Family Law

N.H. v. Comm., et al, 2010-CA-000955-ME

Published:   Affirming

County: Simpson

Appellee K.M.F. and her husband, S.S. were separated from December, 2007 until January, 2009.  In January, 2008, K.M.F. had sexual relations with Appellant, N.H., became pregnant and gave birth in October, 2008.  In November, 2008, K.M.F. filed a paternity action to determine if N.H. was the child?s biological father and DNA tests confirmed that he was.  In February, 2009, a judgment of paternity was entered against N.H., who filed a CR 60.02 motion to set aside the judgment.  He argued that the child was not born out of wedlock as required by KRS 406.011 and thus the trial court lacked jurisdiction.  N.H. appealed the trial court?s denial of the CR 60.02 motion.

Appellant contended that the trial court lacked jurisdiction because since K.M.F. and S.S. were married when the child was born, there was a presumption the child was born of the marriage, citing J.N.R. v. O?Reilly, 264 S.W.3d 587 (Ky. 2008).  In J.N.R., the Supreme Court held that Kentucky courts lacked subject matter jurisdiction to determine paternity claims in the absence of evidence or allegation that the marital relationship ceased ten months before the child?s birth.  In this case, however, all evidence supported the assertion that the marital relationship of K.M.F. and S.S. ceased in November, 2007 and did not resume at any time in the eleven months before the child?s birth in October, 2008.  Therefore, the trial court had subject matter jurisdiction over the paternity action.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates