M. D. H., Matter of, 1-981A285

• Decision Date: 30 June 1982
• Docket Number: No. 1-981A285,1-981A285
• Citation: 437 N.E.2d 119
• Parties: In the Matter of the Paternity of M. D. H., R. L. W., and C. D. M., Appellants.
• Court: Indiana Appellate Court

Page 119

437 N.E.2d 119

In the Matter of the Paternity of M. D. H., R. L. W., and C.

D. M., Appellants.

No. 1-981A285.

Court of Appeals of Indiana,

First District.

June 30, 1982.

Philip H. Hayes, Hayes & Young, Evansville, for appellant Wayne Wells.

John Wissner, Scales, Wissner & Krantz, Boonville, for appellants Richard Johnson and Sid Mayo.

E. Nelson Chipman, Jr., Chipman, Humphrey & Chipman, Plymouth, for amicus curiae applicant Gary Nitcher.

Linley E. Pearson, Atty. Gen., Margarett Knight, Deputy Atty. Gen., Indianapolis, for appellee.

RATLIFF, Presiding Judge.

STATEMENT OF CASE

In this consolidated interlocutory appeal three putative fathers object to denials of their individual motions to dismiss petitions to establish paternity in support proceedings. We affirm in each case.

FACTS

On October 20, 1980, the Warrick County Department of Public Welfare filed a petition, "In the Matter of the Paternity of C. D. M.," in the Warrick Superior Court, Juvenile Division, seeking to establish the paternity of C. D. M. born January 4, 1977. On November 24, 1980, a default judgment was entered against the alleged father. Upon defendant's request the default judgment was set aside on March 6, 1981. Blood tests were ordered and a Motion for Summary Judgment filed. On May 6, 1981, the alleged father filed a Motion to Dismiss based upon a statute of limitations defense.

R. L. W., born November 9, 1975, was the subject of a paternity action brought in the Warrick Circuit Court, Juvenile Division, on January 29, 1981. The complaint for support brought in R. L. W.'s name was upon affidavit of his mother as next friend represented by the prosecuting attorney. A previous action to establish the paternity of R. L. W. had been filed in the Warrick Circuit Court by the Warrick County Department of Public Welfare on November 10, 1980, but had been dismissed upon a statute of limitations defense on January 21, 1981. A motion for summary judgment was filed by the prosecutor's office on April 6, 1981, and the alleged father filed a motion to dismiss on May 6, 1981, on the grounds of res judicata and the statute of limitations.

On March 2, 1981, a "Petition to Establish Paternity of Child" was filed in Warrick Circuit Court, Juvenile Division, by the prosecuting attorney and mother as next friend of M. D. H., born June 9, 1975. A previous paternity action filed May 18, 1976, had been dismissed with prejudice on August 11, 1976, when the mother for the second time had failed to appear for a hearing on her complaint. The alleged father moved to dismiss on the grounds that the same claim had been dismissed with prejudice and that the statute of limitations had run.

On September 9, 1981, Motions to Dismiss were denied in the R. L. W. and C. D. M. cases and on September 21, 1981, in the M. D. H. case. Petitions for Certification for Interlocutory Appeal were filed and all three cases were properly certified by the trial court for interlocutory appeal. For purposes of this appeal all parties stipulated to the following facts:

1. All three children were conceived and born out of wedlock;

2. The natural mothers and putative fathers were continuous residents of the state of Indiana and that their whereabouts were readily ascertainable at all times;

3. No incapacity prevented the commencement of an action to establish paternity in any case from the date of birth of any of the children involved;

4. Paternity has not been established in any of the cases by any court, by any oral or written acknowledgement thereof by any of the putative fathers, or by any payment of child support by or on behalf of the putative fathers to the children or mothers;

5. The putative fathers have in no way waived the statute of limitations applicable to proceedings to enforce the obligation of a father for support or for fulfilling any parental obligation from the date of any child's birth.

The Act Concerning Children Born Out of Wedlock, enacted in 1941 and repealed October 1, 1979, was in effect at the birth of each child for whose benefit the actions at bar were brought. Codified at Ind.Code Sec. 31-4-1-26, 1941 Ind.Acts, ch. 112, Sec. 25, provided the following:

"Proceedings to enforce the obligation of the father shall not be brought after the lapse of more than two years from the birth of the child, unless paternity has been established by a judgment of a court of competent jurisdiction, or has been acknowledged by the father in writing or unless support has been furnished by the alleged father, or by some person on his behalf, either voluntarily or pursuant to an agreement with the mother or some person on her behalf or on behalf of the child. If the paternity has been so established, or if support has been so furnished, the action may be brought at any time within two years after the acknowledgment or the last furnishing of support to the child. Not more than two years' accrued support furnished prior to the bringing of the action may be recovered from the father or his representatives. If the mother was under legal disability when the cause of action arose or the father was a nonresident or subsequently became a nonresident before the lapse of said period, or the whereabouts of the father is unknown and cannot be ascertained by diligent search and inquiry, then the period of such disability, nonresidence, or lack of knowledge of the whereabouts of the father shall not be counted in such period of limitation."

Effective March 8, 1978, Ind.Code Sec. 12-1-6.1 concerning child support was amended with the addition of the following Section 15.5:

"Notwithstanding IC 31-4-1, if the child has received public assistance or is currently receiving public assistance, an action to compel support may be brought by the state department of public welfare or a county department of public welfare. If:

(1) the mother

(2) the person with whom the child resides; or

(3) the director of the county department of public welfare;

has executed an assignment of support rights under Title IV D of the Federal Social Security Act (42 U.S.C. 651 et seq. ), the action shall be brought in accordance with the terms of the cooperative agreement entered into between the state department of public welfare and the prosecuting attorney. Any action brought under this section may only be brought before the child's fifth (5th) birthday. The father shall not be held liable for support payments that accrued more than two (2) years before the action is commenced." (Emphasis added.)

1978 Ind.Acts, Pub.L. 69, Sec. 2. Meanwhile, in 1978 the legislature enacted a new chapter on paternity into the juvenile code, Ind.Code Sec. 31-6-6-1 to 22, 1978 Ind.Acts, Pub.L. 136, Secs. 1-22, to become effective October 1, 1979. However, before the chapter, and specifically Sec. 17, went into effect the legislature replaced it with Ind.Code 31-6-6.1-1 to 19, 1979 Ind.Acts, Pub.L. 277, to become effective October 1, 1979. These Acts appear to combine provisions taken from both the Uniform Parentage and Paternity Acts. See 9A U.L.A. Uniform Parentage Act and Uniform Act on Paternity (1979). In contrast to Ind.Code Sec. 31-4-1-9, which was repealed effective October 1, 1979, and which provided that only the mother, or a party in her stead, might bring an action to compel paternal support for the illegitimate child, Ind.Code Sec. 31-6-6.1-2 states:

"(a) A paternity action may be filed by the following persons:

(1) the mother, or expectant mother;

(2) a man alleging that he is the child's biological father, or that he is the expectant father of an unborn child;

(3) the mother and a man alleging that he is her child's biological father, or by the expectant mother and a man alleging that he is the biological father of her unborn child, filing jointly; or

(4) a child.

A person under the age of eighteen (18) may file a petition if he is competent except for his age. A person who is otherwise incompetent may file a petition through his guardian, guardian ad litem, or next friend.

(b) In every case, the child, the child's mother, the child's presumed father and any person alleged to be the father are necessary parties to the action."

1979 Ind.Acts, Pub.L. 277, Sec. 2. Section 6 of this same statute sets out the applicable time periods in which the parties must bring their actions:

"(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:

(1) both the mother and the alleged father waive the limitation on actions and file jointly;

(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;

(3) the mother files a petition after the alleged father has acknowledged in writing that he is the child's biological father;

(4) the alleged father files a petition after the mother has acknowledged in writing that he is the child's biological father;

(5) the petitioner was incompetent for a reason other than age at the time the child was born; or

(6) a responding party cannot be served with summons during the two (2) year period.

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.

(b) The child may file a petition at any time before he reaches twenty (20) years of age. If the child is incompetent on his eighteenth birthday, he may file a petition within two (2) years after he becomes competent.

(c) Notwithstanding any other provision of this section, an action must be filed during the lifetime of the alleged father, or within five (5) months after his death.

(d) An action not otherwise barred is not barred by the death or stillbirth of the child or by the death of the mother."

1979 Ind.Acts, Pub.L. 277, Sec. 6. These sections were amended effective February 27, 1980, to read as...