Draper v. Commonwealth, Ky COA, Paternity, Child Support and Joint Custody

Draper v. Commonwealth of Kentucky, et al, 2010-CA-000112-ME


Heacock v. Commonwealth of Kentucky, et al, 2010-CA-000185-ME

Published:   Reversing & Remanding

County:  Barren


        Shannon Heacock was married to Jesse Heacock who was injured in a boxing match in 1999 and lapsed into a coma leaving him with significant mental and physical impairments.  Although Shannon cared for Jesse in their home, she dated other men and in 2002, John Draper moved into the home.  In 2004, Shannon gave birth to A.N.H.


        In a paternity action filed against Shannon by the Barren County Attorney on behalf of Draper and A.N.H., genetic tests revealed a 99.995% probability that Draper was the father of A.N.H. and on September 4, 2007, entered a judgment determining Draper is A.N.H.’s father.  On January 4, 2008 the court entered a temporary support order requiring Draper to pay child support of $401.00 per month.


        On January 11, 2008 the court entered an agreed order granting temporary joint custody to Draper & Shannon.  Disputes about visitation continued and after both parties sought primary custody, a custodial evaluator was appointed.   There was an evidentiary hearing on February 25, 2009 and in her post-trial memorandum Shannon argued that, based on J.N.R. v. O’Reilly,264 S.W.3d 587 (Ky. 2008), the trial court lacked subject-matter jurisdiction.  The court reopened the evidentiary hearing and in light of O’Reilly, set aside all prior custody, visitation, and support orders as void ab initio, dismissed the paternity action for lack of SMJ and ordered Shannon to reimburse Draper $11,762 for child support paid under the temporary order.  These appeals followed.


        The CA conducted a lengthy analysis of O’Reilly, noting its limited precedential value due to the fragmented nature of the opinion, and then discussed the more recent case of Harrison v. Leach, 323 S.W. 3d 702 (Ky. 2010) when the Kentucky Supreme Court reviewed the distinction between standing and jurisdiction as applied to de facto custodians.


        CA concluded that KRS 406.011 sets forth standing requirements for a third party to assert paternity of a child born during the lawful wedlock of a husband and wife, but objection to standing may be waived if not timely raised.  The CA cited Harrison to explain that “subject-matter jurisdiction involves a court’s ability to hear a type of case while standing involves a party’s ability to bring a specific case. Id. at 705.


        The CA found that the family court division of Barren Circuit Court has jurisdiction over paternity petitions and that Shannon’s objection to standing was waived because it was not timely raised.  Since Shannon’s objection to Draper’s standing was waived, CA concluded TC erred by setting aside the paternity judgment as void and dismissing Draper’s petition.  After reinstating the paternity judgment, the issues raised in Shannon’s appeal concerning recoupment of child support are moot.

 Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.