Jason Wood v. Michelle Ann Critz ( 2023 )

RENDERED: JANUARY 6, 2023; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0902-MR
JASON WOOD APPELLANT
APPEAL FROM SIMPSON FAMILY COURT
v. HONORABLE G. SIDNOR BRODERSON, JUDGE
ACTION NO. 19-CI-00115
MICHELLE ANN CRITZ AND BRIAN
STRAIN APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND K. THOMPSON,
JUDGES. 1
THOMPSON, K., JUDGE: This case concerns the right of Brian Strain to
intervene post-judgment in a dissolution action between Jason Wood and Michelle
Ann Critz to establish himself as the biological father of S.J.W. and thereby seek
1
Judge Kelly Thompson authored this Opinion before his tenure with the Kentucky Court of
Appeals expired on December 31, 2022. Judge Denise G. Clayton concurred in this Opinion
prior to her retirement from the Court of Appeals. Release of this Opinion was delayed by
administrative handling.
custody and timesharing rights. Jason appeals from the February 24, 2021 order
sustaining Brian’s motion to intervene and the July 15, 2021 order sustaining
Brian’s motion to amend final judgment pursuant to Kentucky Rules of Civil
Procedure (CR) 60.02. We affirm because Brian’s motion to intervene was timely
under the circumstances, his motion for CR 60.02 relief was brought within a
reasonable amount of time given the fraud that occurred which prevented his
appearance to be heard regarding paternity in the dissolution matter, and the DNA
test warranted relief.
Jason and Michelle married in 2011 and three children were born
during their marriage, H.W.W., K.A.W., and S.J.W. (collectively the children).
S.J.W., a boy, was the youngest.
Michelle was having an affair with Brian in 2015 when she became
pregnant with S.J.W. Michelle informed Brian in March or April of 2015 that she
was pregnant and that he could be the father. Michelle offered to have prenatal
paternity testing done if Brian would pay for it. It is disputed whether Brian
agreed, but no testing was ultimately performed. S.J.W. was born in November
2015.
According to Jason’s deposition testimony, based upon his marital
interactions with Michelle, he had no reason to doubt that S.J.W. was his child. It
was not until 2017 that he became suspicious that S.J.W. might not be his
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biological child based on Michelle’s behavior. In July 2017, Jason used an over-
the-counter DNA test to test himself and S.J.W. The online results he received
indicated that he was not S.J.W.’s father and when confronted, Michelle
acknowledged that S.J.W. was not Jason’s child but would not tell him who was.
According to Michelle’s and Brian’s discovery admissions, Michelle
informed Brian of the result of Jason’s test. Later in July 2017, Brian then also
took an over-the-counter DNA test which indicated that he was S.J.W.’s father.
According to Brian, Michelle told him that they did not want him in S.J.W.’s life
and wanted him to sign over his rights, but when Brian said he wanted to be
involved, Michelle stopped communicating with him.
On March 27, 2019, Jason filed a petition for dissolution and stated
that the three children were “born of this marriage” and requested joint custody
with Michelle to be the primary residential custodian and Jason to have parenting
time. Michelle’s response and the parties’ property settlement agreement were
filed simultaneously. Michelle admitted to the allegations in the petition. The
agreement specified “[t]he parties have three infant children” and “shall have joint
custody of their children[.]” Jason agreed to pay child support in the amount of
$200 per week. The tax benefit for the three children was divided between them.
Jason and Michelle did not raise any issue as to S.J.W.’s paternity in
the dissolution action. Brian admitted learning at some point that Jason and
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Michelle were divorcing but disputes that Michelle informed him of this or
communicated anything about how the dissolution proceeding related to his
paternity rights.
On September 16, 2019, the decree of dissolution of marriage was
entered, adopting Jason’s and Michelle’s property settlement agreement.2
Immediately thereafter, despite receiving child support from Jason for all three
children, Michelle sought child support from Brian through the Simpson County
Child Support Office. On October 8, 2019, in 19-J-00118, a paternity action was
filed on her behalf. Brian appeared with counsel and opposed paying child
support. Pursuant to a court order, a DNA test was performed and on October 24,
2019, the results revealed that Brian was the biological father of S.J.W.
Jason filed a motion to intervene in the paternity action and a motion
to dismiss based on the decree. According to Brian, he first learned on December
10, 2019, during an evidentiary hearing that paternity of S.J.W. had already been
adjudicated pursuant to the decree of dissolution on September 16, 2019. On
December 18, 2019, Jason’s motion to intervene was granted and the paternity
2
That same day, an amended property agreement was filed which modified the agreement as to
the children to be a split custody arrangement with alternating weeks of parenting time, with
Jason continuing to pay $200 a week of child support. While the original property agreement
was named in the pre-drafted findings of fact and conclusions of law and the decree of
dissolution that the court signed, it appears that the parties followed the split custody
arrangement.
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petition was dismissed without prejudice on the basis of the decree having
previously determined paternity.
According to Brian and Michelle, after the paternity action was
initiated, Michelle allowed Brian to have visits with S.J.W. during the weeks she
had physical possession of the children, with Brian beginning with supervised
visits and culminating with him having overnight visits. He had about one visit per
week when Michelle had the children. Brian stated that he had fifteen to twenty
overnight visits with S.J.W. However, Jason disputed that this frequency of visits
took place based on what he had heard from the children. It is undisputed that
Brian never provided any monetary support for S.J.W. other than providing for
S.J.W. during visits.
On October 13, 2020, the Cabinet for Health and Family Services
filed a dependency, neglect, and abuse petition against Michelle based upon her
driving the children in her vehicle when she was intoxicated and removed the
children from her care. Regarding S.J.W., this was in 19-J-0090-003. Following
the removal of the children from Michelle’s care, the children were placed with
Jason, who was granted temporary custody, and Michelle had supervised visits. At
this time, Brian ceased to have any visits with S.J.W.
On October 20, 2020, Brian filed simultaneous motions to intervene
and amend the final judgment in the dissolution action pursuant to CR 60.02. He
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argued he was the biological father of S.J.W. and sought a finding to that effect so
that he could pursue custody and timesharing. Jason opposed Brian’s motions to
intervene and amend the final judgment; Michelle took no position on Brian’s
motions. Extensive discovery then took place regarding Brian’s knowledge of
S.J.W.’s parentage and the visitation he had engaged in with S.J.W.
According to Jason’s deposition testimony, Brian showed up at
S.J.W.’s fifth birthday party which caused problems. Jason explained that
afterwards he was instructed by either the Cabinet or the family court in the
dependency, neglect, and abuse action, that Brian was not to have contact with
S.J.W.
On December 17, 2020, Brian also filed a motion to intervene in the
dependency, neglect, and abuse case to establish temporary visitation. On January
15, 2021, Brian filed a separate paternity action in 21-CI-00019.
On February 24, 2021, the family court summarily granted Brian’s
motion to intervene in the dissolution action and continued his motion to amend,
scheduling an evidentiary hearing. Jason filed a motion to alter, amend, or vacate
this order.
On April 5, 2021, Brian’s motion to intervene in the dependency,
neglect, and abuse action was denied because he had never been adjudicated to be
S.J.W.’s parent.
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On July 15, 2021, two orders were entered in the dissolution
proceeding, an order denying Jason’s motion to alter, vacate, or amend the order
granting Brian’s motion to intervene, and an order sustaining Brian’s motion to
amend the final judgment pursuant to CR 60.02. As to the denial of the motion to
alter, amend, or vacate, the family court considered the factors enumerated in
Carter v. Smith, 170 S.W.3d 402, 408 (Ky. App. 2004), regarding whether
intervention was warranted post-decree. The family court considered the history as
to what had transpired in the dissolution and paternity cases. It found that the
purpose of intervention to adjudicate paternity rights was distinct from a property
rights case as it involved Brian’s fundamental constitutional rights. The family
court indicated “the best interests of [S.J.W.] must be considered, and [Brian’s]
rights as a biological parent are significant.” The family court found that, in
considering the length of time Brian knew or should have known of his interest in
the case, “one could certainly argue that [Brian] did not move very fast, but given
the circumstances, the Court can understand that [Brian] did not do more than he
did prior to the DNA test with the Simpson County Child Support Office.” As to
prejudice, the family court explained:
The Court is sympathetic to [Jason] when considering
this factor, as [Jason] has treated [S.J.W.] as a . . . [son],
but at the same time, the Court does not think that the
intervention poses any undue prejudice to [Jason].
Ultimately, the Court will have to make a decision
considering the best interest factors as to what
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relationship, if any, [Brian] and [Jason] will have to
[S.J.W.]
As to unusual factors, the family court found “the underlying acts in this action are
somewhat unusual but not unheard of, and it is certainly not the norm.” Finally,
the family court concluded that Brian’s special burden for post-judgment
intervention was met, explaining further:
The Court finds that considering all facts and
circumstances, [Brian] could have acted sooner. As
indicated, [Brian] could have filed an action all on his
own, as early as the birth of [S.J.W.], but he did not. It is
understandable under the facts and circumstances, as
[Brian] was not familiar with the law as a layman, and he
was unsure what he could or could not do before he hired
legal counsel. If this was neglect, it was excusable
neglect, and the Court finds that the issue regarding
timeliness has been overcome.
The family court granted Brian’s motion to amend the final judgment
on the basis that he was a party to the action, the court had subject matter
jurisdiction, and relief was proper pursuant to CR 60.02(f). The family court
explained its reasoning as follows:
The Court finds this is a case with an extraordinary
nature, because it involves the constitutional rights of the
minor child’s biological parents. The Court finds that
such rights were not addressed in the divorce action by
[Brian], as he was not a Party to such action, and one or
both of the legal parents knew there was a high chance
that [Brian] was [S.J.W.]’s biological father, yet gave
[Brian] no notice of the divorce action.
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Jason appeals from the February 24, 2021 order allowing Brian to
intervene, and the July 15, 2021 order granting Brian’s motion to amend the final
judgment, both of which were designated as final and appealable orders for which
there is no just cause for delay.3
We first consider the timeliness of the motion to intervene. Jason
argues that the family court abused its discretion in allowing Brian to intervene in
the dissolution action because his motion to intervene was untimely under CR
24.01 and CR 24.02, given an appropriate application of the Carter factors. Jason
specifically argues that Brian was well aware that he could be S.J.W.’s father
during Michelle’s pregnancy, was aware he was the father prior to the divorce
based on the over-the-counter paternity test, waited too long to attempt to
intervene, and had no meaningful parental relationship with child.
Brian in contrast argues that permitting his intervention was not an
abuse of discretion because he had a fundamental right to parent, custodial actions
are never final, and he only learned about the decree adjudicating paternity in
December 2019. Brian also argues that Jason and Michelle intentionally concealed
3
After the appeal was filed, the family court held an evidentiary hearing regarding Jason’s,
Michelle’s, and Brian’s rights to custody and timesharing of S.J.W. It appears that the family
court ruled Jason was a de facto custodian of S.J.W. and ordered that Jason and Michelle have a
split custody timesharing arrangement regarding all the children, with Brian ultimately awarded
some limited timesharing with S.J.W.
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the dissolution proceedings from him and the material fact that Jason was being
adjudicated S.J.W.’s father, and Jason’s hands are subsequently unclean because
he perpetrated a fraud on the court by representing that S.J.W. was a child born of
the marriage. Brian emphasizes that it is the best interests of S.J.W. which are
paramount and that he had an established relationship with S.J.W.
CR 24.01(1) provides in relevant part:
Upon timely application anyone shall be permitted to
intervene in an action . . . (b) when the applicant claims
an interest relating to the property or transaction which is
the subject of the action and is so situated that the
disposition of the action may as a practical matter impair
or impede the applicant’s ability to protect that interest,
unless that interest is adequately represented by existing
parties.
We review whether Brian’s motion to intervene was timely under the
abuse of discretion standard. Carter, 170 S.W.3d at 408. We apply the five-factor
test as set out in Carter to determine timeliness:
(1) [T]he point to which the suit has progressed; (2) the
purpose for which intervention is sought; (3) the length
of time preceding the application during which the
proposed intervenor knew or reasonably should have
known of his interest in the case; (4) the prejudice to the
original parties due to the proposed intervenor’s failure,
after he or she knew or reasonably should have known of
his or her interest in the case, to apply promptly
for intervention; and (5) the existence of unusual
circumstances militating against or in favor
of intervention.
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Carter, 170 S.W.3d at 408 (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir.
1989)). We also recognize that “intervention may be allowed under certain
circumstances even after the judgment has been entered, although . . . the applicant
would have to overcome a special burden to justify the apparent lack of
timeliness.” Id.We are confident that the family court adequately addressed these
factors and acted appropriately within its discretion in determining that under the
specific facts of this case Brian’s intervention was timely. While we agree that the
evidence establishes that Brian was aware of the fact that he could be S.J.W.’s
biological father before S.J.W. was born, we do not think this precludes his
intervention being timely under the circumstances. These circumstances include
the importance of Brian’s interest having a constitutional dimension and his lack of
knowledge that paternity could be and was resolved in the dissolution action until
December 2019. It is significant that paternity was resolved in the dissolution
action without any notice to Brian or notice to the family court that the parties had
reason to believe that Jason was not the biological father of S.J.W. We believe that
had the family court received such information, it would not have simply entered
the agreed upon judgment but would have instead required notice to Brian for his
participation in such action; had that happened and Brian chosen not to participate,
Brian seeking to act now might well be untimely. However, that is not what
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occurred. Under these circumstances, we do not believe that Jason has established
that the family court abused its discretion in determining that Brian’s motion to
intervene was timely.
As to whether substantively Brian should have been allowed to
intervene, we review the grant of intervention under the clearly erroneous standard.
Carter, 170 S.W.3d at 409. Having determined that the motion was timely filed,
we consider whether Brian “has an interest relating to the subject of the action, that
his ability to protect his interest may be impaired or impeded, and that none of the
existing parties could adequately represent his interests.” Id. at 409-10. There can
be no doubt that Brian’s claim to have a right to custody and timesharing as
S.J.W.’s father is an interest that he is entitled to protect through intervention. The
contrary finding in the dissolution action was impeding his ability to claim
paternity and the related custodial and timesharing rights available due to such a
status, and neither Jason nor Michelle could or did adequately represent his
interests. See Baker v. Webb, 127 S.W.3d 622, 625 (Ky. 2004) (explaining that
relatives who have priority of placement for a child placed for adoption are thereby
vested “with a sufficient, cognizable legal interest in the adoption proceeding of
this child”); A. H. v. W. R. L., 482 S.W.3d 372, 374 (Ky. 2016) (explaining that CR
24.01(1)(b) is applicable to allow intervention in an adoption action to someone
“claiming a cognizable legal interest – i.e. maintaining a relational connection with
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the child, either through custody or visitation”). Therefore, the family court
allowing Brian to intervene in the dissolution action was not clearly erroneous.
As to whether CR 60.02 relief was warranted, Brian sought relief
pursuant to CR 60.02, generally asserting as grounds (b) and (f), and the family
court granted relief pursuant to CR 60.02(f). Jason argues that the family court
abused its discretion in granting Brian CR 60.02(f) relief as his grounds for relief
were really founded in CR 60.02(b), and more than a year had elapsed between
when Brian knew he was S.J.W.’s biological father and the filing. He asserts that
Brian had no justification for the delay of more than a year in acting even after
formal testing had revealed he was S.J.W.’s biological father. Jason argues
granting CR 60.02 relief was unwarranted given Brian’s prior knowledge of his
paternity and his failure to act constituted waiver of his rights. Finally, Jason
argues he established a parental relationship with S.J.W. and had become the
equitable father of S.J.W.
Brian argues relief was appropriate pursuant to CR 60.02(f) based on
his constitutional rights as S.J.W.’s biological parent. He emphasizes that Jason
and Michelle failed to provide him any notice in the dissolution action. Brian
argues that Jason knew he was not the biological father of S.J.W. prior to his
initiation of the dissolution action, but Jason nevertheless indicated the children
were born of the marriage and sought joint custody of them, which “was an
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assertion of fraud upon the trial court.” While Brian recognizes that there is a
rebuttable legal presumption that a child born during a marriage is the child of the
husband and wife pursuant to Kentucky Revised Statutes (KRS) 406.011, he
argues here it was overcome by DNA testing in the paternity action and CR
60.02(f) relief is thus appropriate. Brian argues that his potential knowledge of his
paternity prior to the entry of the decree is not the same as him making a knowing
and voluntary waiver of his fundamental constitutional right to parent.
“CR 60.02, is a safety valve, error correcting device for trial courts.”
Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454,
456 (Ky. 2002). “[CR 60.02] is designed to allow trial courts a measure of
flexibility to achieve just results and thereby ‘provides the trial court with
extensive power to correct a judgment.’” Id. (quoting Fortney v. Mahan, 302
S.W.2d 842, 843 (Ky. 1957)).
CR 60.02 provides in relevant part as follows:
On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following
grounds: . . . (b) 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; . . . or (f) any
other reason of an extraordinary nature justifying relief.
The motion shall be made within a reasonable time, and
on grounds (a), (b), and (c) not more than one year after
the judgment, order, or proceeding was entered or taken.
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As explained in Kurtsinger, “the broad discretion of the trial court” to
grant relief pursuant to CR 60.02 is “not [to be] disturbed unless the trial judge
abused his/her discretion.” Kurtsinger, 90 S.W.3d at 456. “Two of the factors to
be considered by the trial court in exercising its discretion are whether the movant
had a fair opportunity to present his claim at the trial on the merits and whether the
granting of the relief sought would be inequitable to other parties.” Fortney, 302
S.W.2d at 843 (citations omitted).
Importantly, “it is well-settled that an appellate court may affirm a
lower court for any reason supported by the record.” McCloud v. Commonwealth,
286 S.W.3d 780, 786 n.19 (Ky. 2009). We interpret Brian’s motion for CR 60.02
relief as implicating CR 60.02 generally, although he suggested that (b) and (f)
were the grounds most likely to have merit. While the family court appropriately
granted relief pursuant to CR 60.02(f), we believe that the record supports relief
based on CR 60.02(d) better than CR 60.02(f) and focus our discussion on CR
60.02(d). While CR 60.02(b) and (c) could also be implicated, relief subject to
those subsections would be untimely.
In Terwilliger v. Terwilliger, 64 S.W.3d 816 (Ky. 2002), the Kentucky
Supreme Court thoroughly discussed the distinction between fraud under CR
60.02(c) as compared with (d). It also rejected the dichotomy of “intrinsic” versus
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“extrinsic” fraud in overruling Rasnick v. Rasnick, 982 S.W.2d 218 (Ky.App.
1998). The Court’s reasoning in Terwilliger is instructive:
The Court in Rasnick held that nondisclosure of
assets in a divorce proceeding does not constitute “fraud
affecting the proceedings” within the meaning of CR
60.02(d). The Rasnick decision draws a distinction
between fraud intrinsic to the proceedings, such as
perjury or nondisclosure during pretrial discovery which
causes injury to a single litigant, and “extrinsic” fraud,
which, the Court held, constitutes “fraud affecting the
proceedings.” In reexamining the Rasnick decision,
which relies primarily upon decisions from other
jurisdictions, this Court finds that the definition of “fraud
affecting the proceeding” utilized by the Court in Rasnick
is an overly restrictive conception of CR 60.02(d). It is
the finding of this Court that fraud on a party is, in fact,
“fraud affecting the proceedings.” As Appellant notes,
by filing a settlement agreement with knowingly
undervalued marital assets, Mr. Terwilliger used the
proceedings as a tool to defraud his wife.
Whatever popularity the distinction between
intrinsic and extrinsic fraud may have enjoyed in the
past, the judicial tide is turning against the distinction in
favor of equity. According to the leading authority on the
Kentucky Rules of Civil Procedure,
As a general proposition [fraud affecting the
proceedings] relates to what is denominated
‘extrinsic’ fraud. This 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.
The distinction between extrinsic and intrinsic
fraud has been widely criticized and has been
rejected by more recent [federal] decisions.
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7 Kurt A. Philipps, Jr., Kentucky Practice, CR 60.02,
cmt. 6 (5th Ed. 1995). Our rule, however, does
distinguish between fraud affecting the proceedings as
discussed herein, and the presentation of perjury or
falsified evidence, which is clearly a fraud upon the
court. This distinction is important because the latter can
be raised only “not more than one year after the
judgement,” CR 60.02, while the former must be “made
within a reasonable time.” Thus, it appears that fraud
perpetrated in the courtroom or through testimony under
oath is subject to a one-year limitation while fraud
occurring outside the courtroom that interferes with
presentation of the losing party’s evidence to the extent
that he or she is “prevented from appearing or
presenting fully and fairly his side of the case” is not
subject to that limitation. 7 Kurt A. Philipps, Jr.,
Kentucky Practice, CR 60.02, cmt. 6 (5th Ed. 1995).
Philipps goes on to say: “It may be said the language
specifying [fraud upon the proceeding] is quite broad and
allows for flexibility in the determination of what
constitutes ‘fraud affecting the proceedings’ where the
net effect would cause an unjust judgment to stand.” Id.While finality of judgment is a laudable goal, it cannot
take precedence over the fair and equitable resolution of
disputes.
Terwilliger, 64 S.W.3d at 818-19 (emphasis added). The Court went on to discuss
applicable cases, including Burke v. Sexton, 814 S.W.2d 290 (Ky.App. 1991),
where the wife allowed an unconscionable settlement agreement to become final
because the husband misled the wife into believing he was no longer pursuing a
divorce. The circuit court allowed the wife to reopen under these circumstances
and the settlement agreement was overturned, and when the husband appealed, the
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Court of Appeals affirmed. The Terwilliger Court explained the reasoning in
Burke and why it was correct:
the Court of Appeals found this sort of situation to fall
under CR 60.02(d) as a “fraud affecting the
proceedings.” . . . While in [Burke and Terwilliger] a
fraud was perpetrated against a party to the dispute, the
ultimate result was a fraud against the court. Both in the
case at bar, and as noted by the court in Burke, [814
S.W.2d at 292,] allowing the original decree to stand
would be a miscarriage of justice.
Terwilliger, 64 S.W.3d at 819.
Brian never had a fair opportunity to present his claim that he should
be determined to be S.J.W.’s father at the trial on the merits. Brian’s right to have
a paternal relationship with S.J.W. was far more important than a party receiving
an unfair share of assets due to deliberate undervaluing or a faked reconciliation,
but he was given no opportunity to assert his rights before Jason was declared to be
S.J.W.’s father.
Based on the undisputed facts, fraud occurred against Brian as he was
never joined as a party or informed that he needed to intervene during the
dissolution proceeding or else Jason would become S.J.W.’s legal father. Brian
was thus prevented from appearing and asserting his rights. A fraud was also
perpetrated against the family court as it was prevented from knowing the facts
which would have made it require that Brian be joined as a party or delay entry of
the judgment pending a separate paternity action.
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We do not believe Jason or Michelle were attempting to do anything
improper. Instead, they were trying to safeguard S.J.W. from being deprived of
having equal legitimate status with his siblings and maintenance of the established
relationship with the only father he had ever known. They likely believed they
were acting in S.J.W.’s best interest.
Nevertheless, their actions resulted in a fraud to the proceedings, and
makes it appropriate to affirm the grant of CR 60.02 relief at this juncture. Their
longstanding knowledge that Brian was likely S.J.W.’s biological father and failure
to act to protect Brian’s rights militates against the granting of the relief sought by
Brian being inequitable to them. As there is no true dispute that Brian is S.J.W.’s
biological father as established by the DNA test in the paternity action, the
alteration of the judgment to acknowledge that fact was appropriate. This allows
Brian to receive consideration for custody and timesharing based on his status as
S.J.W.’s biological father.
Accordingly, we affirm the Simpson Family Court’s orders allowing
Brian to intervene and granting his request for CR 60.02 relief.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE BRIAN
STRAIN:
Samuel J. Crocker
Franklin, Kentucky Christopher T. Davenport
Kaitlyn S. Embry
Bowling Green, Kentucky
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