JUAN RAMIREZ v. COMMONWEALTH OF KENTUCKY, EX REL MICHELLE L. BROOKS, MOTHER OF CHRISTOPHER M. BROOKS
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RENDERED:
NOVEMBER 17, 2000; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000382-DG
JUAN RAMIREZ
APPELLANT
ON DISCRETIONARY REVIEW
FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 98-XX-00061
v.
COMMONWEALTH OF KENTUCKY, EX REL
MICHELLE L. BROOKS, MOTHER OF
CHRISTOPHER M. BROOKS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE: This Court has previously granted discretionary
review of an opinion and order entered by the Fayette Circuit
Court on January 13, 1999, which affirmed the Fayette District
Court’s award of retroactive child support in a paternity action.
Pursuant to this Court’s April 14, 1999 order, the sole issue on
appeal is whether the circuit court properly construed the fouryear limitations period in KRS1 406.031 in affirming the
retroactive award of child support in view of the manner and time
1
Kentucky Revised Statutes.
frame in which service of process was effectuated on the
appellant, Juan Ramirez.
Finding no error, we affirm.
Ramirez and Michelle Brooks had a brief intimate
relationship in the fall of 1989.
They met at Keeneland Race
Track in Lexington, Kentucky where they worked for different
horse trainers.
In the late fall, they traveled to Florida where
in December, Brooks became pregnant.
In January 1990, Brooks
informed Ramirez of her condition and the relationship ended.
Brooks returned to Kentucky where she gave birth to Christopher
Brooks on September 12, 1990.
Brooks testified that she and her
mother saw Ramirez near Keeneland in October 1990, and approached
him and showed him his child.
She did not see nor hear from
Ramirez after that, or ever receive any support from him.
In the
proceeding in the district court, Ramirez acknowledged that
Brooks informed him of her pregnancy, although he denied that he
saw the child after his birth.
Ramirez also testified that he
left Kentucky in October 1990, and did not return after that.
Brooks applied for, and received, medical assistance
and Aid to Families with Dependent Children (AFDC) from the
Cabinet for Human Resources.
The Cabinet, on behalf of Brooks
and her child, commenced an action in the Fayette District Court
on December 12, 1990, to establish the paternity of Christopher,
to set a reasonable amount of child support, and to obtain
reimbursement for medical and public assistance which the Cabinet
had provided for their support.
The complaint named “Juan
Ramirez Cortez” as the father of Christopher.
Brooks had for Ramirez was Keeneland.
The only address
Service of process was
attempted on Ramirez but the constable was unable to find Ramirez
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and the unserved complaint was returned in May 1991.
In 1993,
Brooks learned that Ramirez was working at a race track in
Maryland; and the case was referred to the State Parent Locator
Service in March of that year, but Ramirez was not located until
May 1997.
At that time the Cabinet amended the complaint to
reflect the fact that Ramirez was living out of state.
He was
finally served with the summons and the complaint that was sent
by certified mail from the Office of the Secretary of State on
May 22, 1997, to his residence in Maryland.
After its receipt, Ramirez answered the complaint,
denied that he was the father of Christopher, and asked that
blood tests be performed.
entered on July 8, 1997.
An agreed order for blood testing was
After receiving the results of the
tests which indicated that there was a 99.67% probability that
Ramirez was the father of Christopher, the Commonwealth moved for
summary judgment on the issue of paternity and for an order of
support.
A hearing was conducted on the motion on February 11,
1998, at which time Ramirez, through counsel, agreed to
acknowledge paternity and agreed to pay support in the amount of
$58 per week; however, Ramirez objected to the Commonwealth’s
request that he be held responsible for any retroactive payments
of support.
Nevertheless, in its order of April 16, 1998, the
district court made the support order retroactive to January
1991, one month following the commencement of the action.
In his motion to alter, amend or vacate the judgment,
Ramirez argued that the district court had “imposed an unjust
financial burden” upon him, that its judgment “destroyed the
equitable purpose behind the 4-year limitation incorporated in
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[KRS 406.031],” and that he had no “reason to believe that his
child support obligation was accruing for the last seven years.”
On May 27, 1998, a hearing was conducted on the motion at which
time testimony was elicited from both Brooks and Ramirez.
On
July 21, 1998, the trial court denied the motion to alter its
judgment, but provided that Ramirez could pay the arrearage
created by its earlier support order at the rate of $10 per week.
In his appeal to the Fayette Circuit Court, Ramirez,
argued that the retroactive support award was inappropriate as
the state had not been diligent in its attempt to serve him with
notice of the complaint.
For the first time, Ramirez also argued
that the district court did not have personal jurisdiction over
him since KRS 454.210(2), Kentucky’s long-arm jurisdiction
statute, authorizes jurisdiction over out-of-state residents for
claims relating to paternity only if the sexual intercourse
resulting in conception of the child occurs in this state.
Because Christopher was conceived in Florida, a fact Ramirez
insisted he learned for the first time at the May 1998 hearing in
district court, he argued that there was no statutory authority
for service upon him by the Secretary of State.
In its review, the Fayette Circuit Court concluded that
the “chain of events manifestly demonstrates a complaint was
filed, a summons was issued, and a good faith attempt was made to
serve [Ramirez] pursuant to CR2 3,” and that the district court’s
award of retroactive child support “was proper, as this action
was commenced within the four year statutory mandate of KRS
2
Kentucky Rules of Civil Procedure.
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406.031.”
The circuit court, citing Williams v. Indiana
Refrigerator Lines,3 also held that Ramirez had waived any
defenses to personal jurisdiction “when he appeared generally to
defend this action on its merits.”
As the sole issue before this Court, Ramirez argues
that the trial court abused its discretion in awarding Brooks
over $22,000 in retroactive child support since he was not served
until after the expiration of the four-year limitations period
provided for in KRS 406.031(1).
This statute reads as follows:
The determination of paternity under the
provisions of KRS 406.021(1) shall be
commenced within eighteen (18) years after
the birth, miscarriage or stillbirth of a
child. However, in such cases, liability for
child support shall not predate the
initiation of action taken to determine
paternity as set forth in KRS 406.021 if the
action is taken four (4) years or more from
the date of birth.
Ramirez correctly states that this statute, enacted in
1986, was intended to “codif[y] the common law doctrine of
laches.”4
Clearly, there is no question, as Ramirez states in
his brief, that this statute places “a burden upon the Cabinet
and upon unwed mothers to actively pursue their rights in a
timely manner or lose their right to do so.”
However, Ramirez’
argument fails to recognize that the Cabinet, on Brooks’ behalf,
filed a complaint within the statutory period, indeed, within
3
Ky.App., 612 S.W.2d 350 (1981).
4
Wigginton v. Commonwealth ex rel. Caldwell, Ky.App., 760
S.W.2d 885, 887 (1988) (trial court’s refusal to apply statute in
paternity action filed in 1984 upheld although father was allowed
to assert laches as a defense to bar award for retroactive
support for the 15 years pre-dating the commencement of the
action).
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three months of Christopher’s birth.
The record further supports
the circuit court’s observation that the appellees attempted to
have the complaint, and the accompanying summons, served on
Ramirez at the time the complaint was filed at his address at
Keeneland where he resided during the parties’ relationship and
near where Brooks had last seen him the previous October.
After
the spring meet in 1991, the summons was returned with the note
that Ramirez could not be found.
From our review of the record,
it is clear that the circuit court did not err in concluding that
the appellees did all that they were required to do to toll the
statute of limitations.5
“CR 36 measures commencement from the
date of the filing of the complaint and the issuance of a summons
in good faith.”7
This is not a case where the plaintiff, or her
counsel, deliberately stalled the commencement of the action, and
thereby failed to stop the running of the statutory period.
The
cases relied upon by Ramirez, Louisville & N.R. Co. v. Little,8
and Gibson v. EPI Corp.,9 are simply not applicable under the
5
See Allen v. O.K. Mobile Home Sales, Inc., Ky.App., 570
S.W.2d 660, 662 (1978)(citing Blue Grass Mining Co. v. Stamper,
267 Ky. 643, 645, 103 S.W.2d 112, 113 (1937) (“[w]hen a party has
caused the summons to issue in good faith, he has complied with
the law and saved his right of action in respect of time. . .”)).
6
“A civil action is commenced by the filing of a complaint
with the court and the issuance of a summons or warning order
thereon in good faith.”
7
Jones v. Baptist Healthcare System, Inc., Ky.App., 964
S.W.2d 805, 807 (1997).
8
264 Ky. 579, 95 S.W.2d 253 (1936) (summons was prepared but
retained by plaintiff’s attorney until after the running of the
statute of limitations).
9
Ky.App., 940 S.W.2d 912 (1997) (summons held by plaintiff’s
attorney until expiration of limitations period).
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circumstances presented in the case sub judice, and we are
persuaded that the circuit court correctly concluded that the
filing of the complaint and the issuance of the summons were
sufficient to commence the action.
Ramirez further argues that even if the action were
initially commenced in good faith, the limitations period should
not be tolled as Brooks and the Cabinet did not diligently
attempt to have him served after the initial return of service.
Ramirez suggests that the appellees did not use all the resources
available to them to locate him.
Since Brooks was a recipient of
public assistance, we cannot imagine what resources she would
have had at her disposal to look for Ramirez, nor does Ramirez
suggest how Brooks was supposed to find him.10
Brooks testified
that she knew, and visited, Ramirez’s brother and sister-in-law
who lived in the Lexington area.
However, she also testified
that they would not give her any information about Ramirez’s
whereabouts.
Ramirez testified that until he received notice of
the paternity action he was unaware that Brooks maintained
contact with his family; but, he confirmed that his family had
not informed Brooks of his address for fear that a paternity
action might disrupt his marriage.
Ramirez, an itinerant worker
who apparently did not want to be found, was not successful in
convincing either of the courts below that further efforts to
locate him would have been fruitful.
10
Thus, under these
See Waddell v. Commonwealth, Ky.App., 893 S.W.2d 376, 380
(1995) (father, served by publication, held not entitled to
relief from judgment of paternity due to insufficiency of service
of process where “the uncontradicted facts fail to demonstrate
that [he] was amenable to any other method of service”).
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circumstances, we find no error in the district court’s finding
that the Cabinet made a reasonable effort under the circumstances
to locate and serve Ramirez.
Next, Ramirez contends that the complaint filed by the
Cabinet and the summons it caused to be issued in December 1990,
did not satisfy the requirements for commencing an action and
tolling the limitations period with respect to him since he was
misnamed in the complaint.
Indeed, the complaint named, and the
summons was issued to, “Juan Ramirez Cortez,” instead of “Juan
Ramirez.”
Again, we agree with the Commonwealth that there was
no error in the lower courts’ ruling with respect to the variance
in the name on the pleadings and the appellant’s actual name.
Ramirez was identified as “Juan Ramirez Cortez” because Brooks
identified him in that manner in her application for public
assistance.
While the record does not reveal why Brooks did not
know Ramirez’s actual name, there was no evidence from which the
trial court could find, or infer, that Brooks was acting in bad
faith in her identification of Ramirez, or intended thereby to
prevent his receipt of process.
Further, as the district court
found, there may have been a logical reason for her confusion.11
In any event, the circuit court correctly determined that any
error was waived.
Though a defendant be misnamed in a
suit, if he is properly served with process
and does not plead the misnomer he is bound
by the judgment. However, it is essential
that the service should have been on the
11
Ramirez testified that his maternal grandfather’s last
name was “Cortez.”
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intended defendant; the case must be one of
misnomer and not mistaken identity.12
It is obvious from the record that Ramirez was, at all times, the
intended defendant and that the circumstances do not reflect this
to be a case of mistaken identity.
We agree with the circuit
court’s observation that “[i]t is ridiculous to say this judgment
is void against [Ramirez] due to an error in syntax, after he has
voluntarily participated in the action.”
Finally, Ramirez continues to argue that the complaint
should have been dismissed for lack of personal jurisdiction.
Because Christopher was conceived in Florida, Ramirez could have
asserted a jurisdictional defense.13
However, the circuit
court’s resolution of the issue of lack of personal jurisdiction
was not an issue designated in this Court’s previous order as one
to be reviewed.
In any event, the issue was, as the Fayette
Circuit Court correctly concluded, waived by the failure of
Ramirez to raise it timely.14
12
Mulligan v. First National Bank & Trust Co. of Lexington,
Ky., 351 S.W.2d 59, 61 (1961). See also, Dixon v. Melton, 137
Ky. 689, 126 S.W. 358 (1910).
13
See KRS 454.210(2)(a)(8) and Davis-Johnson ex rel. Davis
v. Parmelee, Ky.App., 18 S.W.3d 347 (1999) (long-arm statute can
be used to obtain personal jurisdiction over a non-resident
putative father if the sexual intercourse which resulted in the
child occurred in this jurisdiction).
14
Ramirez justified his failure to timely raise the issue by
asserting that it was not until the hearing conducted on May 17,
1998, that he learned where the child was conceived. We find
this argument to be spurious as Ramirez was uniquely qualified to
know when and where the child was conceived, or, he could easily
have counted backwards from the birth date of the child contained
in the complaint to determine where he was nine months prior to
the birth. In any event, since intercourse occurred between the
parties in both jurisdictions, Ramirez should have been aware of
the potential jurisdictional defense prior to his response and
(continued...)
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Accordingly, the opinion of the Fayette Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James M. Morris
Sharon K. Morris
Jason V. Reed
Lexington, KY
Byron L. Ockerman
Robyn M. Shier
Lexington, KY
14
(...continued)
participation in the case on the merits.
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