Glеnn Thomas ALLEE, Jr., Respondent-Appellant, v. STATE of Indiana, Petitioner-Appellee.
No. 1-1083A334.
Court of Appeals of Indiana, First District.
April 26, 1984.
Rehearing Denied May 31, 1984.
462 N.E.2d 1074
Judgment affirmed in part and reversed and remanded with instructions in part.
NEAL, P.J., concurs.
RATLIFF, J., concurs with separate opinion.
RATLIFF, Judge, concurring.
I concur in the majority opinion. However, I wish to make additional comments concerning the matter of attorney‘s fees.
Our decisions in Berkemeier v. Rushville National Bank, (1982) Ind.App., 438 N.E.2d 1054; and U.S. Aircraft Financing, Inc. v. Jankovich, (1980) Ind.App., 407 N.E.2d 287, trans. denied, have questioned seriously the power of a trial judge to fix attorney‘s fees based upon his own alleged expertise and have put severe limits upon the exercise of that power. As we said in Berkemeier, an action on a promissory note and to foreclose a real estate mortgage and security agreement involving a principal amount in excess of $200,000, “save for routinе cases involving relatively small amounts, awards of attorney‘s fees in cases of this nature must be supported by evidence.” 438 N.E.2d at 1058.
Here, the majority says there is scant evidеnce as to amount, adequacy, or reasonableness of the attorney‘s fees. In my view, there was no proper evidence before the court on any of those matters. The only evidence here was testimony by the plaintiff that her attorneys had charged her $15,482.57 and that she felt the sum was reasonable. In Parrish v. Terre Haute Savings Bank, (1982) Ind.App., 431 N.E.2d 132, on rehearing 438 N.E.2d 1, this court cleаrly held that a client‘s statement of how much his lawyer charged was insufficient to show the reasonableness of his fees. That Parrish was a jury case makes no difference. If evidence is required to support an award of attorney‘s fees, it makes no difference whether the trier is court or jury. In neither case would the client‘s testimony of the amount charged by his attorneys suffice.
Kenneth J. Falk, Michael R. Milsap, Legal Services Organization of Indiana, Inc., Indianapolis, for respondent-appellant.
Lois A. Holiday, Deputy Prosecutor, Franklin, for petitioner-appellee.
ROBERTSON, Judge.
Glenn Thomas Allee, Jr. (Allee) appeals an order from the Johnson Circuit Court holding him in contеmpt for non-payment of blood test costs assessed against him in a paternity judgment.
We affirm.
On March 18, 1982, Allee was adjudicated to be the biological father. The trial court ordered Allee to reimburse the Indiana State Department of Public Welfare (Welfare Department) for the cost of blood tests taken during the course of the рroceedings totaling $935.00. He was to pay the sum in monthly installments of $30.00 each. When Allee failed to make his pay-
On appeal, Allee argues the trial court erred in dеnying his motion to dismiss this contempt proceeding. Allee contends he cannot be held in contempt of court for non-payment because the costs of the blоod tests were in the nature of a debt.
The $935.00 was assessed against Allee pursuant to
Most jurisdictions have statutes providing for judicial proceedings to establish the paternity of an illegitimate child and to compel the father to contribute to its support. There is wide diversity of opinion as to the exact nature of these proceedings. Some jurisdictions view them as civil in nature while others view them as criminal. 7 Am.Jur. Bastards, p. 680, § 81. It seems clear that in jurisdictions viewing the proceedings as criminal, the judgment rendered is not considered a debt. 118 A.L.R. 1109, 1111. However, in jurisdictions
Byers v. State, (1863) 20 Ind. 47, was an action brought on a bond executed in a bastardy case to save the defendant from imprisonment. The court held that a bastardy proceeding simply imposed a civil obligation creating a debt. Thus, imprisonment was unlawful. However, this case was expressly overruled by Lower v. Wallick, (1865) 25 Ind. 68. In Lower, the court decided that imprisonment was abolished only for debts created by contract as opposed to all civil actions. The court went on to state that the liability under the Bastardy Act was not founded in contract. Rather, the obligation of a father to maintain his child is founded in nature. This same reasoning was followed in subsequent Indiana cases. Ex parte Teague (1872) 41 Ind. 278; Turner v. Wilson, (1875) 49 Ind. 581; McIlvain v. The State, ex rel. Emery, (1882) 87 Ind. 602.
The more recent Indiana case of Libertowski v. Hojara, (1967) 141 Ind.App. 439, 228 N.E.2d 422 deаlt with this same issue as it applied to the Children Born Out of Wedlock statute in effect at that time. The court found this statute, which permitted a sentence of not more than one year in jail on failure to post a security was not unconstitutional as authorizing imprisonment for debt. The court accepted the reasoning of Lower, supra, and expressly stated:
“Where a decision such as Lower establishes а rule of statutory construction consistent with Constitutional provisions, our courts will depart from it with extreme reluctance; they will indeed tenaciously adhere to it, unless drivеn from it by the highest and strongest considerations of justice“.
Another portion of the statute was also attacked in Libertowski. This provision gave the court power to adjudge the father in contempt when default is made under the terms of thе original judgment. The provision was examined and also found to be valid and enforceable.
In support of his argument, Allee cites us to several cases involving money judgments. Two of those cases, State ex rel. Pritam Singh Shaunk v. Endsley, (1977) 266 Ind. 267, 362 N.E.2d 153 and Neal v. Neal, (1980) Ind.App., 412 N.E.2d 319, held that contempt proceedings may not be used to enforce collection of an alimony judgment. In Bahre v. Bahre, supra, it was held that an award of attorney fees in a dissolution proceeding could also not be enforced by use of the court‘s contempt power.
One money judgment that may be enforсed by contempt is that of child support.
Paternity gives rise to the duty of a father to support his illegitimate child and our statutes simply provide a mechanism for judicial recognition and enforcement of this obligation. Goins v. Lott, (1982) Ind.App., 435 N.E.2d 1002. Just as child support actions are solely for thе benefit of the child, so are paternity actions for the protection and welfare of the child. Matter of M.D.H., (1982) Ind.App., 437 N.E.2d 119; O.S. v. J.M., (1982) Ind.App., 436 N.E.2d 871. Although the primary purpose of a paternity action is tо secure support and education for the illegitimate child, a subsidiary goal is to protect the public interest by preventing the child from becoming a ward of the state.
We believe that the analogy between an action for child support and an action for paternity is sufficient to warrant use of the trial court‘s contеmpt power to coerce payment of the blood test costs in this paternity action. The primary objective of a civil contempt proceeding is to coerce action rather than punish. Duemling v. Fort Wayne Community Concerts,
Judgment affirmed.
NEAL, P.J., concurs.
RATLIFF, J., concurs in result with separate opinion.
RATLIFF, Judge, concurring.
I concur in the result reached in this case. However, I take exception to some of the language in the majority opinion. This is not a case of using the contempt powers of the court to enforce collection of a money judgment. No money judgment was entered against Allee. Rather, he was ordered to reimburse the Welfare Department for the costs of certain blood tests, an order which the court was authorized by statute to enter. The contempt proceedings were instituted to enforce compliance with the court order which is a legitimate exercise of the contempt power.
ROBERTSON
Judge