Tarver v. Dix

• Decision Date: 11 June 1981
• Docket Number: No. 3-1080A324,3-1080A324
• Citation: 421 N.E.2d 693
• Parties: Kenny Lee TARVER, Appellant (Defendant Below), v. Erma Jean DIX, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 693

421 N.E.2d 693

Kenny Lee TARVER, Appellant (Defendant Below), v. Erma Jean DIX, Appellee (Plaintiff Below).

No. 3-1080A324.

Court of Appeals of Indiana, Fourth District.

June 11, 1981.

Lester A. Ottenheimer, III, Robert L. Meinzer, Jr., Ottenheimer, Silverman and Meinzer, St. John, for appellant.

Linley E. Pearson, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Presiding Judge.

Appellant Kenny Lee Tarver appeals from a judgment entered against him in a paternity action. On appeal, he raises three issues:

(1) Whether there was sufficient evidence to overcome the presumption of legitimacy;

(2) Whether the trial court's order requiring him to pay support was erroneous because it was entered without the court holding a separate hearing on it; and

(3) Whether the suspended sentence of one year in prison and the probation imposed in the event of failure to give the required bond was made without authority. We affirm in part and reverse in part.

The evidence most favorable to the judgment indicates that petitioner-appellee Erma Jean Dix was married to Jonathan L. Dix on June 12, 1972. On December 28, 1974 they separated. At trial, Erma Dix testified that she had not seen Jonathan Dix since their separation although Jonathan lived with his parents only a mile and a half from her. In 1974, Erma Dix met Tarver. Even though both remained married to other persons, they began living together and they continued to live together until March of 1977 when Erma announced her pregnancy. During this period of time, appellee Dix and appellant Tarver had sexual relations daily. No men, other than Tarver and Erma Dix's brother, were ever seen entering Erma's apartment. On December 28, 1977 Erma Dix gave birth to the child who is the subject of this paternity suit.

Upon a trial before the court, special findings of fact and conclusions of law were entered in which the trial court found as follows: 1) that Jonathan Dix and Erma Dix were married on June 12, 1972, separated on December 28, 1974, and finally divorced on July 28, 1979, 2) that both Jonathan and petitioner continued to reside in East Chicago but petitioner neither visited with nor saw her estranged husband after the separation, 3) that shortly after petitioner met Tarver in 1974, they began living together as husband and wife until she became pregnant in 1977 and that they had sexual intercourse an average of two or three times per day without using any contraceptives, 4) that on December 28, 1977, petitioner gave birth to a child, and at that time was still legally married to Jonathan Dix, 5) that petitioner's last menstrual period before birth of the child was in February 1977 and the probable time of conception was during the last three weeks of March 1977, 6) that during January, February, and March 1977, petitioner had sexual intercourse with Tarver daily using no contraceptives and she did not have it with any other, 7) that Tarver was married to Cheryl Tarver while he lived with petitioner, and 8) that in February 1979 Tarver gave petitioner, through the child, $20.00, for the child's benefit. The trial court's conclusions and judgment are set out verbatim:

"The term, "access", is defined as follows: Approach, or the means, power or opportunity of approaching; sometimes importing the occurrence of sexual intercourse; otherwise, as importing the opportunity of communication for the purpose of sexual intercourse, as between husband and wife. Black's Law Dictionary, 1968, Revised 4th Edition (citations omitted).

Because Plaintiff was legally married to J. Dix, when her child, Nikia Shilah, was born, a presumption arises by statute, IC 31-6-6.1-9, that J. Dix is the biological father of said child. The presumption rebuttable has been sufficiently overcome by clear, convincing and direct evidence that he, J. Dix has absolutely no access to the Plaintiff at or near the time when the child herein was conceived. The only man having access to Plaintiff, at the time her child was conceived, was the defendant, Kenny Lee Tarver. The mere showing that Plaintiff's estranged husband, J. Dix, was, or could have been living in the same city as Plaintiff, at the time the child was conceived, does not establish that he, Dix, has access, as it is herein defined, to Plaintiff.

The Defendant, Kenny Lee Tarver, is the natural biological father of the child born to Plaintiff, Erma Jean Dix, on December 28, 1977.

WHEREFORE, the Court orders that judgment be entered on the rulings of the Court of May 9, 1980, to-wit:

The Court finds that Kenny Lee Tarver, is the father and Erma Jean Dix, is the mother of the Female Black child born on December 28, 1977, at St. Catherine's Hospital, East Chicago, Indiana, and that said child shall hereinafter bear the name of NIKIA SHILAH TARVER.

The Court further finds that the father of said child should pay the hospital and doctor all unpaid balances due them for prenatal, postnatal and medical expenses accrued for the care and treatment of the mother and child, payable directly all on or before one (1) year from date hereof; the father of said child should pay the sum of $30.00 each week for support of herein child, commencing on May 9, 1980, and payable into the office of the Clerk of this Court for disbursement to the mother. Further, the mother is awarded custody of minor child and the father is granted visitation privileges with said child.

The Court further finds that the father should give bond in the sum of $5,000.00, conditioned that he perform the judgment and orders herein and failing to give bond, he should be committed to the Indiana State Farm for a period of one (1) year; that such sentence be suspended and herein father placed on probation.

IT IS THEREFORE CONSIDERED, ADJUDGED, ORDERED AND DECREED by the Court that Kenny Lee Tarver, is the father, and Erma Jean Dix, is the mother of the Black Female child born on December 28, 1977, at St. Catherine's Hospital, East Chicago, Indiana, and that said child shall hereinafter bear the name of NIKIA SHILAH TARVER.

IT IS FURTHER CONSIDERED, ADJUDGED, ORDERED AND DECREED by the Court that the father of said child shall pay the hospital and medical and doctor all unpaid balances due them for prenatal, postnatal and medical expenses accrued for the care and treatment of the mother and child, payable directly all on or before one (1) year from date hereof; the father shall pay the sum of $30.00 each week for support of the child commencing on May 9, 1980, and payable into the Office of the Clerk of this Court for disbursement to the mother.

Further, the father is ordered to pay all major hospital, medical and dental expenses for the herein child.

In addition thereto, the father shall pay into the Office of the Clerk of this Court the sum of $10.00 support service fee on or before December 31, 1980, and a like sum on January 1st of each subsequent year.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the father shall give bond in the sum of $5,000.00, conditioned that he perform the judgment and orders herein, and failing to give bond, he shall be committed to the Indiana State Farm for a period of one (1) year; that such sentence be suspended and the father placed on probation."

Tarver first contends that there was insufficient evidence to overcome the statutory presumption of legitimacy when a child is born to a married woman. The State argues that the statutory presumption does not apply because this action arose before IC 31-6-6.1-9 became effective. ¹ This action was filed in 1978; however, the trial did not occur until 1980 after the Code section in question, which contained no savings clause, became effective. While statutes are generally given prospective effect absent a contrary legislative intent, it is also true that the jurisdiction in pending proceedings continues under the procedure directed by new legislation where the new legislation does not impair or take away previously existing rights, or deny a remedy for their enforcement, but merely modifies procedure, while providing a substantially similar remedy. State v. Smith, (1973) 260 Ind. 555, 297 N.E.2d 809; Hine v. Wright, (1941) 110 Ind.App. 385, 36 N.E.2d 972. See also 73 Am.Jur.2d § 354. The new legislation used in this case did not impair or take away any previously existing rights nor did it deny a remedy for the enforcement of such rights. It provided a substantially similar remedy while delineating more clearly the procedure to be followed in determining and enforcing this right. Thus, the statutory presumption was not erroneously applied. ²

In addressing Tarver's question of sufficiency of the evidence to rebut this presumption, we consider only that evidence which tends to support the trial court's findings of fact, conclusions of law, and judgment, together with all reasonable inferences which may be drawn therefrom. Blade Corp. v. American Drywall, Inc., (1980) Ind.App., 400 N.E.2d 1183. Whether the findings are adequate depends upon whether they are sufficient to disclose a valid basis under the issues for the legal result reached in the judgment. In Re Marriage of Miles, (1977) 173 Ind.App. 5, 362 N.E.2d 171. In making this determination a reviewing court will accept the findings made by the trial court unless clearly erroneous and not supported by the evidence. Ind.Rules of Procedure, Trial Rule 52(A); In Re Marriage of Miles, supra. Furthermore, the findings will be construed together and will be liberally construed in support of the judgment. Id.

As to the findings, Tarver essentially asks us to reweigh the evidence. However, this court will not reweigh conflicting evidence on appeal or determine the credibility of witnesses. Roe v. Doe, (1972) 154 Ind.App. 203, 289 N.E.2d 528. Each finding was supported by Appellee Dix's testimony which was corroborated, in part, by her neighbor. This evidence is sufficient to support the...