Dorsey v. Dorsey

• Court: Indiana Appellate Court
• Writing for the Court: HOFFMAN; GARRARD, P. J., and STATON
• Citation: Dorsey v. Dorsey, 409 N.E.2d 1233 (Ind. App. 1980)
• Decision Date: 24 September 1980
• Docket Number: No. 3-579A130,3-579A130
• Parties: Candice DORSEY, Appellant (Petitioner Below), v. Tommie DORSEY, Appellee (Respondent Below).

Page 1233

409 N.E.2d 1233

Candice DORSEY, Appellant (Petitioner Below), v. Tommie DORSEY, Appellee (Respondent Below).

No. 3-579A130.

Court of Appeals of Indiana, Third District.

Sept. 24, 1980.

Steven P. Kennedy, Munster, for appellant.

Judith A. Levy, Singleton, Levy & Crist, Highland, for appellee.

HOFFMAN, Judge.

Appellant Candice Dorsey appeals from the final decree of a dissolution proceeding. The following issues are raised for review:

(1) whether the trial court lacked jurisdiction to determine the paternity of appellant's illegitimate son;

(2) whether the trial court abused its discretion in determining the paternity of appellant's illegitimate son; and

(3) whether the trial court abused its discretion in ordering support obligations and visitation rights for the husband.

On March 2, 1978 Candice Dorsey filed a petition for dissolution of marriage against Tommie Dorsey. The parties thereafter reconciled briefly. On September 29, 1978, however, Candice filed an amended petition for dissolution of marriage. Both petitions stated that there were no children of the marriage. Final hearing on the matter was held on November 3, 1978.

At the final hearing Candice testified on direct examination that she had a four-year-old son who was born before her marriage to Tommie. On cross-examination Candice acknowledged that Tommie was the father of the child. The child, however, did not bear the father's name and Candice did not want paternity established. Tommie also testified that the child was his.

The trial court declared Tommie the father of the child and ordered the birth certificate records changed, giving the child the name Dorsey. The court also granted Tommie visitation rights and ordered him to pay support in the amount of $70 per pay period.

Appellant first contends that the trial court lacked jurisdiction to determine paternity and abused its discretion in making the determination. Candice cites A.______ B.______ v. C.______ D.______ (1971), 150 Ind.App. 535, 277 N.E.2d 599, for the proposition that before paternity may ever be established, there must be first, a request to do so, and, secondly, a joinder of all affected parties, including the child. That case, however, was concerned with inheritance rights of the child and rebuttal of the presumption that a child born to a married woman is the legitimate child of the husband. A.______ B.______ v. C.______ D.______, supra, is thus inapposite under the circumstances of the present case.

At the time the divorce proceedings were filed, IC 1971, 33-12-2-3 (Burns Code Ed.) vested exclusive original jurisdiction to determine paternity in the juvenile courts. These courts, however, were abolished in Lake County by IC 1971, 33-5-29.5-22 and the jurisdiction over paternity cases was given to the Superior Court of Lake County pursuant to IC 1971, 33-5-29.5-4. Therefore, the trial court had subject matter jurisdiction to establish paternity.

Furthermore, the trial court did not abuse its discretion in determining paternity. A court in dissolution proceedings has jurisdiction to award custody of children as well as to determine support obligations and visitation rights. See IC 1971, 31-1-11.5-21 (1979 Burns Supp.); IC 1971, 31-1-11.5-12 and IC 1971, 31-1-11.5-24. This is true even though a child may be illegitimate. IC 1971, 31-1-11.5-2 defines child for the purposes of dissolution as meaning "a child or children of both parties to the marriage and includes children born out of wedlock to such parties as well as children born or adopted during the marriage of such parties." The fact that the child was not listed in the petitions for dissolution is irrelevant because the evidence at the final hearing was uncontroverted that Candice had a child and that Tommie was the father of that child. Once the court became aware that there was a child of the parties, it had a duty to provide for custody, support and visitation pursuant to the dissolution statutes. This could only be done, however, after a determination of paternity had been made.

An argument similar to that raised by Candice was advanced in Toller v. Toller (1978), Ind.App., 375 N.E.2d 263. In that case a child was born illegitimately and the father subsequently married the mother. Paternity, however, had never been established. During the divorce proceedings the evidence was uncontroverted that the husband was the father. The husband subsequently appealed a support order arguing that the court lacked jurisdiction to establish paternity and abused its discretion in so doing. The Court, however, affirmed the trial court, holding that when the evidence showed that both parties considered themselves the natural parents of the child, no genuine issue as to paternity was raised and it was proper for the court to enter a support order. The court had jurisdiction to enter such an order despite the...