APPEAL FROM CASEY CIRCUIT COURT HONORABLE DOUGLAS M. GEORGE, JUDGE ACTION NO. 11-CI-00204
BRIEFS FOR APPELLANT: Christy H. Shircliff
BRIEFS FOR APPELLEES: Kelli Cross Fisher
BEFORE CAPERTON; MAZE AND VANMETER, JUDGES.
Appellant, Jack Ipock (hereinafter "Jack"), appeals the Casey Circuit Court's order allowing Appellees, the Cabinet for Health and Family Services ("CHFS") and E.E.I.'s guardian ad litem, Judy Vance ("Vance"), to intervene in his suit for divorce from Appellee, Dana Ipock (hereinafter "Dana"). Jack further appeals the trial court's decision vacating its prior order regarding paternity and custody of E.E.I., Dana's minor child. While we find that the trial court abused its discretion in finding fraud as a basis for its decision, we affirm the result and the trial court's ruling permitting CHFS and Vance to intervene and amending the divorce order in light of Jack's exclusion as E.E.I.'s father. Therefore, we affirm.
Jack and Dana's child, E.E.I., was born on February 18, 2011. Less than a month later, the couple was married and, on April 5, 2011, both signed a Declaration of Paternity which was then filed with Kentucky's Bureau of Vital Statistics. On August 19, 2011, CHFS filed a petition alleging neglect of E.E.I. by Jack and requested removal of E.E.I. from Jack's custody. Removal was granted and E.E.I. entered the custody of CHFS. Two days after the petition was filed, Jack and Dana separated and a month later, Jack sued for divorce, affirming in his Verified Petition that he was E.E.I.'s father and requesting sole custody of her. On October 13, 2011, Jack and Dana entered into a Separation Agreement and Property Rights Settlement, which stipulated, among other things, that though E.E.I. was in CHFS's custody, upon reunification, Jack and Dana would enjoy joint custody and E.E.I. would primarily reside with Jack. The trial court entered its findings and incorporated this agreement into its decree on January 9, 2012.
During the pendency of the neglect case, Dana made statements regarding paternity of E.E.I. which led the county attorney to request that Jack take a paternity test. Jack agreed and the results of the March 7, 2012, test proved Jack not to be E.E.I.'s father. As a result, CHFS ceased its efforts in the neglect case to reunify E.E.I. with Jack and the county attorney asked the District Court in Casey County to overrule the Circuit Court's decree in the divorce action. The District Court declined to do so. On May 18, 2012, CHFS and Vance filed a Motion to Intervene in the divorce case under Kentucky Rules of Civil Procedure, CR 24.01 and 24.02, as well as a Motion to Alter, Amend or Vacate the Agreement pursuant to CR 60.02. Vance and CHFS argued on the latter issue that the result of the paternity test constituted "newly discovered evidence." Attached to the motion was a copy of DNA results, the signed Declaration of Paternity and a copy of "Brief In Support of Jack L. Ipock's Claim To Have Standing In The Current Action, " in which Jack had previously pled the following:
After Jack and Dana's final Agreement of Dissolution was entered and the District Court ordered a paternity test Jack revealed to his attorney that Dana previously disclosed to him that it was a remote possibility that he was not the biological father of [E.E.I.]. Jack has always had constructive knowledge that he may not be the father of [E.E.I.] and has never been misled or told otherwise by Dana.
CHFS and Vance argued in their motion that the latter showed that Jack and Dana had defrauded them regarding Jack's relation to E.E.I., forming the basis for altering the custody order. In responding to the motion, Jack argued that there was an insufficient basis for permitting Vance and CHFS to intervene or for altering the Agreement, and he further denied any fraudulent acts on his part. Jack further pled "paternity by estoppel" as a basis for retaining custody of E.E.I.
The trial court granted the Motion to Intervene. The trial court also rejected Jack's claim of "paternity by estoppel" and amended its decree to reflect that Jack was not E.E.I.'s father. The trial court also vacated the Agreement's grant of custody to Jack. In doing so, the trial court found that the paternity test constituted both evidence which was newly discovered and which showed Jack and Dana had committed fraud. This appeal follows.
Standards of Review
Jack challenges the trial court's orders regarding both a motion to intervene and a motion to alter, amend or vacate its prior decision regarding custody. Accordingly, we review the trial court's order related to intervention for clear error. Carter v. Smith, 170 S.W.3d 402, 409 (Ky. App. 2004). "Under this standard, this Court will only set aside the findings of fact of the trial court if those findings are clearly erroneous." Cardiovascular Specialists, PSC v. Xenopoulos, 328 S.W.3d 215, 217 (Ky. App. 2010); See also CR 52.01. "The dispositive question is whether the findings are supported by substantial evidence." Id. In general, a court is given broad discretion in determining whether or not one should be permitted to intervene. See Allen Calculators v. National Cash Register Co., 322 U.S. 771, 64 S.Ct. 1257, 88 L.Ed. 1257 (1944).
However, the denial of a motion to alter, amend or vacate is subject to the abuse of discretion standard. See William C. Eriksen, PSC v. Kentucky Farm Bureau Mutual Ins. Co., 336 S.W.3d 909, 911 (Ky. App. 2010). Thus, it must be determined whether the trial court's decision was "'arbitrary, unreasonable, unfair or unsupported by sound legal principles.'" Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004) (quoting Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)). While reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly, see Guillion v. Guillion, 163 S.W.3d 888 (Ky. 2005), an appellate court should affirm the trial court unless there has been an abuse of discretion resulting in a "flagrant miscarriage of justice." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.1983).
I. Vance's and CHFS's Right to Intervene
A party may intervene under two procedural scenarios. CR 24.01 permits intervention ...