RENDERED: OCTOBER 3, 2014; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2013-CA-001931-ME M.E.J. APPELLANT APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE CHRISTOPHER J. MEHLING, JUDGE ACTION NO. 11-J-00815 B.A.G. APPELLEE OPINION VACATING AND REMANDING ** ** ** ** ** BEFORE: CAPERTON, CLAYTON, AND NICKELL, JUDGES. CLAYTON, JUDGE: The Commonwealth of Kentucky, ex rel M.E.J, appeals Kenton Family Court s November 1, 2013 opinion and order that denied their motion for reconsideration and amendment of the order. The family court s order granted B.A.G. s request, two years after the entry of a default paternity judgment
against him, for DNA testing, which was to be facilitated by the Kenton County Attorney s Office. After careful consideration, we vacate the order. 1 FACTS AND PROCEDURAL BACKGROUND A complaint against B.A.G. was filed on June 2, 2011, concerning the paternity of the child, M.J.J., who was born on January 2, 2011. B.A.G. was personally served with the complaint in a timely manner. When he did not respond, a motion for default judgment of paternity was made on July 5, 2011, and a copy mailed to him. On September 14, 2011, B.A.G. did not appear at the hearing on the matter. A default judgment of paternity was entered on September 27, 2011, and B.A.G. was ordered to pay $246.00 per month in child support and $20.00 per month for arrearages. On May 1, 2012, after B.A.G. failed to pay any child support, a show cause order was filed and a hearing scheduled. Once again, B.A.G. was served but failed to appear at that hearing. Thereafter, a bench warrant was issued. B.A.G. was arrested and arraigned, and a hearing was set for October 2, 2013. The Department of Public Advocacy (hereinafter DPA ) was appointed to represent him on the contempt motion. Meanwhile, the paternity case was transferred to a different division of the Kenton Family Court. At the October 2, 2013 hearing, B.A.G. appeared with counsel and admitted to the contempt. B.A.G. was then sentenced to 180 days, conditionally discharged for two years if he stayed current on child support including the 1 This opinion was delayed due to administrative handling. -2-
arrearage. Nonetheless, his counsel requested genetic testing to confirm that B.A.G. was the child s father. After perusing the file, the family court judge observed that in his division s default paternity orders, it was provided that a defendant may request a DNA test within twelve months from the entry of a paternity judgment. But since B.A.G. s case had been transferred from another Kenton Family Court division, this language did not appear in his default paternity judgment. Because the language regarding the DNA test was missing from B.A.G. s default paternity judgment, the family court granted the request for the paternity test. It reasoned that since the order omitted the twelve-month window for a paternity test, B.A.G. still had the opportunity for a DNA test notwithstanding that the default judgment had been entered two years ago. The family court also ordered the testing to be done at the Kenton County Attorney s office and for B.A.G. to pay a fee of $81.00 prior to the performance of the DNA test. The Commonwealth objected to the order because the order was outside the twelvemonth window and B.A.G. had already been adjudicated the legal father. Subsequently, the Kenton County Attorney s office filed a motion for reconsideration and amendment under Kentucky Rules of Civil Procedure (CR) 60.02. It contended that the family court s order to have the DNA test performed at its office was in error because the order violated the constitutional doctrine of separation of powers; the Kenton County Attorney was not a party to the action; and, it intruded upon the contractual relationship between the Cabinet for Health -3-
and Family Services (hereinafter the Cabinet ) and LabCorp. On November 1, 2013, the family court denied the Commonwealth s motion. The Commonwealth now appeals the order. ANALYSIS The question presented is whether the family court had the authority to order the Commonwealth to perform a DNA test for a party already established to be the legal father under a final judgment of paternity, which had been entered two years earlier. In its decision, the family court maintained that under Ipock v. Ipock, 403 S.W.3d 580 (Ky. App. 2013), the overriding factor in paternity cases is the truth, and thus, even though a default paternity judgment existed, the mere request by the father for verification of paternity permitted the family court to order the Kenton County Attorney s office to perform a DNA test. Further, the family court reasoned that the Commonwealth is a party since it filed the case on behalf of the mother, paid benefits to the mother, and provides the testing procedure for the Cabinet in its office. The family court opined that the Commonwealth clearly had an interest, and hence, separation of powers is not a valid impediment. On appeal, the Commonwealth alleges that the family court s order violates the constitutional doctrine of separation of powers. The Commonwealth also argues that the family court lacked personal jurisdiction over the Kenton County Attorney, erred in appointing the DPA to represent B.A.G. on appeal, and -4-
erred because the mother of the child was not given notice. B.A.G. responded that the family court decision was without error. To begin, we do not believe the Commonwealth s arguments are dispositive as to the primary issue, which is whether the court had jurisdiction to order a DNA test for B.A.G. It is our conclusion that that the family court acted outside its jurisdiction. Whether a court acts outside its jurisdiction is generally a question of law. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004). Thus, we review the issue de novo. Courts have recognized three separate categories of jurisdiction : (1) personal jurisdiction involving authority over specific persons; (2) subject matter jurisdiction involving authority over the nature of a case and the general type of controversy; and (3) jurisdiction over a particular case involving authority to decide a specific case. See Milby v. Wright, 952 S.W.2d 202, 205 (Ky. 1997). As explained by our Court in Hisle v. Lexington-Fayette Urban County Government, 258 S.W.3d 422, 429 30 (Ky. App. 2008): [o]nce a court has acquired subject matter and personal jurisdiction, challenges to its subsequent rulings and judgment are questions incident to the exercise of jurisdiction rather than to the existence of jurisdiction. As is the case here, the issue does not implicate the family court s subject matter or personal jurisdiction but rather whether the family court s had authority to exercise its jurisdiction by ordering a DNA test two years after the entry of a final judgment. -5-
Jurisdiction is a fundamental concept that goes to the court s authority to act or decide a case. The courts power to inquire into facts, apply the law, make decisions, and declare judgment between parties is both constrained by and a function of their jurisdiction. Nordike v. Nordike, 231 S.W.3d 733, 737 (Ky. 2007). Here, the family court, in essence, ignored the existence of a default judgment of paternity, which established that B.A.G. was the legal parent, when it ordered the Commonwealth to provide a paternity test. Further, the family court s requirement that B.A.G. pay for the test is irrelevant to the validity of the order. Since B.A.G. had been adjudicated the legal father, no rationale existed for the family court to order a DNA test. Consequently, it went beyond its authority [jurisdiction] when it ordered a DNA test in a case where paternity had already been established. Indeed, a review of the case shows that B.A.G. never moved to set aside the default judgment. Nor did B.A.G. allege that he was not the father or that he was unable to attend the previous hearings. Instead, after he pled guilty to the contempt charge, he expressed an inchoate desire to know for sure that he was the child s father. B.A.G. was not without recourse. A party subject to a default judgment may challenge it under CR 55.02 and CR 60.02. CR 55.02 states, [f]or good cause shown the court may set aside a judgment by default in accordance with Rule 60.02. To have a default judgment set aside, the moving party must -6-
demonstrate good cause by showing: (1) a valid excuse for default, (2) a meritorious defense to the claim, and (3) absence of prejudice to the non-defaulting party.... All three elements must be present to set aside a default judgment. S.R. Blanton Dev., Inc. v. Investors Realty and Mgmt. Co., Inc., 819 S.W.2d 727, 729 (Ky. App. 1991). But no such motion was made by B.A.G. Moreover, B.A.G. is not prevented from procuring a DNA test for himself and, if good cause exists, challenging the default judgment. Although we are cognizant that a DNA test would, with almost perfect accuracy, determine whether B.A.G. was the biological father, this fact alone does not obviate the necessity for parties to paternity actions or any actions, for that matter, to observe the civil rules. Finally, we disagree with the family court s interpretation that Ipock permits the order of a DNA test whenever truth is an overriding factor. First, the facts of Ipock are readily distinguished from this case. The issue therein was not paternity, but custody. In Ipock, the father was considered the legal father of the child because upon the child s birth, both parents had signed a declaration of paternity, which was filed with the Kentucky Bureau of Vital Statistics. But during the divorce action, the father voluntarily took a paternity test, which showed conclusively that he was not the biological father. Subsequently, our Court held that notwithstanding legal presumptions, like marital presumption or the presumption of legitimacy, trial courts are permitted to use DNA test results as newly discovered evidence in matters where -7-
a party employs CR 60.02 to disestablish paternity with the results of an alreadycompleted DNA test. Id. at 587. Significantly, as related to the facts of our case, the Court noted that [i]t is not our intent to require Circuit and Family Courts to order, and the Commonwealth to pay for, DNA testing for every party who wishes to disestablish. Id. Lastly, we do not address the Commonwealth s remaining arguments since we decided the case on the matter of the family court s authority. CONCLUSION Because the family court acted outside its jurisdiction, that is, authority, when it ordered a DNA test after final judgment two years prior had already determined that B.A.G. was the legal father, we vacate the November 1, 2013 Kenton Family Court Order. NICKELL, JUDGE, CONCURS. CAPERTON, JUDGE DISSENTS AND FILES SEPARATE OPINION. CAPERTON, JUDGE, DISSENTING: I respectfully dissent. In reading the underlying facts of the case, it appears that the division of the Kenton Family Court that ordered the paternity testing does, as a matter of procedure, allow a defendant to challenge default paternity within a year of entry of the order. In this particular case the language was not included in the default order. Upon review, the judge allowed the putative father to challenge the order reasoning that since the language was not included in the original order, the putative father was -8-
not aware of the procedure before the court. There has been no prejudice alleged or proven by any party. I would affirm. BRIEF FOR APPELLANT: Katherine McLindon Assistant Kenton County Attorney Covington, Kentucky BRIEF FOR APPELLEE: Katie L. Benward Assistant Public Advocate Frankfort, Kentucky -9-