E.W.R. v. T.L.C.

• Decision Date: 13 September 1988
• Docket Number: No. 32A01-8712-JV-313,32A01-8712-JV-313
• Citation: 528 N.E.2d 106
• Parties: E.W.R., Petitioner-Appellant, v. T.L.C., Respondent-Appellee, and Harold W. Blake, Guardian Ad Litem of Minor Child K.E., Guardian Ad Litem- Appellee.
• Court: Indiana Appellate Court

Page 106

528 N.E.2d 106

E.W.R., Petitioner-Appellant, v. T.L.C., Respondent-Appellee and Harold W. Blake, Guardian Ad Litem of Minor Child K.E. Guardian Ad Litem- Appellee.

No. 32A01-8712-JV-313.

Court of Appeals of Indiana First District.

Sept. 13, 1988.

As Corrected on Denial of Rehearing Nov. 21, 1988.

Frank E. Spencer, Indianapolis, for petitioner-appellant.

Fred W. Isaacs, Brownsburg, for respondent-appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

E.W.R. appeals the trial court's decision that the surname of his child shall remain the last name of the child's unwed mother. E.W.R. also appeals the trial court's order requiring that E.W.R. pay appellate attorney fees for T.L.C., the mother of his child. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

FACTS

On November 12, 1986, a baby boy was born out of wedlock to T.L.C. and E.W.R. At the time the child was born, T.L.C. was seventeen years old and E.W.R. was nineteen years old. Both parties were unmarried, residing with their respective parents, and dependent on them for financial security. T.L.C. gave the child her last name. One week prior to the birth of the child, E.W.R. initiated a paternity petition in the Hendricks Circuit Court. In this petition E.W.R. requested the court to establish the paternity of the child, make provision for the child's care, custody, support, and maintenance, and to establish visitation arrangements for the non-custodial parent. Subsequently, the parties stipulated that E.W.R. was the father of the child and that T.L.C. would have custody of the child.

On January 22, 1987, a hearing was conducted upon three remaining issues: (1) the amount of child support to be paid by E.W.R.; (2) what constituted reasonable visitation by E.W.R. with the child; and (3) what the surname of the child would be. The trial court granted T.L.C.'s pre-trial, oral request for proposed findings of fact and conclusions of law. The court approved all pre-trial stipulations of the parties except that T.L.C. should have custody of the child. The court appointed a guardian ad litem, Harold Blake, to arrange parent counseling for the parties.

Blake filed a report with the court on February 17, 1987, recommending that T.L.C. be granted custody of the child. The report further stated that E.W.R. should be granted expanded visitation with the child away from the mother's house and that E.W.R. should pay $35.00 per week in child support. Blake also recommended that both parties attend further counseling sessions at the Indianapolis Institute for Marital and Family Relations and the child's surname should be that of the child's father.

On March 11, 1987, the trial court issued a partial judgment awarding T.L.C. custody of the child and requiring E.W.R. to pay $35.00 per week in child support. The court also ordered the parties to attend counseling sessions with a court appointed advisor, Bill Alexander, regarding issues of parenting, visitation, and behavior in the child's best interests. The court stated that further disposition of the case would occur after the court received and evaluated Alexander's report.

On April 8, 1987, T.L.C. filed a motion for receipt of report of court appointed expert. The court responded by entering an order requiring the guardian ad litem to distribute the completed report to both attorneys. On July 16, 1987, Alexander filed his final report, which stated that the parties had successfully completed a parenting program and which provided recommendations to which the parents had agreed, including the fact that T.L.C. would have legal custody of the child and the specifics involved in E.W.R.'s visitation of the child. However, as the report noted E.W.R. and T.L.C. could not agree on the child's surname nor on the specific guidelines for support payments. However, Alexander recommended that the child have T.L.C.'s last name and noted that E.W.R. wanted the issue decided by the court. In a letter attached to the report and also filed in open court, Alexander stated that E.W.R. attended the counseling sessions On July 24, 1987, the trial court issued its final judgment which granted physical custody of the child to T.L.C. with provisions for reasonable visitation by E.W.R. The court required E.W.R. to continue to pay $35.00 per week in child support and found that the child was to retain his mother's surname. On September 22, 1987, E.W.R. filed a motion to correct errors which was denied on November 3, 1987. E.W.R. then instituted this appeal and in response T.L.C. filed a motion for order granting allowance for appellate attorney's fees. The court granted this motion on December 2, 1987, ordering E.W.R. to pre-pay T.L.C.'s attorney $4500.00 in appellate attorney fees.

"grudgingly, hesitantly, even at times belligerently". Record at 167. Alexander went on to state that: "He [E.W.R.] did although make the effort to learn about parenting skills, showing enough progress to enable me to set the conditions as contained in the enclosed agreement." Record at 167. Alexander then stated that T.L.C. approached the session with vigor and enthusiasm. Id. While T.L.C. affixed her signature to the report tendered by Alexander, E.W.R. refused to do so because of the clause concerning the child's surname. When E.W.R. subsequently received a revised version of the report still containing the surname recommendation, but with E.W.R.'s objections noted, E.W.R. attempted to contact Alexander to inform him that he still objected to the contents of the report. However, E.W.R. was unsuccessful in reaching Alexander.

ISSUES

While the appellant presented six (6) issues for review, this court has consolidated those issues into the following three allegations of error:

1. Did the court err in failing to enter special findings where appellee's pre-trial, oral request to do so was granted?

2. Did the trial court err in finding that the child should have the mother's surname where the trial court ordered and received a report from a court appointed expert, Bill Alexander, and that report was never introduced into evidence?

3. Did the trial court err in ex parte ordering E.W.R. to pre-pay T.L.C.'s attorney $4,500.00 in appellate attorney fees absent any findings of need, ability to pay or reasonableness of the fee?

DISCUSSION AND DECISION

Issue One

The appellant first contends that the trial court erred in entering the final judgment without special findings of fact upon which the judgment was based. Prior to the introduction of evidence the appellee orally requested that special findings be entered. The trial court granted this motion and ordered each party to submit proposed special findings. The parties complied with this order, but upon entering final judgment the trial court declined to include special findings of fact.

Where no written request for special findings is filed with the court, the trial judge is under no obligation to make such findings. Indiana Rules of Procedure, Trial Rule 52(A); Weiss v. Weiss (1974), 159 Ind.App. 231, 236, 306 N.E.2d 120, 123; Jay Clutter Custom Digging v. English (1979), 181 Ind.App. 603, 607, 393 N.E.2d 230, 233. Thus despite the fact that the trial court granted the oral request for special findings, the compelling force of T.R. 52(A) was not triggered absent a written request. Therefore, given the deficiency of the motion and the fact that the party claiming error is not the party responsible for the original motion, the trial court's failure to enter special findings does not constitute reversible error.

Issue Two

E.W.R. next contends that the trial court abused its discretion in allowing the child to retain the mother's surname. He rests this assertion of error on the grounds that the trial court allegedly relied on the report filed by Bill Alexander in making the name determination. This report was never introduced into evidence and neither party had an opportunity to cross-examine Alexander, the author of the report.

The trial judge cited to "the concepts set out in Federal Rule of Evidence 706" in support of his appointment of Alexander. Record at 162. The Federal Rules of Evidence are not controlling in evidentiary matters in the State of Indiana. However, Alexander's appointment was valid under Indiana Code section 31-6-6.1-10(a) which provides:

"Upon finding that a man is the child's biological father, the court shall, in the initial determination, conduct a hearing to determine the issues of support, custody, and visitation. Upon the request of any party or on the court's own motion, the court may order a probation officer...