Preview:

RENDERED: NOVEMBER 1, 2007 TO BE PUBLISHED
ekvw ~
'Suprmtr Courf of
'Pt~~' 2006-SC-000729-DGE
JACQUELINE ANN HINSHAW (now LENARZ) APPELLANT
ON REVIEW FROM COURTOF APPEALS
V. CASE NUMBER 2005-CA-000834 JEFFERSON FAMILY COURT NO. 03-CI-502107
REN RICKY HINSHAW AND SANDRA G. RAGLAND APPELLEES
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
AFFIRMING

I. Introduction This case involves Jacqueline Ann Hinshaw's appeal of a final judgment of the
Jefferson Family Court which awarded Jacqueline and Ren Ricky Hinshaw jointcustody of Asher Hinshaw, with Ren designated as the primary residential custodian. The Court of Appeals, in a unanimous decision, agreed with the application of equitable estoppel and affirmed the family court's judgment.
On appeal, Jacqueline's principal argument is that the lower court erred when it failed to resolve Ren's custody rights based on DNA evidence that showed Ren had a 0.00% chance of being the child's biological father. Further, Jacqueline argues equitable estoppel has no application to custody disputes.
This Court holds today that the common law doctrine of equitable estoppel is applicable to custody cases. The principle itself, which is unique in its application, has
specific, were met in this case. For this reason, we affirm .
II . Factual Background
Jacqueline and Ren were married on December 29, 1988. The couple's only
child, Asher, was born on June 28, 1999. Ren, who was present in the delivery room,
cut the umbilical cord. Together, the couple named Asher after Ren's father. Further,
Asher's birth certificate lists Ren as the father.
Jacqueline filed fordivorce in January of 2003. In her verified petition for
dissolution, Jacqueline stated to the court that she and Ren were the parents of one
child, Asher. Subsequently, she amended her petition and alleged for the first time that
Ren was not the biological father. Jacqueline then sought court-ordered DNA testing to
prove her claim.
The results of the DNA test, introduced by avowal, indicated there was a 0 .00% chance that Ren was Asher's biological father. Jacqueline than filed another amended petition and sought to deny Ren custody based on the fact that he was not the biological father.
Over Jacqueline's objections, the court appointed a clinical psychologist, Dr. Edward P. Berla, to serve as a custodial evaluator. After conducting interviews with the parties and the child, Dr. Berla concluded, "Asher has bonded with Respondent [Ren] and it would be very devastating to him if Respondent was not in his life." Further, Dr. Berla concluded that "severing [the relationship between Ren and Asher] would at the very least cause Asher severe emotional and psychological harm."
In an order entered January 28, 2005, the family court noted that, until she made her claim in this action, Jacqueline had always represented, both to Ren and the world,
suspected the fact that he might not be Asher's biological father until Jacqueline made
her claim in the present action. Further, Jacqueline had encouraged the development
of a strong father-son relationship and admitted Ren had been active in all facets of
Asher's life from the beginning.
The family court concluded equitable estoppel precluded Jacqueline from
challenging Ren's custody rights based on DNAtesting. Thus, the court found the DNA
test results were irrelevant as to the issue of custody. Further, the court found Ren was
Asher's legal father and that the parties were on equal footing in matters of custody.
The court, applying the best interests of the child standard, concluded the parties should
share joint custody with Ren designated as the primary residential custodian.
The Court of Appeals, in a unanimous decision affirming the lower court, agreed that equitable estoppel precluded Jacqueline from challenging Ren's right to custody based on the results of the DNAtest . In reaching this conclusion, the court rejected Jacqueline's claim that Kentucky law precluded the application of equitable estoppel in custody cases. Further, the Court of Appeals emphasized that this is not a paternity action . Rather, it is a custody action and DNA test results do not resolve this issue. Jacqueline sought discretionary review from portions of this opinion.
111 . Analysis
Jacqueline argues the family court erred when it failed to resolve Ren's custody rights based on the results. of DNA testing. In making this argument, Jacqueline points to Kentucky Revised Statute (KRS) 406.011 and KRS 406.111 . While acknowledging
The Court of Appeals also affirmed the lower court's decision as it related to attorney's
fees. Although Sandra G. Ragland, Ren's attorney before the family court, was named as a party to this appeal, Jacqueline has made no challenge to that portion of the opinion dealingwith the attorney's fees.
3

presumption is rebuttable . Jacqueline asserts that the results of the DNA test
introduced by avowal and showing a 0.00% chance Ren was Asher's biological father,
rebutted the presumption and triggered the application of KRS 406.111 . Further,
Jacqueline argues that equitable estoppel has no application in custody disputes.
Alternatively, Jacqueline asserts that if equitable estoppel were applicable, Ren has
failed to establish the necessary elements of equitable estoppel. Thus, under KRS
406.111, Jacqueline argues the court was required to resolve paternity against Ren.
Jacqueline reasons that, as Ren cannot be Asher's biological father, he cannot stand on
equal footing with her in a custody dispute.
While Jacqueline's argument may resolve a dispute over paternity, it does not resolve the issue of custody. The question before this Court is whether DNAtest results can be introduced to disprove paternity, and thus deny custody. We believe this question is resolved by the application of equitable estoppel to the unique facts of this
case.
The common law principle of equitable estoppel has long been recognized in Kentucky. See Electric & Water Plant Bd. v. Suburban Acres Dev. Inc. , 513 S.W.2d 489 (Ky. 1974). In J. Branham Erecting & Steel Serv. Co., Inc. v. Kentucky Unemployment Insur. Comm'n, the court stated a party asserting equitable estoppel
must show the following elements:
(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.


S .W.2d 904, 906 (Ky.App. 1985). An essential element of estoppel "is that the adverse
party must have relied upon the conduct or representation of the other and thereby
been prejudiced or induced to change his position for the worse[.]" Embry v. Long, 256
Ky. 266, 75 S.W.2d 1036, 1038 (1934). See also Acree v. E.I .F.C., Inc. , 502 S.W.2d 43
(Ky. 1973); Caudel v. Prewitt, 296 Ky. 848,178 S.W.2d 22 (1944).
Contrary to Jacqueline's argument, the stringent standards or elements of
equitable estoppel have all been met. Jacqueline's acts, language, and silence were
aimed at misleading Ren into believing he was Asher's biological father. Through her
acts, language and silence, Jacqueline intended for Ren and Asher to develop a strong
father-son relationship. Jacqueline makes no attempt to deny the fact that she was
aware of the true facts .
Also, Jacqueline makes no attempt to challenge the existence ofthe elements
set forth above. Rather, Jacqueline argues Ren failed to show reliance and conduct to
his detriment. To support her position, Jacqueline notes that Rentestified he would not
have done anything differently in his relationship with Asher had he known the truth .
We believe Jacqueline's argument misses the point. Saying Ren would have continued his relationship with, and support for, Asher had he known the truth is not the same as saying he would have taken no action. Jacqueline's actions withheld the true state of affairs from Ren. In so doing, Jacqueline denied Ren the opportunity of seeking legal advice as to the true nature of his relationship with Asher and his rights and obligations in relation to Jacqueline and the biological father. Stated another way,
2 As noted by the Court of Appeals, Ren, in ensuring his father-son relationship with Asher, "might have sought to have Jacqueline institute legal action to terminate the biological
5

these circumstances, we conclude it was not an abuse ofdiscretion for the family court
to find Ren relied on Jacqueline's conduct to his detriment.
Our conclusion that equitable estoppel applies to custody actions has been
followed in otherjurisdictions. While Ren has cited to several cases that have applied
equitable estoppel to custody disputes, wefind Pettinato v. Pettinato, 582 A.2d 909 (R.I .
1990), particularly persuasive. The factual circumstances in Pettinato are on point with
those present in the case sub iu~ dice. In Pettinato, the husband and wife continued to
engage in sexual relations with one another during the time period in which the wife
conceived a child by another man. The husband was named as the father on the child's
birth certificate, the wife encouraged the development of a relationship between the
child and the husband, the husband first became aware of the paternity issue when it
was raised in a divorce proceeding, and the wife contended that the husband should be
denied any consideration as to custody based on the results of DNAtesting. Id . at 911

Download 2006-sc-000729-dge.pdf

Kentucky Law