JERRY WAYNE EVANS v. KENTON DISTRICT COURT; KENTUCKY CABINET FOR HUMAN RESOURCES/ CHILD SUPPORT ENFORCEMENT UNIT; AND THE COMMONWEALTH OF KENTUCKY
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RENDERED: October 29, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001384-MR
JERRY WAYNE EVANS
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE STEVEN R. JAEGER, JUDGE
ACTION NO. 02-CI-03194
v.
KENTON DISTRICT COURT;
KENTUCKY CABINET FOR HUMAN RESOURCES/
CHILD SUPPORT ENFORCEMENT UNIT; AND
THE COMMONWEALTH OF KENTUCKY,
REAL PARTY IN INTEREST
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
TAYLOR, JUDGE:
Jerry Wayne Evans brings this pro se appeal from
a June 6, 2003, Order of the Kenton Circuit Court.
1
We affirm.
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes 21.580.
In November 1989, Paternity Judgment was entered by
the Kenton District Court finding Evans to be the biological
father of a infant child born out of wedlock.
As a result,
Evans was ordered to pay child support in the amount of $27.50
per week.
Having failed to pay child support, he was indicted
for flagrant non-support in 2001.
In April 2002, Evans disputed
the Paternity Judgment and moved the circuit court to permit DNA
testing.
The circuit court complied and ordered testing on
April 19, 2002.
Subsequently, DNA testing proved that appellant
was not the biological father of the infant child.
The circuit court vacated the paternity judgment by
order entered August 7, 2002.
Appellant then filed a APetition
for Writ of Replevin,@ which he asserted, among other things,
that he was entitled to be reimbursed for the costs ($495.00) he
paid for DNA testing.
By order entered June 6, 2003, the
circuit court denied Evans’ motion.
This appeal follows.
Evans contends the circuit court erred by denying his
motion for reimbursement of $495.00, representing the sum paid
for DNA testing.
In support, Evans cites this Court to Shaw v.
Seward, Ky. App., 689 S.W.2d 37 (1985), for the proposition that
an indigent putative father must be provided DNA blood testing
free of charge in a paternity action.
distinguishable from the case at hand.
2
We view Shaw as
In Shaw, the putative
father was indigent.
Here, a copy of Evans’ Kentucky State
Penitentiary monthly income statement indicates that
approximately $1,327.68 had been deposited into his account from
December 1, 2002, to May 31, 2003.
Under these circumstances,
we do not believe that Evans qualifies as an indigent father
within the meaning of Shaw.
Kentucky Revised Statutes (KRS) 406.081 provides the
authority for genetic testing in paternity disputes.
Upon the
request of a party, the court is required to order the mother,
child and alleged father to submit to genetic testing, which
occurred in this action at the request of Evans.
The payment of
costs for these tests is governed by KRS 406.091(7) which states
as follows:
Except where the Cabinet for Families and
Children administratively orders genetic
testing, all costs associated with genetic
testing shall be paid by the parties in
proportions determined by the court.
In this case, the court determined Evans to be responsible for
paying the costs of the DNA tests he requested.
Evans has cited
no facts or legal authority to this Court that would indicate
the circuit court abused its discretion in denying his motion
for reimbursement for the costs of the DNA testing.
Since we
conclude Evans was not indigent, we perceive no error in the
circuit court’s ruling.
-3-
For the foregoing reasons, the Order of the Kenton
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Jerry Wayne Evans, Pro Se
Eddyville, Kentucky
-4-
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