Sullivan v. O'Sullivan

• Decision Date: 23 November 1959
• Docket Number: No. 19230,No. 1,19230,1
• Citation: 162 N.E.2d 315,130 Ind.App. 142
• Parties: Hamilton Lee SULLIVAN, Appellant, v. Evelyn O'SULLIVAN, Appellee
• Court: Indiana Appellate Court

Page 315

162 N.E.2d 315

130 Ind.App. 142

Hamilton Lee SULLIVAN, Appellant, v. Evelyn O'SULLIVAN, Appellee.

No. 19230.

Appellate Court of Indiana, Division No. 1.

Nov. 23, 1959.

Paul C. Archibald, New Castle, Wesley W. Ratliff, Jr., Knightstown, for appellant.

Franklyn George, New Castle, for appellee.

COOPER, Judge.

This is an appeal from a judgment of the Fayette Circuit Court of Fayette County, Indiana, against the appellant under § 3-623 et seq., Burns' 1946 Replacement, being the 'Children Born Out of Wedlock' statute.

The issues were formed upon the verified complaint with the following allegations in substance: The plaintiff below was delivered with the child conceived out of wedlock; the defendant below is the father of the child; the said child has been acknowledged by said father and that he paid plaintiff below support for said child voluntarily and acknowledged he was he father of said child; that support had been paid for said child within the period of one year prior to the filing of the petition and that he was failing and neglecting to contribute to further support of said child; that he be required to fulfill the obligations of a father, as required by law.

The appellant, defendant below, filed an answer in three paragraphs. Paragraph one he denied the material allegations contained in the plaintiff's complaint; paragraph two, he denied being the father of said child; paragraph three, he pleaded affirmative defense of statute of limitations in that the proceedings were not brought within two years after the birth of said child.

The cause was submitted to the court for trial and the court rendered the finding and judgment for the appellee. The appellant being adjudged the father of said child and being ordered to pay the sum of Seven ($7.00) Dollars per week for the support of said child. The appellant thereafter filed the proper motions, which were overruled, and this appeal followed.

The error of assignment for reversal advanced by the appellant in his argument is that the trial court erred in overruling appellant's motion for a new trial which averred that the decision is not sustained by sufficient evidence and is contrary to law.

It appears from the argument portion of the appellant's brief that he does not question the sufficiency of the evidence relative to the trial court's finding that the appellant was the father of the child involved herein as he has failed to discuss that question in the argument portion of his brief; therefore, that particular question is waived. See State v. Smith et ux., 1957, 237 Ind. 72, 143 N.E.2d 666; Stoner v. Howard Sober, Inc., 1957, 127 Ind.App. 338, 141 N.E.2d 458; White v. State, Ind.1958, 152 N.E.2d 894. For additional authorities, see § 2677, Comment 11, Flanagan, Wiltrout and Hamilton's Indiana Trial and Appellate Practice.

The remaining questions before us that are properly reised by the appellant are: '(a) The action was not brought within the period of time required by the statute'; '(b) The appellant had not furnished support for said child within the accepted definitions of that term'.

A review of the statutes applicable to this appeal reveals that the purpose of the act relating to children born out of wedlock is to provide proper legal procedures to enable such children to have the proper care, maintenance, education, protection, support and opportunities, the same as children born in wedlock, and to establish the necessary legal procedure to enforce such rights and privileges for such children. See § 3-623, supra. Thus, it is apparent that any action brought under the 'children born out of wedlock' act is solely for the benefit of such children. Secs. 3-628 and 3-647, Burns' 1946 Replacement, provides:

'3-628. Obligations of father--When deemed fulfilled--Effect of adoption.--The obligation of the father to the child shall be fulfilled by compliance with the judgment of the court establishing the paternity of a child and making provisions for its support, or by compliance with a compromise agreement entered into by him in which he agrees to make adequate provision for the support of the child. The legal adoption of the child into another family discharges all obligations of the father for maintenance and support subsequent to the adoption. (Acts 1941, ch. 112, § 6, p. 301.)' (Our emphasis.)

'3-647. Limitation of action to enforce obligation of father--Exceptions.--Proceedings to enforce the obligation of the father shall not be brought after the lapse of more than two (2) 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 voluntarity 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 (2) years after the acknowledgment or the last furnishing of support to the child. * * *' (Our emphasis.)

It affirmatively appears from the foregoing sections of the statutes relating to children born out of wedlock, that the alleged father of such a child can fulfill the obligation of support of such child by complying with a compromise agreement made with the mother wherein he agrees to make adequate provision for the support of the child without court proceedings.

It also appears that an action to enforce the obligations of a father must be brought within two years from the birth of such a child, with certain exceptions: one being, if support has been furnished by the alleged father or some one 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. From the pleadings in the record before us, it appears that the foregoing is the exact situation that the appellee charged and averred in her petition in the trial court.

The record reflects that the appellant herein, by his third paragraph of answer, affirmatively pleaded the two-year statute of limitations. In the matter now before us, it is apparent from the record that the appellant offered no evidence whatsoever on his behalf. It is the general rule of law that the party pleading the statute of limitations has the burden of proving that the cause of action accrued more than the statutory time before the commencement of the action. Matovina et al. v. Hult, 1955, 125, Ind.App. 236, 123 N.E.2d 893. It is also true that the party who relies on facts in avoidance of a statute of limitations has the burden of proving such facts. See Hinds, Executor Etc. v. McNair, et al., 1955, 235 Ind. 34, 129 N.E.2d 553. It is apparent that the trial court in weighing the following evidence arrived at the decision that the appellee had sustained the burden of proving that the appellant had furnished support to said child within a period of two years prior to the time this action was brought.

A very concise statement of the undisputed evidence in the record before us reveals that the appellee was delivered with child on April 1, 1950, at Richmond,...