Paternity of Tompkins, In re

• Decision Date: 17 August 1989
• Docket Number: No. 35A04-8810-CV-360,35A04-8810-CV-360
• Parties: In re The PATERNITY OF Joshua Thomas TOMPKINS. Kevin E. BROWN, Appellant (Respondent Below), v. William N. MILLS, as Guardian ad litem for Joshua Thomas (Tompkins) Brown, Appellee (Petitioner Below).
• Court: Indiana Appellate Court

Page 1009

542 N.E.2d 1009

In re The PATERNITY OF Joshua Thomas TOMPKINS.

Kevin E. BROWN, Appellant (Respondent Below), v. William N. MILLS, as Guardian ad litem for Joshua Thomas

(Tompkins) Brown, Appellee (Petitioner Below).

No. 35A04-8810-CV-360.

Court of Appeals of Indiana,

Fourth District.

Aug. 17, 1989.

Robert S. Garrett, Palmer, Bowers & Brewer, Huntington, for appellant.

Stephen J. Michael, Matheny, Michael, Hahn & Bailey, Huntington, and Linda J. Peters, F. Walter Riebenack, Sowers, Larson, Riebenack & Connolly, Fort Wayne, for appellee.

CHEZEM, Presiding Judge.

Case Summary

Appellant, Brown, appeals the granting of Appellee's, Mills' (as Guardian ad litem for Joshua Thompkins), petition to set aside a determination of paternity in favor of Brown. We affirm.

Issues

I. Whether the trial court erroneously failed to rule upon Brown's motion to dismiss.

II. Whether the trial court erroneously admitted testimony of out of court declarations regarding the paternity of Joshua Thompkins.

III. Whether the trial court erred in admitting evidence of blood tests when the tests had been ordered in a companion proceeding, but not the instant proceeding.

IV. Whether the trial court erred in admitting into evidence a certified copy of the docket sheet in a companion case.

V. Whether the trial court erred in taking judicial notice of the court records of a companion case.

VI. Whether there was sufficient evidence to sustain the order granting Mill's petition.

Facts

This matter comes to this court for a second time. The first appeal was brought by Mills when the trial court granted Brown's motion for judgment on the pleadings. This court reversed the judgment of the trial court and remanded the case for further proceedings. The case was reported as In Re Paternity of Tompkins (1988), Ind.App., 518 N.E.2d 500 (hereinafter referred to as "Tompkins 1 "). The facts were set forth in that opinion and read in part as follows:

On June 15, 1980, Joshua Thomas Tompkins was born to Debra Tompkins Booher. At the time Joshua was born, Debra was married to, but separated from, Michael Tompkins, her second husband. On October 1, 1980, the Allen Circuit Court dissolved Debra and Michael's marriage. Apparently, Debra and Joshua resided with Debra's first husband, Kevin Brown, for approximately a year. In August of 1981, Debra and Joshua moved in and lived with Gary Booher. On December 12, 1981, Debra married Gary. Subsequently, Debra and Kevin filed a joint petition to establish paternity of Joshua, and on February 5, 1982, a judgment was entered declaring Kevin as the father of Joshua.

Debra remained married to Gary and retained custody of Joshua. On August 28, 1984, a daughter, Jasmine Lee, was born to Debra and Gary. Gary and Debra raised and provided support for both Joshua and Jasmine. On September 2, 1985, Debra died from an aneurysm in her brain. Gary filed a petition to establish a guardian for Joshua. The Huntington Circuit Court appointed William N. Mills as guardian for Joshua. Thereafter, Mills, upon obtaining evidence that Kevin was not Joshua's biological father, filed suit to set aside the paternity judgment on the basis of fraud. Mills also filed a motion to consolidate the guardianship and paternity suits. Kevin challenged the suit and motion to consolidate and filed a motion for judgment on the pleadings based upon application of Rundel v. Shady (1986), Ind.App., 492 N.E.2d 694. The trial court denied Mills' motion to consolidate, granted Brown's motion for judgment on the pleadings, and dismissed Mills' complaint ...

Id. at 502.

This court affirmed the action of the trial court in its denial of the motion to consolidate and reversed as to the granting of judgment on the pleadings. Tompkins 1, supra. Prior to the evidentiary hearing on Mills' petition, Brown filed a motion to dismiss; Brown set forth two (2) grounds for dismissal in his motion: (1) failure to state a claim upon which relief could be granted; and (2) laches. The trial court took the motion under advisement, but never ruled upon it.

The trial court conducted an evidentiary hearing on Mill's petition. Afterward, the trial court ordered that the paternity determination in favor of Brown be set aside.

Discussion and Decision

I

First, Brown argues the trial court erroneously failed to rule upon his pre-hearing motion to dismiss. Error may not be predicated on the failure of a trial court to rule on a motion. Watkins v. State (1983), Ind., 446 N.E.2d 949. Accordingly, the issue has been waived.

II

Next, Brown argues that the testimony of Katie Stuart should have been excluded as hearsay. Mills counters that the testimony was admissible under the pedigree exception of the hearsay rule. Brown argues that the pedigree exception did not apply here since Mills did not establish that the witness was intimately associated with the family and cites in support the decision of the First District in Emberry Community Church v. Bloomington District Missionary and Church Extension Society, Inc. (1985), Ind.App., 482 N.E.2d 288.

The pedigree exception permits admission of a declarant's out of court declarations regarding parentage or ancestory. For the statement to be admissible under the pedigree exception, the declarant must be deceased and the declarant must have been related by blood or by marriage to the family of the person in question. State v. Schaller (1942), 111 Ind.App. 128, 40 N.E.2d 976. The relationship of the witness to the declarant is irrelevant so long as the testimony is of the statements of the declarant, ante litem motam, and not what friends and neighbors thought. See Schaller, supra; See also 12 I.L.E. @ 119, p. 554.

Brown's reliance on Emberry is misplaced. In Emberry, the First District did not place foundational requirements upon the competency of the witness. Rather, the holding on the evidentiary issue was twofold. First, the witness, who testified about facts of family history which related to him, was not precluded from testifying, even though his knowledge was not first hand, since his knowledge was derived from intimate acquaintance with the family; such testimony was held not to be hearsay because the testimony more closely resembled personal knowledge than hearsay. Emberry at 291. Second, the court held that even if the testimony was hearsay, the disputed testimony was also admissible under the pedigree exception to the hearsay rule, even though the witness had relied in part upon a geneologist's report. The report did not render the testimony inadmissible since the report would itself have been admissible as an exception to the hearsay rule. Emberry at 292 (citing Uniform Rules of Evidence, Sec. 804(4)(i), 13 U.L.A. 340; Federal Rules of Evidence 803(13); McCormick on Evidence 322, at 746 (2d ed.)).

Emberry has no application to this case. Here, the witness testified concerning certain declarations made by Joshua's mother which concerned Joshua's true parentage. Joshua's mother is deceased. Thus, the testimony was admissible under the pedigree exception to the hearsay rule.

Brown has not demonstrated any valid reason why the testimony should have been excluded. Accordingly, the admission of the testimony was proper.

III

Third, Brown argues that since the blood tests were ordered in the guardianship action, and not in this action, the blood tests should not be admitted into evidence. Brown does not challenge the foundation which was laid for the admission of the tests or the testimony of the expert; his challenge is based solely upon the fact the tests were not ordered in this cause.

Brown has failed to support his proposition with even one citation of authority and has failed to make cogent argument. Accordingly, his argument is waived from further consideration. Whisman v. Fawcett (1984), Ind., 470 N.E.2d 73, 80; Baesler's Super-Valu v. Indiana Commissioner of Labor, (1986), Ind.App., 500 N.E.2d 243, 249.

IV

Fourth, Brown argues that a certified copy of the docket sheet of the guardianship action was improperly admitted into evidence; Brown claims the document was irrelevant to this action. Mills counters that, among other things, the docket sheet was relevant to show the origin of the blood testing order and that Brown was represented by counsel at the time the order was issued.

The trial court is vested with wide latitude and sound judicial discretion in accepting or rejecting evidence on the basis of relevance. Admission of such evidence will be sustained on appeal so long as the evidence has a tendency to prove or disprove a material fact, even though its tendency to prove may be slight. We will reverse in such a case only where the admission was a clear abuse of discretion. Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482; Spears v. Aylor (1974), 162 Ind.App. 340, 319 N.E.2d 639.

Here, the trial court did not abuse its discretion. The docket sheet was relevant to show why the blood tests were administered. Also, Brown does not demonstrate how he was prejudiced by the admission of the docket sheet. Therefore, we find no merit in Brown's...