Tekulve v. Turner, 1-1278-A-367

Decision Date09 July 1979
Docket NumberNo. 1-1278-A-367,1-1278-A-367
Citation391 N.E.2d 673,181 Ind.App. 295
PartiesMary Margaret TEKULVE, Appellant (Plaintiff Below), v. Irma Denninger TURNER, Grace C. Turner, the First National Bank of Columbus, as Trustee of the purported Last Will and Testament of Robert W. Turner, the Presbyterian Foundation of Columbus, Indiana, United Way of Bartholomew County, Inc., Children's Home of Bartholomew County, Indiana, Bartholomew County Indiana Hospital Foundation, Irma Denninger Turner, as Personal Representative of the purported Last Will and Testament of Robert W. Turner, Unknown and Unascertained Heirs at Law of the Decedent, Robert W. Turner, Unknown and Unascertained Beneficiaries of a purported Trust under the purported Last Will and Testament of Robert W. Turner, Appellees (Defendants Below).
CourtIndiana Appellate Court

Norman D. Curry, Curry & Zaharako, Columbus, for appellant.

Arthur D. King, Cline, King & Beck, Columbus, for appellees.

ROBERTSON, Judge.

Petitioner-appellant Mary Margaret Tekulve (Tekulve) appeals from a grant of summary judgment in favor of Irma Denninger Turner, et al. We affirm.

Tekulve initiated the instant action by way of a petition to determine heirship during the administration of the estate of Robert W. Turner alleging, Inter alia, that she was entitled to inherit pursuant to Ind.Code 29-1-2-7. This statute provides that an illegitimate child may inherit from a putative father so long as "(1) the paternity of such child has been established by law, during the father's lifetime; or (2) if the putative father marries the mother of the child and acknowledges the child to be his own." IC 29-1-2-7(b). With respect to the first alternative ground, it would be necessary to prove that Tekulve's paternity was established in a judicial proceeding brought for the avowed purpose of adjudicating the paternity issue; moreover, clear and unequivocal acknowledgment standing alone is insufficient. Thacker et al. v. Butler, Administrator etc., et al., (1962) 134 Ind.App. 376, 184 N.E.2d 894. The second ground requires that the putative father marry the mother of such child And acknowledge the child as his own. See Witt v. Schultze, (1966) 139 Ind.App. 142, 217 N.E.2d 163. The burden of proof rests upon the child. See, e.g., Haskett v. Haskett, (1975) 164 Ind.App. 105, 327 N.E.2d 612. Hence, Tekulve has the burden of establishing her right to inherit under IC 29-1-2-7 by showing a judicial declaration of paternity or marriage by the decedent to her natural mother and an acknowledgment of paternity thereafter.

On appeal from a grant of summary judgment, the only issues are whether the trial court correctly applied the law and whether there is a genuine issue of material fact. Hale v. Peabody Coal Company, et al., (1976) Ind.App., 343 N.E.2d 316; In the Matter of the Big Raccoon Conservancy District, (1977) Ind.App., 363 N.E.2d 1004. The movant carries the burden of establishing the absence of a factual controversy. See, e. g., Levy Company, Inc. v. State Board of Tax Commissioners, (1977) Ind.App., 365 N.E.2d 796; Swanson v. Shroat, (1976) Ind.App., 345 N.E.2d 872. Hence, the evidentiary matters before the court are construed in a light most favorable to the nonmoving party (Levy, Swanson, supra ), and if when so viewed a genuine issue of material fact nevertheless remains, the opponent need not embark on the useless task of filing counter-affidavits. Illinois Valley Acceptance Corp. v. Woodard, (1973) 159 Ind.App. 50, 304 N.E.2d 859. These propositions, however, must not obfuscate the primary purpose of a summary judgment, that is, to dispose of matters that do not require resolution by a jury or judge at trial. See Hayes v. Second National Bank of Richmond, (1978) Ind.App., 375 N.E.2d 647. See also Pan American World Airways, Inc. v. Local Readers Service, Inc., (1968) 143 Ind.App. 370, 240 N.E.2d 552. Therefore, if the absence of a triable issue is adequately demonstrated to the trial court, the opponent must come forth with sufficient evidence to establish a factual controversy, a showing considerably less than a likelihood of recovery on the merits. See Bassett v. Glock, (1977) Ind.App., 368 N.E.2d 18.

The record reveals that the decedent's widow filed an affidavit which stated that, at least with her respect to her personal knowledge, the decedent was never married before, fathered no children, and had adopted no children. In response, Tekulve filed affidavits to the effect that she was the natural child of the decedent and that he had acknowledged her as such during his lifetime. Mary also alleged that she was born 30 years before the widow married the decedent and thus contends that the widow's affidavit lacks probative force.

We decline the invitation of Tekulve to indulge in a hypertechnical analysis of the affidavits before the trial court, especially in light of their conclusory nature. Rather, we are concerned with the now banal but nonetheless pivotal inquiry as to whether a genuine issue of material fact was presented to the court below. The Only material factual controversy before the court was (1. whether paternity had been judicially established, or (2. whether the decedent married the natural mother of Tekulve And acknowledged Tekulve as his daughter. We admit that Tekulve's affidavits, as to the matters averred therein, disclose a "factual controversy." However, there is a stark absence of factual allegations that go to the essence of the action. Tekulve only alleges Acknowledgment, but not marriage And acknowledgment. To hold that a genuine issue of material fact can exist in a factual void would result in a holding that,...

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