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Thursday, March 08, 2007

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

The Court of Appeals decides two cases today regarding challenges to the paternity affidavit.

In In Re the Paternity of E.M.L.G., R.L.J., J.A.J. and N.A.H. , a 9-page opinion, Judge Mathias writes:

This is an appeal regarding four consolidated cases. The State appeals from the St. Joseph Probate Court’s denial of its motion to correct error in each of the four cases. At issue is whether the trial court properly granted four putative fathers’ requests for genetic testing to disestablish paternity under Indiana Code section 31-14-6-1.1 Concluding that each putative father did not timely request genetic testing under Indiana Code section 16-37-2-2.1, and therefore was already deemed the legal father, we reverse and remand. * * *

All four of the fathers admittedly signed a paternity affidavit pursuant to this statute and did not rescind or set aside the affidavit within the sixty-day time frame provided for under Indiana Code section 16-37-2-2.1. Therefore, under the plain, unambiguous language of the statute, paternity was already established. * * *

Additionally, as we have previously noted, “[t]he Indiana Code has no provision for the filing of an action to disestablish paternity.” In re Paternity of H.J.B., 829 N.E.2d 157, 159 (Ind. Ct. App. 2005). Rather, the Indiana statutes governing paternity actions, found in Article 14 of Title 31 of the Indiana Code provide a means to establish paternity, not to disestablish it. Our General Assembly has clearly and unequivocally prescribed that it “favors the public policy of establishing paternity under [Article 14] of a child born out of wedlock.” Ind. Code § 31-14-1-1 (1998). Given this explicit language, when we look at Article 14 of Title 31 in its entirety, we conclude that the trial court improperly determined that Indiana Code section 31-14-6-1 provides a method by which legal fathers may disestablish paternity outside of the sixty-day time limitation, absent a claim of fraud, duress or material mistake of fact. Moreover, under these statutes, a trial court does not have the authority to treat child support proceedings as proceedings to disestablish paternity.

The soundness of the public policy underlying our decision today is illustrated by the facts of these four cases. If genetic testing were to disestablish paternity, then each child would be considered a “filius nullius,” which in Latin means a “son of nobody.” * * *

The Appellees rely substantially on our unpublished memorandum decision In re Paternity of M.H., No. 71A03-9905-JV-182 (Ind. Ct. App. September 20, 1999). In that case, we held that an executed paternity affidavit created a rebuttable presumption of paternity that could be contested by the father more than sixty days after he had executed the affidavit. Under Indiana Appellate Rule 65(D), an unpublished decision may not be cited as binding precedent. [ILB - emphasis added] In addition, we are compelled to note that the statutory provisions underlying this memorandum decision were substantially amended in 2001, before the fathers in the proceedings below executed paternity affidavits. * * *

The four putative fathers at issue failed to have their paternity affidavits set aside within the sixty-day time limit as provided for under Indiana Code section 16-37-2-2.1. Therefore, under Indiana Code section 31-14-7-3, each man is deemed the legal father. We conclude that the trial court erred as a matter of law in granting the fathers’ requests for genetic testing to disestablish paternity. Reversed and remanded.

In In Re the Paternity of J.B.T., Terry Davis v. Theresa Marie Audrey Trensey , a 10-page opinion by Judge Friedlander, T executed a paternity agreement after the child's birth, but 6 months later the prosecutor filed a petition to establish paternity in D. Both submitted to genetic testing, which showed D to be the father and directed him to pay child support. From the opinion:
Davis contends that because Jermal W. executed a paternity affidavit, Jermal W. was required to set aside that petition within 60 days, which he did not do. Thus, according to Davis, Jermal W.’s acknowledgement of paternity remains in force. Davis also notes that in entering a paternity order against him (Davis), the trial court neglected to set aside Jermal W.’s affidavit of paternity. Davis cites this as an alternative basis for concluding that Jermal W.’s affidavit is still in effect.

As explained below, we conclude this action is not governed by the paternity affidavit statute, i.e., Ind. Code Ann. § 16-37-2-2.1 (West, PREMISE through 2006 Second Regular Session), but instead by Ind. Code Ann. ch. 31-14-4 et seq. (West, PREMISE through 2006 Second Regular Session) and Ind. Code Ann. § 31-14-6-1 (West, PREMISE through 2006 Second Regular Session). We further conclude that, pursuant to the latter statutes, the trial court correctly ordered the genetic test and entered a finding of paternity against Davis based upon the results thereof. * * *

In summary, this action is not governed by I.C. § 16-37-2-2.1, and the presumption of paternity based upon Jermal W.’s paternity affidavit was properly rebutted by the action filed under I.C. § 31-14-4-1 by the Prosecutor’s Office, and the resulting genetic tests. Moreover, we conclude that in entering a finding of paternity in Davis, the trial court implicitly negated Jermal W.’s paternity affidavit. The trial court is affirmed in all respects.

NFP civil opinions today (8):

Jeffrey M. Perz v. Review Board of the Indiana Department of Workforce Development and Indiana Bell Telephone Company (NFP) - "The Board did not err when it denied Perz’s request to submit additional evidence and the Board’s conclusion that Perz was terminated for just cause is not contrary to law."

Nathan & Sarisa Stumpf v. Hagerman Construction Corporation and D.A. Dodd, Inc. (NFP) - Reversed. "We conclude that Hagerman and Dodd contractually assumed a duty of care to the employees of its subcontractors. Therefore, the trial court erroneously granted summary judgment in favor of Hagerman and Dodd. We further conclude that the trial court did not abuse its discretion in striking the affidavit of [expert witness] Frank Burg."

Terry Hyser v. John Vannatta, Department of Corrections, et al. (NFP)

Three Thousand, Four Hundred, Seventy-Eight Dollars in United States Currency; 6 Unknown Long Guns and a Browning Gun Safe v. State of Indiana and the Knox County Police Department (NFP) - Reversed. "It is fair to speculate and conjecture that Hill might have been selling the marijuana he was growing and that the money found in his safe might have been connected to such sales, but speculation and conjecture alone is not enough to support forfeiture. There is even less reason for speculation and conjecture with respect to the guns. Consistent with our strict construction of the forfeiture statute, we hold there is insufficient evidence to support the forfeiture of the $3478, the gun safe, and the guns found therein. Conclusion. The statutory presumption regarding forfeiture of property does not apply in this case, and there is insufficient evidence to support forfeiture in the absence of that presumption. We reverse the forfeiture order."

Matter of S.G., W.G., Jr., Children in Need of Services; William Gray, Sr. v. Marion County Department of Child Services and Child Advocates, Inc. (NFP)

In Re Guardianship of A.N.M.; Jeannea Madsen v. Deborah & Jimmie Jones (NFP)

Bell Financial Community Credit Union, et al. v. Larry F. Nagy (NFP) - Reversed. "Bell Financial Community Credit Union (“Bell”) appeals the Lake Superior Court’s order for it to deliver to Larry Nagy (“Nagy”) the certificate of title to a certain 1997 GMC rollback tow truck. Bell raises two issues, which we combine and restate as: whether the trial court erred when it determined that Nagy was entitled to the certificate of title for the tow truck free of Bell’s security interest in the truck. Concluding that the trial court’s decision is clearly erroneous, we reverse. * * * The trial court’s conclusion that Nagy is entitled to the certificate of title to the tow truck free of Bell’s security interest as both a buyer in the ordinary course of business and a buyer of an entrusted vehicle is clearly erroneous."

Midwest Minerals, Inc. v. Board of Zoning Appeals of the Area Plan Department/Commission of Vigo County (NFP) - "Midwest Minerals, Inc., (“Midwest”) appeals from the Vigo Superior Court’s order denying Midwest’s petition to overturn the decision of the Vigo County Board of Zoning Appeals’ (“BZA”).1 At issue is whether the BZA properly determined that Midwest’s proposed gas processing unit would engage in “manufacturing” gas, and was thereby required to apply for a special exception. Concluding that chemically transforming extracted natural gas into commercial grade gas constitutes “manufacturing” under Vigo County’s Unified Zoning Ordinance, we affirm."

NFP criminal opinions today (3):

Robert Wilson v. State of Indiana (NFP)

Dustin Chadwick v. State of Indiana (NFP)

William Judge v. State of Indiana (NFP)

Posted by Marcia Oddi on March 8, 2007 10:56 AM
Posted to Ind. App.Ct. Decisions