CR 60.02 motion for relief from child support for non-biological child, case digest, Hughes v. Hughes, Ky Court of Appeals

Hughes v. Hughes, 2012-CA-000077-ME

Published:   Affirming  

County:  Jefferson

appealed FC’s order denying his CR 60.02 to terminate child support for child
not biologically related to him.


While Husband was serving in the Navy,
Wife filed for divorce.  Paternity of the
four minor children was not placed an issue in the petition.  Subsequent to the filing of the petition, but
prior to entry of the decree, the parties submitted privately to paternity
testing of the youngest child.  The
Decree of Dissolution was entered prior to the parties’ receipt of the result
of the paternity test.  The Decree
ordered child support for all four children. 
Subsequently, the parties received the results of paternity testing indicating
that the youngest child was not the biological child of Ex-Husband.  Ex-Husband continued to pay full amount of
child support.  Some years later all four
children learned that Ex-Husband was not youngest child’s biological father. 

All of Ex-Husband’s biological
children were emancipated by 2010. 
Ex-Husband nonetheless continued to pay the full amount of child support
for his unemancipated, not biologically related child.  Ex-Husband’s income had increased
substantially at this time, while Ex-Wife was receiving state assistance due to
her status as a full-time student with a part-time job.  Thus, in 2011, the Cabinet filed a motion to
intervene and to modify child support on Ex-Wife’s behalf.  In response, Ex-Husband filed a CR 60.02
motion to terminate child support based on emancipation of his three biological
children and the fourth child being not biologically related.  FC denied 60.02 motion, finding that it was
not filed within a reasonable time, and Ex-Husband was therefore estopped from
seeking relief from his child support obligation.  FC also increased child support from $863.64
to $1,009.00 per month for the nonbiologically related child. 


“Reasonable time” requirement of CR
60.02 is within FC’s discretion.  Given
that Ex-Husband had known since 2001 that he was not the biological father of
the youngest child but continued to act as her legal father, FC did not abuse
its discretion in denying his motion. 
Further, it was not necessary for FC to consider whether doctrine of
paternity by estoppel was implicated, as requested in Ex-Husband’s CR 52.04 motion.  CA held that FC correctly ascertained that
the legality of Ex-Husband’s fatherhood is sufficient in this case to allow for
the payment of child support.  It is in
youngest child’s best interest for her legal father, Ex-Husband, to contribute
adequate child support and supportive parenting.


Digested by Michelle Eisenmenger
, Diana L. Skaggs + Associates