Farmer v. Minor

• Decision Date: 24 July 1986
• Docket Number: No. 1-1285A319,1-1285A319
• Citation: 495 N.E.2d 553
• Parties: Timothy W. FARMER, Defendant-Appellant, v. Janice M. MINOR, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 553

495 N.E.2d 553

Timothy W. FARMER, Defendant-Appellant, v. Janice M. MINOR, Plaintiff-Appellee.

No. 1-1285A319.

Court of Appeals of Indiana First District.

July 24, 1986.

Rehearing Denied Aug. 29, 1986.

Ronald Warrum, Evansville, for defendant-appellant.

Katharine Vanost Jones, Evansville, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Timothy Farmer appeals the trial court's paternity order. We affirm in part and remand in part.

FACTS

Janice Minor is the mother of a child born out of wedlock on August 27, 1975. Farmer is the admitted father of the child. There is evidence in the record showing that Farmer paid some minimal support in 1975 and 1976. Farmer did not pay any support during the years 1977 through 1983. In 1984, Farmer paid approximately $500. In early 1985, he paid about $150 in support. On February 27, 1985, the mother filed a Petition to Establish Paternity. The Juvenile Division of the Vanderburgh Superior Court held that Farmer was the father of the illegitimate child and ordered him to pay $53 per week as child support. In addition, the court found past due child support after credit for all payments in the amount of $12,000.00 but took the matter under advisement.

ISSUES

Farmer raises four issues, which are subsumed in the following:

1. Whether the trial court erred in holding that the action was not barred by the statute of limitations?

2. Whether the trial court erred in its finding of past due child support?

3. Whether the trial court erred in its award of weekly child support?

DISCUSSION AND DECISION

Issue One

Farmer contends that the mother's paternity suit should have been barred by the statute of limitations. We disagree.

Farmer correctly cites Indiana Code section 31-6-6.1-6 as the controlling legislation but he misinterprets its provisions which follow:

"[T]he mother, ... must file an action within two (2) years after the child is born, unless:

* * *

(2) Support has been furnished by the alleged father or by a person acting on his behalf, either voluntarily, or under an agreement with:

(A) The mother;

(B) A person acting on the mother's behalf; or

(C) A person acting on the child's behalf;

* * *

A petition must be filed within two years after any of the above conditions ceases to exist."

Farmer asks us to construe Ind.Code Sec. 31-6-6.1-6(a)(2) as a bar to the mother's suit since he stopped paying support in 1975 and did not make any additional payments until 1984. He opines that this seven year lapse extinguished the mother's cause of action. We do not find Farmer's reasoning or authority persuasive.

A plain reading of the statute supports the mother's position. Farmer paid support in the amounts of $500 and $150 in 1984 and 1985 respectively. The mother filed suit in 1985 which is within the two year period as required by Ind.Code Sec. 31-6-6.1-6(a)(2). Farmer's seven year lapse in paying support from 1977 through 1983 is irrelevant. Farmer apparently would have us read the statute as construing his discontinued support in 1975 and subsequent failure to pay support for more than two years as a bar to the mother's suit. However, statutes must be given the ordinary and plain meaning of the words used. State ex rel. Katherine Hamilton Mental Health Center v. Clay County (1985), Ind.App., 474 N.E.2d 127, trans. denied. " 'If the language used in the statute is clear and unambiguous, the court may not substitute language which it feels the legislature may have intended.' " State ex rel. Southern Hills Mental Health Center, Inc. v. Dubois County (1983), Ind.App., 446 N.E.2d 996, 1001, quoting, Brighton v. Schoffstall (1980), Ind.App., 401 N.E.2d 84, 86. Upon a plain reading of the statute at issue, we find that the mother of an illegitimate child may file a paternity suit against the alleged father if he paid support within two years prior to the suit, despite his previous discontinuation of support for a period exceeding two years. We find ample Indiana case law to support our interpretation.

In Sullivan v. O'Sullivan (1959), 130 Ind.App. 142, 162 N.E.2d 315, our court upheld a mother's paternity suit brought after the child's second birthday. The child was born on April 1, 1950. On January 22, 1955, the alleged father of the child paid the mother about four dollars ($4.00), some of which was used as child support. On October 10, 1955, the mother filed a petition to establish paternity and for the child's support. The trial court established paternity and ordered the father to pay weekly support. On appeal, the father, inter alia, alleged that the suit should have been barred by the two year statute of limitations provided by the current statute's predecessor. Our court upheld the trial court. "[T]he undisputed evidence affirmatively shows that this proceeding was brought within two years after the last furnishing of support to the child." Id. at 149, 162 N.E.2d at 319.

In D.E.F. v. E.M. (1977), 173 Ind.App. 274, 363 N.E.2d 1030, our court again upheld a paternity suit brought more than two years after the child's birth. On September 18, 1970, the child was born. The alleged father paid support until June, 1972. On March 8, 1974, the mother filed suit. Judge Robertson, writing for the court, held that the two year statute of limitations was avoided since less than two years lapsed between the suit and the support payment in 1972. Id. at 279, 363 N.E.2d at 1033.

Four years later, our court addressed a case most analagous to the one under consideration. In H.W.K. v. M.A.G. (1981), Ind.App., 426 N.E.2d 129, the child was born on September 2, 1974. The mother brought a maternity action on January 30, 1980. There was evidence at trial that during the two year period prior to the suit, the alleged father had paid $40 for support. Judge Shields, writing for the court, held that the action was not barred since the "father had furnished support within two years prior to the date the action was initiated." Id. at 135.

Generally, the party pleading the statute of limitations has the burden of proving the suit was initiated beyond the statutory time. D.E.F. v. E.M., at 277, 363 N.E.2d at 1032. However, a party who relies on facts in avoidance of the statute of limitations assumes the burden of proving those facts. Sullivan v. O'Sullivan, at 148, 162 N.E.2d at 318. We hold that Janice Minor, the mother, has satisfied her burden of proof. The father of the child paid approximately $650 in support during 1984 through 1985. The mother's paternity action in February of 1985 is therefore within two years after "[s]upport has been furnished by the alleged father ... voluntarily...." Ind.Code Sec. 31-6-6.1-6(a)(2).

Issue Two

In Indiana, it is axiomatic that a father has a common law duty to support his legitimate children. ¹ As our court stated in Denning v. Star Publishing Co. (1932), 94 Ind.App. 300, 307-08, 180 N.E. 685, 687:

"The duty of a father to provide for the maintenance of his minor children is a principle of natural law. The obligation of progenitors to support their offspring is universally acknowledged. To discharge this duty is a primal instinct of human nature. The duty is imposed by law at least as early as at the birth of a child and continues thereafter until legally terminated." (Emphasis added.)

See also Taylor v. Taylor (1982), Ind., 436 N.E.2d 56, 59 ("[W]e have long recognized the common law duty and obligation of a father to assist in the support of his minor children.").

This duty to support has been statutorily imposed in Indiana on parents for children born out of wedlock for well over 100 years. ² 2 R.S. 1852, ch. 3, Sec. 14, p. 488 stated: "If such jury find that the defendant is the father of such [illegitimate] child ... he shall be adjudged the father of such child, and stand charged with the maintenance and education thereof." (Emphasis added.) See also 1941 Ind. Acts, ch. 112, Sec. 2 (repealed by Acts 1978, P.L. 136, Sec. 57, effective October 1, 1979). ³ The current statutory duty is imposed at Ind.Code Sec. 31-6-6.1-13. ⁴ We recently discussed the present statutory framework in In Re M.D.H. (1982), Ind.App., 437 N.E.2d 119, trans. denied.

"Current statutory provisions relating to support orders for legitimate and illegitimate children are virtually identical. Compare Ind.Code Sec. 31-1-11.5-12 with Ind.Code Sec. 31-6-6.1-13. See also Goins v. Lott, 435 N.E.2d 1002 (Ind.App.1982). Indiana also makes it a criminal offense for a person knowingly or intentionally to fail to provide support to his dependent child, without distinction as to whether that child is legitimate or illegitimate. See Ind.Code Sec. 35-46-1-5(a). ... [A] parent's obligation to support his minor child, legitimate or illegitimate, is a basic tenet recognized in this state by statutes that provide civil and criminal sanctions against parents who neglect such duty...." (Footnotes omitted.)

Id. at 126-27. Thus, Timothy Minor had a statutory duty to provide support for his daughter who was born out of wedlock.

In Indiana, child support for an illegitimate child in a paternity suit can include prospective payments and past due or back payments. Our court justified a trial court's order for back support in B.G.L. v. C.L.S. (1977), 175 Ind.App. 132, 369 N.E.2d 1105:

"[The father] further insists that the legal proceeding is for the benefit of the child; any amounts recovered for the period of time prior to date of judgment would amount to reimbursement for the benefit of the mother rather than for the benefit of the child.

"IC 1971, 31-4-1-3, [the predecessor of Indiana Code section 31-6-6.1-13], specifically provides that '[t]he mother may recover from the father a reasonable share of the necessary support and care of the child....' When a mother, in the past, has alone shouldered the financial burden of caring for the child even though such responsibility properly is to be shared by both parents of a child born out of wedlock, a mother should...