Ipock v. Ipock
2013 Ky. App. LEXIS 100
| Ky. Ct. App. | 2013Background
- Jack and Dana Ipock's child E.E.I. was born February 18, 2011; they signed a Declaration of Paternity and CHFS later filed a neglect petition seeking removal of E.E.I. from Jack's custody.
- CHFS obtained custody of E.E.I.; Jack and Dana separated and Jack filed for divorce, asserting paternal status and seeking sole custody.
- A Separation Agreement later provided joint custody with E.E.I. primarily residing with Jack; the trial court incorporated this into its January 9, 2012 decree.
- A March 7, 2012 paternity test showed Jack was not E.E.I.’s father, leading CHFS to pursue removal and the District Court to consider (but decline to overrule) the divorce decree.
- On May 18, 2012 CHFS and Vance moved to intervene under CR 24.01/24.02 and to alter the custody order under CR 60.02, arguing newly discovered evidence and fraud.
- The trial court granted intervention, amended the decree to reflect non-paternity, and vacated the custody allocation, based in part on the paternity test as newly discovered evidence and fraud.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CHFS and Vance may intervene in the divorce action | Ipock contends intervention was improper or unnecessary. | CHFS and Vance argue CR 24.02(b) allows permissive intervention where common issues of fact or law exist. | Intervention affirmed for CHFS and Vance under CR 24.02; not as of right under CR 24.01. |
| Whether the trial court erred in amending custody under CR 60.02 | Jack argues no fraud or new evidence supported amendment; paternity status remained intact. | CHFS/Vance contend paternity test results and fraud justify modification. | Affirmed the amendment as supported by DNA evidence and the CR 60.02 framework, despite limited fraud finding. |
| Whether the finding of fraud under CR 60.02 was supported | Fraud claim lacked sufficient record support; Jack did not knowingly conceal false paternity. | CHFS/Vance asserted that both parties knew Jack was not the father and concealed this. | Fraud finding reversed for lack of clear and convincing evidence; trial court abused discretion on that point. |
| Whether paternity by estoppel applies to block disestablishment | Jack seeks to use estoppel to prevent CHFS from challenging him as father. | Estoppel does not apply where Jack lacked full knowledge of non-paternity and failed to rely to others' detriment. | Paternity by estoppel does not apply to Jack; not extended to bar CHFS from challenging paternity. |
Key Cases Cited
- Carter v. Smith, 170 S.W.3d 402 (Ky.App.2004) (intervention standard review on CR 24)
- Cardiovascular Specialists, PSC v. Xenopoulos, 328 S.W.3d 215 (Ky.App.2010) (substantial evidence standard; CR 52.01)
- Miller v. Eldridge, 146 S.W.3d 909 (Ky.2004) (abuse of discretion standard; flagrant miscarriages of justice)
- Bushelman v. J.A.S., 342 S.W.3d 850 (Ky.2011) (DNA evidence can rebut paternity presumptions)
- Bartlett v. Commonwealth ex rel. Calloway, 705 S.W.2d 470 (Ky.1986) (marital/presumption policies; DNA context referenced)
- Crowder v. Commonwealth ex rel. Gregory, 745 S.W.2d 149 (Ky.App.1988) (justice as destination; policy considerations in paternity)