KENNETH MONNETT V. GEORGIA ANN (MONNETT) CRANK
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RENDERED: JUNE 27, 1997; 2:00 p.m.
MODIFIED: JULY 18, 1997; 10:00 a.m.
MODIFIED: SEPTEMBER 12, 1997; 10:00 a.m.
ORDERED NOT TO BE PUBLISHED BY THE KENTUCKY SUPREME COURT:
DECEMBER 10, 1997 (97-SC-000799)
NO. 95-CA-002005-MR
KENNETH MONNETT
V.
APPELLANT
APPEAL FROM GARRARD CIRCUIT COURT
HONORABLE ROBERT J. JACKSON, JUDGE
CIVIL ACTION NO. 89-CI-000067
GEORGIA ANN (MONNETT) CRANK
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON and KNOPF, Judges.
HUDDLESTON, JUDGE.
Garrard
Circuit
Kenneth R. Monnett appeals pro se from a
Court
order
that
denied
his
request
for
reimbursement of money paid to Georgia Ann (Monnett) Crank in
support of a child now known not to be his biological son.
Althougwith
the
circuit
court's
reasoning,
"we
are
bound
to
affirm the decision of the trial court under the rule that a
correct decision shall be upheld [even if] it [was] reached by
an improper route or reasoning."
White v. Board of Educ. of
Somerset Indep. Sch. Dist., Ky.App., 697 S.W.2d 161, 162 (1985).
On January 27, 1976, Garrard Circuit Court dissolved
Georgia's first marriage to R. L. Osborne.
Even though the
parties had separated on August 31, 1975, Georgia was pregnant
at the time of the dissolution.1
Just over one month later, on
March 2, 1976, Georgia married Kenneth Monnett.
Kenneth was
aware
her.
that
Georgia
was
pregnant
when
he
married
Five
months later, on August 10, 1976, the child was born and named
Kenneth
Monnett
ultimately
III
adopted
after
two
other
his
presumed
children
that
Georgia during her marriage to Osborne.
Kenneth and Georgia had another child.2
May 1, 1989, the parties separated.
father.
had
been
Kenneth
born
to
On April 18, 1981,
Eight years later, on
In her petition seeking
dissolution of their marriage, Georgia alleged that there were
"two living infant children of the parties."3
Garrard Circuit
Court entered a decree dissolving the marriage on October 13,
1989.
By
virtue
of
a
"Custody
and
Visitation
and
Property
Settlement Agreement" which was incorporated into the decree,
1
The circuit court found that Osborne was the father of the child with whom Georgia was
pregnant at the time of the dissolution of that marriage.
2 The paternity of the child is not in dispute.
3 Since the decree identifies these children as Kenneth III and the child born April 18, 1981,
we presume that the two children that Kenneth adopted had reached the age of majority at the
time the dissolution action was instituted.
Kenneth
was
ordered
to
pay
child
support
in
the
amount
of
$100.00 per week for the two children until each child reaches
the age of majority.
In
August
dissolution,
Georgia
1994,
and
nearly
five
years
son,
Kenneth
III,
her
after
got
the
into
an
argument because Kenneth III wanted to live with Kenneth (his
presumed
father).
At
this
point,
around
Kenneth
III's
eighteenth birthday, Georgia told her son that Kenneth was not
his father.
Rather, she said, he was Osborne's son.
After
Kenneth III told him what Georgia had said, Kenneth filed a
"Motion for Hearing to Determine Paternity of Kenneth Richard
Monnett III"4 in Garrard Circuit Court on August 15, 1994 -- five
4
Kenneth's motion stated:
Comes the Respondent herein and moves the Court to have a hearing, to
determine the true paternity of Kenneth Richard Monnett III, the alleged oldest
child of the Parties. For his grounds Respondent would state that Petitioner herein
has told the child, subject matter of this Motion, that he is not the child of
Respondent, and attached hereto is the child's Affidavit to that affect (sic).
Further, attached hereto is a Findings of Fact and Commissioner's Report from
Garrard Circuit Court Action Number 2115, which was the divorce of Petitioner
from her first husband, R. L. Osborne, which states in finding number 11 that "the
child which Georgia Osborne is carrying is the child of R. L. Osborne". This
being the same child as Kenneth Richard Monnett III born August 10, 1976.
Movant would point out that the finding was made on January 27, 1976.
Movant would further state that Petitioner herein has defrauded the Court,
either in Action No. 2115 in which she stated under oath that the child she was
carrying was the child of R. L. Osborne, or she has perjured herself in this Civil
Action in that she testified that the child was the child of Respondent herein.
Respondent would further move the Court for blood tests to determine the
paternity of the child, and further would ask for a Judgment against Petitioner in
the amount of $10,606.50 which is one-half of the total amount of child support
he has paid through July 1, 1994.
days after the child's eighteenth birthday.
Georgia responded
by insisting that Kenneth always knew that he might not be the
biological father of this child.
When the matter was referred to a domestic relations
commissioner,
Georgia
objected
to
the
commissioner
hearing
matters other than those permitted by Ky. R. Civ. Proc. (CR)
53.03.5
Blood tests eventually confirmed that Kenneth was not
his namesake's
father.
Nevertheless,
on
April
4,
1995,
the
commissioner filed a report concluding that Kenneth's motion was
really in the nature of a CR 60.02 motion, but that "[a] refund
of support would not appropriately address [Georgia's] cruelty"
because
"it
must
be
assumed
that
the
money
was
utilized
to
support Ken III" who Kenneth "now wishes to adopt as an adult."
On May 26, 1995, after considering the commissioner's
report and Kenneth's exceptions, Garrard Circuit Court entered
an order stating that Georgia's objection to the commissioner
hearing matters outside the scope of CR 53.03 should have been
sustained
and
that
the
judgment
should
be
vacated
"on
the
5
Ky. R. Civ. Proc. (CR) 53.03(3) provides that "[t]he local rules of each circuit court may
provide for the referral to the domestic relations commissioner of domestic relations matters,
including: contested and uncontested matters arising from actions for the dissolution of
marriage, child custody, support and maintenance under KRS chapter 403, except that
incarceration resulting from a finding of contempt shall be imposed only after a hearing before
the court, at which time the court shall permit additional evidence and shall give the party
charged with contempt an opportunity to purge himself of such contempt. Proceedings for
restraining orders and injunctions shall be heard only by the court. Local Rules providing for the
referral of domestic relations matters to the domestic relations commissioner shall include
specific standards for the prompt disposition of all matters before the commissioner."
grounds of fraud or for other extraordinary reasons as provided
for by [CR] 60.02 and Cain v. Cain, [Ky.App.,] 777 S.W.2d 238
[(1989)]."
In this order, the court went on to say that Georgia
"shall be liable to pay any support monies that are proven to
have
been
thereafter,
incurred
by
the
Georgia
filed
a
support
"Motion
obligation."
to
Vacate
and
Shortly
Set
Aside
[the] Order" of May 26, 1995.
On June 21, 1995, the court granted Georgia's motion
to set aside the May 26, 1995 order and entered a second order
in which it concluded that:
1.
A
paternity
action
must
be
filed
in
the
District Court unless there is a related and integral
custody issue pending, at which time the Circuit Court
would have jurisdiction.
2.
The
custody,
Circuit
visitation
Court
and
has
support
jurisdiction
issues
over
(requests
to
increase or decrease, but not reimbursement of vested
support obligation after a child attains the age of
majority).
3.
The Circuit Court has jurisdiction to alter,
amend or vacate a decree pursuant to [CR] 60.02 and
pursuant to case authority cited:
S.W.2d
at
238];
Spears
S.W.2d
605
[(1990)];
Cain v. Cain, [777
v.
Spears,
[Crowder]
v.
[Ky.App.,
Commonwealth,
784]
[ex
rel.] Gregory, [Ky.App.,] 745 S.W.2d 149 [(1988).]
4.
The Domestic Relations Commissioner has the
authority to hear cases pursuant to a general order of
reference
brought
403.
that
provides
pursuant
to
for
[Ky.
consideration
Rev.
Stat.
of
(KRS)]
cases
Chapter
The Domestic Relations Commissioner is without
authority
to
paternity,
hear
actions
actions
to
brought
alter
or
to
amend
determine
a
judgment
pursuant to [CR] 60.02, and actions to consider any
case outside the statute providing for said action.
5.
be
raised
taken.
In
accord
An objection to jurisdiction of a Court can
with
at
any
time
and
exceptions
need
not
be
(Citations omitted.)
these
conclusions,
the
court
held
that
"the
Commissioner was without jurisdiction or authority to hear a
paternity action, because the child . . . had attained the age
of
majority;
that
no
issue
of
custody
was
presented;
that
support was vested and the Commissioner is without authority to
consider an action pursuant to [CR] 60.02."
effectively
denied
Kenneth's
request
for
Since the order
reimbursement,
this
appeal followed.
First, the parties, and even Garrard Circuit Court to
some extent, seem to be confused about the role of domestic
relations
commissioners.
relations
commissioners
circuit court.
As
merely
CR
53.03
make
explains,
domestic
recommendations
to
the
A commissioner's report, in and of itself, has
no legal effect because "[a]ll temporary and final decrees and
orders shall be entered by the court upon review of the report
of the . . . commissioner."
CR 53.03(4).
See also Basham v.
Wilkins, Ky.App., 851 S.W.2d 491, 494 (1993).
under
no
obligation
recommendations.
to
follow
The court is
the
Basham, 851 S.W.2d at 494.
commissioner's
In fact, the court
"may adopt the report, or may modify it, or may reject it in
whole
or
in
part,
or
may
receive
recommit it with instructions."
further
CR 53.06(2).
evidence,
or
may
See also Basham,
851 S.W.2d at 494.
The commissioner is, in effect, nothing more
than
to
an
assistant
the
circuit
court.
According
to
CR
53.03(3), the circuit court can refer any domestic relations
matter to the commissioner for recommendations.
the
circuit
court
lacks
jurisdiction,
the
Of course, if
commissioner
lacks
jurisdiction.
Here, the circuit court correctly explained that KRS
406.021 vests the district court with exclusive jurisdiction to
determine issues of paternity.
However, since the circuit court
has jurisdiction over issues of custody, visitation and support,
the circuit court has authority to determine paternity where it
is contested in circuit court dissolution cases involving such
issues. See generally Basham, 851 S.W.2d at 493; and Sumner v.
Roark, Ky.App., 836 S.W.2d 434, 437 (1992).
that
Kenneth's
Determine
motion
Paternity
was
. . .
entitled
,"
he
While it is true
"Motion
effectively
relief from the decree of dissolution.6
for
Hearing
sought
CR
to
60.02
Since the decree was
entered by Garrard Circuit Court, that is the proper forum in
which to bring a CR 60.02 motion to alter, amend or vacate the
decree.7
Whether
commissioner
has
the
no
matter
effect
was
on
initially
the
reviewed
validity
of
by
the
a
order
ultimately entered by the circuit court.
CR
60.02
governs
the
reopening
of
decrees
in
this
state, Fry v. Kersey, Ky.App., 833 S.W.2d 392, 393 (1992), and
"[a]
CR
60.02
motion
can
be
used
to
reopen
the
issue
paternity which was adjudicated in a dissolution proceeding."
of
7
Kurt A. Philipps, Jr., Kentucky Practice, CR 60.02, cmt. 12 (5th
ed. 1995).
27.12
See also Ralph S. Petrilli, Kentucky Family Law ยง
(1988)
custodial
(explaining
parents
that
seeking
to
one
defense
avoid
available
past-due
child
to
non-
support
6
CR 8.06 requires that all pleadings are to be "so construed as to do substantial justice."
Although a CR 60.02 motion is not a "pleading," we believe that the same rule should apply to
such motions.
7 It is also significant that, while a separate and independent paternity action might have been
filed in the district court, the district court would not have jurisdiction to consider the issue of
reimbursing Kenneth for child support paid under a decree entered in circuit court. Furthermore,
since KRS 406.031 provides that paternity actions brought under the provisions of KRS
406.021(1) must be "commenced within eighteen (18) years after the birth. . . ," a district court
action would have been time-barred because Kenneth III turned eighteen a few days before
Kenneth filed the motion.
payments
is
"to
reopen
the
judgment
on
proper
grounds
and
limitations thereon listed in the Civil Rules of Procedure").
CR 60.02 provides that:
On motion, a court may, upon such terms as are
just, relieve a party or his legal representative from
its
final
judgment,
following
surprise
order,
grounds:
or
(a)
excusable
or
proceeding
mistake,
neglect;
(b)
upon
the
inadvertence,
newly
discovered
evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule
59.02; (c) perjury or falsified evidence; (d) fraud
affecting
the
proceedings,
other
than
perjury
or
falsified evidence; (e) the judgment is void, or has
been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that
the judgment should have prospective application; or
(f)
any
other
reason
justifying relief.
of
an
extraordinary
nature
The motion shall be made within a
reasonable time, and on grounds (a), (b), and (c) not
more
than
one
year
after
the
proceeding was entered or taken.
judgment,[8]
order
or
A motion under this
Rule does not affect the finality of a judgment or
8
A decree of dissolution is the equivalent of a final judgment.
suspend its operation.
(Emphasis supplied.)
Since Kenneth's motion was filed nearly five years after the
decree of dissolution was entered, the first question that must
be addressed is:
Which section of CR 60.02 is implicated by
Kenneth's claim that Georgia lied about the paternity of Kenneth
III?
Because a motion brought under CR 60.02(a), (b) or (c) is
time-barred,
we
must
decide
whether
Kenneth's
motion
may
be
brought under CR 60.02(d), (e) or (f).
As Kenneth does not
allege
has
that
"the
judgment
is
void,
or
been
satisfied,
released, or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application"
to justify reopening under CR 60.02(e), we need only consider
the possibility of invoking CR 60.02(d) and (f).
The
necessary
to
type
of
justify
"fraud
reopening
affecting
under
CR
the
proceedings"
60.02(d)
generally
relates to extrinsic fraud.
Philipps, Kentucky Practice at CR
60.02,
fraud
cmt.
6.
Extrinsic
"covers
fraudulent
conduct
outside of the trial which is practiced upon the court, or upon
the defeated party, in such a manner that he is prevented from
appearing or presenting fully and fairly his side of the case."
Id.
As
CR
60.02(d)
indicates
by
specifically
excluding
"perjury" from the meaning of "fraud affecting the proceedings,"9
"perjury by a witness or nondisclosure of discovery material is
not the type of fraud to outweigh the preference for finality."
Id. at cmt. 5.
See also Hazel-Atlas Glass Co. v. Hartford-
Empire Co., 322 U.S. 238, 245, 64 S.Ct. 997, 1001, 88 L.Ed. 1250
(1944), overruled on other grounds, Standard Oil Co. v. U.S.,
429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976) (a "case of a
judgment obtained with the aid of a witness who, on the basis of
after-discovered
guilty of
Gleason
v.
evidence,
perjury"
does
Jandrucko,
is
not
860
believed
possibly
constitute
fraud
F.2d
556,
559
to
on
(2nd
have
the
Cir.
been
court);
1988)
("[a]fter-discovered evidence of alleged perjury by a witness is
simply not sufficient for a finding of 'fraud upon the court'");
H. K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d
1115, 1118 (6th Cir. 1976) (alleged perjury of a witness is not
a ground for an action for fraud upon the court); Tandra S. v.
Tyrone W., 336 Md. 303, 315, 648 A.2d 439, 445 (1994) (perjury
in paternity proceedings constitutes "intrinsic fraud," which is
not the type of fraud necessary to vacate or revise a judgment);
and Wise v. Nirider, 261 Mont. 310, 862 P.2d 1128 (1993) ("fraud
between the parties, without more, does not rise to the level of
fraud upon the court").
9
The distinction between "perjury" and "fraud affecting the proceedings" in CR 60.02
requires Kentucky attorneys to continue drawing a distinction between extrinsic and intrinsic
fraud even though this traditional approach has been criticized in recent decisions. 7 Kurt A.
Philipps, Jr., Kentucky Practice, CR 60.02, cmt. 6 (5th ed. 1995).
CR 60.02(f) permits reopening for "any other reason of
an
extraordinary
available
under
nature
CR
justifying
60.02(f)
unless
relief."
the
Relief
asserted
is
not
grounds
for
relief are not recognized under subsections (a), (b), (c), (d)
or (e) of the rule.
Emergency Beacon Corp. v. Barr, 666 F.2d
754, 758 (2nd Cir. 1981).
at CR 60.02, cmt. 8.
See also Philipps, Kentucky Practice
The asserted ground for relief in this
case constitutes "perjury" which is commonly understood to mean
"[t]he
deliberate,
incomplete
willful
testimony
giving
under
oath."
Dictionary 924 (2nd ed. 1985).
of
false,
The
misleading,
American
or
Heritage
Since "perjury" is covered by CR
60.02(c), Kenneth cannot rely upon CR 60.02(f) to reopen the
decree.
Based upon this analysis of CR 60.02, Kenneth's motion
properly falls under CR 60.02(c) instead of CR 60.02(d) or (f).
Kenneth's motion was filed nearly five years after the decree
was entered.
Since CR 60.02(c) motions must be brought within
one year of the date the decree was entered, Kenneth's motion
comes too late.
We recognize that a panel of this Court permitted the
CR
60.02
reopening
of
a
decree
outside
of
the
one-year
limitation under somewhat similar circumstances in Cain v. Cain,
777 S.W.2d at 238.
The appellee did not file a brief and the
Cain panel did not undertake a thorough analysis of CR 60.02.
Despite
the
reopening
CR
was
60.02(d)
permitted
language
excluding
apparently
affecting the proceedings."
on
the
"perjury,"
basis
of
the
"fraud
We, like the domestic relations
commissioner in this case,10 believe that CR 60.02(c), pertaining
to perjury, was the provision that should have been invoked in
Cain.
We are, however, able to distinguish Cain from the
present case.
a
request
First, there is no indication that Cain involved
for
reimbursement
of
child
support
already
Reimbursement is the primary issue Kenneth raises.
paid.
Furthermore,
since the children in Cain were six and three, the child support
order imposed
Kenneth
III
a
had
continuing
turned
obligation
eighteen
and
upon
was
Mr.
no
Cain.
longer
Since
in
school, Kenneth owed no future support obligation to him.
also
significant
that
Cain
is
based
upon
the
high
It is
authority
of
Crowder v. Commonwealth ex rel. Gregory, Ky. App., 745 S.W.2d
149 (1988).
While it is true that Crowder involved similar
facts, the Crowder reopening was based upon CR 60.02(e) -- not
CR 60.02(d).
Several
other
states
have
addressed
the
issue
of
whether money previously paid as child support can be refunded
10 Discussing Cain, the Garrard Circuit Court Domestic Relations Commissioner stated: "In
Cain, the Court of Appeals noted that Mrs. Cain had committed fraud by misleading the Court to
believe that Mr. Cain was the father of the child in question. (Why this 'fraud' was not perjury
which required objecting within one year is a mystery which will remain unanswered)."
(Emphasis supplied.)
when
paternity
is
subsequently
disestablished.
These
cases
reflect a number of different reasons to deny reimbursement in
situations such as this.
While other jurisdictions have taken
varied approaches to this issue, we are particularly impressed
by the analysis set forth in the following cases.
In State of Iowa ex rel. Blackwell v. Blackwell, 534
N.W.2d 89 (Iowa 1995), the Supreme Court of Iowa refused to
quash a mandatory income withholding order for delinquent child
support after paternity was disestablished.
The Court pointed
out that courts cannot reduce or cancel accrued child support
retroactively after child support obligations accrue and rights
vest.11
that
Id. at 91.
child
courts
are
It is similarly well established in Kentucky
support
obligations
without
authority
"become
to
vested
'forgive'
vested
accrued unpaid maintenance" under Kentucky law.
Ky.App.,
873
S.W.2d
213,
216
(1994).
The
when
due
and
rights
in
Mauk v. Mauk,
Iowa
court
also
explained that "strong policy reasons, such as preservation of
judgments,
support
of
dependents,
interests,
overcome
. . .
'fairness'
and
protection
argument[s],
of
vested
even
though
the . . . court later determined that [Blackwell was] not [the]
biological father."
Blackwell, 534 N.W.2d at 91.
Similarly, in V.P. v. L.S., 656 A.2d 1157 (D.C. 1995),
when paternity was disestablished nine years after an order of
11 "Vest" means "[t]o give an immediate, fixed right of present or future enjoyment" or "[t]o
accrue to; to be fixed; to take effect." Black's Law Dictionary 1563 (6th ed. 1990).
paternity had been entered, the District of Columbia Court of
Appeals refused to order a refund of child support paid under
the original order.
There, the court held that Fed. R. Civ.
Proc. (FRCP) 60(b),12 which is available to set aside a prior
order
or
judgment,
affirmative
"[c]laims
"cannot
be
Id.
The
court
observed
relief
beyond
the
relief."
for
affirmative
used
to
impose
additional
that
since
reopening
of
a
judgment cannot be adjudicated on a Rule 60(b) motion but must
be asserted
in
a
new
and
order would not be proper.
independent
suit,"
a
reimbursement
Id. at 1158.
The Supreme Court of Alaska also recently addressed
the issue in State of Alaska, Dept. of Revenue, Child Support
Enforcement
Div.
v.
Wetherelt,
931
P.2d
383
(Alaska
1997).
Although a 1983 dissolution decree "effectively determined . . .
that [the child in question] was not a child of the Wetherelt's
marriage," the Court held that the dissolution decree did not
terminate
the
legal
relationship
child. Id. at 386, 388.
between
Wetherelt
and
the
Since the child was born to Wetherelt's
wife while they were married and Wetherelt was named as the
father on the child's birth certificate, he was presumed to be
the
child's
406.011.
father
under
Id. at 387.
the
Alaska
rule
equivalent
to
KRS
The court explained that, since the
presumed father/child relationship was not terminated until 1994
12
Fed. R. Civ. Proc. (FRCP) 60(b) is the federal equivalent of Kentucky's CR 60.02.
"when the court issued an express order declaring that while
Wetherelt was not [the child's] father," he "owed a duty of
support until 1994."13
Id. at 388.
Based upon our analysis of CR 60.02 and the reasoning
of our sister states on the issue of reimbursement, we believe
that the circuit court achieved the proper result when it denied
Kenneth's
motion
for
reimbursement.
Interestingly,
while
Kenneth has requested reimbursement for money paid in support of
Kenneth III in the past, he has said that had he known Kenneth
III was not his child he would have adopted him at the time of
his
birth;
and
even
now,
he
has
expressed
an
interest
in
adopting his namesake as an adult.
The order denying Kenneth's demand for reimbursement
of child support previously paid is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth R. Monnett, pro se
Lexington, Kentucky
Georgia Ann (Monnett) Crank,
pro se
Crab Orchard, Kentucky
13 Although Wetherelt's paternity was ultimately disestablished, "[t]he parties do not dispute
that[,] prior to 1983[,] Wetherelt owed [the child] a duty of support" based upon his presumed
paternity. State of Alaska, Dept. of Revenue, Child Support Enforcement Div. v. Wetherelt, 931
P.2d 383, 387 (Alaska 1997).
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