In the Matter of the Paternity of A.D., State of Indiana Ex. Rel., E.M.W. v. J.M.D. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the Aug 04 2015, 9:39 am
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT
Gregory F. Zoeller
Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Paternity of August 4, 2015
A.D. Court of Appeals Cause No.
71A03-1502-JP-58
State of Indiana Ex. Rel. Appeal from the St. Joseph
Probate Court
E.M.W., The Honorable James N. Fox,
Appellant, Judge
The Honorable Aric J.
v. Rutkowski, Magistrate
Trial Court Cause No. 71J01-
J.M.D., 0105-JP-394
Appellee,
Bradford, Judge.
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Case Summary
[1] A.D. was born out-of-wedlock to Appellant Eva M. Williams (“Mother”) and
Appellee James M. Dawning (“Father”) on March 28, 2000. Because Mother
was under age at the time of A.D.’s birth, A.D.’s maternal grandmother, Zola
Harris, was appointed to be A.D.’s guardian. Approximately one year after
A.D.’s birth, Appellant the State of Indiana (the “State”) filed a petition to
establish paternity. The trial court issued an order conclusively establishing
Father’s paternity of A.D. and ordering Father to pay child support.
[2] On July 8, 2014, the trial court found Father in contempt for being in arrears on
his child support obligation. Father subsequently filed a motion requesting that
the court re-calculate Father’s child support arrearage and to vacate the
contempt finding. Following a number of hearings, the trial court issued an
order vacating the prior order establishing Father’s paternity of A.D. The State
filed a motion to correct error, which was subsequently denied by the trial
court.
[3] On appeal, the State contends that the trial court abused its discretion in
denying its motion to correct error. Concluding that the trial court abused its
discretion in denying the State’s motion, we reverse the trial court’s orders
denying the State’s motion to correct error and vacating the trial court’s prior
order establishing paternity and remand to the trial court with instructions.
Facts and Procedural History
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[4] A.D. was born on March 28, 2000. At the time of A.D.’s birth, Mother was
seventeen years old and still living with her Mother. Father signed a paternity
affidavit at the time of A.D.’s birth. Harris was named A.D.’s guardian shortly
after A.D.’s birth because Mother was underage at the time of A.D.’s birth.
Nothing in the record indicates that the guardianship order awarded Harris sole
physical custody of A.D. or ordered that Harris should be the recipient of funds
paid pursuant to any potential future child support obligation relating to A.D.1
Mother and A.D. continued to reside with Harris while Mother was “under-
age.” 7/8/2014 p. 10.
[5] A little more than one year after A.D.’s birth, the State filed a petition to
establish Father’s paternity of A.D. About the time the paternity proceedings
were filed, Mother and A.D. moved out of Harris’s home. During a July 3,
2001 hearing on the State’s petition to establish paternity, Father admitted that
he was A.D.’s biological Father. At the conclusion of the July 3, 2001 hearing,
the trial court issued an order conclusively establishing Father’s paternity of
A.D. In addition to conclusively establishing paternity, the trial court’s July 3,
2001 order also provided (1) that Mother was awarded custody of A.D., (2) that
1
Harris filed a motion for child support on November 22, 2000, but soon thereafter withdrew
her motion. She has not made any subsequent requests for child support.
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Father was entitled to parenting time with A.D., and (3) that Father was
ordered to pay child support in the amount of $42.00 per week.
[6] On July 8, 2014, the trial court found that Father was $25,945.50 in arrears of
his child support obligation. The trial court also found Father in contempt for
failing to pay child support. The trial court, however, deferred sentencing on its
contempt finding.
[7] On August 6, 2014, Father filed a motion requesting that the trial court re-
calculate his arrearage and vacate the contempt finding. In filing this motion,
Father claimed that he should not have been found in contempt for failing to
pay his child support to Mother because A.D. actually lived with Harris. The
trial court conducted hearings on September 19 and September 29, 2014, in
order to obtain more information about the guardianship and where A.D. lived.
[8] During these hearings, the trial court heard evidence indicating that despite the
fact that A.D. resided with Mother after A.D. and Mother moved out of
Harris’s home in or around 2001, neither Mother nor Harris ever petitioned to
terminate the guardianship order. The trial court also heard evidence that A.D.
began splitting his time between Harris’s residence and Mother’s residence
when he was approximately eight years old. Harris’s residence and Mother’s
residence were located within close proximity and A.D. was free to go between
the two residences as a matter of convenience. This arrangement continued as
of the date of the September 29, 2014 hearing, with Harris, Mother, and A.D.
all indicating that they believe that A.D. resides at both Mother’s and Harris’s
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homes. During the September 29, 2014 hearing, Harris indicated that the
ongoing nature of the guardianship was not due to the fact that she felt the
guardianship was still needed. Specifically, Harris indicated that the
guardianship was never terminated or changed because it simply “never came
up to being a problem.” 9/29/2014 Tr. p. 13. Harris also reiterated during the
September 29, 2014 hearing that neither Mother nor Father had ever paid her
child support relating to A.D.
[9] On December 9, 2014, the trial court issued an order vacating the July 3, 2001
order establishing Father’s paternity of A.D. Approximately eight days later,
the State filed a motion to correct error. The trial court issued an order denying
the State’s motion to correct error on January 28, 2015. This appeal follows.
Discussion and Decision
[10] On appeal, the State contends that the trial court abused its discretion in
denying its motion to correct error.
I. Standard of Review
[11] A trial court has broad discretion when granting or denying a motion
to correct error. Dughaish ex rel. Dughaish v. Cobb, 729 N.E.2d 159, 167
(Ind. Ct. App. 2000), trans. denied 753 N.E.2d 2 (Ind. 2001). We will
reverse its decision only for an abuse of that discretion. Id. An abuse
of discretion occurs if the trial court’s decision was against the logic
and effect of the facts and circumstances, or reasonable inferences
therefrom, that were before the court, or if the trial court’s decision “is
without reason or is based upon impermissible reasons or
considerations.” Id.Court of Appeals of Indiana | Memorandum Opinion 71A03-1502-JP-58 | August 4, 2015 Page 5 of 12
However, when an appellee fails to submit a brief, our standard of
review is relaxed because we will not assume the responsibility of
developing arguments for the appellee. In re Paternity of B.D.D., 779
N.E.2d 9, 13 (Ind. Ct. App. 2002). We do not apply the typical
standard of review. Id. Instead, we review the trial court’s decision for
“prima facie error.” Id. Prima facie, in this context, means at first glance
or on the face of it. Id.White v. White, 796 N.E.2d 377, 379 (Ind. Ct. App. 2003) (emphases in
original). Thus, because the appellee has failed to submit a brief on appeal, we
consequently review the trial court’s denial of the State’s motion to correct error
for prima facie error.
II. Analysis
A. Questions Relating to Validity of the July 3, 2001
Paternity Determination
[12] Indiana Code section 31-14-1-1 explicitly provides that the General Assembly
“favors the public policy of establishing paternity” of a child born out of
wedlock. A paternity affidavit executed under Indiana Code section 16-37-2-
2.1 establishes paternity and gives rise to parental rights and responsibilities.
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Ind. Code § 16-37-2-2.1(j).2 In the instant matter, the parties’ testimony
indicates that Father executed a paternity affidavit in accordance with Indiana
Code section 16-37-2-2.1. Mother and Father both testified during the hearing
conducted on July 3, 2001, that Father signed a paternity affidavit at the time of
A.D.’s birth. Nothing in the record indicates that this paternity affidavit has
been rescinded or set aside.
[13] Indiana Code section 31-14-7-3 (2001), which went into effect after Father
signed the paternity affidavit but before the trial court issued its order
establishing Father’s paternity, provides that a man is a child’s legal father if the
man executed a paternity affidavit in accordance with Indiana Code section 16-
37-2-2.1 and the paternity affidavit has not been rescinded or set aside under
said section. Further, we have previously held that the provisions of Title 31,
Article 14 provide the means to establish paternity, not to disestablish it. See In
re Paternity of H.J.B., 829 N.E.2d 157, 160 (Ind. Ct. App. 2005). In reaching this
holding, we noted that if we were to hold otherwise, “our courts could create a
2
We observe that Indiana Code section 16-37-2-2.1 has been amended since the time of A.D.’s
birth. At the time of A.D.’s birth, the above-cited language could be found at Indiana Code
section 16-37-2-2.1(g) rather than Indiana Code section 16-37-2-2.1(j).
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‘filius nullius,’[3] which is exactly what paternity statutes were created to avoid.”
See id. (internal citation omitted). We further noted that being declared a “filius
nullius” would undoubtedly carry with it countless detrimental financial and
emotional effects. Id. (citation omitted).
[14] A little over one year after A.D. was born, the State filed a petition to establish
paternity. Indiana Code section 31-14-5-6 provides that “[t]he child, the child’s
mother, and each person alleged to be the father are necessary parties” to a
paternity action. In accordance with Indiana Code section 31-14-5-6, A.D.,
Mother, and Father were listed as parties to the paternity action. Again, during
the July 3, 2001 hearing on the State’s petition, both Mother and Father
testified that Father had signed a paternity affidavit at the time of A.D.’s birth.
Mother and Father also admitted before the court that Father was A.D.’s
biological father. Following the conclusion of the July 3, 2001 hearing, the trial
court issued an order conclusively establishing that Father was the biological
father of A.D.
[15] Given the fact that both Mother and Father repeatedly asserted that Father was
A.D.’s biological father coupled with the General Assembly’s stated public
3
The term “filius nullius” is defined as the “son of nobody.” See generally, In re Paternity of
Infant T., 991 N.E.2d 596, 600 (Ind. Ct. App. 2013).
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policy interest in establishing paternity, we conclude that the trial court’s July 3
2001 order, which conclusively established Father’s paternity, was valid. It
would be both emotionally harmful to A.D. and contrary to the public policy
interests of this State to allow the trial court to come back approximately
thirteen years later and vacate this conclusive paternity determination. We
therefore conclude that the State has made a prima facie case demonstrating that
the trial court abused its discretion in vacating the approximately thirteen-year-
old paternity determination and in denying the State’s resulting motion to
correct error.
B. Trial Court’s Reliance on Our Prior Decision in White v.
White Is Misplaced
[16] Furthermore, we conclude that the trial court’s reliance on our prior opinion in
White is misplaced. Again, on December 9, 2014, the trial court issued an order
vacating its prior July 3, 2001 paternity order. In vacating the prior court order
establishing paternity and subsequently denying the State’s motion to correct
error, the trial court relied on this court’s prior opinion in White for the
proposition that Harris was entitled to receive notice of the underlying paternity
proceedings.
[17] In White, we were faced with the question of whether a court-appointed
guardian who had custody of the child at issue and was the court-appointed
recipient of child support payments made in relation to the child was entitled to
notice of a motion for a change of custody and for the termination of a parent’s
child support obligation. 796 N.E.2d at 378-81. Under the facts presented in
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that case, we concluded that the child’s court-appointed guardian was entitled
to receive notice of the motion for a change of custody and for the termination
of father’s child support obligation. White, 796 N.E.2d at 383. However, we
believe that the situation at hand can easily be distinguished from our opinion
in White.
[18] Review of the record demonstrates that unlike the situation presented in White,
while Harris was appointed by the trial court to be A.D.’s guardian, nothing in
the record indicates that the trial court ever awarded Harris physical custody of
A.D. or ordered that Harris should be the recipient of funds paid pursuant to
any potential future child support obligation. Thus, the instant matter does not
present a situation where a child’s custodian or the recipient of child support
was not notified of a request for a custody change or the termination of one’s
obligation to pay child support. Rather, the instant appeal presents the question
of whether a non-custodial guardian is entitled to notice of a paternity
determination. In light of the statutory authority setting forth who is a
necessary party to a paternity action, we believe the answer is no. As such, we
find that the trial court improperly relied on our prior opinion in White.
[19] In addition, we fail to understand how lack of notification to Harris should in
anyway relieve Father of his legal obligation to support A.D.
C. Additional Considerations
[20] Indiana code section 31-16-16-6 provides that a trial court “may not
retroactively modify an obligor’s duty to pay a delinquent [child] support
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payment.” Stated differently, once the funds have accrued to a child’s benefit
under a court order, the trial court may not annul them in a subsequent
proceeding. See generally Nill v. Martin, 686 N.E.2d 116, 118 (Ind. 1997)
(providing that a corollary to the rule that a custodial parent may not contract
away a child support obligation is the rule that “once funds have accrued to a
child’s benefit under a court order, the court may not annul them in a
subsequent proceeding”). If we were to affirm the trial court’s denial of the
State’s motion to correct error, we would effectively be allowing the trial court
to retroactively annul child support funds that had accrued for A.D.’s benefit.
In light of the plain language of Indiana Code section 31-16-16-6 and the
Indiana Supreme Court’s opinion in Nill, it clearly would be error for us to do
so.
Conclusion
[21] In sum, we conclude that the trial court abused its discretion in vacating the
July 3, 2001 order establishing paternity and in denying the State’s resulting
motion to correct error. Instructing the trial court to keep in mind the plain
language of Indiana Code section 31-16-16-6 and the Indiana Supreme Court’s
opinion in Nill, we remand the instant matter to the trial court for an order on
Father’s motion to re-calculate his arrearage and to vacate the contempt
finding.
[22] The judgment of the trial court is reversed and the matter remanded with
instructions for further proceedings.
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May, J., and Crone, J., concur.
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