell, 136 S.W.3d 465, 470-71 (Ky. 2004).
Finally, we must address KRS 406.081. KRS 406.081 states in pertinent part that "[t]he court, upon request of a party or on its own motion, shall order the mother, child, and alleged father to submit to genetic tests." The Cabinet argues that when it and Mother requested a DNA test, the trial court had no other option but to require the testing. Again, while this issue was raised below, it was not discussed in the trial court's order and no additional findings were requested by the Cabinet.
Unlike the previous issue, however, we will still briefly address it. We do not believe the trial court was required to order a DNA test pursuant to KRS 406.081 in this case. The issue of paternity had been decided by the agreed judgment. Without a controversy, the court had no reason to require DNA testing. It is our opinion that case law supports this position. See Cain v. Cain, 777 S.W.2d 238 (Ky. App. 1989) (where the Court held that a blood test pursuant to KRS 406.081 could be ordered after the paternity case was reopened via a successful CR 60.02 motion.); see also Moore v. Commonwealth, Cabinet for Health Family Services, No. 2006-CA-0219-ME, 2006 WL 3691181 (Ky. App. Dec. 15, 2006) (where the Court held that a previous judgment of paternity settled the paternity issue, and unless it could be reopened via CR 60.02 a parent was not entitled to a blood test under KRS 406.081.).
CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court which denied the Cabinet's motion to set aside the agreed judgment and request for DNA testing.
JONES AND MAZE, JUDGES, CONCUR AND FILE SEPARATE OPINIONS. JONES, JUDGE: While I concur with the result as to the parties before the Court, I am deeply troubled by the shenanigans which appear to have taken place throughout these proceedings. This child has a father and she has a right to receive support and guidance from that father. At the very least, she has a right to know the identity of her biological father. None of the parties appear to have taken into account this child's rights and interests, at least not to date.
While the child was named in the prior paternity action, she was not a party to it, and no guardian ad litem was appointed to protect her interests. I write separately to point out that while the instant parties are not able to use CR 60.02 to reopen the prior paternity action, nothing prevents the child from filing her own paternity and support action. Our Court has previously held that a paternity judgment is not res judicata as to a child who was not an actual party in the previous action.
We are not called upon to decide whether Ms. Hansard was properly barred from bringing the paternity action, nor do we undertake to review the issue. Nonetheless, based on Kentucky's treatment of the doctrine of res judicata, in conjunction with the cited law from other jurisdictions in paternity cases, we conclude that the circuit court erred in reversing the finding of paternity and order of child support brought on behalf of the child. Jordan Hansard [the child] was not a party to the divorce and was not a party to the original paternity suit. His name appeared on the first complaint not as a party, but merely for purposes of naming the child.Commonwealth ex rel. Hansard v. Schackleford, 908 S.W.2d 671, 672 (Ky. App. 1995). Either the mother, the Cabinet, or the County Attorney could move the Court for the appointment of a guardian ad litem for Child for the purpose of doing so. Certainly, it appears to me that the child is in need of someone who has only her best interests in mind; it is clear that the parties to date have utterly failed to put the child's interests on equal footing with their own. MAZE, JUDGE: I am deeply troubled by the serious allegations of misconduct involving these parties in this case. The Cabinet alleges that Alleged Father engaged in a sham paternity proceeding while he was serving as the elected county attorney. The Cabinet further asserts that the result of that proceeding was a contrived agreed order excluding him as father of the child. I am also disturbed by the allegation that the trial court and conflict counsel signed off on this agreed order without obtaining either a DNA test or requiring Mother to provide the name of the fiancé whom she asserted was the actual father of the child. The evidence presented by the Cabinet on this motion calls the veracity of that entire proceeding into serious question.
The order of the Bell Circuit Court is reversed, and this case is remanded for reinstatement of the verdict of paternity and award of child support.
Nevertheless, I concur in the result of the majority opinion because the Cabinet has not shown that it is entitled to relief from the agreed order of paternity under CR 60.02. Relief under 60.02(c), perjury or falsified evidence, is not available because a motion under that section must be brought within one year. That leaves "fraud affecting the proceedings" under CR 60.02(d), which must be brought within a "reasonable time." As this Court noted in Carroll v. Carroll, 569 S.W.3d 415 (Ky. App. 2019), "fraud affecting the proceedings" necessarily encompasses conduct other than perjury or falsified evidence.
In Terwilliger v. Terwilliger, 64 S.W.3d 816 (Ky. 2002), the Kentucky Supreme Court explained that "fraud affecting the proceedings" generally covers fraudulent conduct outside of the trial which is practiced upon the court, or upon the defeated party, in such a manner that he is prevented from appearing or presenting fully and fairly his side of the case. Id. at 818. However, the language of the rule is broad enough to allow "for flexibility in the determination of what constitutes 'fraud affecting the proceedings' where the net effect would cause an unjust judgment to stand." Id. at 819 (quoting 7 Kurt A. Philipps, Jr., Kentucky Practice, CR 60.02, cmt. 6 (5th ed. 1995)).
In this case, the trial court focused on Mother's conduct and knowledge of the alleged fraud involving the agreed order. Because Mother did not allege that she was deprived of any opportunity to fairly present her claims in the 2016 proceeding, the trial court concluded that she had not shown any basis for relief. I agree with the trial court and the majority on that very narrow issue.
Unfortunately, the Commonwealth failed to assert its separate interest in establishing paternity and collecting child support paid on behalf of the child. See KRS 205.712 and 921 KAR 1:390. Had the Cabinet raised its status as the real party in interest for purposes of the CR 60.02 motion, then the trial court would have been required to hold an evidentiary hearing on the motion. Similarly, the trial court's analysis would have been focused on the Cabinet's injury and knowledge, not the Mother's. But without proper preservation of these issues, this Court is not at liberty to address arguments which were not raised to the trial court. Thus, despite my strong misgivings about the facts of this case, I reluctantly concur in the result reached by the majority opinion. BRIEF FOR APPELLANT: William D. Elkins
Clark County Attorney
Winchester, Kentucky BRIEF FOR APPELLEE B.N.T.: Anita M. Britton
Lexington, Kentucky NO BRIEF FOR APPELLEE K.S.
Kentucky Administrative Regulations.