J.A.S. VS. C.E.
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RENDERED: FEBRUARY 26, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001346-ME
J.A.S.
v.
APPELLANT
APPEAL FROM KENTON FAMILY COURT
HONORABLE LISA O. BUSHELMAN, JUDGE
ACTION NO. 08-CI-03307
C.E.
APPELLEE
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE: ACREE AND TAYLOR, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
BUCKINGHAM, SENIOR JUDGE: J.A.S. (Mother) appeals from an order of the
Kenton Family Court determining that it had jurisdiction over a paternity action
brought by C.E. concerning N.R.S., a child born to Mother while she was married
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Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
to R.S. Because we agree with C.E. that the order was interlocutory and thus not
appealable, we dismiss the appeal.
Mother and R.S. were married on October 9, 1999. Mother had an
extramarital affair with C.E. from October 2007 until March 2008. Within that
time frame, Mother was having unprotected sexual relations with both C.E. and her
husband and became pregnant with N.R.S. N.R.S. was born on September 8, 2008.
Following the child’s birth, Mother drove C.E. and N.R.S. to a testing facility for a
DNA test. The test showed that there was a 99.942% chance that C.E. was the
father.
C.E. filed an action in the family court seeking a paternity
determination in his favor and also seeking custody of N.R.S. and parenting time.
Mother, who had continued to live with her husband during this entire period of
time, filed a motion to dismiss C.E.’s action, citing lack of subject matter
jurisdiction and lack of standing as supporting grounds.
“Subject-matter jurisdiction over paternity proceedings for all of our
trial courts is governed by Kentucky Revised Statutes (KRS) Chapter 406, also
known as the Uniform Act on Paternity.” J.N.R. v. O’Reilly, 264 S.W.3d 586, 590
(Ky. 2008). KRS Chapter 406 “does not apply and does not confer subject-matter
jurisdiction on the family court or standing on [a party] to have paternity
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determined and custody/visitation matters decided” where the child was not born
out of wedlock. Id. at 593.
KRS 406.011 provides in part as follows:
A child born during wedlock, or within ten (10) months
thereafter, is presumed to be the child of the husband and
wife. However, a child born out of wedlock includes a
child born to a married woman by a man other than her
husband where evidence shows that the marital
relationship between the husband and wife ceased ten
(10) months prior to the birth of the child.
On December 8, 2008, the family court issued an order stating that it
“must take evidence to determine whether the marital relationship ceased ten
months before the child at issue’s birth.” A hearing for that purpose was held on
January 23, 2009. On June 19, 2009, the court entered an order finding that
Mother and R.S.’s marital relationship had ended in November 2007, more than
ten months prior to the birth of the child. The court further stated that “[t]he fact
that [Mother] has since reconciled with her husband is of no consequence to the
matter at hand.” Having found that the marital relationship had ceased “at the key
time,” the court concluded that it had subject matter jurisdiction and that C.E. had
standing. Further, the court distinguished the facts in this case from those in the
O’Reilly case. The court ended its order by stating that C.E. “is entitled to present
proof supporting his paternity claims regarding N.R.S.” Mother’s appeal herein
followed.
Shortly after Mother filed her appeal, she filed a petition for writ of
prohibition in a separate action with this court, seeking to prohibit the family court
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from any further hearings in the case on the ground it lacked subject matter
jurisdiction. J.A.S. v. C.E., 2009-CA-001378-OA (Ky. App. November 3,
2009)(Not to be published order). In a 2-1 decision of a panel of this court, the
petition was denied. The majority of the panel found that there was sufficient
evidence to support the family court’s finding that the marital relationship had
ceased ten months prior to the child’s birth. Thus, the panel upheld the family
court’s determination that the child was born out of wedlock and that the court was
acting within its jurisdiction.
In this appeal, Mother seeks a reversal of the family court’s order on
the ground the family court erred in determining it had subject matter jurisdiction
and on the ground the court erred in allowing certain testimony in the hearing. In
addition to responding to Mother’s arguments, C.E. asserts that the appeal should
be dismissed because it is from an interlocutory order. He maintains that the order
is not a final and appealable order because “[i]t merely states that [C.E.] has
standing to pursue his claims for paternity and custody – certainly all the parties’
rights have not been adjudicated.” C.E. further states that “[t]he trial court has yet
to issue any orders regarding paternity, custody, or parenting time and no judgment
of the court will be final until these issues are adjudicated.” We agree.
Kentucky Rules of Civil Procedure (CR) 54.01 provides in part that
“[a] final or appealable judgment is a final order adjudicating all the rights of all
the parties in an action or proceeding, or a judgment made final under CR 54.02.”
“As a general rule, an interlocutory order may not be appealed unless it operates to
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divest a party of some right in such a manner as to put it out of the power of the
court to place the parties in their original condition.” KI USA Corp. v. Hall, 3
S.W.3d 355, 358 (Ky. 1999).
In Hubbard v. Hubbard, 303 Ky. 411, 197 S.W.2d 923 (1946),
Kentucky’s highest court stated that “[i]t has been said that if an order entered in a
cause does not put an end to the action, but leaves something further to be done
before the rights of the parties are determined, it is interlocutory and not final.” Id.
at 924. In that case, the appellate court dismissed an appeal from a lower court’s
order that stated it had jurisdiction. Id.
Similarly, in Lebus v. Lebus, 382 S.W.2d 873 (Ky. 1964), the trial
court had denied a motion to dismiss that had been made on the ground of lack of
jurisdiction. In dismissing the appeal, the appellate court held that “[t]he decision
of a court that it has jurisdiction of a cause and that the venue is proper does not
determine the ultimate rights of the parties, and is well recognized as an
interlocutory order. 4 Am.Jur.2d, Appeal & Error, section 89 (page 604).” Id. at
874.
In her reply brief, Mother responds to this issue by stating only that
she filed a notice of appeal “to protect [her] interests.” Because the order of the
family court did not dispose of all the rights of all the parties, we conclude that the
order was an interlocutory one and that the appeal must be dismissed.
It is hereby ORDERED that this appeal is DISMISSED.
ALL CONCUR.
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ENTERED: February 26, 2010
/s/ David C. Buckingham
SENIOR JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
R. Matthew Moore
Covington, Kentucky
M. Erin Wilkins
Newport, Kentucky
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