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Seeger v. Lanham

Supreme Court of Kentucky

March 22, 2018



          COUNSEL FORAPPELLANT/CROSS-APPELLEE, HARRY L. SEEGER: William David Tingley William D. Tingley, PLLC

          COUNSEL FOR APPELLEE/CROSS-APPELLANT, SHARON LANHAM: James Gregory Troutman Troutman Law Office, PLLC Julie Ashley Johnson Johnson Kang Cook Abbott & Flynn, PLLC



         Both parties appeal separate holdings of the Court of Appeals. This action originated as a paternity action pursuant to Kentucky Revised Statute (KRS) 406.021 in the Nelson District Court. The issues before the Court have been consolidated into one action. We now address each issue in turn and affirm in part and reverse in part the holding of the Court of Appeals.

         I. BACKGROUND

         Harry Seeger ("Seeger") and Sharon Lanham ("Lanham"), while each married to other partners, engaged in a relationship leading to the birth of a child on June 13, 2007. On December 30, 2009, Lanham filed a paternity action. In January 2011, during the pendency of the action to resolve child support and other issues, Seeger retired and began receiving Social Security Retirement Income of $1, 969.00 per month. As a result, Seeger and Lanham's child also began receiving monthly dependent benefits in the amount of $1, 204.00 in November 2011. In May 2012, the Nelson District Court, Paternity Division, entered its final findings of fact, conclusions of law, and judgment. Relevant to this appeal are three conclusions and judgments: (1) the court had jurisdiction to hear the case pursuant to KRS 406.021[1]; (2) the child's Social Security benefit payments above the current child support order would be credited to the pre-petition liabilities Seeger was ordered to pay ($795.00 of the $1, 204.00 monthly payment was considered "excess" as current support was ordered for $409.00 per month); and, (3) in a separate opinion and order entered August 23, 2011, that there was no statutory avenue for attorneys' fees as Lanham had requested.

         Lanham first appealed several issues to the Nelson Circuit Court. As to the issues presented in this appeal, the Nelson Circuit Court found that it was error for the district court to credit the social security benefits to the pre-petition liabilities owed by Seeger but that it had not erred in holding attorneys' fees were inappropriate in this case.[2] Both parties then appealed to the Court of Appeals. The Court of Appeals held that the trial court may, in its discretion, apply excess social security retirement dependent benefits to pre-petition liabilities. The Court of Appeals also held that Lanham's argument for attorneys' fees was sound, and remanded to the district court to assess whether, under KRS 403.220, Lanham was entitled to attorneys' fees.

         Both parties have moved this Court for discretionary review on separate issues. We have granted discretionary review in both cases and now address each issue presented to this Court.

         II. ANALYSIS

         A. A paternity action can be brought by a private attorney.

         Seeger first argues that the district court lacked the jurisdictional authority to even hear this paternity case pursuant to KRS 406.021. As this question would be dispositive were we to rule in Seeger's favor, we will address it first. To address this issue, we must analyze questions of law, including statutory interpretation. We conduct such analysis de novo, with no deference to the analysis of the lower courts. Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky. 2011) (citing Commonwealth v. McBride, 281 S.W.3d 799, 803 (Ky. 2009)).

         There are three separate types of jurisdiction: personal jurisdiction, subject-matter jurisdiction, and jurisdiction over a particular or specific case before the court. See Nordike v. Nordike, 231 S.W.3d 733, 737-38 (Ky. 2007) (citing Milby v. Wright, 952 S.W.2d 202, 205 (Ky. 1997) and Covington Trust Co. of Covington v. Owens, 129 S.W.2d 186, 190 (Ky. 1939)). "[Jurisdiction over the particular case at issue ... refers to the authority and power of the court to decide a specific case, rather than the class of cases over which the court has subject-matter jurisdiction." Nordike, 231 S.W.3d at 738 (quoting Milby, 952 S.W.2d at 205) (emphasis original). This jurisdiction requirement can often turn on the failure of a party to meet certain statutory requirements in bringing a suit. See Nordike, 231 S.W.3d at 738. As such, it is this brand of jurisdiction which Seeger claims that the district court lacked in hearing this case.

         KRS 406.021(1) states that paternity actions "shall be brought by the county attorney or by the Cabinet for Health and Family Services or its designee upon the request of complainant... " Seeger argues that the word "shall" in the statute is dispositive of the jurisdictional issue. Because Lanham chose to hire a private attorney to initiate this paternity action, he argues that there is no statutory authority allowing a private attorney to bring a paternity action under this chapter. His reading of the statute requires that all paternity actions be brought by the Cabinet or County Attorney.

         We agree with the generally mandatory meaning of the word "shall" in statutory interpretation. See Alexander v. S & M Motors, Inc., 28 S.W.3d 303, 305 (Ky. 2000) (citing KRS 446.010(2)). However, the rest of the sentence in KRS 406.021(1) must be acknowledged: the action "shall be brought by the county attorney or by the Cabinet... upon the request of complainant..." (emphasis added). The term "shall" is mandatory here, but mandatory as to what the County Attorney or Cabinet must do when requested. In other words, when the complainant (mother, putative father, child, or any other party authorized under KRS 406.021(1)) seeks the assistance of the County Attorney or the Cabinet in proceeding with a paternity action, the County Attorney or Cabinet shall proceed in bringing the necessary paternity action.

         However, the term "shall" is not mandatory as to how the complainant must proceed, be it through government agency action or by hiring a private attorney. Seeger cites to an unreported case in which the Court of Appeals affirmed dismissal of a paternity action. The Court of Appeals stated that the father, "in this jurisdiction, must bring the action through the above government entities, " listed in the statute. J.I. v. J.B., No. 2007-CA-002428, 2008 WL 2219912, *3 (Ky. App. May 30, 2008). However, this Court has stated that the paternity action "may be brought by and prosecuted by the mother, child, person or agency substantially contributing to the support of a child by an attorney of their own choosing." Commonwealth ex rel. Stumbo v. Wilson, 622 S.W.2d 912, 914 (Ky. 1981) (emphasis added). "[T]he county attorney gets into the case only when so requested by the complainant." Id. However, upon such a request, "the county attorney is obligated to" initiate the action. Id.

         We must look first to the plain language of a statute and, if the language is clear, our inquiry ends. See Revenue Cabinet v. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005). Based on the plain language of the statute, we hold that complainants under KRS 406.021 are authorized to bring a paternity action through private counsel, if they so choose. Only when a complainant requests assistance from the County Attorney or the Cabinet must those agencies proceed in bringing the paternity action. We therefore affirm the finding of the district court that it was empowered with the jurisdiction to hear the paternity action as brought by Lanham. Thus, seeing no jurisdictional bar to Lanham's claims, we now proceed to the substantive issues on appeal.

         B. Attorneys' Fees are not recoverable in paternity actions.

         Lanham moved the Nelson District Court to award attorney fees. As the basis for her motion, Lanham cited to KRS 406.051. The statute states that "[a]ll remedies under the. uniform reciprocal enforcement of support act are available for enforcement of duties of support under this chapter." She linked this provision to KRS 407.5313, which states that "[attorney's fees may be taxed as costs, and may be ordered paid directly to the attorney ..." The district court denied the motion, finding that KRS 406.051 specifically referred to the enforcement of judgments and duties of support. The district court also found that, had the legislature intended attorneys' fees to be recoverable, it would have created a specific statute allowing so, similar to KRS 403.220, which allows attorneys' fees for maintaining or defending dissolution proceedings.

         On appeal, the Nelson Circuit Court similarly held that the remedies referenced in KRS 406.051 are limited to those "provided for the enforcement of previously entered judgments under a statutory framework designed to facilitate reciprocal recognition of support orders from other states." Citing a Latin maxim meaning that "the expression of one thing implies the exclusion of the other, " the circuit court concluded that the legislature did not intend to provide a statutory avenue for attorneys' fees in paternity actions.

         On appeal to the Court of Appeals, Lanham reiterated her argument that KRS 406.051, referencing Chapter 407, provides an avenue for attorneys' fees to be awarded. However, she also argued that KRS 406.025, which permits child support orders in paternity actions to be based upon the guidelines encoded in KRS 403.212, therefore confers upon a paternity action the applicability of KRS 403.220. KRS 403.220 permits a trial court to "order a parry to pay a reasonable amount for the cost to the other parry of maintaining or defending any proceeding under this chapter and for attorney's fees ..." (emphasis added). The Court of Appeals held that the specific reference in the trial court's order to KRS 403.212 imbued it with the power under KRS 403.220 to order attorneys' fees. It remanded the case to the district court to determine whether Lanham was entitled to such an award. The Court of Appeals limited its holding to this fact-specific case in which there was a request for child support pursuant to KRS Chapter 403. We shall address each of the potential statutory bases presented by Lanham in turn. Once again, we are faced with an issue of statutory interpretation and review the issue de novo. Love, 334 S.W.3d at.93 (citing McBride, 281 S.W.3d at 803).

         1) KRS 403 does not provide an avenue for a party in a paternity action to recover attorneys' fees.

         KRS 406.025(5) specifically requires the trial court to utilize the child support guidelines in KRS 403.212 in ordering temporary child support.[3] KRS 406.051(2) also requires the district court to "utilize the provisions of KRS Chapter 403 relating to child custody and visitation."[4] Clearly, the crafters of KRS 406 inferred that KRS 403 would be helpful and instructive in determining issues under KRS 406 actions. However, this does not necessarily mean that the instructive value of KRS 403 thereby makes the entire chapter applicable to paternity actions under KRS 406. KRS 403 was adopted from the Uniform Marriage and Divorce Act, whereas KRS 406 was based on the Uniform Act on Paternity. Each act clearly addressed differing goals: the former to provide instruction on dissolution of marital relationships and the second to provide an avenue for a child to receive support from ...

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