L.D.H. v. K.A.H.

• Decision Date: 06 May 1996
• Docket Number: No. 82A01-9507-CV-226,82A01-9507-CV-226
• Citation: 665 N.E.2d 43
• Parties: L.D.H. and A.D.H., by her next friend, L.D.H., Appellants v. K.A.H. and D.M., Appellees.
• Court: Indiana Appellate Court

Page 43

665 N.E.2d 43

L.D.H. and A.D.H., by her next friend, L.D.H., Appellants v. K.A.H. and D.M., Appellees.

No. 82A01-9507-CV-226.

Court of Appeals of Indiana.

May 6, 1996.

Terry A. White, Olsen, Labhart, White & Hambidge, Evansville, for Appellants.

Thomas A. Massey, Bowers, Harrison, Kent & Miller, Evansville, for Appellees.

OPINION

ROBERTSON, Judge.

L.D.H. (Mother) and A.D.H. (Daughter), by her next friend, Mother, bring this discretionary, interlocutory appeal of two orders of the courts below. The Vanderburgh Superior Court (the trial court) denied Mother's motion for blood tests in her action for dissolution of her marriage to K.A.H. (Father). The Vanderburgh Superior Court Juvenile Division (the juvenile court) dismissed Daughter's action to establish paternity in D.M. (Alleged Father). Mother and Daughter raise the following issues:

I. When there has been no dissolution of marriage and there was credible evidence of sexual intercourse with another man at the time the child was conceived, does [Mother] and her child have a discovery right to blood tests in order to determine the true paternity of such child?

II. Should the child's separate paternity action and discovery rights pertaining thereto be recognized when the child was not made a party to the divorce proceedings?

III. Did the court abuse its discretion in granting custody on the [Father's] oral emergency petition to modify which occurred immediately after the Wife filed her Motion for Blood Tests and repudiated the oral custody agreement?

IV. Did the court err in refusing to appoint a Guardian Ad Litem on behalf of the child when the issue of paternity was raised?

Father cross-appeals and raises the following issues:

V. Did the Divorce Court err when it granted the Mother's motion to set aside the divorce decree as it relates to the issue of dissolution of the marriage?

VI. Should this Court remand for hearing to determine the amount of attorney's fees and costs to be awarded to the Father for the defense, including this appeal, of the Mother's actions which were found to be in bad faith and a fraud upon the Court?

We affirm.

At the outset, we note that Father has filed a motion for this Court to identify the parties, their children, and their witnesses by their initials should this court issue an opinion for publication. Regardless of whether the instant decision is eventually designated for publication, we will identify the parties, their children, and their witnesses by their initials or in some other innocuous manner. Because Father's motion relates only to the issuance of a decision for publication, we deny the motion.

Mother and Father married and eventually had a son. The parties do not dispute that the boy is the son of Father. Mother later had sexual intercourse with Father and also with Alleged Father around the time of conception of Daughter. Mother eventually gave birth to Daughter and later filed for dissolution of her marriage to Father. Mother and Father agreed on a property settlement and reserved the issues of custody and support. Mother maintained primary physical custody of the children and asked for, and obtained, child support from Father.

Mother began to talk with family, friends, and lawyers about the possibility that Daughter was not the child of Father. Nonetheless, Mother and Father agreed to a custody, visitation, and support arrangement and orally recited the agreement before the trial court. Father was to get primary physical custody of both children. The custody agreement rendered moot Father's attempt at discovery of Mother's mental health records. Father and Mother were to appear two days later to reduce the agreement to writing. After the hearing, Mother told Father, for the first time, that Daughter might not be his child.

When Mother next appeared before the trial court, she had a new attorney. She repudiated the oral custody agreement and filed a motion for blood tests to exclude Father as possible biological father of Daughter. Father orally moved for custody of the children, and the trial court granted the request.

Then, Daughter, by next friend, Mother, filed a petition in the juvenile court to establish paternity in Alleged Father. She eventually amended the petition to include Father, so that he could address whatever interest he had in the matter, and also filed a motion for blood tests of all persons involved. Father eventually filed a motion to dismiss the paternity petition because, inter alia, the same action, that is, an action to establish paternity, was pending in the dissolution court. The juvenile court granted the motion.

Later, the trial court denied Mother's motion for blood tests in the dissolution action because, among other things, she was judicially estopped to challenge paternity. Mother had taken the position, throughout the dissolution proceedings, that Daughter was the child of Father: in her pleading she had claimed that both the son and Daughter were children born of the marriage; she had sought and obtained a preliminary order of child support from Father for both children through the trial court; and she had objected to grandparent visitation in a verified motion to dismiss in which she had asserted that Father was the natural father of the parties' minor children. In essence, because Mother was estopped to raise an allegation that Father was not the biological father of Daughter, the results of any blood tests on her motion were irrelevant. The trial court determined that, to grant Mother's motion for blood tests, would be to reward her for having perpetrated a deliberate fraud, not only upon the trial court, but on Father and the children, as well.

The parties appealed the decisions of the courts below. The cases are consolidated for purposes of appeal.

I

Mother contends the trial court improperly denied her motion for blood tests because she was entitled to discovery of them under Ind.Trial Rule 35(A). See Cooper v. Cooper, 608 N.E.2d 1386 (Ind.Ct.App.1993). On review of a trial court's ruling on a discovery matter we reverse only for an abuse of discretion. Lucas v. Dorsey Corp., 609 N.E.2d 1191, 1197 (Ind.Ct.App.1993), trans. denied. Due to the fact-sensitive nature of such issues, discovery rulings are cloaked with a strong presumption of correctness on appeal. Id.

Judicial estoppel prevents a party from assuming a position in a legal proceeding inconsistent with one previously asserted. Shewmaker v. Etter, 644 N.E.2d 922, 931 (Ind.Ct.App.1994) opinion adopted on transfer, 659 N.E.2d 1021 (Ind.1995). The court, however, must have acted upon the admissions of the estopped party. Id. Here, the trial court denied Mother's motion for blood tests because she was judicially estopped to take a position that Father and Daughter did not, in fact, have a biological, parent-child relationship.

Mother had claimed in her petition for dissolution that both of the son and Daughter were children born of the marriage. Mother contends that such language amounts to no more than a claim that Daughter was born to Mother during the marriage and cites In re Paternity of S.R.I., 602 N.E.2d 1014, 1016-1017 (Ind.1992), in support of the proposition. There, however, the court stated, "it would be error to find res judicata as to paternity based on the [dissolution] order alone." Id. at 1016. In the present case, the trial court did not base its judicial estoppel decision on any one factor alone. Here, Mother had objected to grandparent visitation in a verified motion to dismiss in which she had asserted that Father was the natural father of the parties' minor children. Also, the trial court had acted upon Mother's position when it had granted Mother's request for child support for both children from Father. The trial court's determination, that judicial estoppel applied, does not amount to an abuse of discretion.

Because of the judicial estoppel, there was no legal dispute between Father and Mother that Father is the biological father of Daughter. We note that the purpose of the blood test is to determine paternity. Rundel v. Shady, 492 N.E.2d 694, 697 (Ind.Ct.App.1986). Because there was no legal dispute, the purpose of the blood test was fulfilled under these circumstances. See id. (where paternity is conclusively admitted by the pleadings, the purpose of the blood test has been fulfilled). The trial court abused no discretion when it denied Mother's motion for blood tests.

II

While the dissolution action was pending before the trial court, Daughter, by her next friend, Mother, filed an action to establish paternity in the juvenile court and named Alleged Father as her possible biological father. The juvenile court dismissed the action on Father's motion because the dissolution action was pending in the trial court. Mother claims the juvenile court erroneously dismissed the paternity action.

Indiana Trial Rule 12(B)(8) provides that, "at the option of the pleader; the following defenses may be made by motion: ... The same action pending in another state court of this state." Further, Indiana T.R. 8(C), which lists those affirmative defenses which a responsive pleading shall set forth, includes the phrase, "the same action pending in another state court of this state ..."

Mother claims that the juvenile court and the trial court are both the Vanderburgh Superior Court, both merely being divisions of that court. She contends that, inasmuch as the trial court and the juvenile court are the same court, the trial court is not "another state court" for which the juvenile court could dismiss the paternity petition.

Rules 8(c) and 12(b) of the Federal Rules do not contain a specific counterpart to the language of Indiana T.R. 8(C) or 12(B)(8) with regard to "the same action pending in another state court of this state." Therefore, interpretations of the federal rules will not be specifically helpful here. The Indiana Civil Code Study Commission, however, has issued...