TREVOR ANDREW SMITH AND BETHANY SMITH V. ELEANORE GARBER, JUDGE, JEFFERSON FAMILY COURT AND ANDREW CAHILL (REAL PARTY IN INTEREST)
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IMPORTANT NOTICE .
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO -BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
AS MODIFIED :
AS MODIFIED :
RENDERED :
NOT TO
JUNE 16, 2011
JUNE 22, 2010
JUNE 17, 2010
BE PUBLISHED
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2009-SC-000738-MR
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APPELLANTS
TREVOR ANDREW SMITH ; AND
BETHANY SMITH
V.
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ON APPEAL FROM COURT OF APPEALS
CASE NO . 2009-CA-000973-OA
JEFFERSON CIRCUIT COURT NO . 08-J-506574
ELEANORE GARBER, JUDGE, JEFFERSON
FAMILY COURT
AND
ANDREW CAHILL (REAL PARTY IN INTEREST)
APPELLEES
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING
This matter originated in a suit by Andrew Cahill in the Jefferson Family
Court seeking to establish paternity and obtain custody of T.E.S ., a minor child
born to Bethany Smith, the former wife of Trevor Smith . The Smiths sought a
writ of prohibition from the Court of Appeals enjoining the family court from
ordering genetic testing. The Court of Appeals denied the writ . Because the
family court was acting within its jurisdiction to order genetic testing in such
cases, this Court affirms .
I. Background
On July 16, 2004, T.E .S. was born to Appellant, Bethany Smith, the
former wife of Appellant, Trevor Smith. Appellants were first married on
October 26, 2002 . In December, 2003, they filed a verified joint petition for
dissolution of marriage. In the petition, they alleged that Bethany was
pregnant with the child of a man other than her husband . They further alleged
that they had separated as of July, 2003, and that the child had been
conceived sometime in October, 2003 . Appellants' divorce was finalized on
February 19, 2004 . Then on July 15, 2004 they remarried, just prior to
T.E .S .'s birth the next day.
That marriage also failed, and the Appellants divorced again in
September 2007 . In that dissolution, Bethany and Trevor Smith were awarded
joint custody of T.E .S . In December 2008, Appellee filed a petition in Jefferson
Family Court to establish paternity and seek custody of T.E .S . After overruling
motions to dismiss the petition, Jefferson Family Court Judge Eleanore Garber
ordered genetic testing to resolve Cahill's claim of paternity.
Attempting to block the genetic testing, Appellants sought a writ of
prohibition from the Court of Appeals against Judge Garber and real party in
interest, Cahill. The Court of Appeals denied the writ in a 2-1 opinion .
Appellants now appeal to this Court, urging us to find that the Jefferson Family
Court is acting outside of its jurisdiction for the reason that T .E.S . is not a
child born out of wedlock .
II. Analysis
Kentucky's family courts have been granted jurisdiction to handle all
"[p]roceedings under the Uniform Act on Paternity, KRS Chapter 406 ." KRS
23A. 100(2)(b) . The section of the Act entitled "Applicability," KRS 406.180,
specifies that the chapter applies to "cases of birth out of wedlock ." As a
result, to invoke the family court's jurisdiction under KRS 406, a petition must
allege that the underlying birth occurred out of wedlock .
The only description of an out-of-wedlock birth in Chapter 406 is
provided in KRS 406.011, which states that "a child born out of wedlock
includes a child born to a married woman by a man other than her husband
where evidence shows that the marital relationship between the husband and
wife ceased ten (10) months prior to the birth of the child." Presumably, "child
born out of wedlock" also includes its ordinary meaning - that is, a child born
to an unmarried woman --- in addition to the example . One obvious means by
which a child may found to be born out of wedlock, other than in the case of an
unmarried woman, is that there is evidence that the marital relationship
between husband and wife ceased ten months before the child was born .
KRS 406 .011 establishes a presumption of paternity when a child is born
during a marriage : if born during lawful wedlock or within ten months
thereafter. Strictly construed, this statute gives Trevor Smith the presumption
that T.E.S. is his child, if based only on the fact that the child was born one
day after Trevor's second marriage to Bethany . And, he would have this
presumption even though the Appellants both made the judicial admission that
Trevor is not the father of T.E .S. in their first divorce petition, which could be
offered in rebuttal of the presumption in the second divorce . However, the
question of paternity was not raised during the second divorce action, and the
trial court granted joint custody to the Appellants .
The wrinkle in this case that points out the problem with a strict
construction of KRS 406 .011 is that at one point in time there was a prior
judicial admission (in the first divorce action) that Trevor was not the father of
T.E .S . Are we to ignore a judicial fact in order to make a strict construction of
obviously debatable statutory language the rule? Both Trevor and Bethany
may have waived any contest of paternity by not raising it in the second
divorce. Hinshaw v. Hinshaw, 237 S .W.3d 170 (Ky. 2007) But what about
Cahill?
In looking at whether the family court judge had jurisdiction to hear this
case, it is apparent that the family court, since its constitutional enactment,
does have jurisdiction over a paternity action. Cahill fits the statutory
requirement that a paternity action may be brought, regarding a child born out
of wedlock, by the putative father. He has standing to bring this action, since
his is not a bare claim or fishing expedition. KRS 406 .021 . The child's mother,
Bethany, had in February 2004, under oath identified Cahill as the father of
T.E .S. When Cahill filed his paternity suit, the trial court then had to
determine if his allegations and evidence were sufficient to raise the question of
whether the child was born out of wedlock, the primary allegation in a
paternity suit. To make that determination, the court is required to review the
prima facie evidence that supports the allegations . Cahill began his claim by
stating that the mother of the child had identified him as the father, that he
4
had opportunity to be the father, and that the Appellants had made a judicial
admission that Trevor was not the father of T.E.S . in the first divorce action .
These were sufficient evidentiary grounds to invoke the subject matter
jurisdiction of the family court. The family court judge rightfully found that
she had jurisdiction to go forward, and consequently ordered paternity testing
to establish biological paternity. Since this case came to the Court on a writ
action, the paternity case has not advanced to a sufficient degree to know
definitively whether the evidence will support a finding that the marital
relationship ceased ten months before the birth of T.E .S ., but there is evidence
in the record that Appellants stated in their joint petition for dissolution that
they "separated" in July 2003 (which for purposes of divorce is construed as no
longer having sexual relations), and the child was not conceived until October
2003, and was born in July 2004, twelve months after the separation .
Short of a divorce, proof of separation is the clearest evidence one can
present that the marital relationship has ceased . In J.N.R. v. O'Reilly, 264
S .W.3d. 587 (Ky. 2008) overruled by J.A.S. v. Bushelman,
S.W.3d
(Ky .
2011), the plurality opinions emphasized the distinction of two prior cases
where a birth was held to be "out of wedlock" because of the very fact that the
couple had separated . Id. at 591 (citing Montgomery, 802 S .W .2d 943, 944 (Ky .
App . 1990) ; Bartlett v. Commonwealth, 705 S.W .2d 470 (Ky. 1986)) . Certainly,
Appellants now sing a different tune, which would require the trial court to
judge the credibility of the testimony . f3ut the allegation and evidence of
separation certainly further satisfies whatever possible jurisdictional
requirements KRS 406 .011 might entail .
5
However, another possible jurisdictional question is whether, having
determined the custody of T.E.S . by granting joint custody to the Appellants,
there has already been a "paternity" determination for this child. Neither
Bethany nor Trevor raised paternity as an issue in the second divorce . In
granting joint custody, the trial court relied on the presumption of paternity
that a child born during the marriage is the child of the parties.
Appellants,
Trevor and Bethany have provided us with two inconsistent judgments ; the
first one dissolving their first marriage and adjudicating that Trevor was not
the father, the second judgment adjudicating that he was the father.
Cahill's claim has not been adjudicated. He has shown that he could
proceed with evidence of paternity, and that the trial court would otherwise
have jurisdiction . Through Appellants' sworn affidavits from their divorce
proceeding in December 2003, he has established that "[we] are not living
together and we have lived apart continuously since we separated on or about
July 2003" . This means they separated 12 months prior to the birth . They
stated further, "There is no likelihood of a reconciliation . The marriage is
irretrievably broken . We had differences that we could not work out and we
filed this action ." In other words, they admitted that their relationship had
ceased. Notably, Bethany also declared that "she [was] pregnant, however, the
Co-Petitioner Trevor A. Smith [was] not the father . . . ."
While Appellants now contradict their own sworn affidavits, among other
ways by insisting their relationship never ceased, that does nothing to negate
the fact that Appellee made sufficient allegations, which are susceptible to
being proved, and has presented the requisite evidence . Whether Appellants'
prior affidavits are to be believed over their current, contradictory claims is a
matter appropriate for resolution at trial, not on a writ of prohibition petition .
It bears final note that if Appellants had not remarried (and re-divorced)
there would be absolutely no bar to Cahill bringing this paternity action, and
there would be no dispute about jurisdiction, given that the final judgment in
the first divorce action held that Trevor was not the father. At most, Trevor
could also allege that he was the father, and participate in his own paternity
action.
Given the unusual facts of this case, arising from Appellant's first
separation and divorce in which it was denied under oath that Trevor was the
father, and the other court documents in which it was admitted under oath
that Cahill was the father, the subsequent grant of joint custody to Trevor
cannot prevent Cahill from going forward with his paternity action . To be sure,
on the limited facts before us, one might question whether Cahill's claim
should be barred by laches, since his suit was filed more than four years after
he learned of his possible right to do so . However, if nothing else this case
demonstrates the importance of leaving fact-finding and equitable orders to the
sound discretion of the family court, which was largely founded to deal directly
with such matters . The Jefferson Family Court thus has jurisdiction both
legally and equitably to make the proper balancing of the rights of the parties
and to determine the best interests of the child after fully developing the proof
relating not only to paternity, but also to custody, visitation and support .
III. Conclusion
Because the Jefferson Family Court had jurisdiction to determine
Andrew Cahill's paternity claim, the Court of Appeals's denial of a writ of
prohibition is hereby affirmed.
Abramson, Schroder and Venters, JJ., concur . Minton, C .J ., concurs in
result only by separate opinion. Cunningham and Scott, JJ., concur in result
only without separate opinion .
MINTON, C.J ., CONCURRING IN RESULT ONLY : I continue to believe
my opinion in J.N.R. v. O'Reilly, 264 S .W.3d 587 (Ky. 2008), is a correct
exposition of the law; but I do concur in the result reached by the majority in
this case . The unique facts here make this case distinguishable from J.N.R. for
two interrelated reasons .
First, the parties in this case admitted in their first joint dissolution
petition that Trevor was not the father of T.E.S . 'And, second, the parties
admitted in that same joint petition that they had been separated since July
2003, a year before the birth of T.E.S . Accordingly, unlike J.N.R., there is
compelling evidence in this case that "the marital relationship between the
husband and wife ceased ten . . . months prior to the birth of the child[,]"
KRS 406.011, even though T.E .S. was born one day after Trevor and Bethany
remarried .
Although the unusual facts of this case cast considerable doubt on the
level of guidance the holding in this case will provide for future courts
grappling with these types of issues, I concur in the result reached by the
majority.
COUNSEL FOR APPELLANT, TREVOR ANDREW SMITH :
Grant M . Helman
Stuart A. Scherer
Helman 8, Rice
539 West Market Street
4th Floor, Old Portland Building
Louisville, Kentucky 40202-3308
James Russell Lloyd
J. Russell Lloyd, P.S .C .
600 West Main Street
Suite 100
Louisville, Kentucky 40202
COUNSEL FOR APPELLANT, BETHANY SMITH:
Ann Holland Houston
Bank of Louisville Building
510 West Broadway - Suite 805
Louisville, Kentucky 40202
APPELLEE, ELEANORE GARBER, JUDGE, JEFFERSON FAMILY COURT :
Honorable Eleanore Garber
700 West Jefferson Street, 5th Floor
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE, ANDREW CAHILL (REAL PARTY IN INTEREST) :
David J. Thompson, Jr.
1412 Bardstown Road
Louisville, Kentucky 40204
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2009-SC-000738-MR
TREVOR ANDREW SMITH
AND BETHANY SMITH
APPELLANTS
ON APPEAL FROM COURT OF APPEALS
CASE NO . 2009-CA-000973-OA
JEFFERSON CIRCUIT COURT NO . 08-J-506574
V.
ELEANORE GARBER, JUDGE, JEFFERSON
FAMILY COURT
AND
ANDREW CAHILL (REAL PARTY IN INTEREST)
APPELLEES
ORDER DENYING PETITION FOR REHEARING AND GRANTING IN PART
AND DENYING IN PART A PETITION FOR MODIFICATION
Appellant having filed a Petition for Modification or in the alternative a
Petition for Rehearing of the Opinion of the Court by Justice Noble, rendered
June 17, 2010 and modified June 22, 2010 ; and the Court being otherwise
fully and sufficiently advised ; The Court ORDERS that the Petition for
Modification is GRANTED, in part and DENIED, in part. The attached
opinion is SUBSTITUTED in lieu of the original . Said modification does not
affect the holding.
The Court ORDERS that the Petition for Rehearing is DENIED.
Minton, C .J ., Abramson, Cunningham, Noble, Schroder and Venters, JJ.,
concurs . Scott, J ., concurs in result only, and would grant the motion to
identify the parties by initials .
ENTERED : June 16, 2011 .
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