Goins v. Lott

• Decision Date: 26 May 1982
• Docket Number: No. 2-681A189,2-681A189
• Parties: Evelyn GOINS, Mother of Eric Duane Goins, a Minor, Plaintiff-Appellant, v. Joyce Ann LOTT, Mother of Craig Ezell Lott, a Minor, Plaintiff-Appellee, and Youngstown Sheet & Tube Company, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 1002

435 N.E.2d 1002

Evelyn GOINS, Mother of Eric Duane Goins, a Minor, Plaintiff-Appellant, v. Joyce Ann LOTT, Mother of Craig Ezell Lott, a Minor Plaintiff-Appellee and Youngstown Sheet & Tube Company, Defendant-Appellee.

No. 2-681A189.

Court of Appeals of Indiana, Fourth District.

May 26, 1982.

Harry A. Psimos, Merrillville, for plaintiff-appellant.

Jill L. Olson, Theodoros, Anderson & Tauber, P. C., Merrillville, for defendant-appellee.

MILLER, Presiding Judge.

This appeal addresses the question of whether an acknowledged illegitimate child, whose paternity was never established by court action, is entitled to dependency benefits under the Workmen's Compensation Act (Act). Evelyn Goins, the mother of Eric Duane Goins, (the legitimate child) and Joyce Ann Lott, the mother of Craig Ezell Lott, (the acknowledged illegitimate child) both filed claims on behalf of their minor children for dependency benefits under the Workmen's Compensation Act, Ind.Code 22-3-1-1 et seq., after an industrial accident resulted in the death of Ezell Goins. Eric was born during the marriage of Evelyn and Ezell Goins. Craig was Joyce's illegitimate child and was allegedly acknowledged by Ezell as his biological son. The Industrial Board of Indiana awarded benefits to both children under the presumptive dependency statute of the Workmen's Compensation Act. Evelyn appeals the Board's decision alleging it was without authority to award Craig benefits as an acknowledged illegitimate child in the absence of a judgment of paternity from the appropriate court. We affirm.

FACTS

On December 28, 1979 Ezell Goins died as a result of an industrial accident while employed by Youngstown Sheet and Tube Company. ¹ Shortly thereafter both Evelyn and Joyce filed applications for dependency benefits under the Workmen's Compensation Act, IC 22-3-3-19. Evelyn Goins alleged that her son, Eric, was the sole dependent of the decedent.

A hearing was held before a member of the Industrial Board on June 17, 1980. On December 19, 1980, at the conclusion of the hearing, the hearing member entered the following findings which were affirmed and adopted by a majority of the Full Industrial Board on May 5, 1981:

"FINDINGS

Said Hearing Member, having heard all the evidence in said cause, the stipulation It is further found that ERIC DUANE GOINS is the legitimate child of decedent, EZELL GOINS, and he meets all the requirements of I.C. 22-3-3-19(d), of the Compensation Act for classification as a presumptive dependent.

of the parties, and having reviewed the entire file and being duly advised in the premises therein, now adopts the stipulation as the Board's findings. ²

It is further found that CRAIG EZELL LOTT is the illegitimate child of the decedent, EZELL GOINS; that EZELL GOINS acknowledged that CRAIG EZELL LOTT was his illegitimate child during his lifetime; and further acknowledged that CRAIG EZELL LOTT was his son on the beneficiary form for the decedent's life insurance policy with the Defendant; that as an acknowledged illegitimate child, CRAIG EZELL LOTT meets all of the requirements of I.C. 22-3-3-19(d), of the Compensation Act for classification as a presumptive dependent.

It is further found that ERIC DUANE GOINS and CRAIG EZELL LOTT are the sole dependents of the decedent, EZELL GOINS, and that the statutory compensation in the amount of Sixty-Five Thousand Dollars ($65,000.00) shall be paid in equal shares to the respective mothers as natural guardians without the intervention of the appointment of a legal guardian or trustee so long as said minor children remain dependents as contemplated by the Workmen's Compensation Act of the State of Indiana.

It is further found that the undersigned Hearing Member now finds for both Plaintiffs and against the Defendant on Plaintiffs' Application No. 10 for the adjustment of claim for compensation."

Evelyn thereafter initiated this appeal.

The evidence most favorable to the Board's decision is as follows. Evelyn and Ezell Goins were married on September 8, 1972, and divorced on August 19, 1975. Eric was born to the parties on December 5, 1972, during their marriage. Custody of the child upon divorce was awarded to Evelyn and Ezell was ordered to pay child support.

Joyce Lott met the decedent, Ezell, in February of 1975. Approximately three weeks after their initial meeting the parties began engaging in sexual intercourse averaging two or three times a week during the period of February through November of 1975. ³ Joyce did not have intercourse with any other person during that period of time. In approximately June of 1975 Joyce became pregnant and that child, Craig, was born on February 26, 1976. Craig lived with his mother Joyce at all times. Joyce testified that the father of that child was Ezell. She also testified that Ezell regularly provided support for Craig in the form of food, clothing, toys and money from the period of March 1977 to December 1979, the date of Ezell's death, although the parties stopped dating sometime in 1977. Specifically Ezell paid her $25 to $50 every two weeks from March of 1977 until his death in December of 1979. She also testified that Ezell visited Craig, took him places and bought him presents two or three times a month until Ezell died. Throughout this period Joyce was receiving ADC payments and advised the welfare department that Ezell was the father of her child although she denied that she had received any support from Ezell.

Joyce's testimony was substantially corroborated by several witnesses. Castella Edwards, the first cousin of the decedent, testified Ezell told her Joyce was pregnant with his child and later introduced Craig to her as his son. She also testified that about once a month until his death Ezell left money with her for her to give to Joyce and specified it was for Craig. She recalled Ezell would buy presents for Craig on traditional occasions such as Christmas and his birthday.

Julia Ricks, Ezell's finance at the time of his death, also testified that Ezell repeatedly acknowledged Craig was his son beginning in April of 1977. Julia testified that approximately once or twice each month Ezell would bring Craig to stay with Julia and Ezell for the weekend at their home. Julia also indicated that according to Ezell he paid approximately $50 to $100 for Craig's care once or twice a month up to and including the month of his death. Julia would occasionally take Craig shopping with money given to her by Ezell for that purpose.

The Supervisor of Workmen's Compensation at Ezell's place of employment stated that according to his records Ezell's insurance policy designated two beneficiaries, Eric Goins and "Craig Goins," ⁴ which Ezell therein characterized as his "sons."

DECISION

At the outset we note that, in addition to the very substantial evidence of Ezell's acknowledgement of Craig as his son, the record also reveals sufficient evidence to support factual (biological) paternity. In Indiana an act of sexual intercourse between the defendant and the mother coupled with a probability of conception at that time is sufficient to support a determination of paternity. For example in D.M. v. C.H., (1978) Ind.App., 380 N.E.2d 1269 the evidence revealed the child was born on September 1, 1969 and that the mother had regular sexual intercourse with the putative father in October, November and December of 1968 and January and February of 1969. Such evidence was held sufficient to support a determination of paternity. See also Roe v. Doe, (1972) 154 Ind.App. 203, 289 N.E.2d 528. In the instant case the evidence is uncontradicted that Joyce had sexual intercourse solely with Ezell during the pertinent period. Although Evelyn's recitation of the facts in her brief focus on minimally conflicting evidence, it is well settled that on review we cannot weigh the evidence or determine the credibility of witnesses but will only consider that evidence which supports the decision of the Board. Martinez v. Taylor Forge & Pipe Works, (1977) 174 Ind.App. 514, 368 N.E.2d 1176; Hilltop Concrete Corp. v. Roach, (1977) 174 Ind.App. 100, 366 N.E.2d 218. Applying this standard of review to the evidence in this case, we must conclude the finding that Craig was Ezell's biological and acknowledged son is not reasonably open to question, assuming the Board was empowered to so find without a prior judgment of paternity.

On appeal, Evelyn's entire argument is designed solely to question the authority of the Industrial Board of Indiana under the Workmen's Compensation Act to determine whether a child is an acknowledged illegitimate and thereby entitled to benefits. Specifically, the Industrial Board's award determined that Craig Ezell Lott was a presumptive dependent under IC 22-3-3-19 which provides as follows:

"The following persons are conclusively presumed to be wholly dependent for support upon a deceased employee and shall constitute the class known as presumptive dependents in section 18 of this chapter:

(a) A wife upon a husband with whom she is living at the time of his death, or upon whom the laws of the state impose the obligation of her support at such time. The term 'wife' as used in this subsection shall exclude a common law wife unless such common law relationship was entered into before January 1, 1958, and in addition thereto, shall have existed openly and notoriously for a period of not less than five (5) years immediately preceding the death.

(b) A husband who is both physically and financially incapable of self-support, upon his wife with whom he is living at the time of her death. The term 'husband' as used in this subsection shall exclude a common law husband unless such common law relationship was entered into before January 1, 1958, and in addition thereto, shall have existed openly and notoriously for a period of not less than five (5) years immediately preceding the death.

(c) An unmarried child under the age of eighteen (18) years...