Opinion
NO. 2014-CA-001429-ME
03-25-2016
CHRISTIAN N. SIMPSON APPELLANT v. JOHN N. HERNDON APPELLEE
BRIEF FOR APPELLANT: Adam G. Zeroogian Nicholasville, Kentucky NO BRIEF FOR APPELLEE.
NOT TO BE PUBLISHED APPEAL FROM JESSAMINE CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE C. MICHAEL DIXON, JUDGE
ACTION NO. 10-CI-00674 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES. TAYLOR, JUDGE: Christian N. Simpson brings this appeal from an August 1, 2014, order of the Jessamine Circuit Court, Family Court Division, (family court) granting John N. Herndon visitation/time-sharing with Simpson's son. We affirm.
Christian N. Simpson and John N. Herndon were never married but began cohabitating in 2008. On May 3, 2009, Simpson gave birth to a son, J.N.H. Herndon, Simpson, and J.N.H. lived together for over three years. During this time, Herndon and Simpson held Herndon out as J.N.H.'s father. In early November 2012, Simpson and Herndon became estranged; Simpson and J.N.H. eventually relocated from the residence.
Shortly thereafter, on November 21, 2012, the county attorney filed a petition in the family court to establish child support for J.N.H. Herndon entered an appearance and requested that paternity be established. A DNA test was performed, and Herndon was excluded as J.N.H.'s biological father. Thereupon, the county attorney moved to dismiss the petition. By ordered entered March 11, 2013, the family court granted the motion to dismiss the petition for child support.
John N. Herndon subsequently acknowledged that he had conducted an at-home paternity test which revealed he was not J.N.H.'s biological father.
On April 1, 2013, a few weeks after the family court dismissed the petition for child support, Herndon filed a motion in the action seeking to establish time-sharing with J.N.H. Although not J.N.H.'s biological father, Herndon maintained that he was J.N.H.'s "equitable father" and, as such, was entitled to time-sharing with J.N.H. Without an evidentiary hearing, the family court granted Herndon temporary time-sharing with J.N.H. for three hours twice a week. An evidentiary hearing was subsequently conducted; and, by order entered March 31, 2014, the family court found Herndon to be J.N.H.'s "legal father." As J.N.H.'s legal father, the family court ordered that Herndon was entitled to time-sharing with J.N.H. but was also obligated to pay child support. The family court continued the matter as to the amount of child support and the specifics of the time-sharing schedule.
By order entered August 1, 2014, the family court granted Herndon time-sharing each weekend from Saturday evening until Sunday evening. The family court also ordered that Herndon was obligated to pay child support retroactive to April 25, 2014, the date of filing of Simpson's motion for child support. This appeal follows.
The Court notes that John N. Herndon has not filed an appellee brief in this appeal. The Court elects not to impose a penalty as provided for in Kentucky Rules of Civil Procedure 76.12(8), but rather, at its discretion, has considered the appeal on the merits.
Simpson contends the family court erred by granting Herndon time-sharing with J.N.H. Simpson asserts that the doctrine of res judicata precludes Herndon from arguing he is entitled to time-sharing as the child's legal father when he successfully argued previously that he was not the child's biological father in an effort to avoid child support.
In this Commonwealth, res judicata "operates to bar repetitious suits involving the same cause of action." Yeoman v. Com., Health Policy Bd., 983 S.W.2d 459 (Ky. 1998). Res judicata has two components: (1) claim preclusion and (2) issue preclusion:
Claim preclusion bars a party from re-litigating [sic] a previously adjudicated cause of action and entirely bars a new lawsuit on the same cause of action. Issue preclusion bars the parties from relitigating any issue actually litigated and finally decided in an earlier action. The issues in the former and latter actions must be identical. . . .Id. at 465 (citations omitted) (emphasis added).
In the case sub judice, Herndon filed a motion to establish time-sharing in the same action originally instituted by the county attorney to establish Herndon's child support obligation. There was not a new lawsuit filed to relitigate a previously adjudicated cause of action. Yeoman v. Com., Health Policy Bd., 983 S.W.2d 459 (Ky. 1998). Thus, claim preclusion is inapplicable to this case.
Issue preclusion is also inapplicable under the facts of this case. The only issue previously decided by the family court was that Herndon was excluded as being J.N.H.'s biological father and, therefore, not responsible for child support. The legal issue of whether Herndon was entitled to recognition as J.N.H.'s legal father and, thus, entitled to time-sharing was not previously adjudicated by the family court in an earlier action. Thus, issue preclusion does not apply. In sum, we conclude that res judicata has no preclusive effect in the case sub judice. See id.
Simpson next argues that the family court erred by determining Herndon was the legal father of J.N.H. based upon a theory of equitable estoppel. For the following reasons, we disagree.
In Kentucky, the doctrine of equitable estoppel has been held applicable in paternity cases. See S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky. App. 2005). When equitable estoppel is applied in a paternity case, the result generally is "that a man who is not the biological father of a child can nevertheless be held to be the legal father on equitable grounds." K.W. v. J.S., 459 S.W.3d 399, 403 (Ky. App. 2015) (citing S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky. App. 2005)). In a paternity case, the party claiming equitable estoppel must demonstrate:
(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 his conduct to his detriment.Hinshaw v. Hinshaw, 237 S.W.3d 170, 173 (Ky. 2007) (citation omitted).
In the case sub judice, Simpson continuously represented that Herndon was J.N.H.'s father and concealed any fact to the contrary. In particular, Simpson allowed Herndon to accompany her to prenatal doctor visits, allowed Herndon to be present in the delivery room, and named the child after Herndon. Simpson, as the mother, was in the best position to identify potential biological fathers and was apparently aware of facts not fully known to Herndon. Despite knowledge that another man could be J.N.H.'s biological father, Simpson acted as if Herndon were the biological father. Simpson also acted with the intention that Herndon would rely on her misrepresentation or concealment of facts relevant to J.N.H's paternity. And, Herndon did rely upon this representation or concealment in establishing a father-son relationship with J.N.H.
Under the unique circumstances of this case, we conclude the family court properly estopped Simpson from claiming Herndon was not the legal father of J.N.H. See S.R.D., 174 S.W.3d 502; Hinshaw, 237 S.W.3d 170. This conclusion is also consistent with providing for the best interests of the minor child, J.N.H. Hence, the family court properly awarded Herndon time-sharing with J.N.H. and we agree that Herndon is obligated to pay child support for J.N.H.
Under the law of paternity by equitable estoppel, we note that Herndon is legally responsible for paying child support for J.N.H. See S.R.D. v. T.L.B, 174 S.W.3d 502 (Ky. App. 2005). --------
For the foregoing reasons, the order of the Jessamine Circuit Court, Family Court Division, is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Adam G. Zeroogian
Nicholasville, Kentucky NO BRIEF FOR APPELLEE.