Roe v. Doe

• Citation: 154 Ind.App. 203,289 N.E.2d 528
• Court: Court of Appeals of Indiana
• Decision Date: 27 November 1972
• Parties: Richard ROE, Appellant (Defendant Below), v. Jane DOE, Appellee (Plaintiff Below).

Page 528

289 N.E.2d 528

154 Ind.App. 203

Richard ROE, Appellant (Defendant Below), v. Jane DOE, Appellee (Plaintiff Below).

Court of Appeals of Indiana, Second District.

Nov. 27, 1972.

Robert G. Mann, Indianapolis, for appellant

Frank P. Huse, Jr., Indianapolis, for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY--Defendant-appellant, RICHARD ROE (the father) appeals from a decision in a paternity action determining him to be the father of L_ _, a child born out of wedlock to plaintiff-appellee, JANE DOE (the mother). We affirm.

FACTS--The facts and evidence most favorable to appellee and the judgment below are: On May 23, 1968, appellee, using the form provided by the Juvenile Court of Marion County, filed the following Petition (JANE DOE), being duly sworn, upon her oath says:

To Establish Paternity of Child (Paternity Petition herein):

b. 6--22--44

1. She is 23 years of age, and files this action.

2. She is the mother of (L_ _) a child born out-of-wedlock on 26th day of February 1962 at General Hospital in the County of Marion, State of Indiana.

3. Said child was conceived out-of-wedlock in June 1961, in the County of Marion, State of Indiana.

4. At the time of conception of said child, petitioner was unmarried.

5. (RICHARD ROE) is the father of said child.

6. She is liable for the necessary expenses of the pregnancy and birth of said child in the amount of $104.50.

7. She has expended funds for the support and care of said child and is liable to furnish continuing support and care for said child.

8. She has not retained private counsel to prosecute this action.

9. She was born in Marion County, State of Indiana.

10. Defendant (RICHARD ROE) was born in unknown County State of tennessee.

11. Altho said child is over 2 years of age, defendant has voluntarily supported. WHEREFORE, Your petitioner prays that:

1. (RICHARD ROE) be ordered to appear before said court, and

2. The Court finds him the defendant (RICHARD ROE) to be the father of said child, and

3. The Court enter judgment against the defendant that he is the father of said child, and for the necessary expenses of pregnancy and birth, reasonable attorney's fees, and court costs, and

4. The Court make a continuing order against the defendant for adequate provision for the support of the child, and

5. For all further and proper relief in the premises.

(Signed) (JANE DOE)

PETITIONER

Appellant was summoned to appear in Juvenile Court on or before June 7, 1968, and on June 5, 1968, his counsel entered a Special Appearance for the purpose of 'contesting the jurisdiction of this court over the parties and subject matter by way of Plea in Abatement.' No Plea in Abatement or Demurrer was thereafter ever filed contesting such jurisdiction.

Thirty-eight days after the paternity action was filed, appellant filed Motions for Change of Venue and for Trial by Jury. Both of these Motions were subsequently denied.

Two years and seven months later, on January 28, 1971, appellant filed a Motion to Dismiss attacking the sufficiency of the Paternity Petition, which was also denied.

In July of 1971, this cause was submitted for trial before the court.

The only evidence presented at trial was the testimony by appellee and appellant. Appellee testified to having sexual relations with appellant in June of 1961 and that approximately nine months later, on Four other children were born out of wedlock to appellee subsequent to the birth of L_ _. There was other evidence reflecting on the good moral character of appellee.

February 26, 1962, L_ _ was born. She denied having sexual relations with anyone prior to June of 1961. Appellant, she said, admitted being the father of L_ _ and he paid her support money for L_ _ from the time the child was born until this paternity action was commenced.

Appellee testified that her medical expenses in connection with the birth of L_ _ were $104.50 and there was no evidence presented as to the nature and extent of the legal services rendered by appellee's counsel, although her counsel appeared of record and participated in the proceedings.

Appellant admitted to sexual relations with appellee only on one occasion in May or June of 1960. Furthermore, he denied ever admitting that he was the father of L_ _ or that he furnished support payments for L_ _.

Judgment was entered establishing appellant to be the father of L_ _ and ordering him to pay $15.00 per week support for L_ _, $104.50 medical expenses incurred by appellee during her pregnancy and the birth of L_ _, and $400.00 for appellee's attorney's fees.

ISSUES

ISSUE ONE. Were appellant's Motions for Change of Venue and Trial by Jury, filed thirty-eight (38) days after appellee filed her Paternity Petition, timely filed so as to require granting them as a matter of right?

ISSUE TWO. Was appellee's Paternity Petition so vague and poorly drafted that the court should have granted appellant's Motion to Dismiss?

ISSUE THREE. Was there sufficient evidence to support the trial court's decision that appellant is the father of L_ _?

ISSUE FOUR. Was it an abuse of discretion to require appellant to pay appellee's medical expenses and attorney's fees?

As to Issue One, appellant contends that by virtue of his Special Appearance, the issues were not closed by operation of law until such time as the court ruled on the jurisdictional question, which it did not do, and therefore his Motions for Change of Venue and Trial by Jury were timely and should have been granted. Appellee's response is that the Motions were not filed within 30 days after appellee filed her Paternity Petition, as provided by Supreme Court Rules 1--12B(2) and (3), prior to January 1, 1970.

As to Issue Two, appellant asserts that his Motion to Dismiss should have been granted because appellee's Paternity Petition was so vague and poorly drafted that it failed to inform him of what issues would be presented for trial, a charge which appellee denies.

As to Issue Three, appellant argues that the evidence presented by appellee failed to prove by a preponderance of the evidence that he was the father of L_ _; that appellee was guilty of gross misconduct and came into court with unclean hands, that as her character is in dispute insufficiency of the evidence is a question of law. Appellant is merely asking this court to reweigh the evidence, says appellee.

As to Issue Four, appellant contends that there was insufficient evidence to support an award of medical expenses and no evidence as to attorney's fees. Appellee says such matters are solely within the discretion of the trial court, pursuant to Ind.Ann.Stat. § 3--641 (Burns 1968), IC 1971, 31--4--1--19, which provides that the court shall make an order making adequate provision for the support of the child and may also provide for the payment by the father

of the medical [154 Ind.App. 209] expenses incurred by the mother in the care of the pregnancy and prosecution of the paternity action including court costs and reasonable attorney's fees.

DECISION

Issue One--It is our opinion that appellant's Motions for Change of Venue and Trial by Jury were not timely filed and were therefore properly overruled.

Appellant seeks to give vitality to three Motions. Two of these, a Motion for Change of Venue and a Motion for Trial by Jury were filed thirty-eight (38) days after the filing of the Paternity Petition on May 23, 1968. The third Motion attacking the sufficiency of the Paternity Petition was filed on January 28, 1971, after the case had languished for over two and one-half years without attention from the court or the parties.

Because his Special Appearance contesting the jurisdiction of the court over the parties and the subject matter remained on file with that issue unresolved, the issues were not closed by operation of law and the Motions for Change of Venue from the County and for Jury Trial should therefore have been granted, says appellant.

He admits, however, that in paternity actions the issues are closed by operation of law and that the Supreme Court rules of practice and procedure in effect prior to January 1, 1970, provided:

Rule 1--12B(2) and (3).

'(2) * * * Any such application for a change of judge or change of venue shall be filed not later than ten (10) days after the issues are closed on the merits.

'(3) Provided, however, in those cases where no pleading or answer may be required to be filed by the defending party to close issues (or no responsive pleading is required under a statute) each party shall have thirty (30) days after the filing of such case within which to request a change from the judge or the county.' (Emphasis supplied)

(Note: Supreme Court Rule 1--8A imposed the same time limitation on motions for jury trial by reference back to 1--12B. Thus the same 30 day requirement applied to both types of motions and will be treated accordingly.)

By recognizing that in paternity actions the issues are deemed closed by operation of law, both parties to this appeal, wittingly or unwittingly, are placing reliance on State ex rel. Beaven v. Marion Juvenile Court, (1962) 243 Ind. 209, 184 N.E.2d 20, which established the principle that formality of pleadings in the formation of issues in paternity cases is not necessary nor is responsive pleading required. After stating that the issues are closed as a matter of law when a Paternity Petition is filed, unless a timely objection is made by the defendant as soon as he learns of the setting of the case for trial, the court went on to observe that:

'* * * if the parties by their action with respect to the case, adopt the position that the cause will be tried upon the issues asserted in the petition of the relator, without the formality of pleadings as required in civil cases generally, the parties by such action (by their own conduct) adopt the position that insofar as the closing of issues is necessary to an expeditious disposition of the case, the issues will be considered...