Joe B. FAIRROW, Appellant (Petitioner Below), v. Mary E. FAIRROW, Appellee (Respondent Below).
No. 49A02-8804-CV-00123
Court of Appeals of Indiana, Second District
Sept. 13, 1989
543 N.E.2d 1157
REPORTER: Yes, the pink copy would be mailed with the docket sheet.
THE COURT: Okay, this is 8806-1673. The State of Indiana versus Arnold T. Phillips. Show present the state of Indiana by its Deputy Prosecuting Attorney, Clarence C. Frank. The defendant fails to appear after having been called three times. It appears that the defendant may have filed a motion to continue this, or he may not have, it is not at all clear from the pleading. At any rate, it would be inappropriate for the defendant to assume that the Court would grant the motion. And the Court will proceed with trial at this time.
Record at 45-46.
After the State rested, the court announced the guilty verdict. At the hearing on the motion to set aside the judgment, Phillips testified and presented evidence that he had arranged with the prosecutor to continue the pretrial and trial, had notified the court, had filed a continuance motion, and was actively pursuing a defense. He also presented evidence that he did not receive a copy of the pretrial order. Although the deputy prosecuting attorney appeared before the court to discuss his recollection of his conversation with Phillips, the State presented no sworn testimony or other evidence discharging its burden. Unsworn statements by counsel are not evidence. Gajdos v. State (1984), Ind., 462 N.E.2d 1017, 1021. At the most, the uncontroverted evidence showed that Phillips inadvertently, perhaps negligently, failed to keep himself apprised of the pretrial and trial dates. However, to infer from even the evidence favorable to the State that Phillips’ conduct constituted a waiver is hardly consonant with the Johnson standard of waiver as “an intentional relinquishment or abandonment of a known right or privilege.”
In short, the State presented no evidence of a purposeful absence, and there was no evidence presented from which we can infer that Phillips was absent because he was avoiding trial. In Fennell, supra, the court held that without the evidence on the accused‘s intent to avoid trial, the circumstantial evidence that the defendant knew of his trial date would have been an inadequate basis upon which to conclude Fennell‘s absence was knowing and voluntary. Consistent with Fennell, we find the evidence here meager on the question of Phillips’ knowledge of the trial date, and completely lacking on his intent to avoid trial. The State has not shown that Phillips knowingly and intelligently waived his right to be present at his trial. He was therefore deprived of a fair trial. Accordingly, we reverse and grant Phillips a new trial.
Judgment reversed.
SHIELDS, P.J., and HOFFMAN, J., concur.
Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.
SULLIVAN, Judge.
Pursuant to a Pre-Appeal Conference Order, the issue before us has been delineated as follows:
Whether the trial court erred in not terminating a prior order directing Joe B. Fairrow to pay child support, when the evidence disclosed that he could not be the child‘s father as alleged in his T.R. 60(B)(8) Motion.
The somewhat unusual circumstances of the case began with a dissolution decree of February 7, 1975, determining that Joseph D. Fairrow, born June 7, 1974, was a child born of the marriage between Joe and Mary E. Fairrow. Parentage of the child was not disputed during the dissolution proceedings nor, Joe states, did he have reason to believe that he was not Joseph‘s biological father. The dissolution decree ordered Joe to pay child support.
Shortly after birth, Joseph was determined to have sickle cell trait. Thereafter, when the child was approximately 11 or 12 years of age, Mary communicated to Joe that the trait was adversely affecting Joseph‘s health. This led to testing of Joe in order to determine the source of Joseph‘s sickle cell trait. The results of that testing proved conclusively that Joe could not be the biological father.
As a result of this disclosure, Joe filed a
Joe points to that portion of
We must observe that in order to avert a duty of support, prospective or otherwise, it is essential that it be determined that Joe is not Joseph‘s father. Therefore, the factual determination made in the dissolution decree must necessarily be overturned, vacated or ignored. We cannot, as suggested by Joe, leave the dissolution decree fully intact yet relieve him from the duty of support.
For this reason we necessarily view the Petition to Terminate Support as a
In order for Joe to be successful in this respect, it is necessary that the record show as a matter of law that the
The trial court made no specific determination as to this issue but because it is accepted that Joe is not and could not have been Joseph‘s father, the only logical basis for denial of relief is the fact that the trial court felt it was without discretion to vacate the dissolution decree or that Joe had not used reasonable diligence to discover the true facts.
To the extent that Joe‘s argument asserts the inequity of continued application of the dissolution decree, it must be rejected. This cause for relief is contained in
One aspect of Joe‘s argument would have us consider his Petition to Terminate Support not as a
Although this construction of the procedural posture of the case has facial appeal, it is unpersuasive. We cannot relieve Joe under the guise of changed circumstances when the circumstance is clearly and sim-
Accordingly, we are left with one issue. As posed in the Pre-Appeal Conference Order: May Joe challenge the dissolution determination after 11 years by a
In In re Paternity of Tompkins (1988) 1st Dist.Ind.App., 518 N.E.2d 500, a judgment establishing paternity was set aside more than three years later. In Tompkins, unlike the case before us, the 1982 paternity judgment was premised upon a joint petition which was thereafter determined to be fraudulent on the part of both joint petitioners. Here, there is no evidence of fraud. Surmise as to the mental state and conduct of the mother of the child is without foundation.
Furthermore, the Tompkins court observed that there “neither support, maintenance, nor education are lacking or appear endangered.” 518 N.E.2d at 503. The situation is quite to the contrary in the case before us. The matter of support is at the heart of this dispute.
Even if Mary could be shown to be guilty of fraud, the statute of limitations for fraud is six years.
The six year time frame may be given prima facie application to the “within a reasonable time” requirement for the filing of a
The general and virtually universally applied rule has been stated as follows:
“[I]t is universally recognized that a party who has litigated, or who has had an opportunity to litigate, a matter in a former action in a court of competent jurisdiction should not be permitted to litigate the issue again. The doctrine of res judicata, in order to prevent multiple litigation, holds that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” Annot., 78 A.L.R.3d 846, 850 (1977) (emphasis supplied).
The parties agree that Joe is not the biological father of Joseph. Yet Mary contends through counsel that he is held to the duty of continuing support as if he were the father because he did not earlier challenge paternity.
Mary concedes that Indiana law,
Notwithstanding, Mary argues that the cutting off of support, the status of legiti-
“Although paternity and estoppel theories are important considerations, they nevertheless should be examined in light of the best interests of the child. The defenseless and vulnerable children are often the real or only victims of custody and support disputes and modifications. When the change in support is a termination of support, the chances of victimizing the children are virtually certain. The bastardization and disinheritance of the children are definite. While non-paternity is a valid concern, the totality of the circumstances and equities demand that, when non-paternity is discovered much later, an accommodation of interests be reached instead of the sudden cutting-off of support, legitimacy, and inheritance. Obviously the child will need support, which should be provided by the natural parent. However, the feasibility of that avenue may have been prejudiced by the time between initial support and discovery of non-paternity.
* * * * * *
At the very least in cases such as this one, support should not be terminated without assurance that another source is proximately available. Whether this could be handled by directing Mother to institute proceedings against the actual father, or by terminating support at some future date to provide a transitional period during which Mother can secure support from the father or another source. Of course, due regard must be given to the situation where a child has developed or maintained an emotional attachment to the non-parent through faithful visitation. In such a case, the child‘s welfare may require continued visitation and some protection from bastardization.” Appellee‘s Brief at 12-13.
By conduct or circumstances, one who is not the biological father of a child may have become obligated to a continuing duty of support for that child. R.D.S. v. S.L.S. (1980) 2d Dist.Ind.App., 402 N.E.2d 30.
Although none of the posed circumstances of R.D.S., supra, 402 N.E.2d 30, are present here, it must be acknowledged that under some circumstances a duty of support may exist although the child is not the biological child of both parties to the marriage. We deem the present case to be in the latter category.
Over a period of eleven years support has been paid as if Joseph was Joe‘s natural son. As earlier noted, we may not hold that for purposes of legitimization, and inheritance, Joseph is the natural son but that for purposes of the support of that natural son, Joseph is not Joe‘s son. Accordingly, we hold that a T.R. 60 petition to be relieved from a support order in a dissolution decree is too late when filed eleven years after the judgment and after the financial support has become firmly established. Toller v. Toller (1978) 1st Dist., 176 Ind.App. 322, 375 N.E.2d 263 (T.R. 60 petition not timely when filed over two years after a dissolution decree ordering child support).
The judgment is affirmed.
SHIELDS, P.J., concurs.
BUCHANAN, J., dissents with separate opinion.
BUCHANAN, Judge, dissenting.
I do not agree with the majority‘s conclusion that no substantial change in circumstances has occurred. Joe‘s petition is, in my opinion, properly considered a petition to modify pursuant to
In order to determine whether a sufficient change in circumstances has occurred the totality of the circumstances must be considered. Blickenstaff v. Blickenstaff (1989), Ind.App., 539 N.E.2d 41; McCallister v. McCallister (1986), Ind.App., 488 N.E.2d 1147.
The trial court‘s and a party‘s, awareness, of the facts inevitably are a part of the totality of the circumstances. The trial court which entered the dissolution decree, and ordered the support, believed that Joseph was Joe‘s child. Had that belief been otherwise, Joe would not have been ordered to support Joseph. When the truth became known, the trial court‘s awareness changed. As that awareness was a crucial circumstance in the determination of Joe‘s support obligation, the change in that circumstance is substantial and continuing, so much so that the terms of the original order are now unreasonable.
The amount of time which elapsed between the original order and the petition to modify is irrelevant. The trial court has continuing jurisdiction, during the minority of the child, to make modification in the support order. State ex rel. Werthman v. Superior Court of Marion County (1983), Ind., 448 N.E.2d 680. A petition to modify has never been denied on the basis of being untimely.
I also cannot agree with the majority‘s conclusion that public policy considerations militate in support for continuing Joe‘s child support obligation. The touchstone of each of the policies discussed in R.D.S. v. S.L.S. (1980), Ind.App., 402 N.E.2d 30 (Buchanan, J. dissenting), was that a person‘s conduct could impose the duty to support a child only if the person knew the child was not theirs. My dissent in R.D.S. was based on the fact that R.D.S. knew the child was not his when he married S.L.S.; not that someone must support a child as a matter of public policy.
Joe‘s uncontested assertion that he had no reason to question Joseph‘s paternity cannot be dismissed as merely unproven. The stipulated record shows that Mary knew Joe testified he had no reason to question Joseph‘s paternity, and she produced no evidence to rebut that contention. Record at 54. The only evidence before the court is that Joe did not know, and that he had no reason to believe, Joseph was not his child.
For approximately twelve years Joe supported a child he believed to be his. When he discovered the truth, he immediately began the legal procedures necessary to end that support. He never agreed to support another man‘s child.
To now impose the burden of support of another man‘s child upon Joe because he has previously supported a child pursuant to a court order, over a long period of time, unaware that the child was not his, is inequitable, even outrageous. No public policy dictates such a result, nor are there any cases to that effect. The net result of affirming the trial court‘s judgment is to unjustifiably fasten an albatross around Joe‘s neck.
Because Joe has demonstrated a substantial change in circumstances, which renders the terms of his original support order unreasonable, I would reverse the trial court‘s judgment.