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Wood v. Critz

NO. 2021-CA-0902-MR

Simpson Family Court

Decided by Clayton, Chief Judge; Cetrulo, and K. Thompson, Judges

Opinion by Thompson, K., Judge

Date Rendered: January 6, 2023

Issue: Whether biological father could intervene in a dissolution action post-judgment.  

In 2015, Mother became pregnant by Biological Father while married to Husband and child was presumed to be a child of the marriage. Husband believed child was a child of the marriage and no paternity testing occurred at the child’s birth. In 2017, Husband grew suspicious and confirmed via over-the-counter DNA testing that the child was not biologically his child. Biological Father then used the same method to confirm that the child was biologically his child. Mother did not tell Husband about the identity of Biological Father, and stopped communicating with Biological Father when he asked to be involved in child’s life.

In 2019, Husband and Wife divorced, and both pled that there were three children born of the marriage, including Biological Father’s child. They came to an agreement regarding child support and parenting time for all three children. Neither acknowledged Biological Father’s paternity rights.

After the entry of the divorce decree, Mother sought child support from Biological Father, as well which resulted in a paternity action and confirmation of paternity. Mother began allowing Biological Father to have time with child. Husband learned of the paternity action and  moved to intervene in the paternity action. At Husband’s request, the paternity action was dismissed based on the divorce decree determining Husband as the Father.

In 2020, the Cabinet became involved filing a DNA petition against Mother for driving the children while intoxicated. The children were removed from Mother’s case and placed with Husband. Biological Father no longer had visitation with his child and quickly filed motions to intervene and amend the final judgment in the divorce action pursuant to CR 60.02.  The Family Court granted Biological Father’s requests to intervene and amend the final judgment. Husband appealed.

The Court of Appeals first addressed the timeliness of Biological Father’s Motion to Intervene holding that the family court adequately addressed the Carter factors and highlighting that there was never any notice to Biological Father of the dissolution action despite Mother and Husband both having knowledge Husband was not child’s biological father.

The Court of Appeals next addressed Biological Father’s right to intervene holding that the grant of intervention was proper as his rights as a father could only be protected by his intervention in the divorce action.

Finally, the Court of Appeals held that CR 60.02 relief was warranted but CR 60.02(d) was the most appropriate basis for relief within CR 60.02 because by their actions in the divorce Mother and Husband had perpetrated a fraud on Biological Father and the court.

Digested by Elizabeth M. Howell