H. W. K. v. M. A. G.

• Decision Date: 30 September 1981
• Docket Number: No. 2-481A123,2-481A123
• Citation: 426 N.E.2d 129
• Parties: H. W. K., Appellant (Defendant Below), v. M. A. G., Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 129

426 N.E.2d 129

H. W. K., Appellant (Defendant Below), v. M. A. G., Appellee (Plaintiff Below).

No. 2-481A123.

Court of Appeals of Indiana, Second District.

Sept. 30, 1981.

Mary Ann Wunder, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

H.W.K. (father) appeals a decision in a paternity action declaring him the father of a child born to M.A.G. (mother). Father presents the following issues:

1) whether there was sufficient evidence to sustain the judgment of the trial court;

2) whether the action was barred by the statute of limitations;

3) whether he was denied a fair trial.

We affirm.

M.A.G. is the mother of a child conceived December 1973 and born September 2, 1974. At the time of conception M.A.G. was living with H.W.K., although the court found she was still married to her estranged husband. A paternity action was brought by the mother January 30, 1980. In a trial before the court H.W.K. was declared father of the child and ordered to pay support and $726 for prenatal and postnatal expenses incurred by mother.

Father's argument that the evidence is insufficient to sustain the trial court's judgment is twofold. He first contends the evidence was insufficient to rebut the presumption of legitimacy. He argues the record is devoid of clear and convincing evidence mother's estranged husband was absent or did not have access to the mother at the time of conception.

A child conceived during marriage is presumed legitimate. L.F.R. v. R.A.R., (1978) 269 Ind. 97, 378 N.E.2d 855. The presumption is one of the strongest known to the law and may only be rebutted by direct, clear, and convincing evidence. R.D.S. v. S.L.S., (1980) Ind.App., 402 N.E.2d 30. Nevertheless, the courts have developed several logical exceptions which are sufficient to meet this high standard and overcome the presumption of legitimacy. In Phillips v. State ex rel. Hathcock, (1925) 82 Ind.App. 356, 360, 145 N.E. 895, it was stated:

"(T)he presumption could be overcome by proof that the husband was impotent; or that he was entirely absent so as to have had no access to the mother; or was entirely absent at the time the child in the course of nature must have been begotten; or was present only under such circumstances as to afford clear and satisfactory proof that there was no sexual intercourse."

Sterility has been added to the exceptions. Whitman v. Whitman, (1966) 140 Ind.App. 289, 215 N.E.2d 689.

In determining whether the trial court could find the presumption was overcome by direct, clear, and convincing evidence, this court will not reweigh the evidence. We consider the evidence most favorable to the prevailing party together with all reasonable inferences to be drawn therefrom. If we then find evidence of probative value to sustain the judgment, we will not disturb it. Glass v. Leland Smith Insurance Agency, Inc., (1981) Ind.App., 414 N.E.2d 977.

The record discloses the child was born September 2, 1974 and conceived in December 1973. At this time mother was dating and engaging in sexual intercourse with father on an exclusive basis and, in fact, the two had lived together since mid-1973. Mother had ceased sexual relations with her estranged husband in 1970.

However, because the evidence in this case essentially came from the mother and father, we must examine a line of cases which recite the proposition that statements and admissions made by the parties standing alone are insufficient to rebut the presumption of legitimacy. L.F.R. v. R.A.R., (1978) 269 Ind. 97, 378 N.E.2d 855; Buchanan v. Buchanan, (1971) 256 Ind. 119, 267 N.E.2d 155.

In L.F.R. the parties were married at conception but divorced thereafter. However, unlike the present case where mother testified she exclusively dated and engaged in sexual intercourse with father during the crucial period, the mother in L.F.R. testified she had intercourse with the husband around the time the child was conceived. Husband denied intercourse but admitted access. In addition, there was testimony by witnesses who stated the parties had slept together while on a trip around the critical period when conception occurred. Accordingly, the presumption of legitimacy was preserved.

In Buchanan, a divorce proceeding, wife contended husband was not the father of a child born seven months after their marriage. Husband also denied he was the father, but further testified he had access to and sexual intercourse with wife for approximately one year prior to the marriage which included the time period of conception.

In both L.F.R. and Buchanan the parties did not dispute husband's access to wife during the time of conception. In Buchanan, husband denied he was the father, claiming sterility without scientific evidence. In L.F.R., husband denied sexual intercourse in the face of conflicting evidence on the question. Thus, while both Buchanan and L.F.R. recite the principle that statements and admissions of the parties are insufficient to rebut the presumption of legitimacy, we find the principle is factually limited to situations where there is evidence the husband had access to the mother during the period of conception. In the present case, however, mother's uncontroverted testimony indicated husband was entirely absent or present only under circumstances affording proof there were no sexual relations. In a case such as this, the statements of the parties are sufficient to rebut the presumption of legitimacy.

The remaining case cited by father is distinguishable from the case at bar. In Miller v. Robertson, (1970) 147 Ind.App. 68, 258 N.E.2d 420, the mother testified that from November 20, 1964 until the date of divorce she exclusively dated the alleged father. The court concluded, however, by the laws of nature it was quite possible conception occurred prior to November 20. It thus held the mother failed to sustain her burden of establishing by direct, clear, and convincing evidence that her estranged husband had no access to her at the time conception likely occurred.

Thus, the evidence shows M.A.G.'s estranged husband did not have meaningful access to her at the critical time. Such evidence was direct and clear, and qualitatively sufficient to rebut the presumption of legitimacy which inures to a child conceived during marriage.

Father next contends the evidence as a whole is insufficient to sustain the judgment of the trial court that he was the father of the child. Paternity actions are civil proceedings and the alleged father must be proved to be such by a preponderance of the evidence. Beaman v. Hedrick, (1970) 146 Ind.App. 404, 225 N.E.2d 828. In the present case there was probative testimony that at the time of conception mother was exclusively dating and engaging in sexual intercourse with father. The testimony of the mother regarding an act of sexual intercourse with the putative father, coupled with the probability of conception at such time, is sufficient to support the trial court's determination that he is the father of the child. D.M. v. C.H., (1978) Ind.App., 380 N.E.2d 1269. In addition, mother testified H.W.K. admitted he was the father of the child on several occasions. Accordingly, we find the evidence sufficiently supported the determination of paternity.

Father also asserts there was insufficient evidence to sustain the trial court's judgment of $726 for prenatal and postnatal expenses. This alleged error was not sufficiently specified in father's motion to correct error and is waived. Ind. Rules of Trial Procedure, Trial Rule 59(A)(4) and (D)(2).

Father next contends the action for determination of paternity was not brought within the time prescribed by the statute of limitations. As a general rule, a paternity action must be commenced within two years after the birth of the child. I.C. 31-6-6.1-6(a) (Burns Code Ed., Repl.1980). There are, however, exceptions to this rule. At the time of the petition I.C. 31-6-6.1-6(a)(2) provided:

"(a) The mother or a man alleging to be the child's father must file an action within two (2) years after the child is born, unless:

....

"(2) the alleged father has substantially fulfilled his obligation as a parent during the period between the child's conception and the date of filing:

....

"A person other than the child must file a petition within two (2) years after any of the above conditions ceases to exist, except that he may not file a petition after the child reaches eighteen (18) years of age." (Emphasis supplied.)

Subsequent to the filing of the petition, our legislature amended I.C. 31-6-6.1-6(a)(2) to provide an action will not be barred where a petition has been filed within two years after:

"support has been furnished by the alleged father or by a person acting on his behalf, either voluntarily, or under an agreement ..." (Emphasis supplied.)

In the instant case the paternity action was brought after the child's second birthday. Mother in her petition averred father had "voluntarily contributed to the support" of the child within the past two years. As a general rule, the party pleading the statute of limitations has the burden of proving the action was initiated beyond the statutory time permitted after the cause of action accrued. D.E.F. v. E.M., (1977) 173 Ind.App. 274, 363 N.E.2d 1030. However, a party relying on facts in avoidance of the statute of limitations assumes the burden of proving such facts. Sullivan v. O'Sullivan, (1959) 130 Ind.App. 142, 162 N.E.2d 315. Father asserts the phrase "substantially fulfilled his parental obligation" contemplates a greater quantum of evidence than does the term "support" and therefore mother failed to sustain her burden.

We concur with father that as a general principle the statute of limitations in force at the time the petition is filed will govern. Walsh v. Halteman, (1980) Ind.App., 403 N.E.2d 894. We do not, however, agree the utilization of the phrase ...