Steven Engelking v. Amy Engelking ( 2013 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JOHN QUIRK PAUL E. BAYLOR
Muncie, Indiana Anderson, Indiana
FILED
Jan 15 2013, 9:48 am
CLERK
IN THE of the supreme court,
court of appeals and
COURT OF APPEALS OF INDIANA
tax court
STEVEN ENGELKING, )
)
Appellant-Petitioner, )
)
vs. ) No. 18A02-1206-DR-495
)
AMY ENGELKING, )
)
Appellee-Respondent. )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable John M. Feick, Judge
Cause No. 18C04-1010-DR-146
January 15, 2013
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Steven Engelking (“Father”) appeals the trial court’s dissolution decree finding
that he was the parent of two children born during his marriage to Amy Engelking
(“Mother”) and was required to pay child support.
We affirm.
ISSUE
Whether the trial court erred in determining that Father should pay child
support as the parent of two children conceived through artificial
insemination during his marriage to Mother.
FACTS
The facts most favorable to the judgment disclose that Father and Mother were
married in 2001. Subsequently, Father and Mother had a discussion about having
children, and Father responded to the discussion by consulting a doctor to determine
whether a prior vasectomy could be reversed. The doctor told Father and Mother that a
successful reversal was unlikely. As a result, the couple began investigating the
possibility of artificial insemination.
A longtime friend of Mother’s became aware of the situation and told Mother that
her husband, S.P., would provide the sperm for the artificial insemination. Mother was
initially skeptical but changed her mind when Father encouraged the use of S.P.’s sperm
because they looked alike and shared similar “characteristics and morals.” (Tr. 13).
Father and Mother subsequently arranged for S.P. to be the sperm donor.
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Father and Mother conducted an internet search of sperm banks, and Mother
purchased paraphernalia from a sperm bank to facilitate the insemination process. With
Father’s approval, Mother obtained a sperm sample from S.P. and used a syringe to inject
the sperm into her vagina. The procedure resulted in the birth of a male child in 2004.
Father supported the child, holding the child out to the world as his own. Later,
Mother discovered that Father had kept the paraphernalia from the sperm bank because
he was concerned that his son would be an only child. Soon thereafter, Father and
Mother discussed artificial insemination with S.P. and his wife. Mother again used a
syringe to insert S.P.’s sperm into her vagina. This procedure resulted in the 2006 birth
of a female child.
Again, Father supported both children and treated them as if they were his
biological children. After he and Mother separated in 2009, Father exercised equal time
visitation with the children. This visitation involved several overnight visits per week.
Father continued to support the children by paying for daycare, clothing, and sports fees.
On October 10, 2010, Father filed a verified petition for dissolution of the
marriage. In the petition, he stated that “two children were born to [Mother] during the
marriage . . . . The children are not the biological children of [Father].” (App. 8).
Nevertheless, Father continued to exercise visitation rights until February of 2012. On
May 15, 2012, the trial court held a final hearing on the petition and found, among other
things, that the children “were acknowledged by [Father] as his children, he supported
said children, and he consented to the procedure by which they were created. That said
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children are, by all rights and purposes, legally the children of [Father].” (App. 29). The
trial court ordered joint legal custody, naming Mother as the physical custodian and
giving Father “proper visitation with a minimum of the co-parenting guidelines.” (App.
30). The court also ordered Father to pay child support.
DECISION
Father contends the trial court erred in determining that the children are products
of the marriage and that he has a duty to pay child support. He questions the validity of
the trial court’s findings and conclusions.
The trial court entered findings of fact and conclusions of law sua sponte. In such
cases, the specific findings control as to the issues they cover, while a general judgment
standard applies to any issues upon which the court has not made a finding. Harris v.
Harris, 800 N.E.2d 930, 934 (Ind. Ct. App. 2003), trans. denied. Thus, in reviewing the
judgment, we must apply a two-tiered standard. Id. First, we determine whether the
evidence supports the findings, and second, whether the findings support the judgment.
Id. In deference to the trial court’s proximity to the issues, we will reverse a judgment
only when it is shown to be clearly erroneous. Id. In determining the validity of the
findings or the judgment, we consider only the evidence favorable to the judgment and all
reasonable inferences to be drawn therefrom. Id. We will not reweigh the evidence or
assess the credibility of the witnesses. Id. We evaluate questions of law de novo and
owe no deference to a trial court’s determination of such questions. Id.4
Father argues that neither child was a “child of the marriage” under the
Dissolution of Marriage Act. See Ind. Code § 31-9-2-13(a)(2) (stating that a “child” of
the marriage includes “[c]hildren born or adopted during the marriage of the parties”).
He cites Levin v. Levin, 645 N.E.2d 601, 605 (Ind. 1999) for the proposition that a child
conceived through artificial insemination is a child of the marriage only when both
parties knowingly and voluntarily consent to the artificial insemination. He maintains
that there is insufficient evidence to support a conclusion that he knowingly and
voluntarily consented to the artificial inseminations.
In Levin, the Levins, after discovering that the husband, Donald, was sterile,
decided that the wife, Barbara, should be artificially inseminated. Donald supported the
child and “held him out as his own” for ten years. Id. at 603. After dissolution of the
marriage, Donald terminated his personal relationship with the child but continued to pay
child support. Subsequently, Donald petitioned the trial court to vacate the child support
order on the basis that the child was not his biological son. The trial court denied the
petition, and this Court affirmed. Our Supreme Court accepted transfer, summarily
affirmed this Court’s opinion, and affirmed the trial court’s judgment. In so doing, it
stated that this Court “accurately analogized this situation to a child adopted during the
marriage by agreement of the husband and wife. We thus hold that, as in the case of
adoption, where the husband and wife knowingly and voluntarily consent to artificial
insemination, the resulting child is a child of the marriage.” Id. at 604 (citation omitted).
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Here, Mother testified that Father knew of the artificial inseminations that led to
the conception of both children, helped her conduct research to determine the
paraphernalia used to facilitate the first artificial insemination, talked with S.P. and his
wife about the use of S.P.’s sperm as a component of both inseminations, and consented
to both inseminations. She also testified that Father saved the paraphernalia for the
second insemination so that the first child would not be an only child. She further
testified that Father supported the children during the marriage, exercised his visitation
rights during most of the lengthy period between the filing of the petition for dissolution
and the final hearing, and claimed the oldest child on his tax return.
Father is asking us to disregard Mother’s testimony and credit his testimony that
he did very few of the things attributed to him by Mother. Thus, he argues that he did not
knowingly and voluntarily consent to the artificial inseminations. Assigning credibility is
not our function, and we reject Father’s invitation to do so. The trial court’s findings are
supported by Mother’s testimony, and the findings support the trial court’s ultimate
conclusion that each child was a child of marriage. Accordingly, both Father and Mother
“have an obligation to support the child[ren].” See Levin, 645 N.E.2d at 605.1
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Father also cites In re Paternity of M.F., 938 N.E.2d 1256, (Ind. Ct. App. 2010), trans. denied, for the proposition
that a procedure by which a mother is inseminated is not a true artificial insemination unless the semen transferred to
the mother is first provided to a physician. In the case, the Court examined the public policy impact of a contract
between a mother in a same sex relationship and a donor whereby the donor is absolved of any obligation to pay
child support. The Court noted that viability of the contract depends on the manner in which insemination occurred,
and it held that a physician’s intermediary role acts as a safeguard against a “spur-of-the moment” contract between
the mother and the sperm donor. Id. at 1261. The case is inapplicable where, as here, the issue is whether the father
in a marriage may avoid supporting children born to the father’s spouse during that marriage.
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Affirmed.
ROBB, C.J., and MAY, J., concur.
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