The civil case of Denzik v. Denzik, 197 S.W.3d 108 (Ky., 2006) digested here permitted damages to recoup child support payments by a husband who turned out not to be the bio-dad.
The civil case of Denzik v. Denzik, 197 S.W.3d 108 (Ky., 2006) digested here permitted damages to recoup child support payments by a husband who turned out not to be the bio-dad. As it was a civil action for damages, the facts were not all present for the court to deal with the multiple levels of concern in the thread Who’s Your Daddy? Justice Lambert’s dissent focused on the policy involving the presumption of legitimacy of a child born in wedlock, which he believed to be of the utmost importance. He argued that the relationship between a parent and child should not have a price tag placed upon it and that some secrets should remain secret. Moreover, he feared that the majority’s opinion would open the floodgates of litigation on the paternity of children in Kentucky and would provide incentive for the destruction of parent/child relationships.
The parties were married from 1981 to May of 1984, as well as from December 1984 to March 1990. In June of 1987, the former wife, now Blazar, gave birth to a daughter. Upon their divorce in 1990, the husband, Denzik, was ordered to pay child support for the one child. Blazar was awarded custody subject to regular visitation by Denzik. In September 2000, Blazar told Denzik that the child was the product of an affair with a former boyfriend. Blazar requested that the former boyfriend undergo a DNA paternity test, which revealed that the child was the former boyfriend’s, not Denzik’s. Denzik then obtained a termination of child support obligations and filed a civil action, requesting damages for the fraudulent misrepresentation of the paternity of the child.
At trial the jury found Blazar guilty of fraud and awarded Denzik damages, totaling $54,720.26. The damages represented the child support payments that Denzik had paid for the last five years. The Court of Appeals reversed. The Supreme Court granted discretionary review.
The Supreme Court held that since it found that fraudulent misrepresentation occurred and that the fraud was ongoing, the conduct of Blazar came within the applicable statute of limitations, set out in KRS 413.130(3). The Court noted that Denzik only sought to recover the last five years of his support payments.
The Court also held that the evidence was sufficient to support the jury’s verdict and award for fraudulent misrepresentation. The Court pointed to the fact that 1) Denzik had received a call, during the pregnancy, accusing Blazar of an affair and Blazar affirmatively denied the affair, 2) Blazar should have known that it was more likely that Denzik was not the father due to her having had intercourse more often in the affair than with her husband near the time of conception, and 3) the concealment of the affair afforded Blazar financial gain in the divorce by her receiving child support. Moreover, the Court believed the jury was in the best position to determine the credibility of Blazar’s claim of surprise discovery that the child had a different father than Denzik. The Court held that it was error for the Court of Appeals to substitute its judgment in place of the jury’s.
The Court reversed the decision of the Court of Appeals and reinstated the jury verdict.
Hinshaw v. Hinshaw is digested here. by KyCases. A motion for discretionary review is pending. In that Court of Appeals opinion, designated to be published, the husband’s presumption of paternity was acknowledged, the child had been led by the mother to believe that the husband was his father, and the best interest of the child was considered. Another important factor is that the putative father was put on notice and declined to assert paternal rights or responsibilities.
UPDATE: Comments:
From Jeanne Hannah: Fascinating case, Diana. Thank you for posting this review. I am often asked whether a man can recover damages in a case of fraudulent misrepresentation as to parentage. My research has never uncovered a case permitting the defrauded ex-husband damages. This could be the start of a new trend.
