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J. K. v. N.J.A

April 12, 2013

J. K.
APPELLANT
v.
N.J.A.;
HONORABLE LINDA BRAMLAGE, BOONE COUNTY FAMILY COURT JUDGE; AND
HONORABLE BAILEY TAYLOR
APPELLEES



APPEAL FROM BOONE CIRCUIT COURT HONORABLE BAILEY TAYLOR, JUDGE ACTION NO. 11-J-00287

The opinion of the court was delivered by: Nickell, Judge:

RENDERED: APRIL 12, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION

AFFIRMING

BEFORE: MOORE, NICKELL, AND TAYLOR, JUDGES.

J.K. ("Mother") gave birth to A.A.K.*fn1 ("Child") on May 16, 2011. She claims C.M. Huelsman,*fn2 her former husband whom she plans to remarry, is Child's father and listed him as such on Child's birth certificate. The question underlying this appeal is whether N.J.A., a man with whom Mother admits having an affair and living with for about fifteen months-until mere days before Child's birth-is entitled to know whether Child is his biological son. Despite being under order since November 18, 2011, to undergo genetic testing for herself and Child, neither has been tested, and due to Mother's machinations, N.J.A. has never seen the Child he believes he sired.

This case comes to us by way of Mother's challenge to an order entered by the Boone Circuit Court, Family Division, on May 11, 2012,*fn3 stating in its entirety:

This matter having been brought to the attention of the Court at hearing on May 11, 2012, on [N.J.A.'s] Motion for Finding of Contempt With Request For Emergency Hearing, and the Court being in all ways sufficiently advised;

IT IS HEREBY ORDERED AND ADJUDGED that the Defendant, [J.K.], was previously ordered to undergo genetic testing for herself and the minor child, via Orders dated November 18, 2011 and April 11, 2012. Mother has failed to submit herself and the minor child to genetic testing pursuant to those Orders. [J.K.] is therefore hereby found to be in Contempt of Court, and is hereby Ordered to serve one hundred and eighty (180) days in the Boone County jail, unless she purges her contempt, by submitting herself and the minor child to genetic testing through the Boone County Child Support office at the following time: May 29, 2012. The parties shall equally divide the cost of said DNA testing.

The Court reserves on [N.J.A.'s] Motion for Attorney'[s] fees.

The order was entered following a hearing on a paternity complaint filed by N.J.A. Neither Mother nor Child appeared for testing on the specified date, nor in response to prior court orders to do so. Mother alleges this is the first time a court has ordered genetic testing for a mother and child where there is no state action involved. She asserts on appeal that: 1) N.J.A. is a stranger to her marriage, does not qualify as a putative father under KRS*fn4 406.021, and lacks standing to claim paternity; 2) Child is statutorily presumed to be Huelsman's son because he was born less than five months after their divorce became final; 3) ordering her and Child to submit to genetic testing violates their constitutional right to privacy; and, 4) the trial court committed palpable error by ordering her to serve the maximum penalty of 180 days in jail for failing to submit herself and Child for testing. Having reviewed the briefs, the record and the law, we affirm.

We begin by commenting on the construction of appellate briefs. Mother has raised four allegations of error, none of which comply with CR 76.12(4)(c)(v) which requires each argument to begin with "a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." Mother simply launches her arguments without any statement of preservation. This deficiency authorizes us to strike her brief or review her arguments under the manifest injustice standard. CR 76.12(8)(a); Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990). We choose to do neither because the outcome will be the same under any standard due to a lack of preservation which we discuss next.

We are a court of review. As such, when an issue has not been presented to the trial court, or a ruling on a specific issue has not been requested, we lack authority to review the claim. Fischer v. Fischer, 197 S.W.3d 98, 102 (Ky. 2006); Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989) (internal citations omitted). CR*fn5 52.04 provides the ...


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