MICHAEL BROWN PETITIONER v. ORIGINAL ACTION REGARDING WARREN CIRCUIT COURT WARREN CIRCUIT COURT AND JONI MARIA EASTER (NOW FURLONG)
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RENDERED: September 24, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002008-OA
MICHAEL BROWN
v.
PETITIONER
ORIGINAL ACTION
REGARDING WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
WARREN CIRCUIT COURT
RESPONDENT
AND
JONI MARIA EASTER (NOW FURLONG)
REAL PARTY IN INTEREST
OPINION AND ORDER
GRANTING CR 76.36 RELIEF IN PART
* * * * * * * *
BEFORE: EMBERTON, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Before the Court is a petition for writ of
prohibition and for writ of mandamus.
The response of the real
party in interest, Joni Maria Easter (now Furlong)(hereinafter
“Furlong”) was filed on September 1, 1999.
Further, petitioner,
Michael Brown (hereinafter “Brown”), filed a motion for
intermediate relief, which came before the Honorable Joseph R.
Huddleston, and which was passed to this panel by his order
entered August 30, 1999.
The Court has considered the motion,
the petitions and the response thereto and ORDERS the motion be
GRANTED.
The petition for writ of mandamus is DENIED.
The
petition for writ of prohibition is GRANTED.
The Court has
determined that the doctrine of res judicata bars Furlong from
re-litigating the issue of Brown’s paternity.
Therefore, Brown
cannot be required to submit to genetic testing.
This original action requests that the Court prohibit
the respondent trial court from enforcing its order entered
August 11, 1999, which requires the parties and the child, Kalan
Brown (hereinafter “Kalan”), to submit to DNA testing; and that
this Court direct the respondent trial court to recuse itself, to
appoint a Special Judge and to transfer the matter to the Family
Court.
Brown contends the trial court is proceeding without
jurisdiction because the matter initiated by Furlong seeks to
attack a previous judgment of paternity that is res judicata.
He
further contends that he has no adequate remedy at law, including
by appeal, because Furlong’s goal is the suggestion that Brown is
not Kalan’s natural father, a suggestion which would immediately
and irreparably affect Kalan and his relationship with Brown.
Kalan was born in 1989.
In 1993, the Warren District
Court entered an Agreed Order declaring Brown’s paternity of
Kalan.
The same year, Brown filed a petition for the custody of
Kalan in the Warren Circuit Court.
In those proceedings, Furlong
questioned Brown’s paternity of Kalan.
However, in his Trial
Report,1 the Domestic Relations Commissioner made the following
finding and recommendation to the trial court:
1
Although the Report found that “The marriage of the parties
is irretrievably broken ...,” Furlong’s response advises the
Court that she and Brown were never married.
-2-
By Agreed Order entered in Warren District
Court Case No. 93-J-00204 on June 25, 1993,
Warren District Judge Henry J. Potter, Jr.
determined that Michael Brown is the father
of Kalan M. Brown. The Commissioner is bound
to follow that determination.
No Exceptions were filed and the trial court confirmed the
Commissioner’s Report.
No appeal was taken from that decision.
The decision awarded Brown sole custody of Kalan.
In
July, 1999, Furlong filed a motion for change of custody in which
she alleged that paternity was declared without her full consent
and that she believed Brown is not Kalan’s natural father.
Furlong invoked CR 60.02(a), relying on the problems she was
experiencing in 1993,2 and contending she was not involved in the
discussions which led to the signing of the Agreed Order Of
Paternity.
She prayed for DNA testing and for the dissolution of
the Agreed Order and asserted that to not order Brown to submit
to DNA testing would be against public policy “due to the great
possibility that Petitioner is not the parent of the minor
child.”
In this original action, Furlong does not respond to
Brown’s res judicata argument.
She takes issue with his
challenge to the jurisdiction of the trial court by pointing out
that the proceeding pending before it is not a mere paternity
case since the ultimate issue is the care and custody of Kalan.
She also contends that Brown has not met the prerequisites for
the issuance of a writ.
She argues he has an adequate remedy if
the trial court determines he is not Kalan’s natural father
2
The Commissioner’s Report includes a discussion relating to
Furlong’s “serious problem with alcohol.”
-3-
because his ability to seek redress by appeal will not be
affected by his compliance with the testing order.
We disagree.
Not only do we find that Brown and Kalan would be irreparably
harmed by complying with the testing order, we are also of the
opinion that the respondent trial court’s decision is in error.
The record appended to Brown’s original action and to
Furlong’s response thereto does not shed light regarding whether
the respondent trial court based its order of genetic testing on
an implied finding that res judicata did not, or should not,
apply or on an entirely different finding.
The record only shows
that Brown raised the issue of res judicata in his memorandum
responding to Furlong’s motion to change custody, but that
Furlong’s own memorandum, which post-dates Brown’s, is silent in
that regard.
This Court now issues a writ of prohibition based on
its determination that the proceeding currently pending before
the respondent trial court, although titled a request for change
of custody, is in fact and in effect, an attempt at re-opening
the issue of Brown’s paternity that is now barred by res
judicata.
The concept of res judicata has long been established
and applied in this Commonwealth.
In order to set the stage for
this discussion, we shall borrow the same language upon which
Brown relies, which was excerpted from our decision in Napier v.
Jones, By and Through Reynolds, Ky. App., 925 S.W.2d 193 (1996):
The general rule for determining the question
of res judicata as between parties in actions
embraces several conditions. First there
must be identity of the parties. Second,
there must be identity of the two causes of
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action. Third, the action must be decided on
the merits. In short, the rule of res
judicata does not act as a bar if there are
different issues or the questions of law
presented are different. City of Louisville
v. Louisville Professional Firefighters Assn,
Ky., 813 S.W.2d 804, 806 (1991)(quoting
Newman v. Newman, Ky., 451 S.W.2d 417, 419
(1970)).
Id. at 195.
Brown states that our appellate courts have not yet
issued a reported decision that is dispositive of the specific
issue raised in this original action, which we determine to be
whether the doctrine of res judicata may be invoked by someone
who was a party to a prior, unappealed from, and now final
custody determination that included a challenge to, and an
adjudication of paternity, so as to bar a party to the same prior
action from reopening the paternity issue in a subsequent
proceeding.
Brown relies on Commonwealth, ex rel. Hansard v.
Shackleford, Ky. App., 908 S.W.2d 671 (1995), where this Court
ruled that a finding of paternity resulting from an earlier
proceeding is not binding on a child unless the child was a party
to the prior action.
The case does not decide whether the mother
of that child would be barred from bringing a second paternity
action following a prior adjudication of the matter.
Brown also cites Moore v. Commonwealth, Cabinet for
Human Resources, Ky., 954 S.W.2d 317 (1997), where the Supreme
Court held that the mother of a child who had stipulated in a
Property Settlement Agreement incorporated into the final divorce
decree that her daughter was born of the marriage was precluded
from re-litigating the paternity issue in a subsequent action
-5-
filed against a third party (the putative father), by virtue of
application of the principle of collateral estoppel.
Brown cites
Moore chiefly to advise this Court regarding the practical effect
that a determination Brown is not Kalan’s biological father would
have on Kalan’s future life, based on the precedent established
by the case.
This Court reads in Moore other useful language of
assistance to the resolution of the inquiry at hand.
The Moore
court relies on a decision issued by the Minnesota Court of
Appeals in Markert v. Behm, 394 N.W.2d 239 (Minn. App. 1986).
In
that case, just one year after she had alleged during the
parties’ divorce proceedings that her husband was the natural
father of her daughter, the child’s mother filed a paternity
action seeking to determine that another man was the father.
The
Minnesota court applied the principle of res judicata (as well as
those of collateral and equitable estoppel) to bar the relitigation of paternity.
In the instant case, the identity of the parties and of
the causes of action is established.
The adjudication of custody
resolved the entire action pending before the trial court and,
therefore, was a final judgment on the merits.
at 319-20;
Markert, supra at 242.
See, Moore, supra
Further, the issue of
paternity was litigated twice previously on the merits.
An
Agreed Order of Paternity was entered by the district court.
Subsequently, in the custody proceedings, Furlong, who was
represented by counsel, raised the issue of paternity.
The trial
court considered her argument, rejected it and issued a decision
-6-
from which she filed no Exceptions and, subsequently, no appeal.
This Court held in Spears v. Spears, Ky. App., 784 S.W.2d 605,
607 (1990), that in such context, “the issue is not one of due
process, but one of finality of judgments.”
However, in Spears, supra at 607, this Court also held
that the doctrine of res judicata should not be applied in such a
manner as to “work an injustice.”
We must answer this question
now.
In the current proceedings, Furlong makes no argument
that she did not have “a realistically full and fair opportunity
to present [her] case” to the circuit court.
See, Moore, supra
at 318-19 (quoting Sedley v. City of West Beuchel, Ky., 461
S.W.2d 556, 559 (1970)).
Rather, she makes the bare allegation
she was not involved in the discussions leading to entry of the
Agreed Order of Paternity in the district court, an argument that
she must have made in the custody proceedings, or that she should
have made in those proceedings or in an appeal.
In addition, CR 60.02 requires that a motion to set
aside a prior judgment be made within a reasonable period of
time.3
In Cain v. Cain, Ky. App., 777 S.W.2d 238, 239 (1989), we
upheld a motion pursuant to CR 60.02 to compel genetic testing
filed twelve years after the parties’ divorce because the filing
occurred within only two years of the date when the party seeking
to reopen paternity learned that the child’s mother had made
statements disputing it.
This case refers to Crowder v.
3
We note that Furlong invokes CR 60.02(a), which has a oneyear limitation.
-7-
Commonwealth, Ky. App., 745 S.W.2d 149 (1988), where a motion
pursuant to CR 60.02(e)-(f) was filed six years after entry of a
default judgment of paternity but promptly after the movant
learned of the mother’s admission she knew he was not the father.
We find that a period of six years is not reasonable in
this case.
If Furlong’s argument is that she did not give her
full consent to Brown’s paternity in 1993, it is unreasonable to
not challenge it until 1999, in the absence of any allegation of
incapacity, or other exceptional circumstances in the interim,
which prevented her from learning, or becoming aware, of the
problem.
Furthermore, Furlong does not claim that the
adjudication of Brown’s paternity was obtained by fraud (CR
60.02(d), or that certain facts of an extraordinary nature
justify relieving her of it (CR 60.02(f)).4
Those are the
grounds underlying the successful challenges to paternity mounted
in Cain and Spears, supra.5
It is also significant to stress
that in Cain, paternity was not challenged in the divorce
proceedings, and it does not appear that it was in Spears either.
4
In some jurisdictions, in a case like this one where
paternity has been decided for “more than a relatively brief
passage of time,” only evidence of fraudulent conduct could
overcome the rule of res judicata and open the door to blood
testing. See, Amber Dawn E. v. Cleo A.E., 190 W.Va. 543, 547,
438 S.E.2d 886, 890 (1993).
5
We are mindful that, in Spears, the results of blood
testing performed in a separate district court action preceding a
motion to reopen in circuit court a previous adjudication based
on the marital presumption of paternity, provided in part the
overwhelming evidence justifying relief pursuant to CR 60.02(d)
and (f).
-8-
In conclusion, it is clear to this Court, based on its
consideration of the matter as presented by the record and the
parties’ arguments, as well as its review of the relevant
reported authorities discussed hereinbefore, that the posture of
this matter is entirely consistent with all three prongs of the
concept of res judicata as set out in Napier, supra.
Further,
there are no known or alleged equities sufficient to overcome res
judicata and to defeat its application so as to justify the blood
tests sought by Furlong.
We hold that Furlong is barred as a
matter of law by the earlier final proceedings from re-litigating
the issue of Brown’s paternity and that she has failed to make
any showing that the application of res judicata to the case will
“work an injustice.”
Our decision includes the preclusion of
genetic testing, since that procedure is used to determine
paternity.
Accordingly, the respondent trial court is hereby
PROHIBITED from enforcing its order entered August 11, 1999,
ordering the parties to submit to DNA testing.
GUIDUGLI AND SCHRODER, JUDGES, CONCUR.
EMBERTON, JUDGE, CONCURS IN RESULT ONLY.
ENTERED: September 24, 1999
/s/
Daniel T. Guidugli
JUDGE, COURT OF APPEALS
COUNSEL FOR PETITIONER:
COUNSEL FOR REAL PARTY IN
INTEREST:
B. Alan Simpson
Bowling Green, Kentucky
David F. Broderick
Bowling Green, Kentucky
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