Request By:
Mr. W. S. Greenwell
Crittenden County Attorney
129 North Main Street
P.O. Box 361
Marion, Kentucky 42064
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
For the opinion of this office, your letter raises three questions arising out of a paternity action. The letter reads:
"A paternity action was initiated and completed in Livingston County. The liability of the father was enforced thereafter in Livingston County by contempt orders. The mother has now moved to Crittenden County and has requested the County Attorney of Crittenden County to enforce the father's liability. The mother is no longer receiving assistance from the Cabinet of Human Resources and is therefore enforcing the father's liability for her own benefit.
"I am requesting an opinion regarding the following:
"1. Pursuant to KRS 406.021 does either the Crittenden County Attorney or Livingston County Attorney have a duty to enforce the father's liability since the Cabinet for Human Resources is no longer involved.
"2. If so, which County Attorney has this responsibility.
"3. Does the Livingston District Court retain exclusive jurisdiction and venue of this matter or may a separate proceeding be brought in the Crittenden District Court now that the mother lives in Crittenden County."
KRS 406.021 reads:
"(1) Paternity may be determined upon the complaint of the mother, child, person or agency substantially contributing to the support of the child. Such action shall be brought by the county attorney upon the request of such complainant herein authorized.
"(2) Paternity may be determined by the district court when the mother and father of the child, either:
(a) Submit affidavits in which the mother states the name of the child's father and the father admits paternity of the child; or
"(b) Give testimony before the district court in which the mother states the name of the child's father and the father admits paternity of the child.
"(3) If paternity has been determined or has been acknowledged according to the laws of this state, the liabilities of the father may be enforced in the same or other proceedings by the mother, child, person or agency substantially contributing to the cost of pregnancy, confinement, education, necessary support or funeral expenses. An action to enforce the liabilities shall be brought by the county attorney upon the request of such complainant herein authorized."
As you relate, the mother is no longer receiving assistance from the Cabinet of Human Resources; and she is therefore enforcing the father's liability for her own benefit.
Under the explicit language of KRS 406.021, a paternity action "shall be brought by the county attorney upon the request of the complainant." (Emphasis added). Likewise, under KRS 406.021(3) a subsequent action to enforce the father's liability "shall be brought by the county attorney upon the request of such complainant herein authorized." (Emphasis added). Here the mother is the complainant.
The residual question is: Which county attorney must bring the action?
The purpose of the Uniform Paternity Act was designed to give the mother a remedy to compel the putative father to contribute to the support of his illegitimate child. Sweat v. Turner, Ky., 547 S.W.2d 435 (1977) 436. This means that a paternity action or action to enforce the father's liability is civil in nature.
The district court, under KRS 406.051, has jurisdiction of actions brought under KRS Chapter 406.
The case of Com. v. Wilson, Ky., 622 S.W.2d 912 (1981), held that the complainant, Department for Human Resources, could validly contract with the Lee County Attorney to act as prosecutor, even though complaints had been filed in the Estill District Court (the two counties are in the same judicial district). See KRS 407.190 and 407.250(3).
However, in your situation, the complainant is not the DHR, but is the mother. When the mother actually requests that a particular county attorney prosecute the action, he must do so, as stated above, provided that the county attorney's district is the proper forum. See KRS 406.021. See Com. v. Wilson, above.
The remaining question is whether the district court of Crittenden County is the proper forum.
The statutes are not clear on this point. See KRS 406.021 and 406.051.
As to whether the action should be brought in the Livingston District Court, by the Livingston County Attorney, where the original paternity action was heard and determined, or whether the proposed action should be brought in the Crittenden District Court by you, as Crittenden County Attorney, is of such nature and complexity that suggests that if you do not wish to proceed in the Crittenden District Court with the mother's complaint, you might consider bringing the jurisdictional question before the Crittenden Circuit Court (KRS 23A.010). See Williams v. Williams, Ky., App., 611 S.W.2d 807 (1981), on the point that the doctrine of forum non conveniens (alternate forum) vests in a court, before which an action is brought, the discretion to refuse to accept jurisdiction. Such a determination will not be reversed by an appellate court, except where such determination is found to be an abuse in the exercise of that discretion. See Carter v. Netherton, Ky., 302 S.W.2d 382 (1957). The principle expressed in these cases on alternative forum might be applied by our courts as relates to alternative forum within Kentucky.
It is possible that the courts may rule that the Livingston District Court, under the case history, has a continuing jurisdiction. We have no present way of knowing precisely. Thus, you will have to rely upon the court's ruling in such matter as to such jurisdiction.
The court, in Roos v. Kentucky Ed. Ass'n, Ky., App., 580 S.W.2d 508 (1979), observed that "The convenience vel non of a given forum is not determined by a fixed set of rules, but is arrived at by a consideration of various factors on a case by case basis." Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of the unwilling, and the cost of obtaining attendance of willing witnesses; all other practical problems that make trial of the case easy, expeditious, and inexpensive. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947).
The court in Roos, above, held that under the facts presented the refusal to accept jurisdiction to decide the case based upon the application of the doctrine of forum non conveniens was improper. The court said that "It reaffirms the principle that absent compelling or unusual circumstances, a court is duty bound to hear cases within its vested jurisdiction."