REGALADO v. EState of Joseph J. REGALADO

• Decision Date: 27 August 2010
• Docket Number: No. 64A05-0911-CV-672.,64A05-0911-CV-672.
• Parties: Victor C. REGALADO, Appellant-Respondent, v. ESTATE OF Joseph J. REGALADO, and Paula Heffelfinger, Appellees-Petitioners.
• Court: Indiana Appellate Court

933 N.E.2d 512

Victor C. REGALADO, Appellant-Respondent,

v.ESTATE OF Joseph J. REGALADO, and Paula Heffelfinger, Appellees-Petitioners.

No. 64A05-0911-CV-672.

Court of Appeals of Indiana.

Aug. 27, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Patrick B. McEuen, David P. Matsey, Millbranth & Bush, Valparaiso, IN, Attorneys for Appellant.

Kristin L. Scheuerman, Valparaiso, IN, Attorney for Appellee, Paula Heffelfinger.

Hugo E. Martz, Martz, Clymer & Lucas, Valparaiso, IN, Attorney for Appellee, Personal Representative 1st Source Bank.

OPINION

VAIDIK, Judge.

Case Summary

Joseph James Regalado received a fifteen million dollar settlement from the City of Chicago in 2000 and died intestate in 2004. Because he left no surviving spouse or issue, his estate is to be distributed to his surviving parents, brothers, sisters, and issue of his deceased brothers and sisters. Victor Regalado, Joseph's brother, now appeals the Porter Superior Court's determination on summary judgment that Paula Heffelfinger is Joseph's half-sister. Joseph's father married Paula's mother in 2003, thirty-five years after Paula's birth. When the marriage was annulled in 2005, Joseph's father acknowledged Paula to be his biological child.

At issue is whether Indiana Code section 29-1-2-7(b), which governs the paternal inheritance to, through, and from a child born out of wedlock, applies to Paula such that she is an heir to Joseph's estate.

Specifically, subsection (b)(4) of the statute provides that a child born out of wedlock shall be treated as if the child's father were married to the child's mother at the time of the child's birth if the putative father marries the mother of the child and acknowledges the child to be his own. We hold that a child must show she is a child born out of wedlock before Section 29-1-2-7 is applicable and that there is a genuine issue of material fact as to whether Paula is a child born out of wedlock. We also hold that Joseph's father's acknowledgment of Paula as his biological daughter in the Agreed Order of Annulment does not preclude Joseph's father or any other heir from challenging his paternity of Paula. We thus conclude that the trial court erred in granting summary judgment in Paula's favor. We reverse and remand.

Facts and Procedural History ¹

In 1991, Joseph suffered serious and permanent brain damage as the result of an altercation with officers of the Chicago Police Department. Joseph was thereafter adjudicated a disabled person, and his father, Baltasar Regalado, served as his guardian. On Joseph's behalf, Baltasar brought a federal lawsuit against the City of Chicago for the actions of its police officers, and in December 2000, the claim was settled for fifteen million dollars.

Baltasar and Joseph later moved to Porter County, Indiana, where Joseph died intestate in October 2004. At the time of his death, Joseph owned no real property but had eight to nine million dollars of personal property located in Indiana. ² Because Joseph left no surviving spouse or issue, according to Indiana Code section 29-1-2-1(d)(3) his estate is to be distributed to his surviving parents, brothers, sisters, and issue of his deceased brothers and sisters. ³ A few days after Joseph's death, Baltasar filed a Petition for the Appointment of Administrator and for Supervised Administration, which listed himself as well as Joseph's brothers Chris, Martin, Victor, David, and Tony as Joseph's known heirs. The petition also listed among Joseph's known heirs Paula as his half-sister. ⁴

Paula was born in October 1967 to Carmen Nadine Durea, who is not Joseph's mother. Carmen and Baltasar married in Arizona in April 2003, when Paula was thirty-five years old. During the marriage, Carmen lived in Arizona and Baltasar lived in Indiana. Baltasar instituted annulment proceedings in Indiana in 2005. In the proceedings, Baltasar and Carmen signed an Agreed Order of Annulment, the preface of which states, “The subject matter of this Agreement is the settlement of the respective rights of Husband and Wife to all property, both real and personal, now in their name and/or possession, and any property which may come into their possession as a result of inheritance.” Appellant's App. p. 70. Within the Agreed Order of Annulment, Baltasar acknowledged Paula as his biological daughter: “Both parties readily acknowledge that Paula Heffelfinger is their natural daughter, fathered by the Petitioner and born to the Respondent on October 13, 1967.” Id. The trial court entered an Order of Annulment in November 2005.

In October 2008, Victor filed a Petition to Determine Heirship, which alleged that Paula was not Joseph's half-sister and requested a hearing on the matter. Paula filed a motion for summary judgment and included in her designation of evidence: (1) Baltasar's unsworn July 2003 Petition for Leave to Make Gifts in Guardianship, which identifies Paula as Joseph's sister; (2) Baltasar's sworn October 2004 Petition for the Appointment of Administrator and for Supervised Administration, which identifies Paula as Joseph's half-sister; (3) Baltasar's October 2003 birthday card to Paula, which is signed, “YOUR DAD B.E.R.”; (4) Baltasar and Carmen's November 2005 Order of Annulment and Agreed Order of Annulment, in which Baltasar acknowledges Paula as his biological daughter; and (5) a March 2007 Siblingship Report stating that Paula and Tony have a 98.1% probability of being half-siblings.

Victor filed a response to Paula's motion for summary judgment contending that Paula had failed to conclusively establish that Baltasar is her biological father. ⁵ He designated no evidence. After a hearing, the trial court entered its order finding Paula to be a sibling of Joseph and thus granting her motion for summary judgment.

Victor filed a motion to correct error, and Paula filed a response to his motion. Victor then filed two affidavits. In one affidavit, Baltasar stated that he mistakenly believed he was Paula's father because Carmen informed him that he was listed as such on her birth certificate, but he recently requested a copy of the birth certificate and discovered he was not listed on it. In the other affidavit, Victor stated that Baltasar was not listed on Paula's birth certificate.

Victor's motion to correct error was denied after a hearing. He now appeals.

Discussion and Decision

Victor contends that the trial court erred in granting Paula's motion for summary judgment. However, because Paula asserts that Victor's affidavits are untimely, we first determine whether we may consider them.

I. Affidavits

Paula contends that Victor's affidavits are untimely. Paula filed her motion for summary judgment and accompanying designation of evidence on March 23, 2009. Victor responded with a memorandum of law on April 14, 2009, but designated no evidence. After the trial court granted Paula's motion for summary judgment on July 27, 2009, Victor filed a motion to correct error on August 21, 2009. His motion did not allege any newly discovered evidence. It was not until September 30, 2009, the day of the hearing on the motion to correct error, that Victor filed the affidavits.

It is unclear whether Victor filed the affidavits as designated evidence on summary judgment or as part of his motion to correct error. We conclude that in either case, we may not consider them.

Indiana Trial Rule 56, which governs summary judgment proceedings, provides that “[a]n adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits.” Ind. Trial Rule 56(C). It also provides, “For cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit.” T.R. 56(I). When a nonmoving party fails to respond to a motion for summary judgment within thirty days by either filing a response, requesting a continuance under Trial Rule 56(I), or filing an affidavit under Trial Rule 56(F), the trial court cannot consider summary judgment filings of that party subsequent to the thirty-day period. Borsuk v. Town of St. John, 820 N.E.2d 118, 123 n. 5 (Ind.2005).

Victor filed a response with no designated evidence within thirty days of Paula's motion for summary judgment. At the time of the filing, he did not seek an extension of time to designate evidence. Moreover, he failed to file the affidavits until after the trial court granted summary judgment. We conclude that the affidavits, if filed as a designation on summary judgment, were untimely filed.

The result is the same if we consider Victor's affidavits as newly discovered evidence in his motion to correct error. Indiana Trial Rule 59(A)(1) provides that a motion to correct error is a prerequisite for appeal when a party seeks to address “[n]ewly discovered material evidence ... capable of production within thirty (30) days of final judgment which, with reasonable diligence, could not have been discovered and produced at trial.” To prevail on a motion to correct error based on newly discovered evidence, Victor needed to demonstrate that the evidence could not have been discovered and produced at the summary judgment proceedings with reasonable diligence; that the evidence is material, relevant, and not merely cumulative or impeaching; that the evidence is not incompetent; that he exercised due diligence to discover the evidence in time for the final hearing; that the evidence is worthy of credit; and that the evidence raises a strong presumption that a different result would have otherwise been reached. See Matzat v. Matzat, 854 N.E.2d 918, 920 (Ind.Ct.App.2006).

Victor failed to set forth any of these factors in his affidavits. He was required to do so. See Johnson v. Rutoskey, 472 N.E.2d 620, 623 (Ind.Ct.App.1984) (no error where trial court refused to consider purchaser's affidavit in support of motion to correct error where purchaser failed to assert that evidence it contained was newly...