Eytchison v. Burgess, 48A02-9108-CV-327

• Decision Date: 26 November 1991
• Docket Number: No. 48A02-9108-CV-327,48A02-9108-CV-327
• Parties: In re the Marriage of Warren S. EYTCHISON, Appellant-Petitioner, v. Marcia K. (Eytchison) BURGESS, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 976

581 N.E.2d 976

In re the Marriage of Warren S. EYTCHISON, Appellant-Petitioner, v. Marcia K. (Eytchison) BURGESS, Appellee-Respondent.

No. 48A02-9108-CV-327.

Court of Appeals of Indiana Third District.

Nov. 26, 1991.

Jon R. Pactor, Indianapolis, for appellant-petitioner.

Mitchell P. Chabraja, Anderson, for appellee-respondent.

HOFFMAN, Judge.

Appellant-petitioner Warren S. Eytchison appeals the trial court's grant of appellee-respondent Marcia K. Burgess's motion to dismiss.

The facts relevant to this appeal disclose that on May 8, 1986, the Madison Superior Court, Division Three, dissolved the marriage of Marcia and Warren Eytchison. The court found that there were three children born of the marriage: Mary Eva, Warren Steven, and Donna Pearl. Marcia Burgess (formerly Eytchison) was awarded custody, and Warren Eytchison was ordered to pay child support and granted visitation rights.

On June 19, 1990, Warren filed a petition to determine legitimacy in the Madison Superior Court, Division Two. He brought his petition under IND.CODE Sec. 31-1-11.5-5, but later amended his petition on July 10, 1990, substituting IND.CODE Sec. 31-7-8-3 for IND.CODE Sec. 31-1-11.5-5. Marcia filed her motion to dismiss on July 11, 1990.

The petition to determine legitimacy was transferred from Madison Superior Court, Division Two, to Madison Superior Court, Division Three, under the cause number of the dissolution action. The trial court then held a hearing on Marcia's motion to dismiss on April 4, 1991. On April 9, 1991, the trial court dismissed Warren's petition finding that the petition "is not specific as required by 31-7-8-3 of the Indiana Code." The court also found that "laches would bar the determination of legitimacy at this time."

Two issues raised by Warren are dispositive of this appeal:

(1) whether the trial court erred in dismissing the petition; and

(2) whether a new hearing should be granted due to the incompetency of Warren's trial counsel.

Warren brought his petition to determine legitimacy under IND.CODE Sec. 31-7-8-3 (1988 Ed.). This statute is contained in Article 7 of Title 31 which governs marriage. Chapter 8 of this article pertains to the legitimacy of children to a marriage. This particular statute deals with persons "interested in establishing whether a child was born in wedlock." Although this is the statute under which Warren brings his petition, clearly this does not govern the relief for which Warren is requesting. Warren appears not to be requesting the court to decide whether the children were born in wedlock but to establish paternity. This issue was previously determined by the trial court in the dissolution action for which the trial court entered a final decree stating that "there were three (3) children born of the marriage, namely Mary Eva Jean Eytchison, Warren Steven Eytchison, Jr., and Donna Pearl Eytchison." At no time during the pendency of the dissolution of marriage petition did Warren ever raise a question of paternity. Therefore, the trial court established Warren as the father of the children in the final decree. Warren cannot now collaterally attack this finding. Brownsing v. Brownsing (1987), Ind.App., 512 N.E.2d 878. Since Warren failed to state a claim for which relief could be granted, the trial court did not err in dismissing the petition.

This Court notes that even if Warren had actually been requesting the court to determine whether the children were born in wedlock, Warren did not comply with the statute in filing his petition. The statute requires the petitioner to "set forth the facts concerning the child's birth" in the petition. IND.CODE Sec. 31-7-8-3(a). Warren did not specify any facts surrounding the birth of any of his children.

Warren likens his case to Fairrow v. Fairrow (1990), Ind., 559 N.E.2d 597. In Fairrow, the husband discovered that he was not the father of the child eleven years after the dissolution decree had been rendered ordering him to pay child support. However, Fairrow did not attempt to collaterally attack the judgment. Fairrow filed an Ind. Trial Rule 60(B)(8) motion alleging that he had discovered conclusive medical evidence that he could not be the child's father. Between ten and eleven years after the dissolution decree had been rendered, the child began to show symptons of sickle cell anemia. At that time, Fairrow was tested...