J.N.R. v. O'Reilly , 2008 Ky. LEXIS 115 ( 2008 )

Opinion of the Court by

Justice MINTON.

The Court of Appeals denied relief to a wife and her husband who petitioned to prohibit the family court from adjudicating the paternity of a man who claimed to be the biological father of a baby born to the wife. On appeal, the principal issue is whether Kentucky’s courts have jurisdiction to decide a man’s claim of paternity of a child born to a woman who, at the time of the child’s birth, was married to another man. We hold that Kentucky’s paternity statutes do not grant subject-matter jurisdiction to our courts to determine paternity claims where, as here, there is no evidence or allegation that the marital relationship ceased ten months before the child’s birth. Therefore, we conclude that the family court was attempting to proceed without jurisdiction and that the Court of Appeals erred when it failed to grant the writ of prohibition.

I. FACTS.

J.G.R. filed a Petition for Custody and Support in the family court, alleging that DNA tests confirmed him to be the biological father of J.A.R (Child), a three-month-old baby boy, who lived with his mother, J.N.R. (Wife).

Wife moved to dismiss the petition, arguing that J.G.R. lacked standing to bring it and that the family court had no jurisdiction to determine (1) custody of Child because J.G.R. had not been lawfully adjudicated to be his father and (2) paternity of Child because Child was not born out of wedlock since Wife was married to J.S.R. (Husband) when Child was born and at the time the petition was filed. Wife further asserted the continued vitality of the legal presumption that a child born to a married woman is presumed to be the child of her husband. She argued that the presumption could not be rebutted by “a stranger to the marriage.” The family court refused to dismiss J.G.R.’s petition.

Wife and Husband then sought a writ from the Court of Appeals to prohibit the family court from proceeding on J.G.R.’s claims.¹ The Court of Appeals denied the writ, holding that Wife and Husband failed to show irreparable injury and lack of adequate remedy by appeal. The Court of Appeals further stated that “the only decision made by the [family] court pertaining to J.G.R.’s petition is that it will go forward on the paternity docket” and noted the family court had not made any rulings adjudicating any claims.

II. ANALYSIS.

A. Court of Appeals Applied Wrong Standard to Writ of Prohibition Issue.

The Court of Appeals denied the writ of prohibition based upon Wife and Husband’s failure to show irreparable injury and lack of adequate remedy by appeal. If the Wife and Husband had alleged only that the family court was acting erroneously within its jurisdiction, a showing of irreparable injury and lack of adequate remedy by appeal would have been required for the writ to issue.² But recent case law has made clear that a showing of irreparable injury and lack of adequate remedy by appeal is not required for issuance of a writ of prohibition when the trial court is acting outside its jurisdiction.³ A court vested with supervisory control should grant a writ of prohibition when the lower court is acting outside its jurisdiction and “there is no remedy through an application to an intermediate court.” Despite Wife and Husband’s arguments that the family court lacked jurisdiction to hear the case, the Court of Appeals denied the writ on the erroneous grounds of Wife and Husband’s failure to show irreparable injury and lack of adequate remedy by appeal. The Court of Appeals failed to analyze whether the family court had jurisdiction to hear and decide J.G.R.’s petition.

B. Family Court Lacked Subject-Matter Jurisdiction to Hear Case.

Since personal jurisdiction is not at issue, we focus on whether the family court had subject-matter jurisdiction over this case. Subject-matter jurisdiction is defined as “[jjurisdiction over the nature of the case and the type of relief sought[,] the extent to which a court can rule on the conduct of persons or the status of things.”⁴ From the outset, Wife and Husband have disputed the family court’s subject-matter jurisdiction to accept a petition in which the alleged biological father of a child, born to a woman who is married to another man, seeks to establish paternity, custody, support, and visitation of the child.

We must look to our statutes to see whether our trial courts have been granted subject-matter jurisdiction over a case like this one. We do not explore whether our statutes conferring subject-matter jurisdiction effectuate sound public policy, reflect the modern realities of DNA testing, or recognize the disappearance of ancient legal disabilities associated with being born out of wedlock. And we do not address the constitutionality of the statutes as written. Although the parties have debated whether an unmarried biological father has due process or equal protection rights to seek the relief J.G.R. seeks here, J.G.R. has not argued the uneonstitutionality of the paternity statutes as written nor served Kentucky’s Attorney General to challenge the constitutionality of any statute.⁵ So we are left to examine the words of our statutes to see whether the family court had jurisdiction to hear and adjudicate J.N.R.’s paternity petition.

C. No Subject-Matter Jurisdiction Over This Case Under KRS Chapter JJJ6.

Subject-matter jurisdiction over paternity proceedings for all of our trial courts is governed by Kentucky Revised Statutes (KRS) Chapter 406, also known as the Uniform Act on Paternity.⁶ KRS 406.051(1) provides the district court with subject-matter jurisdiction over “an action brought under this chapter” to establish support for “children born out of wedlock.” KRS 406.051(2) states that the circuit court and district court share concurrent jurisdiction over custody and visitation issues “in cases where paternity is established as set forth in this chapter.” And KRS 23A.100(2)(b) confers the general jurisdiction of the circuit court on a family court division of the circuit court for proceedings under the Uniform Act on Paternity.

Despite the fact that KRS 406.021 states that a paternity complaint may be filed by a “putative father,”⁷ a term not defined in KRS Chapter 406, the instant case is not an action “under this chapter”; and KRS 406.021 does not allow for paternity to be established because KRS Chapter 406 limits its applicability to cases of children “born out of wedlock” and establishes a definition of “born out of wedlock” that the facts of this case do not satisfy. KRS 406.180 (governing applicability of Chapter 406) states, in pertinent part, that “[t]his chapter applies to all cases of birth out of wedlock: (l)[w]here birth occurs within this state[.]” And KRS 406.011 defines who is included and who is not included in the term “born out of wedlock:”

A child born during lawful wedlock, or within ten (10) months thereafter, is presumed to be the child of the husband and wife. However, a child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child.

We note that the General Assembly chose to enact a narrow definition of an out-of-wedlock birth that differs distinctively from the proposed definition of an out-of-wedlock birth proposed by the drafters in the 1960 Uniform Act on Paternity. Section 1 of the Uniform Act on Paternity (1960) states that: “[a] child born out of wedlock includes a child born to a married woman by a man other than her husband.”⁸ The official commentary to this section mentions Kentucky’s variation from the Uniform Act draft.⁹

By the plain language of Chapter 406, that chapter only applies to births out of wedlock. And it defines births out of wedlock as including births to married women where evidence shows that the husband and wife’s “marital relationship” ceased ten months before the child’s birth.¹⁰ In the instant case, we have no allegation that Wife and Husband’s marital relationship had ceased ten months before Child’s birth. So Child does not meet the statutory definition of a child born out of wedlock, and Chapter 406 does not grant the family court subject-matter jurisdiction or give J.G.R. standing to seek a paternity determination under Chapter 406.¹¹

We recognize that the Court of Appeals rejected an argument in Montgomery v. McCracken¹² that “a child born to a married woman can be found to have been born out of wedlock only if the spouses’ marital relationship ended at least ten months prior to the child’s birth.”¹³ But the holding in Montgomery depended in large part upon the effect of a non-appealed judicial finding from an earlier divorce proceeding to the effect that the woman’s husband was not the father of the child:

Here, although the spouses’ marital relationship did not fall into the category of having ceased ten months prior to the child’s birth, it is uncontroverted that the husband was found in an earlier circuit court proceeding to not be the child’s father. That finding is not before us on appeal. That being so, the trial court certainly did not err by concluding that the presumption of legitimacy had been overcome by evidence “so clear, distinct and convincing as to remove the question from the realm of reasonable doubt.”¹⁴

The Montgomery court then cited in support of this proposition two cases in which the husband’s paternity was successfully challenged despite the mother having been married at the time of the child’s birth.¹⁵ But, in both of the cases cited, some evidence (albeit disputed) was presented that marital relations ceased ten months before the child’s birth — in fact, both cases involved the separation of the spouses.¹⁶

The Montgomery court then stated that subject-matter jurisdiction to determine paternity upon the mother’s motion was proper because of the overwhelming proof that the husband was not the father of the child:

Since the child therefore by implication was found by the circuit court to have been “born out of wedlock” to “a married woman by a man other than her husband,” the district court was clearly vested with subject matter jurisdiction to determine paternity.¹⁷

To the extent that Montgomery v. McCracken and other Kentucky cases find subject-matter jurisdiction to exist in any court of the Commonwealth over paternity actions involving (1) a child born “to a married woman by a man other than her husband” who cannot satisfy (2) the narrow definition embraced by the General Assembly that a child born out wedlock includes one where the husband and wife ceased marital relations ten months before the child’s birth, Montgomery v. McCracken and other authority to the contrary are overruled.

Montgomery v. McCracken is inconsistent with the earlier holding in Department of Economic Security v. Shanklin.¹⁸ In Shanklin, a state agency sought to recoup support payments made for a child born eight months after her mother’s divorce from Shanklin. Shanklin filed a motion to dismiss the action, stating that the action was time-barred, citing the then-existing statute of limitations appearing in Chapter 406 for support of a child born out of wedlock. The trial court granted Shanklin’s motion.¹⁹ Our predecessor-court quoted the presumption of legitimacy in KRS 406.011, as well as the language of KRS 406.180 — neither of which has been amended since Shanklin²⁰ — and then reversed, stating that:

The Uniform Act on Paternity was formulated in 1960. The Kentucky Legislature, by a 1972 amendment, varied the language of the 1960 Uniform Act in two instances: (1) In defining what was meant by the phrase “born out of wedlock” by adopting the language of KRS 406.011, and (b) by substituting for a four-year statute of limitations contained in the 1960 Uniform Act, the language of KRS 406.031. [Omitted portion discusses how legislature tried to remedy uncertainty in 1960 Uniform Act limitations provision through adoption of KRS 406.031.]

We would be less than candid if we did not point out that the language used for the clarification is surely no model of precision. According to KRS 406.011, a child born during lawful wedlock or within ten months thereafter, is presumed to be the child of the husband and wife. This is qualified by the provision that a child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten months prior to the birth of the child.

Under the Uniform Reciprocal Enforcement of Support Act,^[21] the issue of paternity may be raised by the defendant unless it has been previously judicially determined. It is our conclusion that, despite the confusing language, it was not the intent of the legislature to bar such action within three years of the date of birth of a child born with the presumption of legitimacy.²²

In other words, the Shanklin court found Chapter 406 inapplicable to that case because the child at issue was not a child “born out of wedlock” as defined by KRS 406.011. Since the child was “born with the presumption of legitimacy,” the father was not barred from disputing paternity by the limitations provision in Chapter 406; but the father could still dispute paternity because Chapter 407 (URESA) allowed him to challenge paternity so long as it had not been previously established in court. Likewise, in the instant case, the child was not born out of wedlock, as defined by Chapter 406, so Chapter 406 does not apply and does not confer subject-matter jurisdiction on the family court or standing on J.G.R. to have paternity determined and custody/visitation matters decided.

We recognize that the General Assembly may have chosen to bar paternity suits where there is no allegation of a cessation of marital relations for the ten-month period in part because of difficulties in accurately determining the biological father of a child at the time these statutes were enacted or amended to their present form. In view of modern DNA testing, the legislature might reasonably choose to amend the statutes again to recognize an alleged biological father’s right to have paternity determined in court of a child born to a mother married to another man even where (as here) there is no evidence or allegation that marital relations ceased ten months before the child’s birth.²³ But the choice is a policy decision that belongs to the General Assembly. And since the General Assembly has not yet chosen to amend KRS Chapter 406 in such a manner, we are without authority to amend the law for them.

It is the absence of evidence or even allegations that the marital relationship between Wife and Husband ceased ten months before Child’s birth that bars J.G.R.’s paternity action, not J.G.R.’s status as a “stranger to the marriage.” We do not reach the Wife and Husband’s argument that only parties to the marriage can challenge the presumption of legitimacy under KRS 406.011. We do note that the plain language of KRS 406.011 does not say who may challenge the presumption of legitimacy but only says under what circumstances a child born to a married woman can be considered a child born out of wedlock. In fact, if the required threshold is met, showing that marital relations ceased ten months before the birth of the child, it would seem possible that the alleged biological father may file a paternity complaint because KRS 406.021 specifically states that such a complaint may be filed by the “putative father.” The term “putative father” is not defined by the statute, but it is defined by Black’s Law

Dictionary (8th ed.2004) as “[t]he alleged biological father of a child born out of wedlock.”

D. No Subject Matter Jurisdiction Under KRS ⅛03370.

Not relying solely on Chapter 406, J.G.R. also contends that as a biological parent, he has standing to seek custody under KRS 403.270. KRS 403.270(2) provides that a court shall determine custody in the child’s best interests and that “equal consideration shall be given to each parent.” But nowhere in KRS Chapter 403 is the word “parent” defined.²⁴

Furthermore, KRS 403.270 does not govern whether a court has subject-matter jurisdiction over custody proceedings in this type of case or whether an alleged biological father has standing to pursue custody or visitation in this situation. KRS Chapter 403 is entitled “Dissolution of Marriage — Child Custody.” The statutes in Chapter 403 generally give courts of general jurisdiction the power to grant dissolutions and annulments of marriages and decrees of legal separation — in general, the power to terminate marriages.²⁵ As part of its jurisdiction to dissolve marriages, the family court may also divide property, order spousal maintenance, and order child support for any children born of the marriage.²⁶ Also, when granting a divorce, the trial court must determine the custody of children born to the marriage in accordance with the standards enunciated in KRS 403.270. But KRS 403.270 does not govern whether .a trial court has subject-matter jurisdiction to determine custody of children in cases not involving a dissolution of marriage.

Where paternity has been established under Chapter 406, subject-matter jurisdiction regarding custody and visitation issues is governed by KRS 406.051, which states that:

(1) The District Court has jurisdiction of an action brought under this chapter and all remedies for the enforcement of judgments for expenses of pregnancy and confinement for a wife or for education, necessary support, or funeral expenses for children born out of wedlock. An appeal may be had to the Circuit Court if prosecuted within sixty (60) days from the date of judgment. The court has continuing jurisdiction to modify or revoke a judgment for future education. All remedies under the uniform reciprocal enforcement of support act are available for enforcement of duties of support under this chapter.

(2) The District Court may exercise jurisdiction, concurrent with that of the Circuit Court, to determine matters of child custody and visitation in cases where paternity is established as set forth in this chapter. The District Court, in making these determinations, shall utilize the provisions of KRS Chapter 403 relating to child custody and visitation. The District Court may decline jurisdiction if it finds the circumstances of any case require a level of proceedings more appropriate to the Circuit Court.

Although KRS 406.051 states that the same standards provided in Chapter 403 for divorce cases shall govern custody determinations conducted in conjunction with paternity proceedings, KRS 406.051 and Chapter 406 as a whole govern subject-matter jurisdiction in this type of case, not KRS 403.270 or any other provision of Chapter 403. So KRS 406.051(2) grants the district court and circuit court concurrent jurisdiction (and by implication, family court, which combines district and circuit court jurisdiction) over custody and visitation where paternity is determined under Chapter 406. But Chapter 406’s applicability is expressly limited to cases of children “born out of wedlock,” and Child does not meet the General Assembly’s narrow definition of a child born out of wedlock.²⁷

From the plain language of our statutes, we hold that J.G.R. lacks standing and the family court lacks jurisdiction to determine paternity, custody, and visitation under the circumstances presented in this case.

III. CONCLUSION.

For the foregoing reasons, we reverse the decision of the Court of Appeals and remand the case to the Court of Appeals for issuance of a writ of prohibition consistent with this opinion.

All sitting. LAMBERT, C.J., concurs. CUNNINGHAM, J., concurs in result only by separate opinion in which SCOTT, J., joins. SCOTT, J., concurs in result only by separate opinion in which CUNNINGHAM, J., joins. ABRAMSON, J., dissents by separate opinion in which SCHRODER, J., joins. NOBLE, J., dissents by separate opinion.

1 . Husband and Wife had also requested a writ of prohibition forbidding the family court from ordering mediation regarding holiday visitation with Child. The Court of Appeals granted this request for relief, and the Court of Appeals’ decision in regard to court-ordered mediation concerning holiday visitation is not a subject of this appeal.

2 . Hoskins v. Maride, 150 S.W.3d 1, 10 (Ky.2004).

3 . Id. ("A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.”)

4 . Black’s Law Dictionary (8th ed.2004).

5 . KRS 418.075 states, in pertinent part, that: When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.

(1) In any proceeding which involves the validity of a statute, the Attorney General of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard, and if the ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the petition and be entitled to be heard.

(2) In any appeal to the Kentucky Court of Appeals or Supreme Court or the federal appellate courts in any forum which involves the constitutional validity of a statute, the Attorney General shall, before the filing of the appellant’s brief, be served with a copy of the pleading, paper, or other documents which initiate the appeal in the appellate forum. This notice shall specify the challenged statute and the nature of the alleged constitutional defect.

See also Kentucky Rules of Civil Procedure (CR) 24.03 ("When the constitutionality of an act of the General Assembly affecting the public interest is drawn into question in any action, the movant shall serve a copy of the pleading, motion or other paper first raising the challenge upon the Attorney General.”).

6 . KRS 406.170 ("This chapter may be cited as the Uniform Act on Paternity.”).

7 . An earlier version of KRS 406.021 did not mention any type of father as a potential candidate for filing a paternity complaint despite expressly providing that the mother, child, or state agency providing support for the child could file such a paternity complaint. Under this earlier version, we stated that "[t]he statute does not afford the father the right to come into court to have his paternity determined” in Sweat v. Turner, 547 S.W.2d 435, 436 (Ky.1976). But Sweat recognized the right of the biological father to seek custody of his child (born to an unmarried mother who had since passed away) without a previous judicial determination of paternity. Id. at 437. In Cummins v. Cox, 799 S.W.2d 5 (Ky.1990), while stating that "[tjhere is no statutory means in this state by which an illegitimate father can legitimatize a child born out of wedlock without the direct and active cooperation of the mother", id. at 6-7, we noted in a footnote that KRS 406.021 had been amended in 1990 to allow a putative father to file a paternity complaint. Id. at 7, n. 1. Cummins recognized that the biological father of a child born to an unmarried mother had standing to sue for the child's wrongful death and could inherit from this child born out of wedlock. Id. at 7. The children at issue in Sweat and Cummins were bom to mothers who were unmarried at the time of conception and birth, and we did not consider in either case the rights of an alleged biological father to file a paternity complaint concerning a child born to a mother married to another man.

8 . Unif. Act on Paternity § 1 (1960), ULA PATERNITY § 1 (2001 Main Volume, 2007 Electronic Pocket Part Update).

9 . Id.

10 . KRS 406.011.

11 . We note that our predecessor-court recognized that "a biological father of a child born out of wedlock would have the right of visitation with his child" on constitutional grounds in Phillips v. Horlander, 535 S.W.2d 72, 74 (Ky.1975). But the child at issue there met KRS Chapter 406’s definition of a child born out of wedlock because his parents were unmarried both at the time of the birth and at the time the court heard the case. See id. at 73. Again, the child at issue in the instant case is not a "child bom out of wedlock" as defined by KRS Chapter 406.

12 . 802 S.W.2d 943 (Ky.App.1990).

13 . Id. at 944.

14 . Id.

15 . Id., citing Simmons v. Simmons, 479 S.W.2d 585, 587 (Ky.1972); Bartlett v. Com., ex rel. Calloway, 705 S.W.2d 470 (Ky.1986).

16 . See Simmons, 479 S.W.2d at 586 ("The wife contends and the husband denies that they engaged in sexual relations during their separation^]” which occurred ten months before the child's birth); Bartlett, 705 S.W.2d at 471 (conflicting testimony as to when spouses separated and whether they engaged in sexual relations during their separation.).

17 . Montgomery, 802 S.W.2d at 944.

18 . 514 S.W.2d 682 (Ky.1974).

19 . Id. at 683.

20 . Id. at 683-84.

[21] 21. The Uniform Reciprocal Enforcement of Support Act (URESA) was then and is now found in KRS Chapter 407.

22 . Id. at 684-85.

23 . J.G.R.’s counsel orally argued that there are "dueling presumptions” in KIRS Chapter 406: the presumption in KRS 406.011 versus the presumption in KRS 406.111 (regarding an expert’s conclusion as to paternity based on genetic testing). But the applicability of Chapter 406 is limited to cases in which children are born "out of wedlock.” KRS Chapter 406.011 expressly defines when a child bom to a married woman is included as a child born "out of wedlock”; KRS 406.111 does not expressly define the term “out of wedlock” and, thus, does not impact the applicability of Chapter 406. Rather, the child would have to be determined to be born "out of wedlock” under KRS 406.011 for the court to have the authority to order genetic testing under KRS 406.081 and to admit such test results in evidence under KRS 406.091(3) before applying the rebuttable presumption concerning expert conclusions on paternity based on genetic testing as found in KRS 406.111.

24 .See also Boone v. Ballinger, 228 S.W.3d 1, 12, n. 7 (Ky.App.2007) ("Unlike some states, Kentucky does not have statutory definitions that describe ‘legal’ fatherhood. The Termination of Parental Rights chapter, KRS Chapter 625, simply refers to ‘biological parents’ and the ‘putative father.’ The UAP, KRS Chapter 406, refers to ‘father’ and ‘alleged father,’ neither of which is defined. The Parent and Child chapter, KRS Chapter 405, refers to ‘father’ without definition. KRS Chapter 403, regarding Dissolution of Marriage-Child Custody, contains no definition of ‘father.’ Case law supports the conclusion that in cases such as this a child’s legal father is the husband of the marriage into which the child was born unless a different paternity has been formally adjudicated.”) (Boone addressed the question of whether, upon dissolution of a marriage, the wife and the biological father of two children born during her marriage to her husband were equitably es-topped from asserting that the husband was not the legal father of these two children.).

We note that one other Kentucky family law-related statute (KRS 405.405) expressly adopts the definitions provided in KRS 205.710 (applicable to child support recovery actions in Public Assistance and Medicaid Assistance actions) as applicable to KRS 405.430-KRS 405.530 (administrative process for child support), which includes the following definition of parent:

(14) "Parent” means a biological or adoptive mother or father of a child born in wedlock or a father of a child born out of wedlock if paternity has been established in a judicial proceeding or in any manner consistent with the laws of this or any other state, whose child is entitled to support, pursuant to court order, statute, or administrative determination!.]

However, KRS Chapter 403 (governing custody) does not expressly adopt this or any other specific definition of parent.

25 . See, e.g., KRS 403.010, KRS 403.120, and KRS 403.140. KRS 403.041 and KRS 403.042 also grant the power to annul divorces and legal separations.

26 . See generally KRS 403.160 to KRS 403.250.

27 . But see Denbow v. Harris, 583 A.2d 205 (Me.1990), where the Supreme Judicial Court of Maine (Maine’s highest court) held that a mother could maintain a paternity action against the alleged biological father despite the fact that the child was conceived during her marriage to another man and despite the Maine legislature’s omission of the definition of a child born out of wedlock as found in the Uniform Act on Paternity (1960) while otherwise following this Uniform Act. Id. at 206-07. The Maine court rejected an argument that "the Maine Legislature intended to limit paternity actions to instances to where children were bom to an unmarried woman,” instead deciding that the legislature had simply left out "definitional surplusage” since an "out of wedlock” birth was commonly defined as "with the natural parents not married to each other.” Id. at 207, citing Webster’s Third New International Dictionary Unabridged 2592 (1986). We note, however, that although Maine’s legislature had omitted the 1960 Uniform Act draft definition of "out of wedlock,” Maine’s legislature did not substitute another narrower definition of "out of wedlock” as Kentucky’s legislature did in KRS 406.011.