Opinion
NO. 2013-CA-000687-ME
03-07-2014
SUSAN STINE APPELLANT v. JOSEPH PENNELL APPELLEE
BRIEF FOR APPELLANT: Michael R. Slaughter Louisville, Kentucky BRIEF FOR APPELLEE: Jeremy Scott Aldridge Carey Hendricks Aldridge Elizabethtown, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MEADE CIRCUIT COURT
HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 10-CI-00333
OPINION
VACATING AND REMANDING
BEFORE: CLAYTON, MAZE, AND NICKELL, JUDGES. NICKELL, JUDGE: Susan Stine appeals from the Meade Circuit Court's April 1, 2013, judgment adopting the Domestic Relations Commissioner's (DRC) January 13, 2013, report, thereby substantially modifying parental timesharing and visitation rights to her minor child. Following a careful review, we vacate and remand for further proceedings.
Stine is the mother of a child born on October 3, 2009. At the time of conception and birth, she was married to Anthony Stine. However, Joseph Pennell —with whom Stine had an extramarital affair—was listed as the father on the child's birth certificate. Paternity was never judicially established. Stine and Pennell entered into an agreement on June 26, 2010, regarding custody and visitation of the child. This agreement was not reduced to a court order.
Less than one month later, Pennell filed the instant action seeking custody of the minor child. Stine immediately objected to the action, alleging Pennell did not have standing to maintain a custody action and the trial court lacked jurisdiction to hear the matter. She contended the child was not born "out-of-wedlock" because she had at all relevant times been married to Anthony, thus giving rise to the legal presumption that he was the father of the child. See KRS 406.011. Therefore, since paternity had not been established in anyone other than her husband by a court of competent jurisdiction, she argued the trial court was without jurisdiction to determine custody of the child as between herself and Pennell, an alleged interloper in Stine's marriage and legal stranger to the child. Indicating a paternity action was pending in Jefferson Family Court—which she claimed had jurisdiction and was the proper venue—Stine requested transfer of this action to that Court. She reiterated her position in her answer, which was filed some time later.
Kentucky Revised Statutes.
The record contains no documents from this alleged paternity action. Neither party provides further reference to any proceedings in Jefferson County or the outcome thereof. As all parties, and the DRC, agree paternity has not been judicially established, we must conclude this action was abandoned or otherwise left unprosecuted, and has no further bearing on our decision.
Stine's arguments were rejected, without written explanation, by an October 13, 2010, DRC report adopted by the trial court. While acknowledging paternity had never been established, the DRC noted "[Pennell] believes that he is the father having placed his name on the birth certificate." The order granted Stine and Pennell joint custody of the minor child and required genetic testing to be completed within thirty days. The record does not indicate the completion of such testing. Contentious litigation ensued for nearly three years, during which time custody and visitation were changed on multiple occasions, ultimately resulting in Pennell being named primary residential parent and Stine being granted visitation in accordance with the standard schedule then in effect. This appeal followed.
The DRC and trial court largely ignored Stine's jurisdictional arguments throughout the litigation below.
After briefing was completed, it appeared the Meade Circuit Court lacked jurisdiction to adjudicate the matters presented to it based on the plain language of KRS Chapter 406. On December 17, 2013, the parties were ordered to show cause why the matter should not be remanded to the trial court with directions to dismiss the action based on the lack of subject-matter jurisdiction. Each party timely served a response to the Order—Stine in favor of, and Pennell opposed to, remand.
In her response, Stine continued her reliance on the plain language of KRS Chapter 406 and its presumption of legitimacy. She asserted paternity had never been adjudicated, nor had full genetic testing been performed. Therefore, she asserted her husband remained the presumed father of the child, rendering Pennell a legal stranger to the child. She urged remand for dismissal based on the lack of jurisdiction.
Stine does not explain what further testing needed to be completed.
Pennell countered that the presumption of paternity and legitimacy is one of the strongest under the law, though it is not absolute but rather, is rebuttable and may be overcome by factual evidence, citing J.A.S. v. Bushelman, 342 S.W.3d 850 (Ky. 2011). On the strength of the same precedent, Pennell contended that as the natural father of the child, he cannot be barred from bringing an action for custody. He further argued the presumption does not apply if the mother's "marital relationship" with her husband ceased more than ten months prior to the birth of the child. He believed he produced sufficient evidence at trial to rebut the presumption of paternity and to show Stine's marital relationship ended more than ten months prior to the child's birth.
Although no judicial determination of paternity exists, the record contains a non-certified copy of purported genetic testing of the child and Pennell revealing a 99.9997% probability of paternity in Pennell. A hand-written notation on the document indicates it was tendered to the DRC as an exhibit but no further explanation or authentication appears in the record. The purpose of tendering this document is unclear, as is the weight placed upon it by the trial court or the DRC.
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We agree with Stine. The Meade Circuit Court lacked subject-matter jurisdiction in this action. We agree with Pennell's assertion that the presumption of legitimacy and paternity is rebuttable. However, "it can be overcome only in a paternity action brought in district court pursuant to Kentucky's Uniform Act on Paternity (UAP), KRS 406.005 et seq." Boone v. Ballinger, 228 S.W.3d 1 (Ky. App. 2007). Pennell instituted this action with the filing of a petition for custody in circuit court. All parties agree paternity has never been established under the strictures of the UAP. This failure is fatal to Pennell's action, and the trial court erred in not so finding.
Pennell's reliance on Bushelman is misplaced. As in the instant case, Bushelman concerned the rights of a putative father to a child born during the mother's lawful marriage to another man. However, contrary to Pennell's contention, that case began as a paternity action and not as a custody action. Such distinction, while downplayed by Pennell as seemingly insignificant, is monumental. The establishment of paternity pursuant to the UAP is clearly a prerequisite to any action seeking custody. Kentucky law is clear that district courts have exclusive jurisdiction in paternity matters. KRS 406.021.
Here, Pennell tried to sidestep the requirement of obtaining a paternity determination in district court and skip directly to a custody determination in the circuit court. The trial court improperly permitted this to occur, and acted without jurisdiction in the matter. Pennell's belief that after-produced evidence of paternity is sufficient to forego the formality of a paternity action is erroneous, and we decline his invitation to graft such an exception onto the plain and unambiguous rules related to paternity and custody. While the results of a paternity action may appear to be inevitable—at the very least to Pennell—until such time as paternity is adjudicated, Anthony Stine remains the child's legal father.
Therefore, as the trial court was without jurisdiction to adjudicate Pennell's petition for custody, its orders in this matter are void ab initio. As such, we must vacate the trial court's judgment and remand with instructions to dismiss the matter for lack of subject-matter jurisdiction. We are mindful that our decision will leave Pennell lacking any legal claim to the physical custody of the minor child, thereby requiring return of the child to Stine. Had the proper course been laid from the start, perhaps such a difficult and trying decision may have been avoided. Although the results of this Opinion will likely be disruptive to the child —and certainly to Pennell—the law plainly requires such a disposition.
ALL CONCUR. BRIEF FOR APPELLANT: Michael R. Slaughter
Louisville, Kentucky
BRIEF FOR APPELLEE: Jeremy Scott Aldridge
Carey Hendricks Aldridge
Elizabethtown, Kentucky