D. R. S. v. R. S. H.

• Decision Date: 02 December 1980
• Docket Number: No. 2-979A272,2-979A272
• Citation: 412 N.E.2d 1257
• Parties: D. R. S., Appellant (Plaintiff Below), v. R. S. H., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1257

412 N.E.2d 1257

D. R. S., Appellant (Plaintiff Below), v. R. S. H., Appellee (Defendant Below).

No. 2-979A272.

Court of Appeals of Indiana, Second District.

Dec. 2, 1980.

Michael T. Conway, Indianapolis, for appellant.

Charles V. Traylor, Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Plaintiff D.R.S. appeals from a judgment in an action on a Voluntary Petition to Establish Paternity of Child and Provide for Its Support requiring her child to bear the surname of his biological father, claiming that the order was contrary to law, unsupported by the evidence, and an abuse of discretion.

We affirm.

FACTS

D.R.S. is the unwed mother of a one-year-old child, J. Ten days after J.'s birth, D.R.S. and the biological father, R.S.H., jointly filed a Voluntary Petition to Establish Paternity.

At the hearing, the parties stipulated that R.S.H. was the child's father and that he would pay child support of twenty-five dollars per week. The parties asked the court to allocate medical expenses associated with the child's birth, to establish visitation rights for the non-custodial father, and to determine whether J. should retain his mother's maiden name or take the surname of his father.

After the trial judge indicated that he would be inclined to reduce support payments if the name were not changed, D.R.S. testified that she would forego all support if J. retained her surname. She maintained that because she has no plans to marry and would retain her maiden name even if she were to marry, there would be no potential for confusing J. She also testified that J.'s retention of her name would promote consistency because J. would be living with her.

R.S.H. testified that he had paid some support since J.'s birth and that he would be willing to pay one-half of the medical expenses already incurred along with one-half of all future medical bills not covered by insurance. ¹ He stated that he wished to have J. bear his surname.

The court ordered that R.S.H. pay twenty-five dollars per week as support, that he have visitation rights, that the parties split the costs of the action and medical expenses, and that J. subsequently be known by his father's surname.

ISSUE

D.R.S. raises one issue:

Was the court's order changing the child's surname contrary to law, against the evidence, or an abuse of discretion?

DECISION

PARTIES' CONTENTIONS-D.R.S. contends that the court's action was erroneous because the law provides that an illegitimate child is to carry the mother's name, and there was no evidence to support a change of name. Hence, she maintains that the court abused its discretion in ordering the change. R.S.H. responds that the law vests the court in a paternity action with the power to effect such a change.

CONCLUSION -The court's action in changing the child's name was neither contrary to law, against the evidence, nor an abuse of discretion.

D.R.S. leans heavily on certain Indiana statutes as preventing the trial judge from requiring J. to bear the name of his father. There is no Indiana case law on this precise point.

Her main reliance is on Ind.Code § 31-4-1-8, ² which deals with the court's powers in a paternity proceeding. That section of the law simply authorizes the parents of a child born out of wedlock to file a voluntary joint petition requesting that the court establish the child's paternity and make provision for its support. The court, after conducting a hearing, is to "make a finding and enter judgment and make an order in accordance therewith." Id. Ind.Code § 31-4-1-19, ³ covering the order in a paternity action, provides that "(i)f the verdict or finding be against the defendant, the court shall enter a judgment against him, and make an order which shall make adequate provision for the support of the child, taking into consideration the needs of the child and the ability of the defendant to pay." D.R.S. argues that because the law on paternity actions is silent with respect to judicial discretion in general and name changes in particular, the legislature did not intend to authorize changing the child's name in paternity proceedings. In short, she interprets these sections as an exclusive statement of the court's powers in a paternity action, namely, to determine the issues of paternity and support.

D.R.S. construes other Indiana statutes as not permitting name changes in paternity actions. Ind.Code § 16-1-16-15 (1976), covering vital statistics, specifies that "(a) child born illegitimate shall be recorded under the name of the mother" (emphasis supplied). Other sections of the law authorize a change of surname and birth record for an illegitimate child following its parents' marriage. ⁴ These statutes, she says, taken together, amount to a legislative directive that an illegitimate child may assume the paternal surname only if its parents marry.

We decline to give the statutes the restrictive interpretation which D.R.S. proposes. ⁵ It is true that neither Ind.Code § 31-4-1-8, which creates and prescribes the mode of proceeding in a paternity action, nor Ind.Code § 31-4-1-19, which describes the order to be entered in such an action, authorizes a change in the child's name. It is equally true, however, that neither provision proscribes changing the child's name in the context of a paternity proceeding. Those sections of the law which authorize a change of name and birth record after the parents of an illegitimate child marry do not purport to make marriage a condition precedent to changing the name or to provide the exclusive method for appending the unwed father's surname to the child. The use of the word "recorded" in Ind.Code § 16-1-16-15 (1976), which requires that an illegitimate child be recorded under its mother's name, refers only to the filing of a birth certificate with the local health officers: While this statute may be viewed as supporting the position that an illegitimate child traditionally takes its mother's name at birth, it does not implicitly or explicitly prohibit a subsequent judicial determination that the child's surname should be changed to that of its father. It seems to be designed to reach those situations in which only the mother is involved.

Having determined that no Indiana statute expressly forbids ordering a name change in a paternity proceeding, we turn to a discussion of the nature and purposes of the action to establish paternity in Indiana.

At common law, an illegitimate child was filius nullius, the son of no one, or filius populi, the son of the people. Truelove v. Truelove (1909), 172 Ind. 441, 86 N.E. 1018, 88 N.E. 516; Jackson v. Hocke (1908), 171 Ind. 371, 84 N.E. 830. See also 10 Am.Jur.2d Bastards § 8 (1963). The child had no legally recognized father or mother and, therefore, no legal rights. Apparently, custom did not dictate the name by which an illegitimate child would be known; the child bore the name gained by reputation in the community. People v. Gray (1911), 251 Ill. 431, 96 N.E. 268.

Today, the rights of illegitimate children are prescribed by statutes which mitigate the harshness of the common law. In Indiana, for instance, a child born out of wedlock is automatically treated as the legitimate child of its mother for purposes of inheritance; the child is treated as the legitimate child of its father with reference to the laws of inheritance if the child's paternity has been established by law during the father's lifetime or if the putative father marries the mother and acknowledges the child as his own. Ind.Code § 29-1-2-7 (1976).

In creating the action to establish paternity of an illegitimate child and compel the father to contribute to its support, the legislature again sought to soften the rigors of the common law. The primary purpose of a paternity action, according to our supreme court, is to secure the support and education of the illegitimate child. Nott v. Bender (1964), 246 Ind. 186, 202 N.E.2d 745; State ex rel. Beaven v. Marion Juvenile Court (1962), 243 Ind. 209, 184 N.E.2d 20. A subsidiary goal of the action is to protect the public interest by preventing the illegitimate child from becoming a ward of the state. J.E.G. v. C.J.E. (1977), Ind.App., 360 N.E.2d 1030. See generally 10 Am.Jur.2d Bastards § 75 (1963). In Opp v. Davis (1961), 133 Ind.App. 365, 179 N.E.2d 298, 180 N.E.2d 788, we observed that the statute was designed for the "protection and welfare of guiltless children." Id. at 370, 179 N.E.2d at 300. And in Sullivan v. O'Sullivan (1959), 130 Ind.App. 142, 162 N.E.2d 315, we recognized the underlying purpose of the statute to be

to provide proper legal procedures to enable such children to have the proper care, maintenance, education, protection, support and opportunities, the same as children born in wedlock, and to establish the necessary legal procedure to enforce such rights and privileges for such children.... Thus, it is apparent that any action brought under the "children born out of wedlock" act is solely for the benefit of such children.

Id. at 146, 162 N.E.2d at 317.

In some states, the principal purpose of a paternity action is to impose criminal liability on the unwed father. ⁶ In Indiana however, the action is designed to assure the support of the illegitimate child rather than to vindicate public justice. Proceedings to establish paternity are civil in nature and are governed by the rules of procedure applicable to civil actions. O. Q. v. L. R. (1975), 164 Ind.App. 227, 328 N.E.2d 233; In re Atterbury (1973), 155 Ind.App. 566, 293 N.E.2d 522.

In view of the civil nature and protective purpose of the action to establish paternity in Indiana, it is reasonable to conclude that the legislative intent has not been to penalize the unwed father. The fact that the statute authorizes the putative father and mother to join in initiating an action in which the father may establish his natural parentage and voluntarily assume his parental duties militates against the notion that...