Lucas v. Estate of Stavos

Citation609 N.E.2d 1114
Decision Date02 March 1993
Docket NumberNo. 41A01-9205-CV-162,41A01-9205-CV-162
PartiesBrandon LUCAS and David Lucas, Appellants-Defendants, v. ESTATE OF Peter A. STAVOS, Georgeanne Stavos, Administratrix, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana

Steven Lovern, Schreckengast, Lovern & Helm, Indianapolis, for appellants-defendants.

John B. Drummy, Thomas E. Wheeler II, Kightlinger & Gray, Indianapolis, for appellee-plaintiff.

NAJAM, Judge.


We are asked to decide whether a Louisiana child born out of wedlock qualifies as a dependent child under Indiana's wrongful death statute, IND.CODE Sec. 34-1-1-2. Brandon Lucas and David Lucas ("Lucases") appeal from a partial summary judgment entered in the Johnson Circuit Court giving full faith and credit to a Louisiana paternity determination, granting the counterclaim of the Estate of Peter A. Stavos ("Estate") and holding that Lindsey Rose Stavos Elliott ("Lindsey") is the natural daughter of the decedent, Peter Stavos ("Peter"). We affirm.


We consolidate and restate the issues presented on appeal as follows:

1. Was the Estate properly served in the Louisiana paternity action?

2. Were the Lucases required to be served in the Louisiana paternity action?

3. Should the Louisiana paternity determination be given full faith and credit in Indiana, or does Indiana's interest in the orderly, prompt, and final administration of estates preclude recognition of the Louisiana paternity determination?

4. Which Indiana law controls Lindsey's rights as a wrongful death beneficiary?


This case involves a wrongful death action filed under IND.CODE Sec. 34-1-1-2. The action arose from a collision between automobiles driven by Brandon Lucas and Peter Stavos which occurred on August 5, 1988, in Carmel, Indiana. Both Brandon and Peter were injured in the collision, and Peter died from his injuries at the scene of the accident.

On July 27, 1990, Georgeanne Stavos, Peter's mother, ("Georgeanne") was appointed as the administratrix of his Estate. On July 31, 1990, Georgeanne moved for leave to file a counterclaim for wrongful death in an action the Lucases had brought against the Estate. On August 9, 1990, the motion was granted and the Estate's counterclaim for wrongful death was ordered filed. Subsequently, the Lucases' claim against the Estate was resolved by settlement.

On August 3, 1990, Lindsey's natural mother, Susan Campbell Elliott ("Susan"), filed a Petition to Filiate ("Petition") in the district court for the Parish of Jefferson, Louisiana, which was supported by an affidavit from Georgeanne. When the Petition was filed, Susan was, and had been, a resident and domiciliary of the State of Louisiana. Lindsey was born in Louisiana on April 28, 1987, and she had resided continuously in Louisiana since her birth. On September 20, 1990, the Louisiana district court granted the Petition.

On September 19, 1991, Georgeanne moved for partial summary judgment on the issue of whether Peter was survived by a dependent child within the meaning of IND.CODE Sec. 34-1-1-2. Georgeanne supported her motion with a duly authenticated copy of the judgment from the Louisiana district court declaring Lindsey to be Peter's natural daughter. The Lucases filed a response to Georgeanne's motion for partial summary judgment and filed their own motion for partial summary judgment on the issue of Lindsey's status. On February 1, 1992, the trial court granted Georgeanne's motion for partial summary judgment holding, in effect, that Lindsey is a dependent child within the meaning of our wrongful death statute. The trial court denied the Lucases' motion for partial summary judgment.

This appeal followed. We will state other relevant facts as needed in our discussion of the issues.


When reviewing the propriety of a ruling on a motion for summary judgment, this court applies the same standard applicable to the trial court. Houin v. Burger (1992), Ind.App., 590 N.E.2d 593, 596, trans. denied. We must consider the designated evidentiary matter sanctioned by Ind.Trial Rule 56(C) without determining its weight or credibility. Id. Summary judgment should be granted only if such evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. The movant bears the burden of proving the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed in a light most favorable to the nonmoving party. Id. Summary judgment will be affirmed on appeal if it is sustainable on any theory or basis found in the evidentiary matter designated to the trial court. T.R. 56(C). In this appeal there are no issues of material fact in dispute. The essential question before us is whether, as a matter of law, we should grant full faith and credit to the Louisiana paternity determination. The validity of a foreign paternity determination and its impact on a wrongful death action is an issue of first impression in Indiana.

Initially, we must address which state's law governs the issues which the Lucases raise concerning the validity of the Louisiana paternity determination. Foreign judgments are subject to collateral attack in Indiana for lack of jurisdiction, and in assessing such attacks, we apply the law of the sister state where judgment was

                rendered. 1  Terry Fashions, Ltd. v. Ultracashmere (1984), Ind.App., 462 N.E.2d 252, 254.   The party attacking a foreign judgment in Indiana has the burden of rebutting the presumption that the judgment is valid and of showing that the sister state lacked jurisdiction.  Id.  Indiana is required to give a foreign judgment only the same effect as would the sister state which issued it.  Omni Micro, Inc. v. Hyundai Electronics America (1991), Ind.App., 571 N.E.2d 598, 600.   In order to prevail, the Lucases must demonstrate that the Louisiana trial court lacked jurisdiction in rendering its paternity determination under Louisiana law
Issue One: Was the Estate Properly Served in Louisiana?

The Lucases first claim that the Estate was not properly served notice of the Louisiana paternity action. We disagree.

A foreign judgment is always open to collateral attack for want of personal or subject matter jurisdiction, and a judgment void in the state where it was entered is also void in Indiana. See P.M.S., Inc. v. Jakubowski (1992), Ind.App., 585 N.E.2d 1380, 1382. However, a judgment which is merely voidable must be challenged by a direct attack in the state where it was rendered. Aramovich v. Doles (1964), 244 Ind. 658, 662, 195 N.E.2d 481, 483; Stickler v. Mack (1985), Ind.App., 473 N.E.2d 621, 623. The Lucases urge that because the Estate was not served with process, there was no personal jurisdiction over the Estate and the judgment is void. However, the Lucases fail to note that under Louisiana substantive law, the defense of lack of service, or of improper service of process, is a personal defense and may not be raised by any other party or person. See Trew v. Standard Supply & Hardware Co. (1947), La.App., 33 So.2d 426, 430. The Estate did not raise this issue, and the Lucases lack standing to raise this issue. Thus, insofar as this appeal is concerned, whether the Estate was served is of no consequence.

Issue Two: Were the Lucases Properly Served or Given Notice

of the Louisiana Paternity Action?

The Lucases next allege they were not properly served or otherwise given notice of the Louisiana paternity action, and they reiterate their contention that the judgment entered in Louisiana was a nullity and should not be honored in Indiana. We find that the Lucases have failed to show that under Louisiana law they were indispensable parties entitled to notice of the paternity proceedings. Further, they waived any objection to the paternity proceeding by not seeking relief from the judgment in the manner provided under Louisiana law.

At the outset we address the Lucases' contention regarding the judgment's effect. The operation and effect of a judgment are purely matters of law and are not affected by what the court or the parties may understand. 49 C.J.S. Judgments Sec. 444 (1947 & Supp.1992) (and citations therein). Under Indiana procedural law, the term "void" properly denotes only those actions in which a judgment has no effect whatsoever, and is incapable of confirmation or ratification. Trook v. Lafayette Bank and Trust Co. (1991), Ind.App., 581 N.E.2d 941, 944, trans. denied. On the other hand, the term "voidable" denotes an action in which a judgment nonetheless operates to accomplish the result sought to be accomplished, until the fatal flaw is judicially ascertained and declared. Id. A voidable judgment is thus capable of confirmation or ratification. Id. Judgments rendered where personal jurisdiction may be lacking are not void but voidable because the defect may be cured or waived. Id. at 945. Because the Lucases assert that the judgment was void for lack of service of process and, hence, lack of personal jurisdiction over them, the judgment was merely voidable.

Since the Lucases make a collateral attack on the paternity determination, Louisiana substantive law controls the issue Article 641 of the Code defines and regulates the joinder of indispensable parties:

                of the Lucases' right, if any, to participate in the paternity proceeding.  Terry Fashions, 462 N.E.2d at 254.   Pursuant to La.Civ.Code Ann. art. 207 (West 1952 & Supp.1992), the Lucases had a right to contest the Petition to Filiate and to intervene in the underlying paternity proceeding.  See Willis v. Jackson Brewery Development, Inc.  (1988), La.App., 522 So.2d 720, 721.   However, the Lucases fail to acknowledge that the Louisiana Code of Civil Procedure ("Code") distinguishes between indispensable and necessary parties, and it is that essential distinction which is

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