Straub v. B.M.T. by Todd, 10A04-9302-JV-53

Citation626 N.E.2d 848
Decision Date30 December 1993
Docket NumberNo. 10A04-9302-JV-53,10A04-9302-JV-53
PartiesEdward STRAUB, Appellant (Respondent Below), v. B.M.T., By next friend, Francine TODD, Appellee (Petitioner Below).
CourtCourt of Appeals of Indiana

S. Frank Mattox, Mattox & Mattox, New Albany, for appellant.

Earl C. Mullins, Jr., Evans, Bishop, Masters, & Mullins, Clarksville, for appellee.

MILLER, Judge.

On December 15, 1986, Edward Straub, 58, agreed to have intercourse with Francine Todd, 33, so long as she signed an agreement that would hold Straub harmless for emotional and financial support of a child which might result from their sexual relationship. After Todd signed a handwritten note that Straub felt satisfied his conditions, the couple began engaging in unprotected sexual intercourse which resulted in the birth of B.M.T. on November 27, 1987.

After three years of raising B.M.T. without any support from Straub, on January 7, 1991, Todd filed suit as B.M.T.'s best friend to establish paternity and obtain child support and medical expenses. 1 In spite of the agreement, the court ordered Straub to pay the sum of $130.00 per week child support and awarded Todd $1005.00 in medical costs relating to the birth of the child. Straub now claims that: 1) the trial court committed reversible error by holding that the agreement was void as a matter of public policy; and 2) that the agreement should serve to indemnify him against the support claim brought by Todd. 2

We affirm.

FACTS

Straub and Todd began dating in 1985 when both were teachers at the same elementary school. In late 1986, Todd discussed her desire to have a child with Straub after her doctor informed her that artificial insemination would not work. Straub told Todd that he did not want the responsibility of another family due to his age and the fact that he already had children from a previous marriage. However, when Todd threatened to end their relationship, he agreed to try to impregnate her providing she would sign a "hold harmless" agreement. On December 15, 1986, Straub presented Todd with a holographic agreement purporting to hold Straub harmless from financial and emotional support of a child which might result from the couple's The trial court entered findings of fact and conclusions of law that found in pertinent part:

sexual relations. Todd signed the agreement and nature took its course. Their relationship continued for three years after B.M.T.'s birth and only ended when Todd decided to bring suit to establish paternity, even though Straub had married someone else.

Findings of Fact

8. Francine considered ending her relationship with Edward [Straub] and attempting to become pregnant through another man. Edward [Straub] did not want to end the relationship and agreed to attempt to impregnate Francine after she agreed to sign a document which he drafted in his own hand.

That document, Petitioner's Exhibit # 8, reads in its entirety as follows:

"To Whom it may concern

I Francine Todd in sound mind & fore thought have decided not to marry, but would like to have a baby of my own. To support financially & emotionally, I have approached several men who will not be held responsible financially or emotionally who's [sic] names will be kept secret for life.

Signed Francine Todd

Dec. 15, 1986"

9. Following the execution [of the agreement] Francine [Todd] and Edward [Straub] began to have unprotected sex and in March of 1987 Francine became pregnant. During this period Francine testified that she was not sexually active with any other man. Edward generally acknowledged such.

10. During Francine's pregnancy she and Edward were sexually active.

* * * * * *

12. Edward continued to have sexual relations with Francine after the child's birth but did not establish a relationship with the child. He stopped seeing Francine after she filed this action....

Conclusions of Law

3. The respondent, Edward Straub, is the natural biological father of B.M.T.

4. Edward has a common-law, statutory, moral, and societal obligation to support his minor daughter.

5. Francine cannot contract away the rights of the child, B.M.T.

6. The right of an illegitimate child to support and the right to have a trial court determine the best interest of that child cannot be contracted away.

7. The State of Indiana has a compelling interest in assuming that the primary obligation for support of illegitimate children falls on both natural parents and not on the taxpayers of the State.

8. The purported agreement between Francine and Edward as it pertains to the support of B.M.T. is void as a matter of public policy.

Supp.R. 2-5.

Straub then filed a motion to correct error in which he raised three issues claiming: (1) the court erred by failing to distinguish between the pre-conception and post-conception rights of minor children; (2) the parties' agreement is a valid and enforceable indemnification agreement; and (3) the court's finding of paternity was not supported by probative evidence. R. 3-6. The trial court denied his motion.

To this court, Straub now raises two issues: (1) whether the trial court committed reversible error in holding that the parties' voluntary agreement was void as against public policy; and (2) whether the parties' agreement is an enforceable indemnification agreement by and between Edward Straub and Francine Todd. Straub's Brief at 1.

DECISION
I. IS THE AGREEMENT AGAINST INDIANA'S PUBLIC POLICY?

Straub argues the trial court committed reversible error by finding the agreement void and unenforceable as a matter of public policy, i.e., as a matter of law. Here Indiana has long recognized the obligation of both parents to support their children. Elbert v. Elbert (1991), Ind.App., 579 N.E.2d 102. In Matter of M.D.H. (1982), Ind.App., 437 N.E.2d 119, 126, the court noted that current statutory provisions relating to support orders for legitimate and illegitimate children are virtually identical. 3 The court stated, "[A] parent's obligation to support his minor child, legitimate or illegitimate, is a basic tenet recognized in this state by statutes that provide civil and criminal sanctions against parents who neglect such duty ..." Id. at 127 (emphasis added). 4 In addition, there is a well-established common-law duty and obligation of a father to assist in the support of his children. Holderness v. Holderness (1984), Ind.App., 471 N.E.2d 1157, 1160, citing, Taylor v. Taylor (1982), Ind., 436 N.E.2d 56; Bill v. Bill (1972), 155 Ind.App. 65, 290 N.E.2d 749; Crowe v. Crowe (1965), 247 Ind. 51, 211 N.E.2d 164; McCormick v. Collard (1937), 105 Ind.App. 92, 10 N.E.2d 742.

the facts are not in dispute and we are faced with a pure question of law. We will affirm findings and conclusions of the trial court unless they are clearly erroneous. Williams v. City of Indianapolis Dept. of Public Works (1990), Ind.App., 558 N.E.2d 884, trans. denied; Ind.Trial Rule 52(A).

As this court has noted, the interests of children are not necessarily the same as those of their mother. Kieler v. C.A.T. by Trammel (1993), Ind.App., 616 N.E.2d 34, 38. Although securing support and education expenses for children is the primary purpose of a paternity action, the interests of the children are not limited to child support. J.E. v. N.W.S., by S.L.S. (1991), Ind.App., 582 N.E.2d 829, 831. J.E. involved a question of res judicata in a paternity action brought on behalf of the child. In finding that the child's interests were separate from the parents, Judge Rucker explained:

A child born out of wedlock who establishes paternity in a timely fashion has certain rights to inherit from the father, Ind.Code 29-1-2-7(b), as well as certain rights to claim other economic benefits upon the death of the father. S.V. v. The Estate of James A. Bellamy (1991), Ind.App., 579 N.E.2d 144. These rights, in addition to the right to receive child support, are of constitutional dimensions and are entitled to protection under the equal protection clause of the United States Constitution. Mills v. Habluetzel (1982), 456 U.S. 91 [102 S.Ct. 1549, 71 L.Ed.2d 770].

In light of the interests involved and the manifest purpose of the statutory scheme to promote the welfare of the child ... [in an action where a child may be barred from establishing its rights on res judicata ground] ... we hold [that] this result [the loss of the child's rights] can only be justified where the Child was clearly named as a party in the prior proceeding.

Id. at 831-832 (emphasis added).

In addition, the court noted in Matter of S.L. (1992), Ind.App., 599 N.E.2d 227, that the legislature also has recognized, in adoption and termination of parental rights proceedings, that the interests of the State and the interests of the child are not necessarily identical. Id. at 230 n. 3. Thus, the legislature "enacted several statutes which direct or permit the court to appoint a representative for the children involved in such proceedings. See Ind.Code 31-6-4-10(g) [1980], Ind.Code 31-6-4-13.6(c)(1) and (2) [1991], and Ind.Code 31-6-5-4(d) [1989]." Id.

It is apparent that our legislature has created a strong current public policy (and not merely maintained an ancient one) with the object of protecting the rights of children from the whims of their parents Straub first claims that "fundamental contract principles" allow him to contract around his statutory and common-law duty to provide support to his daughter. He ignores other rights, such as inheritance. See J.E. v. N.W.S., by S.L.S., supra. However, this argument fails because it amounts to the contracting away of his daughter's right to support. It is well settled that a parent cannot, by his own contract, relieve himself of the legal obligation to support his minor children. Brokaw v. Brokaw (1980), Ind.App., 398 N.E.2d 1385. In Ort v. Schage (1991), Ind.App., 580 N.E.2d 335, we held that an agreement to forego court ordered child support even in exchange for a...

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