In re the Paternity of: S.A.M. (Child), M.M. v. M.H., S.B. , 85 N.E.3d 879 ( 2017 )

FILED
Oct 13 2017, 11:00 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Cody Cogswell M.H.
Cogswell & Associates David W. Stone IV
Indianapolis, Indiana Stone Law Office & Legal
Research
Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of: S.A.M. October 13, 2017
(Child), Court of Appeals Case No.
48A05-1704-JP-922
M.M., Appeal from the Madison Circuit
Appellant-Intervenor, Court
The Honorable Angela Warner
v. Sims, Judge
Trial Court Cause No.
M.H., 48C01-1307-JP-184
Appellee-Petitioner,
S.B.,
Respondent
May, Judge.
[1] When S.A.M. was born, M.M. (“Father”) signed a paternity affidavit and
became S.A.M.’s legal father. Over time, suspicion arose that another man,
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B.H., was S.A.M.’s biological father. However, B.H. died before paternity tests
were conducted. Thereafter, B.H.’s father, M.H., filed a paternity action to
determine whether S.A.M. was the biological child of B.H. During that
proceeding, Father entered into a mediation agreement (“Mediation
Agreement”) with M.H. Father later asked the trial court to declare that
Agreement void ab initio, but the trial court denied his motion.
[2] Father now appeals that denial, raising the following restated issues:
(1) Whether the trial court erred when it concluded M.H. had
standing as S.A.M.’s next friend to file a petition to establish
B.H.’s paternity of S.A.M.;
(2) Whether the trial court abused its discretion in denying
Father’s request to declare void the Mediation Agreement;
(3) Whether the trial court abused its discretion in denying
Father’s request for attorney fees.
We reverse and remand.
Facts and Procedural History
[3] S.A.M. was born out of wedlock to S.B. (“Mother”) on May 8, 2007. When
Mother became pregnant, she was in a relationship with both Father and B.H.
On the day S.A.M. was born, Father executed a paternity affidavit
acknowledging he was S.A.M.’s biological father. Father is also listed as
S.A.M.’s father on S.A.M.’s birth certificate. Since S.A.M.’s birth, Father has
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shared custody of S.A.M. with Mother and has held himself out as S.A.M.’s
father. S.A.M. refers to Father as “Dad.” (Appellant’s App. Vol. II at 106.)
[4] The record indicates Father and B.H. had known each other and were “best
friends” since they were roughly nine years old. (Id. at 105). However, the
record is sparse with facts regarding whether B.H. had any involvement in
S.A.M.’s life. On January 19, 2011, B.H. passed away. At the time of B.H.’s
passing, paternity had not been established for B.H. through DNA testing or
otherwise. Nevertheless, at some point, it came to be believed by the parties
that B.H. was S.A.M.’s biological father.
[5] On July 29, 2013, M.H. filed a petition as S.A.M.’s next friend to establish
paternity of S.A.M. In the petition, M.H. alleged his deceased son, B.H., was
the biological father of S.A.M. Mother was served with a copy of the petition,
but Father was not. On August 28, 2013, M.H. filed a “Request for Custody or
in the Alternative Request for Grandparent Visitation” of S.A.M. (Id. at 18.)
[6] Father intervened in the action and upon his request, the court appointed him a
public defender. On October 30, 2013, Father filed an Amended Motion to
Dismiss, claiming M.H. was not a person who may file a paternity action under
Indiana Code section 31-14-4-1. The court denied this motion.
[7] On January 29, 2014, M.H. filed a motion for mediation. On February 6, 2014,
the court ordered the parties to agree on a mediator and conduct mediation.
The parties conducted mediation on March 19, 2014. Father and M.H. entered
into the Mediation Agreement stipulating, among other things: (1) B.H. was the
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biological father of S.A.M.; 1 (2) Father and Mother had been “actively involved
in the care and raising of [S.A.M.]” since S.A.M.’s birth and Father had been
the “de facto custodian,” (id. at 20), of S.A.M. since S.A.M.’s birth; (3) Father
and Mother shall have joint legal custody of S.A.M.; (3) Father shall have
primary physical custody of S.A.M.; (4) neither Mother nor Father would have
child support obligations to one another; (5) M.H. is the biological paternal
grandfather of S.A.M.; and (6) M.H. and his wife, C.H., shall have
“Grandparent visitation” with S.A.M. on certain dates set out in the agreement.
(Id. at 21-23.) The parties also agreed to a “mutual restraining order,” (id. at
23), requiring, among other things:
[M.H.] shall not disclose, discuss, or communicate in any
manner with [S.A.M.] the biological relationships of the parties
and/or the identity of the biological FATHER without the
expressed written authorization of [Mother] and [Father].
[M.H.] shall take all steps necessary to ensure that third parties
including [C.H.] adhere to and honor this provision.
(Id. at 23-24) (emphasis in original). The trial court entered an order approving
the Mediation Agreement that same day.
[8] The arrangement between Father and M.H. fell apart. Father learned M.H.
told S.A.M., during a visit with him, that B.H. was his biological father. As a
1
While M.H. alleges third-party “DNA testing” of S.A.M. was conducted, establishing paternity in B.H.,
(Appellee’s Br. at 11), we note the record contains no direct evidence of any such DNA test conclusively
establishing paternity in B.H. There is merely a reference to this alleged DNA test in the GAL’s report.
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result, Father stopped honoring the Mediation Agreement’s provisions
regarding visitation. M.H. also claimed Father was alienating S.A.M. from
M.H. and C.H.
[9] On August 15, 2014, M.H. filed an “Affidavit for Citation and Motion to
Enforce Grandparent Visitation.” (Id. at 7.) On August 29, 2014, the court
held a hearing on M.H.’s motion and affidavit. Noting Father had been
denying M.H. visitation pursuant to the Mediation Agreement, the court set out
specific dates over the course of the next year for M.H. to have visitation with
S.A.M. Furthermore, the court noted if Father denied M.H. visitation with
S.A.M., “any and all law Enforcement Authorities shall be granted authority to
assist” in enforcing visitation. (Appellee’s App. Vol. II at 21.)
[10] On July 15, 2016, M.H. filed a second Affidavit for Citation and Motion to
Enforce Grandparent Visitation, alleging “[Father] and [Mother] had “holy
[sic] failed and refused to allow [M.H.] to exercise Grandparent Visitation with
[S.A.M.]” per the Mediation Agreement. (Appellant’s App. Vol. II at 28.)
M.H. requested a hearing and contemporaneously filed a “Request for
Custody” of S.A.M. (Id. at 26.) M.H. also requested the court appoint a
Guardian Ad Litem (“GAL”) for S.A.M. On July 26, 2016, the court
appointed a GAL.
[11] On July 29, 2016, attorney Cody Cogswell entered his appearance in this cause
on behalf of Father. That same day, Father filed a “Verified Petition to
Terminate Grandparent Visitation,” (id. at 32), alleging he was “not effectively
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represented at the time of the mediation or else he would have been advised to
not enter said ‘Mediated Agreement.’” (Id.) Additionally, Father alleged M.H.
lacked standing under the Grandparent Visitation Statute to bring petition for
visitation. On September 30, 2016, the court held a hearing. The court noted it
would take Father’s petition under advisement, ordered the parties to submit
briefing on the issue, and ordered the GAL to complete her report and
recommendations.
[12] A series of briefings, hearings, and continuances ensued between October 2016
and February 2017. On February 20, 2017, Father and Mother jointly filed an
“Agreed Entry Establishing Paternity” in Father, 2 (id. at 63), and Mother filed
an “Affidavit of [S.B.]” attesting Father “ha[d] been a wonderful Father to
[S.A.M.][,] and “it was [her] opinion that [M.H.] and [C.H.] ha[d]
detrimentally injured [S.A.M.] mentally and emotionally by stating that
[S.A.M.]’s Father was dead and that [Father] was not his Father.” (Id. at 66-
67.) On March 23, 2017, Father filed a “Petition to Dismiss Grandparent
Visitation, to Establish Paternity, Motion for Order on the Pleadings, and
Motion for Attorney Fees.” (Id. at 85.) Attached to the petition was a copy of
the paternity affidavit signed by Mother and Father the day S.A.M. was born at
Community Hospital in Anderson, Indiana.
2
As we will discuss in further detail below, paternity of S.A.M. Father’s paternity had already been
established as a matter of law.
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[13] On March 29, 2017, the GAL filed her report. The GAL noted it was “a very
difficult case” for her. (Id. at 113.) The GAL made the following
recommendations:
1) It is my recommendation that custody be continued with
[Father]. If this Court should decide to modify custody to
[M.H.] and [C.H.] then visitation should be put in place
between [S.A.M.] and [Father]. It will also be important to
allow [S.A.M.] to visit with his sibling, [M.X.M.]
2) [M.H.] should be entitled to visitation and make up time
should be afforded to him.
3) Mother should be ordered to have visitation as well.
4) That [S.A.M.] undergo a full mental health evaluation, and
that [Father] follow all recommendations. [Father] provide
[sic] this Court a copy of the mental health evaluation within
60 days of the date of the order.
5) The family engage in family counseling.
6) Through the help of a therapist, [S.A.M.] should be informed
about his biological father.
7) [Father] immediately apply for social security benefits for
[S.A.M.] and provide proof to the Court within 60 days from
the date of the order. If [Father] does not wish to use the
social security monies he should set up a savings account in
[S.A.M.]’s name.
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8) All parties refrain from making negative comments about
each other in the presence of the child and speaking about any
court matters.
9) [Father] be supportive before the visits with the grandparent,
[M.H.].
(Id. at 115.)
[14] The court held a hearing on April 7, 2017. Father, Mother, and M.H. were
present at the hearing. Father again raised the issue of M.H.’s standing, argued
the Mediation Agreement was void, and requested the court set aside that
Agreement. Father also submitted an affidavit for attorney fees. M.H. argued
both Father and Mother continued to violate the Mediation Agreement by
preventing M.H. from visiting with S.A.M. by “hiding” or not being home at
the designated times M.H. was supposed to pick up S.A.M. (Tr. at 17.)
Mother also spoke at the hearing and expressed her disapproval of S.A.M.
spending time with M.H. and C.H.
[15] The court denied Father’s motion to set aside the Mediation Agreement and
found M.H. had standing. The court stated:
[The] Court’s ultimate though [sic] ruling here today is that
paternity has been established with respect to [S.A.M.]. And that
has been established by the order of the Court and that is the
mediated agreement that was signed by the parties on March the
19th, 2014 and the way the Court has undertaken this analysis
is[,] um assuming this paternity affidavit is valid for purposes of
the Court’s analysis[,] this document that doesn’t appear
anywhere, in any Court documents that have been held here in
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Madison County concerning orders that have been issued over
the course of many years concerning S.A.M. Nowhere has
[Father] asserted . . . um requested to establish paternity over this
child by a petition filed with this Court until just recently. That
was filed under the 184 case. The Court again looking at the
record only finds one (1) order that exists with respect to the
paternity of the child and that paternity was agreed to by all
parties involved including [Father] and again that is the mediated
agreement in paragraph one (1) that the parties stipulate that
[B.H.] is the biological father of [S.A.M.] hereinafter [S.A.M.’s]
date of birth 5/8/2007. So the Court is of the opinion that that is
the order of the Court.
*****
And at this point that is the only order of the Court that the
Court finds that does establish paternity of this child and as a
result of that the Court also finds that the mediated agreement is
not to be set aside, that [M.H.] . .[sic] the Court also finds does
have standing to be involved in this case. He was allowed to
intervene in the paternity case that existed over there in the 253
case 3 um the Court finds that his standing isn’t necessarily via the
Grandparent Visitation statute. . . . But the Court does find
given the history of the case that [M.H.] does and has had a
relationship with the child and would be permitted under a third
party status to maintain custody rights or pursue custody or
potential custody rights of this child[.]
3
We take judicial notice under Indiana Rule of Evidence 201(2)(c) that in 2005, Mother filed a petition in
Cause Number 48C01-0507-JP-253 to establish Father’s paternity of M.X.M., Mother’s other child.
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(Tr. at 9-11.) The court ordered the parties to abide by the Mediation
Agreement, specifically emphasized the parties must follow the visitation
orders, and denied Father’s motion for attorney fees.
Discussion and Decision
[16] We first note Father’s claim the trial court failed to issue findings of fact and
conclusions of law in its order. 4 Despite our preference for written findings of
fact and conclusions of law, “a trial court’s failure to issue findings and
conclusions in written form, in and of itself, does not constitute reversible
error.” Nunn Law Office v. Rosenthal, 905 N.E.2d 513, 517 (Ind. Ct. App. 2009).
The plain language of Indiana Trial Rule 52(A) does not require that the
findings and conclusions be in writing. Id. The purpose of Rule 52(A) is “to
provide the parties and the reviewing court with the theory upon which the trial
judge decided the case in order that the right of review for error may be
effectively preserved.” Carmichael v. Siegel, 670 N.E.2d 890, 891 (Ind. 1996).
Oral findings and conclusions can achieve this purpose so long as they are
thoroughly detailed in the record. Rosenthal, 905 N.E.2d at 517.
4
M.H. argues the trial court’s April 7, 2017, order denying Father’s request to void the Mediation Agreement
is not a final order. Because the court’s order is enforcing the parties’ agreement as to custody, support, and
parenting time, it constitutes a final order. See In re Paternity of M.R.A., 41 N.E.3d 287, 294 (Ind. Ct. App.
2015) (finding, after paternity had been established, trial court’s order approving agreement between mother
and father regarding custody, parenting time, and child support for children constituted a final order).
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[17] Here, although the trial court did not make written findings of fact or
conclusions of law, the trial court’s oral findings at the April 7, 2017, hearing
are detailed in the record and provide us the theory upon which the trial judge
decided the case. “In reviewing findings made pursuant to Rule 52(A), we first
determine whether the evidence supports the findings and then whether the
findings support [the] judgment.” In re Paternity of M.R.A., 41 N.E.3d 287, 292
(Ind. Ct. App. 2015). We shall not set aside the findings or judgment unless
clearly erroneous. T.R. 52(A). “A judgment is clearly erroneous when there is
no evidence supporting the findings, when the findings fail to support the
judgment, or when the trial court applies the wrong legal standard to properly
found facts.” M.R.A., 41 N.E.3d at 293. “Although we give considerable
deference to trial courts in family law matters, ‘to the extent a ruling is based on
an error of law or is not supported by the evidence, it is reversible and the trial
court has no discretion to reach the wrong result.’” Id. (citing MacLafferty v.
MacLafferty, 829 N.E.2d 938, 941 (Ind. 2009)).
[18] Father argues M.H. lacked standing to have ever brought a paternity action as
S.A.M.’s next friend, and thus the Mediation Agreement was void ab initio.
Additionally, he argues the trial court abused its discretion in declining to
award him attorney fees.
1) Standing to File Paternity Action
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[19] Whether a party has standing is a question of law, which we review de novo.
J.R.W. ex rel. Jemerson v. Watterson, 877 N.E.2d 487, 490 (Ind. Ct. App. 2007).
We owe no deference to the trial court’s decision. Id.
[20] Under the Indiana Code, the following persons are permitted to bring a
paternity action:
(1) The mother or expectant mother.
(2) A man alleging that:
(A) he is the child’s biological father; or
(B) he is the expectant father of an unborn child.
(3) The mother and a man alleging that he is her child’s
biological father, filing jointly.
(4) The expectant mother and a man alleging that he is the
biological father of her unborn child, filing jointly.
(5) A child.
(6) The department or a county office of family and children
under section 3 of this chapter.
(7) The prosecuting attorney under section 2 of this chapter.
Ind. Code § 31-14-4-1 (2006).
[21] Regarding petitions by minors, the Indiana Code provides:
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A person less than eighteen (18) years of age may file a petition if
the person is competent except for the person’s age. A person
who is otherwise incompetent may file a petition through the
person’s guardian, guardian ad litem, or next friend.
Ind. Code § 31-14-5-2 (1997). “There is no statutory definition of ‘next friend.’”
R.J.S. v. Stockton, 886 N.E.2d 611, 614 (Ind. App. Ct. 2008).
[22] Here, as S.A.M.’s alleged paternal grandfather, M.H., does not fall under any
of the express categories of who may a petition to establish paternity under
Indiana Code section 31-14-4-1. Thus, M.H. sought to have standing to file the
paternity action as S.A.M.’s next friend. 5
[23] We addressed the issue of standing to bring a paternity action as the next friend
of a child in Jemerson. 877 N.E.2d at 490. The critical facts in Jemerson were:
[T]he sister of a child’s deceased mother filed a petition to
establish paternity of the child. The sister had been the child’s
guardian, but this court had ordered that the guardianship be
dissolved. Thereafter, the child was placed in the legal custody of
the mother’s former husband, who was not the child’s biological
father but who had executed a paternity affidavit for the child.
Additionally, the biological father had been identified through
genetic testing. After receiving the results of this test, the sister,
acting as the child’s next friend, filed a petition to establish
paternity of the child in the biological father. The ex-husband
5
A child may file a paternity action at any time before the child reaches twenty years of age. Ind. Code 31-
14-5-2(b) (1997). “Where an adult files a paternity action as a child’s next friend, this twenty-year time
limitation for filing such an action applies, and not the much shorter limitation periods that would apply if
the adult was filing on [sic] a paternity action on his or her own behalf.” R.J.S. v. Stockton, 886 N.E.2d 611,
614 n.2 (Ind. Ct. App. 2008).
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moved to dismiss the paternity petition, and the trial court
granted the motion.
Stockton, 886 N.E.2d at 615 (discussing Jemerson, 877 N.E.2d at 491-92). The
ex-husband, while not the biological father, had “dated [the mother] during her
pregnancy, married her when [the child] was only four months old, and lived
with him as a parent until he was five years old[,]” when the mother and ex-
husband divorced. Jemerson, 877 N.E.2d at 489.
[24] On appeal, we affirmed the trial court’s order dismissing the maternal aunt’s
paternity action, concluding the aunt lacked standing as the child’s next friend
to file the action. Id. at 492. After reviewing a long line of cases proffered by
the ex-husband, we declined to adopt the maternal aunt’s position that no
limitation existed as to who may act as a child’s next friend and, instead,
concluded “only parents, guardians, guardians ad litem, and prosecutors may
bring paternity actions as next friends of children.” Id. at 491. We also noted:
As a general rule, a next friend for an infant plaintiff is required
only when the infant is without a parent or general guardian,
since ordinarily it is the duty of the parent or general guardian of
an infant to institute and prosecute an action on behalf of the
infant for the protection of his rights.
Id. at 492 (citing 42 AM. JUR. 2D Infants § 158 (2000)). Thus, we concluded the
maternal aunt “[could] not reasonably argue [the child] was without a parent,”
id., and given the fact the ex-husband had acted as the child’s natural father for
most of the child’s life, we found “no persuasive grounds for treating [the ex-
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husband] as anything other than a natural parent.” Id. We concluded, because
the legal father and the biological father bore the duty of acting on behalf of the
child, no proper basis existed for the maternal aunt to have asserted standing as
the child’s next friend. Id.
[25] Similarly, in Stockton, we held alleged grandparents lacked standing as a child’s
next friend to file a petition in a paternity action where the child had a living
natural mother and two court-appointed guardians, his maternal grandparents.
866 N.E.2d at 616. There, the child’s mother, Amanda Stockton, represented
to the Mullens that their son, Ryan Mullen, was the child’s biological father.
Ryan had died a few months before R.J.S. was born. Amanda’s parents, the
Stocktons, were named as the child’s guardians. The Mullens filed a petition to
establish paternity of R.J.S., naming themselves as next friends of R.J.S., and
contemporaneously filed a petition for grandparent visitation. The Stocktons
filed a motion to dismiss the petition to establish paternity, claiming the
Mullens lacked standing. The trial court dismissed the petition with prejudice,
and the Mullens appealed.
[26] We affirmed the trial court’s dismissal of the Mullens’ paternity action, finding
support from Jemerson. We again rejected the notion that “there is no limit on
who may file a paternity petition as a child’s next friend,” id. at 615, and noted
“R.J.S. [had] a natural living mother and two court-appointed guardians, his
maternal grandparents.” Id. Because “[t]he law has entrusted safeguarding of
[R.J.S.’s] interests in those persons,” we reasoned, as we did in Jemerson, “[i]t
[was] up to those persons to decide whether to initiate a paternity proceeding on
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[R.J.S.’s] behalf.” Id. We thus concluded the Mullens could not “circumvent
the authority entrusted in R.J.S.’s natural and court-appointed guardians by
filing a paternity action as his next friend.” Id.
[27] While we acknowledged “the legislature has enacted modest measures to allow
grandparents to seek visitation with their grandchildren[,]” id., we noted “it has
not . . . seen fit to allow alleged grandparents to file paternity actions.” Id. We
thus concluded “allowing the Mullens to [have] proceed[ed] with a paternity
action as R.J.S.’s next friend would [have] circumvent[ed] what we presume[d]
to be the legislature’s deliberate choice not to include alleged grandparents as
persons who may file a paternity action.” Id.
[28] The rationale from Jemerson and Stockton applies here. Here, S.A.M.’s Mother
and Father 6 are both alive and share joint legal custody of S.A.M. The law has
entrusted safeguarding of S.A.M.’s interests to Mother and Father. It is their
duty to act in S.A.M.’s best interests, not M.H.’s. Therefore, just as in Stockton,
it is up to Mother and Father, as S.A.M.’s natural mother and legal father, to
decide whether to initiate a paternity proceeding for S.A.M. As we pointed out
6
Father has been the legal father of S.A.M. since S.A.M.’s birth because he executed a paternity affidavit the
day S.A.M. was born. See In re Paternity of H.H., 879 N.E.2d 1175, 1177 (Ind. Ct. App. 2008) (a man is a
child’s legal father if the man executed a paternity affidavit in accordance with I.C. § 16-37-2-2.1 and the
affidavit has not been rescinded or set aside pursuant to that same statute). To the extent the trial court found
Father had never established his paternity of S.A.M., that finding is clearly erroneous. (See Tr. at 10 (trial
court stating Father had never “requested to establish paternity . . . until recently”)); contra Ind. Code § 31-14-
2-1 (“A man’s paternity may only be established: (1) in an action under this article; or (2) by executing a
paternity affidavit in accordance with IC 16-37-2-2.1”). Father’s filing of a paternity petition as a last-ditch
effort to defend his interests in this action was unnecessary as the law has always recognized him as S.A.M.’s
legal father.
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in Stockton, the legislature made a decision to exclude alleged paternal
grandparents as persons who may file a paternity action. Therefore, the trial
court had no authority to allow M.H. to do so here.
[29] It appears from the record, that, despite the law, the trial court arrived at its
decision based on what it perceived as “the truth” regarding the biological
parentage of S.A.M. (Tr. at 21.) The trial court stated:
[T]he Court is troubled by the fact that um that everyone also
understands what the reality is and knows what the truth is in
this case. And while the legal issues certainly are important um
and they matter, certainly the Court hopes everyone also
understands what the reality is and um [S.A.M.] doesn’t live in a
legal dictionary or a case law book. He’s a real little boy.
(Id. at 21-22.) While the parties may have, at some point, agreed B.H. was the
biological father of S.A.M., we note B.H. is no longer alive, B.H. never
attempted to establish paternity to S.A.M., and there is no evidence B.H. had a
relationship with S.A.M. when he was alive. S.A.M. is now ten years old, and
Father is the only father S.A.M. has ever known. Father has acted as S.A.M.’s
natural father all of S.A.M.’s life and S.A.M. refers to Father as “Dad.” Thus,
despite the “reality” of who S.A.M.’s biological father may be, we find no
persuasive reason to treat Father as anything other than S.A.M.’s natural father.
See Jemerson, 877 N.E.2d at 492 (there were no persuasive grounds for treating
mother’s ex-husband as anything other than child’s natural father where the ex-
husband married mother when child was four months old and lived with him as
a parent until he was five years old). To do so would not be in the best interests
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of S.A.M., Father, or this State. 7 See In re Paternity of H.H., 879 N.E.2d 1175,
1178 (Ind. Ct. App. 2008) (where legal father signed paternity affidavit knowing
he was not the biological father of child, setting aside his status as child’s legal
father many years later was not in the best interest of child, legal father, or the
State).
2) The Mediation Agreement
[30] Father also argues the Mediation Agreement he entered with M.H. is void ab
initio because M.H. lacked standing to file a petition to establish paternity. We
agree.
[31] The term void ab initio means “void from the beginning” and “denotes an act or
action that never had any legal existence at all because of some infirmity in the
action or process.” Trook v. Lafayette Bank & Tr. Co., 581 N.E.2d 941, 944 (Ind.
Ct. App. 1991), trans. denied. “‘Void ab initio’ has essentially the same meaning
as ‘void.’” Id. “[A] void judgment is subject to direct or collateral attack at any
time.” M.S. v. C.S., 938 N.E.2d 278, 284 (Ind. Ct. App. 2010).
[A]n order is “void” only when the action or subject matter it
describes is of no effect whatsoever, and is incapable of
confirmation or ratification.” “Voidable,” however, describes an
action or subject matter which nonetheless operates to
7
We note the GAL’s report indicating S.A.M. is not “emotionally equipped,” (Appellant’s App. Vol. II at
107), to be “placed in the middle” of the hostile relationship between Father and M.H. (Id. at 108.)
Additionally, at the hearing, the trial court encouraged the parties to seek the professional help of a therapist
or counselor to assist S.A.M. in processing the family dynamics he was experiencing at a young age.
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accomplish the thing sough to be accomplished, until the fatal
flaw is judicially ascertained and declared.
Id. (internal citations omitted). When a defect is merely “in form” or a
“procedural irregularity, which is capable of being cured,” it is merely voidable.
Id. “An order is void where the trial court lacks the authority to act.” Kitchen v.
Kitchen, 953 N.E.2d 646, 651 (Ind. Ct. App. 2011).
[32] Here, the trial court lacked authority to order the parties into mediation because
M.H. lacked standing bring the paternity action. Because a lack of standing
cannot be cured, the trial court’s order for the parties to conduct mediation, the
resulting Mediation Agreement granting visitation rights to M.H., and the trial
court’s order approving the agreement, are void. See Kitchen, 953 N.E.2d at 651
(where maternal aunt and uncle lacked standing to petition for visitation with
child, trial court lacked authority to grant visitation to them, and thus order
granting visitation was void).
[33] M.H.’s argument in favor of enforcing the Mediation Agreement is essentially a
public policy argument for favoring contracts. However, a “contract made in
violation of statute is void and unenforceable.” Lee v. State, 816 N.E.2d 35, 38
(Ind. 2004). M.H. never had the legal right to file a paternity action or seek
Grandparent visitation rights. The fact that Father and Mother initially
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agreed—however gratuitously—to allow M.H. and C.H. visitation is not a basis
for enforcing an otherwise void agreement. 8
3) Attorney Fees
[34] We review a trial court’s decision to award or deny attorney fees for an abuse of
discretion. M.R.A., 41 N.E.3d at 296. “An abuse of discretion occurs when the
trial court’s decision is clearly against the logic and effect of the facts and
circumstances before the court or if the court has misinterpreted the law.”
G.G.B.W. v. S.W., 80 N.E.3d 264, 272 (Ind. Ct. App. 2017).
[35] The court in a paternity action may order a party to pay:
(1) a reasonable amount for the cost to the other party of
maintaining an action under this article; and
(2) a reasonable amount for attorney’s fees, including
amounts for legal services provided and costs incurred,
before the commencement of the proceedings or after entry
of judgment.
Ind. Code § 31-14-18-2 (2006). “In making such an award, the trial court must
consider the resources of the parties, their economic condition, the ability of the
parties to engage in gainful employment and to earn adequate income, and such
8
We can speculate Father and Mother’s initial willingness to cooperate with M.H. in this case was because
the parties had a reportedly close relationship with each other for many years. The GAL’s report described
Father and B.H. as having been “best friends since the age of nine[,]” (Appellant’s App. Vol. II at 105), and
described the parties as having had “a long history with each other and regarded each other as family for a
long period of time.” (Id. at 106.)
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factors that bear on the reasonableness of the award.” M.R.A., 41 N.E.3d at
296. “The trial court may also consider any misconduct by one party that
causes the other party to directly incur additional fees.” Id. “When one party is
in a superior position to pay fees over the other party, an award of attorney fees
is proper.” G.G.B.W., 80 N.E.3d at 272.
[36] The trial court denied Father’s request M.H. pay his attorney fees, but made no
findings in support thereof. We note M.H. filed this action in July 2013, over
four years ago. In that time, Father has been forced to obtain a public defender
and two different private attorneys to defend his interests as S.A.M.’s legal
father in this action. In light of the fact this case has been allowed to proceed
for over four years without M.H. having ever had standing, we remand this
case to the trial court to make a determination as to the proper amount of
attorney fees M.H. should pay Father. See In re Paternity McGuire-Byers, 892
N.E.2d 187, 194 (Ind. Ct. App. 2008) (award of appellee’s attorney fees was
proper in paternity action where all of appellate court’s conclusions were in
favor of appellee), trans. denied.
Conclusion
[37] M.H. lacked standing as S.A.M.’s next friend to file a petition to establish
paternity of S.A.M., and the trial court acted without authority in ordering the
parties to conduct mediation. Because the trial court acted without authority
when it ordered the parties to conduct mediation, the Mediation Agreement is
void ab initio. We vacate the trial court’s March 19, 2014, order enforcing the
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Mediation Agreement and remand this cause so the trial court may decide a
reasonable amount of attorney fees to award to Father.
[38] Reversed and remanded.
Barnes, J., and Bradford, J., concur.
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