Jason Wood v. Michelle Ann Critz and Brain Strain, No. 2021-CA-0902-MR
Simpson County Circuit Court
Husband and Wife married in 2011 and three children were born during their marriage. The youngest was S.W. Wife was having an affair with Boyfriend when she became pregnant with S.W. and told Boyfriend that he could be the father of the child. No DNA testing was done prior to S.W.’s birth in November 2015. In 2017, Husband discovered through an over-the-counter DNA test that he was not S.W.’s biological father. Boyfriend subsequently took a DNA test that confirmed his paternity and expressed that he wanted to be involved with S.W. Wife quit communicating with Boyfriend. In 2019, Husband filed a petition for dissolution which stated the three children were born of the marriage and requested the parties share custody and timesharing. Wife admitted to the allegations in the petition and filed her response and the parties’ settlement agreement simultaneously. No issues of S.W.’s paternity were raised in the dissolution proceedings. A decree was entered in September 2019, adopting the parties’ settlement agreement. Boyfriend later learned that paternity of S.W. had been adjudicated pursuant to Husband and Wife’s decree. In October 2020, Boyfriend filed simultaneous motions to intervene and amend the final judgment in the dissolution action pursuant to CR 60.02, arguing that he was the biological father of S.W. and sought a finding to that effect so that he could pursue custody and timesharing. Husband opposed those motions and Wife took no position. The family court summarily granted Boyfriend’s motion to intervene and continued his motion to amend, scheduling it for a hearing. Husband filed a motion to alter, amend or vacate that order.
In July 2021, two orders were entered in the dissolution proceeding: an order denying Husband’s motion and an order sustaining Boyfriend’s motion to amend the final judgment pursuant to CR 60.02. The family court considered the factors enumerated in Carter v. Smith, 170 S.W.3d 402, 408 (Ky. App. 2004) regarding whether intervention was warranted post-decree, and the history as to what had transpired in the dissolution and paternity cases. The family court concluded that Boyfriend’s special burden for post-judgment intervention was met, and granted Boyfriend’s motion to amend the final judgment. Husband appealed from the order allowing Boyfriend to intervene and the order granting Boyfriend’s motion to amend the final judgment, arguing that the family court abused its discretion in allowing his intervention because his motion to intervene was untimely filed under CR 24.01 and CR 24.02. Specifically, he argued that Boyfriend was aware he could have been S.W.’s father during Wife’s pregnancy, actually was aware of that fact prior to Husband and Wife’s divorce, waited too long to attempt to intervene and had no meaningful relationship with the child.
The Court used the Carter five factor test to determine the timeliness of Boyfriend’s motion to intervene and concluded that the family court adequately addressed the Carter factors and acted appropriately in determining that Boyfriend’s intervention was timely. The Court held that although Boyfriend was aware he could be S.W.’s father before S.W. was born, his intervention was not precluded under these circumstances as untimely due to the constitutional dimension of his interest, his lack of knowledge that paternity could be and was in fact resolved in the dissolution without any notice, and the fact that Husband and Wife knew of the question as to S.W.’s paternity but did not make the family court aware of that.
The Court of Appeals also affirmed Boyfriend’s intervention in the dissolution proceeding. It was clear to the Court that Boyfriend had an interest in the divorce proceeding which none of the existing parties could or did adequately protect. The Court found that relief was appropriate pursuant to CR 60.02(f) based on Boyfriend’s constitutional rights as S.W.’s biological parent and that he had not had an opportunity to present his claim that he should be determined as S.W.’s father on the merits. The Court determined that fraud had occurred against Boyfriend as he was never joined as a party or informed that he needed to intervene during the dissolution proceeding or else Husband would become S.W.’s father, and thus he was prevented from appearing and asserting his rights. Further, a fraud had occurred against the family court, as it was prevented from knowing the facts, which would have required it to join Boyfriend as a party or delay entry of the judgment pending a separate paternity action.
Carter Anderson
