Commonwealth Of Kentucky-Court of Appeals

RENDERED: SEPTEMBER 1, 2006; 10:00 A.M.

TO BE PUBLISHED

MODIFIED: OCTOBER 13, 2006; 10:00 A.M.

Commonwealth Of Kentucky

Court of Appeals

NO. 2005-CA-000834-ME

JACQUELINE HINSHAW (now LENARZ) APPELLANT

APPEAL FROM JEFFERSON FAMILY COURT

v. HONORABLE VIRGINIA WHITTINGHILL, SPECIAL JUDGE

ACTION NO. 03-CI-502107

REN RICKY HINSHAW;

SANDRA RAGLAND;

DONNA L. DELAHANTY (GUARDIAN AD LITEM) APPELLEES

OPINION

AFFIRMING

** ** ** ** **

BEFORE: BARBER AND TAYLOR, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.

BUCKINGHAM, SENIOR JUDGE: Jacqueline Ann Hinshaw (now Lenarz)

appeals from an order of the Jefferson Family Court awarding her

joint custody of her son, Asher John Hinshaw, with her exhusband,

Ren Ricky Hinshaw, and designating Ren as the primary

residential custodian. She also appeals from the portion of the

1 Senior Judge David C. Buckingham sitting as Special Judge by assignment of

the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution

and KRS 21.580.

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court’s order directing her to pay $25,000 of Ren’s attorney

fees. We affirm.

Jacqueline and Ren were married on December 29, 1988.

Asher was born on June 28, 1999. Ren was present in the

delivery room and cut the umbilical cord. Asher’s birth

certificate lists Ren as the father.

In January 2003, Jacqueline filed for divorce. In her

verified petition of dissolution, she stated that she and Ren

were the parents of one child, Asher. Later, however,

Jacqueline amended her petition and alleged that Ren was not the

child’s father. She also sought court-ordered DNA testing to

prove her claim.

The DNA test results, introduced by avowal, indicated

that there was a 0.00% chance that Ren was Asher’s biological

father. Following the disclosure of the test results,

Jacqueline filed an amended petition and named a third party as

the biological father. She also sought to have the court deny

Ren custody because he was not the biological father.

Over Jacqueline’s objections, the court appointed a

clinical psychologist, Dr. Edward P. Berla, to serve as the

custodial evaluator. Dr. Berla conducted interviews with the

child and with both parties. He concluded that “Asher has

bonded with the Respondent [Ren] and it would be very

devastating to him if Respondent was not in his life.” Dr.

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Berla also stated in his report that “severing [the relationship

between Ren and Asher] would at the very least cause Asher

severe emotional and psychological harm.”

The evidence showed a strong father-son relationship

between Ren and Asher. From the start, Ren has been active in

all parts of Asher’s life. Ren often served as the principal

caregiver because his work hours allowed more flexibility than

Jacqueline’s. Ren shared equally in caring for and raising

Asher. This included changing, feeding, daycare, potty

training, and teaching to talk. Ren is also active as a

volunteer at Asher’s school, and he has served as a coach for

extracurricular activities in which Asher was involved.

Jacqueline never revealed to Ren that he was not

Asher’s father until after filing for divorce. At all times in

the marriage, she represented to Ren that he was Asher’s

biological father. She encouraged the strong father-son

relationship between Ren and Asher, and Ren is the only father

Asher has ever known.

The family court concluded that equitable estoppel

applied to preclude Jacqueline from challenging Ren’s custody

rights based on DNA testing. The court found that Ren was

Asher’s legal father, and it determined that the parties were on

equal footing in the matter of custody. The court then ordered

that the parties should share joint custody, with Ren being the

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primary residential custodial. Further, the court directed

Jacqueline to pay $25,000 of Ren’s attorney fees. This appeal

by Jacqueline followed.

Jacqueline first argues that the court erred in its

application of KRS2 406.011 and KRS 406.111. KRS 406.011

provides in part that “[a] child born during lawful wedlock, or

within ten (10) months thereafter, is presumed to be the child

of the husband and wife.” That presumption is rebuttable,

however. See Simmons v. Simmons, 479 S.W.2d 585, 587 (Ky.

1972).

KRS 406.091(3) provides that “[g]enetic test results

are admissible and shall be weighed along with other evidence of

the alleged father’s paternity.” KRS 406.111 provides in part

that “[i]f the court finds that the conclusions of all the

experts, as disclosed by the evidence based upon the test, are

that the alleged father is not the father of the child, the

question of paternity shall be resolved accordingly.”

Jacqueline argues that the DNA test results conclusively rebut

the presumption of paternity and that Ren may not stand on equal

footing with her in the custody dispute.

Jacqueline’s argument overlooks the fact that this

case is not about paternity but is about the custody rights

between a husband and wife as they relate to a child born and

2 Kentucky Revised Statutes.

-5-

raised within the confines of their marriage. In Bartlett v.

Com. ex rel. Calloway, 705 S.W.2d 470 (Ky. 1986), the Kentucky

Supreme Court recognized that an action to determine the

paternity of a third party to a child born during a marriage

between a husband and wife did not adjudicate the rights and

duties of the husband, who was not a party to the case. Id. at

473. In short, the determination that Ren is not Asher’s

biological father does not mean Ren is without custody rights.

Jacqueline next argues that the family court erred in

its application of equitable estoppel. She maintains that

equitable estoppel could not be properly asserted by Ren and

that, even if it the doctrine could have been asserted

otherwise, it was error by the court to allow it to be asserted

by Ren in this case.

Jacqueline argues that equitable estoppel could not be

invoked by Ren because Kentucky law has not recognized the use

of the doctrine in child custody cases and because the doctrine

was specifically rejected in such a case by this court in

Consalvi v. Cawood, 63 S.W.3d 195 (Ky.App. 2001). We agree that

the doctrine has not been adopted by the courts of this state in

child custody cases. However, we disagree that this court

rejected the applicability of the doctrine in the Consalvi case.

In fact, the court there recognized that “[i]t may be that an

argument for estoppel can be made; however, the trial court

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specified that its finding was based on a principle of

waiver[.]” Id. at 198.

The court here relied on cases from other

jurisdictions in determining that the doctrine of equitable

estoppel was applicable. In Pettinato v. Pettinato, 582 A.2d

909 (R.I. 1990), the court concluded, in circumstances similar

to those herein, that equitable estoppel applied to preclude the

mother from denying the husband’s custody rights based on DNA

test results. Id. at 912. As in this case, in Pettinato the

couple engaged in sexual relations during the time of

conception, the husband was named as the father on the birth

certificate, and the husband first became aware of the paternity

issue when it was raised in the divorce proceeding. After DNA

testing revealed that the husband was not the child’s father,

the mother sought to deny his custody rights.

The appellate court in Pettinato ultimately concluded

that “a mother should be equitably estopped from using the

genetic blood testing permitted by [statute] to disestablish a

child’s paternity in connection with a routine divorce

proceeding.” Id. The court further stated that “[t]he

underlying rationale of the equitable-estoppel doctrine is that

‘under certain circumstances, a person might be estopped from

challenging paternity where that person has by his or her

conduct accepted a given person as father of the child.’” Id. at

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912-13, quoting John M. v. Paula T., 571 A.2d 1380, 1386 (Pa.

1990). The court further concluded that the “evidence of

genetic blood tests is considered irrelevant in a divorce

proceeding wherein the basic issue is the termination of the

marriage bond – not the paternity of a child.” Id.3 Finally, the

court stated that “[t]he law will not permit a person in these

situations to challenge the status which he or she has

previously accepted [or created].” Id.4

In J. Branham Erecting & Steel Serv. Co., Inc. v.

Kentucky Unemployment Insur. Comm’n, 880 S.W.2d 896 (Ky.App.

1994), this court set forth the elements of equitable estoppel

as follows:

These elements include: (1) Conduct,

including acts, language and silence,

amounting to a representation or concealment

of material facts; (2) the estopped party

is aware of these facts; (3) these facts

are unknown to the other party; (4) the

estopped party must act with the intention

or expectation his conduct will be acted

upon; and (5) the other party in fact relied

on this conduct to his detriment.

Id. at 898, quoting Gray v. Jackson Prod. Credit Assoc., 691

S.W.2d 904, 906 (Ky.App. 1985). We conclude that the sound

3 Likewise, the family court here disallowed the DNA test results as evidence.

4 Ren has cited several other cases from other jurisdictions that support the

application of the doctrine of equitable estoppel in situations like those

here. See Boyles v. Boyles, 466 N.Y.S.2d 762 (N.Y.App.Div. 1983); Sharon GG

v. Duane HH, 467 N.Y.S.2d 941 (N.Y.App.Div. 1983); In re Hodge, 733 P.2d 458

(Or.Ct.App. 1987); Riddle v. Riddle, 63 Ohio Misc.2d 43, 619 N.E.2d 1201

(Ohio Ct. of Common Pleas 1992).

-8-

reasons given by the Rhode Island court in the Pettinato case to

apply the doctrine of equitable estoppel are equally applicable

to this case. Therefore, we conclude that the family court here

did not err or abuse its discretion in this regard.

Jacqueline further argues that even if equitable

estoppel would otherwise be applicable, it should not apply in

this case because Ren did not rely on her conduct to his

detriment. She reasons that Ren would have continued his

relationship with and support for Asher even had he known that

he was not Asher’s biological father.

Saying that Ren would have continued his relationship

with and support for Asher is not the same as saying he would

have taken no action. By withholding the true state of Ren’s

relationship to the child, Jacqueline precluded Ren from seeking

legal advice as to the extent of his relationship with Asher and

his rights and obligations in relation to Jacqueline and the

biological father.

For example, had Ren known the truth, he might have

sought to have Jacqueline institute legal action to terminate

the biological father’s parental rights so that he could adopt

the child. As an adoptive parent, Ren would have been on equal

footing with Jacqueline in any custody dispute. Given the

knowledge denied Ren by Jacqueline’s actions, we conclude it was

not error for the court to conclude that Ren relied on

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Jacqueline’s representations to his detriment. Therefore, we

further conclude that the court did not abuse its discretion in

applying equitable estoppel and in granting the parties joint

custody with Ren as the primary residential custodian.

Finally, we turn to Jacqueline’s argument that the

court erred when it directed that she pay $25,000 of Ren’s

attorney fees. She asserts the court erroneously determined

that $20,000 given to Ren from his father to help defray Ren’s

attorney fees was a loan rather than a gift.

Contrary to Jacqueline’s assertion, the court did not

base its award to Ren solely on its finding that Ren intended to

pay his father back. In fact, the court first noted that it was

required to consider the financial resources of the parties and

that Jacqueline earned substantially more money than Ren. See

KRS 403.220. The court also noted that Jacqueline was now

experiencing a higher standard of living than she had before.

The award of attorney fees is entirely within the

discretion of the trial court. Poe v. Poe, 711 S.W.2d 849, 852

(Ky.App. 1986). We conclude that the record supported the

findings of the court in this matter. Therefore, we find no

abuse of discretion in the award.

The order of the Jefferson Family Court is affirmed.

ALL CONCUR.

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BRIEF FOR APPELLANT:

Peter L. Ostermiller

Louisville, Kentucky

James P. McCrocklin

Louisville, Kentucky

BRIEF FOR APPELLEE, REN RICKY

HINSHAW:

Stephen P. Imhoff

Louisville, Kentucky

BRIEF FOR APPELLEE, SANDRA

RAGLAND:

Sandra Ragland

Diana L. Skaggs & Associates

Louisville, Kentucky

BRIEF FOR APPELLEE, DONNA L.

DeLAHANTY:

Donna L. Delahanty

Louisville, Kentucky

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