Request By:
Mr. Bill Klapheke
Barren County Attorney
Courthouse
Glasgow, Kentucky 42141
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion on two questions relating to paternity actions in district court.
Question No. 1:
"In an Aid For Dependent Children Paternity action, where the court requires blood-grouping tests, and the putative father is a pauper, who pays or who is responsible for the expense?"
You indicated by telephone that where the Department of Human Resources gives aid to the dependent child born out of wedlock, it is given with the condition that the mother of the child file a paternity action under KRS Chapter 406. See specifically KRS 406.021(1). The court, upon motion of the defendant, may order the mother, child and alleged father to submit to blood tests. KRS 406.081. 406.081.
Costs are generally considered to be statutory allowances to reimburse the prevailing party for expenses necessarily incurred in prosecuting the action. 20 Am.Jur.2d, Costs, §§ 1 and 2, p.p. 5-6. The successful party in an ordinary action shall recover his costs, unless otherwise provided by law. KRS 453.040(1)(a).
There is no explicit provision as relates to subject costs in KRS Chapter 406. Cf. KRS 406.120 [persons convicted to pay costs], repealed by Acts 1964, Ch. 37, § 19.
KRS 406.051 provides in part that all remedies under the Uniform Reciprocal Enforcement of Support Act are available for enforcement of duties of support under this chapter (paternity) . KRS 407.220 [Uniform Support Act] provides in part that in a support action in an initiating court, the court shall not require the obligee [person or state to whom a duty to support is owed] to pay costs, but may request the responding court to collect the costs from the obligor [a person owing a duty of support]. A responding court shall not tax the costs against the obligee, but may direct that the costs requested by the initiating court and incurred in this state when acting as a respondent state, be paid in whole or in part by the obligor.
A general statute, KRS 453.190, authorizes the court to permit a poor person to defend any action without paying costs.
Since the court is precluded from assessing the costs, including the blood tests, against the nother under KRS 406.051 and 407.220, and since the defendant is not responsible for such costs as a pauper under KRS 453.190, and since there is no statute imposing the costs on same other person or a governmental unit, there is simply no statutory basis for imposing such costs on any person or governmental unit. Under KRS 407.220, prior to the 1972 amendment, the court could direct that the county, in which the action is brought, pay the costs. The 1972 amendment, however, deleted that provision.
Our answer is the same, 1 regardless of whether the paternity action of chapter 406 is filed in connection with aid for dependent children granted by the Department for Human Resources, or where such aid is not involved. Of course where the defendant father is not a pauper under KRS 453.190, the court could require the defendant father to pay such costs.
The state is not liable for such costs, since there is no statute requiring it. See KRS 453.010, 41.110, § 230, Kentucky Constitution; and Greene v. Ballard, 174 Ky. 838, 192 S.W. 841 (1917) 845.
Since these blood tests would involve several hundred dollars in each case, and since labs will decline to run the tests where there is no adequate provision for payment, we are sending a copy of this opinion to Mr. Vic Hellard, Director of the Legislative Research Commission, for whatever action be may deem appropriate. This is clearly a matter that addresses itself to the legislature.
Footnotes
Footnotes
1 Referring to your Question No. 2.