COLES (MICHAEL) JEFFERSON VS. JACOBS (DENITA ANN)
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RENDERED: JANUARY 22, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001311-ME
MICHAEL COLES
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE PAULA SHERLOCK, JUDGE
ACTION NO. 06-J-502952
DENITA ANN JACOBS
APPELLEE
OPINION & ORDER
DISMISSING APPEAL
** ** ** ** **
BEFORE: MOORE, NICKELL, AND WINE, JUDGES.
MOORE, JUDGE: Michael Coles appeals the Jefferson Circuit Court’s judgment
in this paternity action. After a careful review of the record, we dismiss this appeal
because Coles failed to name an indispensable party in his notice of appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
A paternity action, requesting that Coles be declared the father of one
of Denita Ann Jacobs’s children (“Child”), was filed by the Commonwealth of
Kentucky’s Cabinet for Health and Family Services and Jacobs (“Cabinet”).
Jacobs’s affidavit was filed with the complaint in the paternity action, and in that
affidavit, Jacobs declared that she was the mother of the child who was born on
November 2, 1995; that Coles was the child’s father; and that her “marital
relationship with [her] husband ceased more than ten months prior to the birth of
the said child.” In addition to this affidavit, Jacobs filed a copy of the petition for
dissolution of marriage which stated that Jacobs and her ex-husband were married
on June 22, 1994, and they separated in June 1995.
After the action was filed, Coles sent a letter to the Jefferson County
Attorney, in which he stated that, to his knowledge, Jacobs “lived with her husband
in 1995” and Jacobs admitted to him that she had sexual relations with her
husband, Coles, and other men during the time period in question. In this letter,
Coles stated “I demand a blood test. There are plenty of professional labs here in
New Jersey1 with which I’m sure you will be able to arrange to have my blood
drawn for a DNA analysis. Just tell me where and when.” (TR at 12). It does not
appear that Coles sent this letter to the court, but Jacobs and the Cabinet for Health
and Family Services filed the letter with the court.
The court thereafter entered a pre-trial order for the mother, the child,
and Coles to submit to genetic testing. The report issued after the test was
conducted stated that there was a 99.99% probability that Coles was the father of
1
Jacobs apparently moved to New Jersey to find work in or around 1999.
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the child. The circuit court then entered its judgment declaring Coles to be the
father and ordering Coles to pay child support.
Coles moved for the circuit court to “exclude,” i.e., not consider,
Jacobs’s self-serving affidavit in which she attested that the marital relationship
between herself and her then-husband had ceased more than ten months before the
child was born. Coles argued that Jacobs was still married to her ex-husband at the
time the child was born; that she gave birth to another child thirteen months after
the child in the present case was born; and that Jacobs did not secure a judgment of
paternity until 2006, which was more than ten years after the child was born, and
not until the death of her ex-husband. Coles contended that Jacobs permitted her
ex-husband “to give the child his last name,” and that she “either intentionally
misled her husband to believe that he was truly the child’s father for ten (10) years,
or that [her] husband made a conscious decision to act as the child’s father and to
take on all responsibilities of that role.” Coles also contended that he lived a mere
two miles from Jacobs until 1999, when he moved to New Jersey, and that during
the time he lived near Jacobs, she knew where he lived and worked, yet she never
informed Coles that the child was his.
The circuit court denied Coles’s motion to exclude Jacobs’s affidavit.
Coles moved the court to reduce the amount of child support he owed, but his
motion was denied.
Coles now appeals the circuit court’s judgment, contending as
follows: (a) the child was not born “out of wedlock”; (b) Jacobs did not overcome
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the presumption of paternity; (c) Jacobs had no standing to bring the action against
Coles; (d) the circuit court had no authority to order genetic testing; (e) the circuit
court responded to an argument that was not made; and (f) the circuit court had no
subject matter jurisdiction.
II. ANALYSIS
Coles argues, inter alia, that the circuit court should not have ordered
genetic testing without first entering a finding that the child was born out of
wedlock. However, we do not need to address the merits of this appeal because the
appeal should be dismissed on procedural grounds.
Pursuant to CR2 73.03(1),
The notice of appeal shall specify by name all appellants
and all appellees (“et al.” and “etc.” are not proper
designation of parties) and shall identify the judgment,
order or part thereof appealed from. It shall contain a
certificate that a copy of the notice has been served upon
all opposing counsel, or parties, if unrepresented, at their
last known address.
In the present case, the Cabinet filed the complaint in the circuit court
and, thus, the Cabinet, as well as Jacobs, were the plaintiffs. However, in his
notice of appeal, Coles only named Jacobs in the caption, and he did not name
either Jacobs or the Cabinet in the body of the notice of appeal. Furthermore, his
certificate of service at the bottom of his notice of appeal states that a copy of the
notice of appeal was only sent to Jacobs, not to the Cabinet. No appellee brief was
filed in this appeal, either, likely because the Cabinet was not named on the notice
of appeal.
2
Kentucky Rule of Civil Procedure.
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Because the Cabinet filed this action in the circuit court, it is an
indispensible party to this appeal. However, the Cabinet was not made a party to
this appeal because it was not named in the caption of the notice of appeal or listed
in the body of the notice of appeal as a party. See Clark Equipment Co. v.
Bowman, 762 S.W.2d 417, 419 (Ky. App. 1988). The failure to name an
indispensable party in the notice of appeal is grounds for dismissing the appeal.
See R.L.W. v. Cabinet for Human Resources, 756 S.W.2d 148, 149 (Ky. App.
1988).
Accordingly, this appeal is dismissed.
ENTERED: January 22, 2010
/s/
Joy A. Moore
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael Coles, Pro se
Clifton, New Jersey
N/A
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