In re Paternity of TMY

• Citation: 725 N.E.2d 997
• Decision Date: 31 March 2000
• Docket Number: No. 61A01-9909-JV-311.,61A01-9909-JV-311.
• Parties: In re The PATERNITY OF T.M.Y. Kevin Nickels, Appellant-Respondent, v. Kimberly YORK, Appellee-Petitioner.
• Court: Court of Appeals of Indiana

725 N.E.2d 997

In re The PATERNITY OF T.M.Y.

Kevin Nickels, Appellant-Respondent, v. Kimberly YORK, Appellee-Petitioner.

No. 61A01-9909-JV-311.

Court of Appeals of Indiana.

March 31, 2000.

James B. Organ, Organ Law Offices, Terre Haute, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Michael McLaughlin, Deputy Attorney General of Indiana, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

MATTINGLY, Judge

Kevin Nickels appeals the trial court's refusal to set aside a judgment of paternity entered in 1982. He raises three issues for our review that we restate as:

1. Whether the 1982 paternity judgment is void for want of personal jurisdiction;

2. Whether the 1982 paternity judgment is void because it was entered without the court first appointing counsel for Nickels pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940;¹ and

3. Whether the trial court erroneously denied, in violation of his constitutional right to due process, Nickels' request for genetic testing as part of discovery in his motion to set aside the paternity judgment.

Additionally, Nickels appeals the trial court's arrearage determination and income withholding order made in a proceeding supplemental to the original paternity suit and asserts the trial court abused its discretion in ordering the arrearage despite finding Nickels was not in contempt for failing to pay child support.²

Affirmed.

FACTS AND PROCEDURAL HISTORY

On January 13, 1982, Kimberly York filed a petition to establish paternity for her son T.M.Y. born April 7, 1980. Her petition alleged Kevin Nickels was the child's father and sought to establish a child support order for T.M.Y.'s care and maintenance. At the time York filed her petition, Nickels was in the military and stationed in Bremerton, Washington. The court was aware of Nickels' military service.

Copies of the summons and notice to appear for the paternity hearing on April 5, 1982 were sent to Nickels at his military base in Washington. Nickels failed to appear at the hearing and the court heard testimony from York concerning paternity of T.M.Y. The court did not appoint counsel for Nickels.

As evidence of Nickels' paternity, York testified she had sexual intercourse with Nickels approximately five times during T.M.Y.'s probable month of conception, and that she did not have intercourse with any other men during the two months preceding or following the probable month of conception. She further testified Nickels had acknowledged to family and friends T.M.Y. was his son and had requested the opportunity to take T.M.Y. to "meet his grandmother." (R. at 16.) After hearing this evidence, the court found Nickels to be T.M.Y.'s father and ordered him to pay $25.00 per week toward T.M.Y.'s care and maintenance. A certified copy of the court's order was sent to Nickels in Washington.

Shortly after the court's order, Nickels began paying child support and continued to pay support from June 28, 1982 until October 29, 1984 when the payments stopped. During this same period, Nickels' wife wrote the trial court disputing its April 5, 1982 finding that Nickels was the father of York's child. On August 15, 1983, the trial judge wrote a reply to Nickels' wife in which he explained the paternity judgment and advised her to seek legal assistance if she had any further questions.

On February 11, 1998, York petitioned the court to find Nickels in contempt for willfully refusing to pay child support for over thirteen years. On November 12, 1998, the day of the contempt hearing, Nickels filed a motion to set aside the 1982 judgment and requested DNA paternity testing. Nickels' motion was denied by the trial court on December 8, 1998. At a contempt hearing on August 26, 1999, the trial court found Nickels had not willfully and intentionally violated the court's order of support. It did, however, find Nickels to have amassed an arrearage of $19,956.00 and ordered him to pay, in addition to his $25.00 weekly support, an arrears of $35.00 by income withholding.

DISCUSSION AND DECISION

Nickels' ultimate objective is for this court to vacate both the 1982 paternity judgment and 1999 arrearage order and remand the case so that genetic paternity testing can be completed. We first discuss Nickels' arguments concerning the validity of the 1982 paternity judgment and then discuss the propriety of the trial court's 1999 arrearage order.

A. 1982 Paternity Judgment

Nickels makes three arguments against the validity of the 1982 paternity judgment. First, he argues the judgment is void because the court was without personal jurisdiction when it entered the 1982 judgment. Next, Nickels argues the judgment is void because it was entered in violation of his right to counsel as guaranteed by the Soldiers' and Sailors' Act. Last, he argues his right to due process was violated when the trial court denied his request for genetic paternity testing as part of discovery in conjunction with his motion to set aside the default judgment.

1. Personal Jurisdiction

Before an Indiana court can exercise jurisdiction over a nonresident,³ a plaintiff must satisfy both the Indiana long-arm statute, Ind. Trial Rule 4.4, and due process. The Due Process Clause of the Fourteenth Amendment requires that certain minimum contacts exist between a nonresident defendant and a plaintiff before personal jurisdiction is proper. Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind.1998) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) and International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Trial Rule 4.4 grants Indiana courts personal jurisdiction to the maximum extent allowed by the constitution. A judgment rendered by a State without sufficient contacts is void as offending traditional notions of fair play and substantial justice. Id.

Nickels argues the 1982 paternity judgment is void because the trial court lacked evidence of the necessary minimum contacts needed to satisfy the Due Process Clause of the Fourteenth Amendment.⁴ He correctly acknowledges that sexual intercourse leading to conception is a sufficient contact in a paternity suit to confer personal jurisdiction by satisfying both T.R. 4.4 and due process. Neill v. Ridner, 153 Ind.App. 149, 153, 286 N.E.2d 427, 429 (1972). The thrust of his argument, however, is that while the Record establishes the fact that sexual intercourse between the parties took place somewhere, it does not specifically state the location of that intercourse leading to conception. He argues since intercourse leading to conception is the only link between Nickels and Indiana, the deficiency in the Record on this point voids the judgment. We disagree.

We believe there is sufficient evidence in the Record from which the trial court could have inferred personal jurisdiction over Nickels. York testified she lived in Indiana both at the time T.M.Y. was born and two years later at the time of the paternity hearing. When asked about her relationship with Nickels, she stated "he come over every day for about two weeks." (R. at 17.) Based on this, the trial court could have inferred that sexual intercourse leading to conception took place in Indiana.

However, we need not decide whether the evidence was sufficient to support this inference as Nickels has waived this argument on appeal by failing to properly raise it before the trial court. Additionally, he is estopped from making this argument as he voluntarily submitted to the jurisdiction of the court by paying on the child support order for over two years.

Relevant to this discussion is our supreme court's personal jurisdiction holding in Stidham v. Whelchel. Stidham involved an attack on the validity of a default paternity judgment made seventeen years after the judgment was rendered. The defaulted, non-resident party moved under T.R. 60(B)(6) to set aside the judgment as void for lack of personal jurisdiction. The trial court denied the defaulted party's motion holding that it had not been brought within a "reasonable time" as required by Rule 60(B). Reversing, our supreme court held "a judgment that is void for lack of personal jurisdiction may be collaterally attacked at any time and that the `reasonable time' limitation under Rule 60(B)(6) means no time limit." Id. at 1156 (citing Person v. Person, 563 N.E.2d 161, 163 (Ind.Ct.App. 1990)).

While holding judgments rendered without personal jurisdiction are void and therefore nullities at inception, the court went on to suggest that such judgments could nonetheless be ratified by the person over whom there must be jurisdiction (i.e., the defendant). It held: "A court simply has no power over persons who have no contact with their territory, unless and until there is a response or an appearance and the lack of personal jurisdiction is not protested," id. at 1155 (emphasis added), and "[a] claim of lack of personal jurisdiction may of course be waived or, [to put it another way], is susceptible to `cure' or `waiver.'" Id. This language indicates that even though a judgment rendered without personal jurisdiction is a nullity from the start, a party against whom the court entered the judgment can ratify this originally null judgment. Cf. Greer v. State, 685 N.E.2d 700, 703 (Ind.1997) ("Subject matter jurisdiction never can be waived, and can be raised at any step in the appeal process.").

The Stidham holding stems from the court's concern that if a judgment rendered without personal jurisdiction were merely voidable and therefore presumptively valid, a party could potentially hoodwink a judge into entering a default judgment against a nonresident without minimum contacts and thereby place the onus on the defaulted party to come forward within a reasonable time to defend his rights. Stidham, 698 N.E.2d at 1154. Holding judgments entered without personal jurisdiction void while simultaneously holding a...