*1 943 аp- unless first support are not enforceable merged Cynthia RUSSELL, Appellant- into a court or
proved Dawn Brewer, Respondent, v. N.E.2d Brewer 506 court order. denied, 830, (Ind.Ct.App.1987), reh. 831 v. omitted). A child’s (quotations
trans. denied RUSSELL, Appellee-Petitioner. Joel K. compel principle that out-of-court needs No. 49A04-9507-CV-270. judicially recog- support agreements must be into to be incorporated a court order nized or Appeals of Indiana. Court Id. enforceable. 6, June 1996. To would undermine allow otherwise 5, Rehearing Aug. Denied support child which focus- overall function of the children not that es the needs of parent parents as should be able neither away specifically funds intended
to contract rigidity their children.7 Id. The
to benefit rule modification is neces- retroactive
sary protection of the interests to ensure mak- parents and to disallow arrangements at own
ing support their by their
convenience which be motivated
own rather than interests self-interests
the child. application imposes rule
While considering tragic
harsh circum- result here, presented this court is bound
stances Supreme
by precedent the Indiana set highest decides dif-
Court. Until our Majori-
ferently, I must its rule. follow merely
ty’s today erodes our estab- decision
lished stare doctrine of decisis. reasons, Majori- I
For these dissent
ty’s allowing the retroactive determination support obli-
modification of Mark’s child filing peti- of his
gation prior to the date of I this
tion modification. would remand for
case the trial court calculation new which accumulat- amount due prior filing of the
ed to the date aspects, I
petition. In all other concur. Brewer, Corbridge Corbridge, supra (citing v. noted a child 7. The Brewer court (1952) parent Grace a debtor Ind. Quigg, award makes the noncustodial Ind.App. N.E.2d 594 parent who trustee the custodial serves (1971)). benefit and use of the child. funds *4 Dodd, Indianapolis, appellant. Jackie S. OPINION CHEZEM, Judge. Summary
Case Respondent-Appellant, Cynthia Russell (“Mother”), appeals from the trial court’s custody. affirm, part order of We remand, part. reverse and Issues review, presents Mother our five issues for which we restate as: I. Whether a husband can and wife dises- tablish the husband’s of a child marriage by agreed born their an dissolution; entry in a jurisdic- II. Whether the trial court had tion to determine that J.R. child of was a Dissolution; marriage in its Decree of newly-discovered III. Whether evi- requires dence of test granting a DNA Reopen Mother’s Motion to Mod- Case ify Findings Judgment and Submit New- ly Evidence; Discovered reprimanded its Protective court abused Child Services. Whether IV. custody to awarding physical object discretion He claimed the thrown incident was (“Husband”); and, Russell Joel toya an Another incident involved accident. dropped which on one the children’s head failing the trial court erred Whether V. injury. admitted affidavits, and caused Husband pursuant to Rules opposing to file Procedure, Appellate Rule incident it was an accident. Appellate but claimed too 7.2(3)(c). 5,1994, Emergen- May On Mother filed February cy Petition for Modification of the History
Facts and Procedural Agreed Entry, her 4th wherein she renewed again, presented with facts Once are alleged, allegation of child abuse and statutory do fit into the schemes time, biologi- first that Husband was not the or dissolution statutes. either No cal father of J.R. order exists rely history rich instead Indiana’s May 1994, Mother’s record. On Verified married common law. Mother Husband Custody and Petition for Visitation Evalua- pregnant mother was three months when grantеd by the trial J.R., tion was court. Dr. year A who was bom Ehrman, later, psychologist, approved Hus- twins were born to Mother and left Husband and band. evaluate the children adults and to Florida to live her *5 took the children near a to cus- make recommendation with parents’ employed at her parents. She was tody and visitation. and also insurance business received health 27, 1994, May filed a On Mother Motion to for herself and the children. The benefits Respondent’s Amend for Dis- Cross-Petition day and care children were enrolled school solution, alleged again the non- which once followed his fami-
while Florida. Husband again, paternity of Husband over J.R. Once and, consent, ly Mother’s to Florida without granting is in the there no order record all three back to Indiana. took children 15, denying Indiana, that motion. on June immediately returned to Mother 1994, order, that, 29, 1993, an only to learn on October Hus- issued request, testing. band had filed for dissolution of Hus- Mother’s DNA successfully temporary had reсeived cus- 28, and comply. band did not On December tody restraining of the chñdren and a order 1994, Modify Mother renewed her Motion to against Mother. 4th, Agreed Entry February of combined a Contempt with Motion for and Motion to 22, 1993, Mother her
On December filed Compel Testing. her Mo- February DNA She based Cross-Petition Dissolution. On 4,1994, evaluation, Agreed Modify an on Dr. Ehrmaris Mother and Husband filed tion Visitation, Entry Custody and which physical Joint Mother which recommended have approved the trial court. The chil- was custody of the children and that Husband be spent days 3.5 with each dren thereafter visitation, pending receipt given his liberal parent per The twins are enrolled week. counseling. psychological again, the Once kindergarten home an IPS near Husband’s rulings record contains no on those motions. in a Plainfield and J.R. is enrolled school. 30, 1994, Shortly thereafter, on December 1994, after, 15, long appear, April on Mother the trial court ordered Husband to Not Emergency Temporary an Petition for upon filed Mother’s motion. Visitation, Custody and Petition to Terminate guardian appointed A ad litem was for the alleged physi- had
wherein she
Husband
25,
January
February
children on
1995. On
cally
petition
abused the children. Her
3, 1995,
contempt
Husband,
under threat
object at
denied. Husband had thrown an
testing,
for his failure
submit to DNA
required
of the twins which
that the child
one
Paternity,
Agreed Entry
an
Mother filed
Additionally,
get
Husband had
stitches.
approved
the trial court. This
which was
belt,
spanked
with a
one
the children
Entry
Agreed
stipulated that Husband was
legs. Hus-
which left marks on the child’s
30,
April
On
biological
not the
father
J.R.
spanking
incident and was
band admitted
guardian
report,
ad
her
litem filed
Discussion and Decision
given
which recommended that Mother be
note at
We
the outset that Husband
physical custody of all three children and
an appellee’s
failed to file
brief.
an
Where
given
guideline
father
be
more than
brief,
appellee
appellate
to file an
fails
visitation.
judgmеnt may
upon
appel
be reversed
Nonetheless,
20, 1995,
on June
showing
prima
lant’s
facie error. Rieddle
joint
granting
court entered an order
custo-
Buckner,
(Ind.Ct.App
v.
Dissolution,
placed physical custody
which
I.
the children with Husband
which
also
must
We
first determine whether
a factual
made
determination that J.R. was a
husband and wife can disestablish a hus
day,
of the marriage.
The next
band’s
a child bom
their
Praecipe
her
filed
and also filed Motion for
agreed entry
in a dissolution.
Stay of
Pending Appeal,
Execution
determine
today
are not asked
*6
was denied.
paternity
by
merits of the
action asserted
17, 1995,
July
On
filed a
Cross-
only
agreed entry
Griffith.
focus
on
We
Paternity
juvenile court,
Petition
and
of paternity
by
filed Mother and Husband
copy
submitted a
to the dissolution court.
rights,
any,
and
what
if
also on
Mother and
Likewise,
7,1995,
September
Mother filed
Husband had to seek a factual determination
Explanation
juve-
Memorandum of
with the
court, and
to
copy
nile
submitted a
as to
disso-
time
dissolution
J.R.
whether
lution court. Attached to the Memorandum
marriage.
was a
Although
Explanation
were the results
the DNA trial court did not
such
state
final
its
testing
Griffith,
of J.R. and
which indicated
judgment,
in disregarding
it was correct
probability
that there was a 99.99%
that Grif-
(trial)
аgreed entry because the dissolution
biological
fith was J.R.’s
father.
jurisdiction
approve
court had no
to
of such
5, 1995,
On December
Mother filed a Mo-
juvenile
agreed entry.
an
The
court has
tion to Correct the Record because the cor-
original jurisdiction
proceedings
exclusive
reporter
rect court
did
certify
the record.
concerning
of a child. I.C. 31-
granted
The motion was
and the error was
6-2-1.1(a)(3). The dissolution court had no
January 4, 1996,
corrected. On
Mother filed jurisdiction
approve
agreed entry.
to
Approve
Supporting
Motion to
of Affidavits
the Record and Certification.
based
She
this
following
The
chart illustrates the
on an alleged
motion
comment made
common
statutes and
law Indiana
judge,
Hanley.
purportedly
John
He
proceeding
differences between
dissolution
going
stated
“no
make a
one
to
bas-
paternity,
an action to
establish
terms
tard
of a
out
this court.” The tran-
standing
bring
of who
an
has
to
aсtion and
script
proceedings
does not contain such a
Hanley
Judge
jurisdiction:
statement.
her
appropriate
denied
motion. what court has the
putative
The child
father have-
may peti-
presumptive
has
parties
The
No
father/husband
long
standing
paternity,
to
as
pa-
standing
seek a
determina
assert
to
factual
to establish
tion
ternity
longer
is no
intact.
is a child of as
tion as to whether a child
of a child
Paternity
husband/presumptive
father has
marriage,
In re
into a
bom
(Ind.1992).
paternity.
S.R.I.,
standing
no
to disestablish
long
issue a
determination that
was a
Behme v.
factual
J.R.
ute.
judgment
toas whether J.R. was a child of
cases,
authority
includes
decide
marriage.
custody, support,
of child
issues
and visita-
entering
provided
In
tion.
the decree which
Subject
jurisdiction
matter
refers
visitation,
for child
and
power
general
to the
to hear
and determine
subject
juris-
court was not withоut
matter
class or
kind
case. Board
Trustees
finding
diction. The
to J.R. does
(Now City)
City
Town
New Haven v.
judgment.
not render the dissolution a void
Wayne,
Fort
268 Ind.
1112
required
timely challenge any
Mother was
(1978).
subject
juris
The absence of
matter
of authority
erroneous
exercise
trial
diction,
waiver,
subject
an issue not
ren
court, and her failure to do so waives the
open
a judgment
ders
void and
to collateral
issue.
Mann,
attack.
v.
Mann
City Wayne, Fort 268 Ind. at Court held that because N.E.2d at 1117. subject general the mother had invoked subject juris jurisdiction The issue of matter matter failed to raise the by determining subject diction be jurisdiction resolved issue of matter when the whether claim relating involved falls within the trial court its entered order general scope authority child, judgment conferred on a could not later she attack the being the Indiana Constitution stat- void. *10 stepfather who was ordered as to facts involved a the confusion
This stems from debate marriage.” payments. support of the make child The child is “child to meant what “a “child” as statute defines to man The dissolution bom out of wedlock another to the mar parties of both stepfather child or children the mother mar- were before children born out of wed riage and includes ried. or as as children bom parties well lock the parallel do a situa Those facts not during marriage parties.” of the adopted the during in child the tion which a is born 31-1-11.5-2(c). a granting in A court I.C. marriage and the husband holds himself out jurisdiction to a cus has no enter dissolution father, past the of the child’s even date as involving a who is tody support or order child public policy that dissolution. Good dictates marriage. law the The case child of conduct, encourage so that child we such the regard to intеrpreting this statute with support the from has the benefit of love and during marriage the bom
whether a child reading A of the statute’s a father. close is con (regardless paternity) actual to be of encompass language may present the facts marriage inadequate. of the sidered child Specifically, the defines “child” ed. statute R.D.S., of Second District Court the parties child children of to the as “a or both of Appeals that a child must be a child held marriage children born out of and includes parties marriage to come within both parties well as children wedlock as § 31-1- of “child” in Ind.Code the definition during adopted or horn of 11.5-2(c) to furnish the basis for added). 31-1-11.5-2(c) (italics parties.” I.C. R.D.S., 402 30. As a con support. N.E.2d rejected sequence, R.D.S. as a ba Interpretation this has statute been imposing husband’s sis subject Taylor, In Friar v. of much debate. equitable adoption or acknowledgment (Ind.Ct.App.1989), Sec in our child he not father. As mentioned did Appeals ond Distriсt Court reversed agreed entry paternity, discussion of custody to a husband trial court’s award disagree holding in Ad R.D.S. challenged previous had court order of who ditionally, greatly in case the facts that differ non-paternity two on his based today. husband from facts before us The marr who were bom children support, appealed in the order of R.D.S. arguing the iage.4 appealed, mother The dispute sought today’s whereas Husband subject jurisdiction matter trial court lacked custody raised issue of of J.R. never custody. to enter the order Additionally, non-paternity. the court need no rule of construction stated: “We holding stopped short of that the R.D.S. meaning. interpret plain ‘Both’ means such subject jurisdiction to matter court lacked To is to mutilate conclude otherwise both. Rather, only the enter its it discussed order. beyond recognition.” Id. at 600. the statute legitimacy and presumption of whether later, Thankfully, years “both” still seven may be time of presumptiоn overcome reading our “both”. cannot end means divorce. “and”; means “as the statute there: “and” Likewise, today facts us differ before Hence, the “as as”. as” means well well greatly presented to our su- facts (1) three of children: statute includes classes County preme court in McCarroll v. Marion “and marriage, to the children both (Ind.1987). The Super.Ct., includes”, (2) out of wedlock children bom permanent case an alter- Court made (3) as”, children parties, “as well born prohibiting previously native writ issued parties. adopted during the exercising jurisdiction court from dissolution 31-1-11.5-2(c). I.C. hus- child because the over into third class is the class prior parent not a of the child bom band was However, The statute does not read J.R. falls. that case stepfather before married on the decision another man 4. The court in Friar relied McCarroll, support of its N.E.2d 1124 in a “child of the mar- mother. The child holding. indi- the facts McCarroll riage”, statute. the dissolution defined out wedlоck cate that the child was bom *11 954 tion, effect, parties adopted any, or if
“children born dur- we next examine what ing marriage.” It not read “chil- filing paternity does of Griffith’s suit had on the adopted during dren both or born to jurisdiction of the dissolution court to enter Rather, marriage.” prepositional judgment. recognize final We do not phrase parties” “of the modifies the noun paternity to be a disestablishment valid “marriage”, and not the noun “children.” action, juvenile cause of even if filed court join conjunction “or” used to “children and, likewise, recognize we do not a third “adopted” bom” that both chil- and means party’s right paternity to assert over a child during adopted dren born and children marriage bom par- into an intact before the marriage equal under have status the stat- Thus, agreed entry ties are divorced. applies ute. The dissolution statute to a petition paterni- invalid and Griffith’s by adopted child who has been one or both ty statutorily recognized was not a cause of pаrties during Otherwise, marriage. a no action until after the trial court issued its custody orders of could be affect- final decree of dissolution between Mother by parents ed who adopted over children are jurisdic- and The trial had Husband. Likewise, subsequently who divorce. a child recognized tion over a cause of action —disso- marriage who is born is a “child of lution, custody child and —while marriage.” juvenile jurisdiction had over a cause of extent, per To that a trial court has se recognized action paternity suit filed —a subject jurisdiction an matter to enter order party a bom third over a child into an custody, support and with visitation intact marriage before the dissolution of the separate to such a child.5 This is from the presumptive mother and father-husband was presumption issue of whether cre- complete. jur- Both courts were vested with subject jurisdiction may ates the matter be respective proceedings. isdiction I.C. purpоses achieving equita- rebutted for an (dissolution marriage, sup- 31-1-11.5 visitation, support, ble custody. order of and port, custody); and child I.C. 31-6-2- husband, For a example, as did Husband in 1.1(a)(3)(paternity). case, may this wish to continue to hold him- father, continuing self out as the child’s all important it is to dis obligations, may after the even divorce. This tinguish an action for from a disso interest, be in a the child’s best factual deter- proceeding lution in which a trial court en court, mination to made be as- ters relating certain facts to whether the suming marriage” child is a “child A child is a child denounce pursuant to the dissolution It statute. ment of in a action divorce is not inappropriate by be deemed the trial court to legal petition same as establish encourage allow a mother husband to court, under the statute. The trial father, if, hold himself out as a child’s issuing findings judgment its of disso if, only agrees to remain he married to the lution, findings pater did issue mother. must not confuse the issue of stated, nity previously finding of J.R. As subject jurisdiction matter issue of that a child is child of the in a what is the correct decision for the court to proceeding finding dissolution is not a particular any make under the facts of case. paternity. finding Such also does not bind judicata it has Griffith or on the Since been determined that J.R. basis of res subject jurisdic- proceedings establishing paterni- court had matter future Appeals stepparent The Third District Court of affirmed involved who and a child was not a marriage" trial court’s refusal to enter order of “child of the as defined the dissolu prior Ap when a was bom to the husband tion statute. The Second Court of District stepmother. peals his to the child's reached consistent results with similar Poulson, child’s natural mother had died the child’s facts in v. N.E.2d Poulson stepmother approxi (Ind.Ct.App.1993). married the child’s father The child in Poulson was mately years previous marriage three after the child born. Ca bom to the husband in a also, Healey, (Ind.Ct.App.1994), steppаrent sought custody. ban Thomp See denied, 1332, 1336, Thompson, reh. trans. denied. The facts in Caban are son v. n. 2 McCarroll, (Ind. 1990). Ct.App. similar facts where the issue *12 court, Third, issuing holding disregards the in L.D.H. Thus, in its find- ty.6 express statutory language grants jurisdiction the of the ings, infringe on did not juvenile jurisdiction juvenile findings with re- court exclusive with re- court to enter the gard holding paternity.7 exercised to matters of The gard paternity. to The court erroneously pater- jurisdiction of dissolu- states that dissolution over the matters its nity jurisdiction. courts have concurrent tion. Further, reasoning recognize such does not However, in and A.D.H. L.D.H. the the fact that court on dissolution is not (Ind.Ct. D.M., 43 K.A.H. 665 N.E.2d v. may determining paternity, although it issue that a App.1996), the District held dis First to a child is a determination as whether paternity court have solution court and a purposes child of of the achiev- jurisdiction and court dis concurrent the ing support arrangement. equitable child may final determinations with solution issue Thus, jurisdiction is their not concurrent. (which separate is from regard paternity to matters, They entirely separate determine making to factual determinations as whether albeit, paternity of the the outcome action pur marriage for the is a child of the child altering subsequently to of the lead the poses support). child There are several rights presumptive who was father that consequences which from hold emanate custody rights by awarded visitation and/or contrary ing, of which are to the devel most the dissolution court. First, opment of common law this area. Finally, disagree party child not a to the with the court because the is disso lution, joined required parties, as as L.D.H. that “inasmuch the the child cannot be S.L.S., matter, subject by our in J.E. 582 and the remedies com- court v. N.W.S. 829, (Ind.Ct.App.1991), substantially the peting 832 reh. de actions were same N.E.2d action, nied, denied, juvenile appropriately each Pater trans. and Matter of (Ind.Ct. H.J.F., authority nity 553 deferred to trial court’s extant L.D.H., Second, over 665 App.1994). paternity....” as demonstrated in the issue L.D.H., parties at 48. The were not the guaranteed the child will not be an N.E.2d same litem, appointment guardian of a ad which is both actions because the parties pater putative father not to the disso- required in all cases which determine were H.J.F., subject entirely nity lution. The matter was not matters on their merits. 634 dissolution the same because the court on N.E.2d at 555. (Ind.Ct.App.1996). Our the issue of N.E.2d 43 In that case 6. courts have not addressed challenging estopped principles mother was from her hus- barred res whether mother is non-parenthood juvenile band's time of dissolution judicata petitioning the court for throughout pro- the entire dissolution because party paternity third after divorce. ceeding he the father she asserted that was proceeding, Clearly, party as a to the dissolution judicially estopped was from assert- child. She putative she than the father or the is different ing contradictoiy facts at end of dissolu- However, child. to the extent the dissolution proceeding. tion paternity, judgment to court does not render as litigated paternity that issue has been until decision, reaching court in L.D.H. In its Additionally, filed. she is vested with action is Dorsey Dorsey, 409 on the decision of relied statutoiy express standing paternity to file a ac- (Ind.Ct.App.1980). N.E.2d Finally, paternity to tion statute. under Dorsey, is erroneous. In the child such reliance party must the child as a to extent she include they to were mar- was bom the before action, party her existence as a worded, statute, then as ried. dissolution action is not material out- gave subject jurisdiction to children bom matter she, litigation. like come Whether hus- necessaiy, parties. out wedlock to the It band, may seek a factual determination as to therefore, for the trial court to make determi- marriage at the child is a child of the whether of the child before it could nation as dissolution, is an unresolved issue. time jurisdiction. Additionally, subject assume matter has, County Appeals juvenile The First District Court of howev- at the was no court in Lake there er, Superior tangentially of whether a addressed issue of that case and time jurisdiction subject can seek a factual determination as with the matter mother vested paternity. marriage at as Such is not the child is a child of the determine matters such whether the case with the L.D.H. her the case in L.D.H. and nor it the time of dissolution. and A.D.H. D.M., parties today. friend, next L.D.H. v. K.A.H. and Dissolution, alleged make determinations with does not she was a J.R. paternity. Additionally, the remedies are marriage.8 her Motion Amend types similar in both of actions: Dissolution, Respondent’s Cross-Petition for subject jurisdic- dissolution court has matter alleged biolog- she that Husband was not custody, support tion matters over such ical father of J.R. trial court did not imply and visitation does not it also has grant amend, her motion to nor did it subject jurisdiction paternity. matter over If grant Emergency her Petition for Modifica- *13 paternity in a party subsequently third is Agreed Entry, alleged tion which also divorce, established after the then matters of biological that Husband was not the father of custody, support may and visitation be affect- agreed entry by J.R. was withdrawn child, mother, putative ed if the or father disregarded by and trial Mother court. modify petition choose to to the ex-husband’s Thus, to the extent the Cross-Petition for rights findings on the paternity. based new only pleading accepted Dissolution was the in recognize The court L.D.H. fails to by court, and it stated J.R. was a times, differing, many and conflicting inter- marriage, child of the the trial court was mother, ests of the involved. The him finding correct child of be a child, husband, putative and father all have marriage. Additionally, apart and from the and, likely, competing different most inter- jurisdiction, interpreted issue we have ests, the resolution of will such not be accom- dissolution statute define J.R. as child of plished by collapsing рaternity matters into Mother’s marriage. and Husband’s proceedings. It dissolution is not until after presumptive the mother and father are di- may paternity vorced that action for be III. initiated, validly thereby in- preserving the We next examine whether child, promoting integrity terests of newly-discovered evidence of a DNA test family, recognizing poli- the intact and require granting of Mother’s Motion to cy supreme considerations set forth our Reopen Modify Findings the Case to and court in Fairrow. Judgment Newly and Submit Discovered Ev finding A party a third can modify findings idence. The motion to and only by juvenile be made court. The judgment pursuant was made to Trial Rule jurisdiction court dissolution has enter 52(B), requires which that such motion be visitation, judgment final with cus- prior made to a motion to correct error. tody, support. supported and This is 52(B) contempora Mother made her motion statutory presumption of a child 60(B) motion, neous her which is inher bom marriage. To hold other- ently contradiсtory. She asked the trial provide delay wise would additional to a final finding judgment court amend the and
judgment
adversely
and
affect the children
simultaneously
she
while
asked
trial
Conceivably,
party
involved.
di-
to the
judgment.
court
relief from that
Trial
wishing
progress
vorce
to halt its
could use a
60(B) motions, by definition,
party
third
action or
Rule
are
threat of one
made
in ways
might
which
be harmful to
well-
Trial
after
Rule motions
to correct error
being
possibility
of the child. The
of such
are or should have been
For
made.
conduct flies
the face of our supreme
reason,
52(B)
Mother,
essence,
her
made
Fairrow,
court’s dicta in
judgment for the ing unless the determination is sons: contrary clearly logic erroneous (1) mistake, surprise, ne- or excusable An and effect of the evidеnce. Id. abuse of glect; *14 discretion will occur when the trial court’s clearly against logic and effect decision is (2) any ground for a motion to correct before the of the facts circumstances error, newly including limitation without court, misinterpreted if the court has or evidence, by due dili- discovered which Co., McCullough v. Archbold Ladder law. in not discovered gence could have been (Ind.1993). 175, 180 to correct errors time to move for a motion 59; case, under Rule In this the facts and circum before the trial court were that the stances motion, explain In her Mother does psychologist guard court-approved and the mistake, neglect surprise, or excusable how that ian ad litem both recommended Mother justify judgment. for from her need relief custody. given physical be Husband admit “newly discovered based her motion on She drugs had ted to the trial court that he used paternity suit and evidence” of Griffith’s past having in also admitted to and he fil- non-рaternity. Husband’s physically of the children. abused least one juvenile ing suit in court alone of reprimanded Child Husband had been the outcome of a dissolution does not affect spanking one of the Protective Services subject involves a child who is also the leaving with a belt and bruises on children juvenile suit. Should the hand, legs. the child’s On the other there judgment final as to court render Griffith’s that was an unfit was no evidence Mother J.R., Mother, paternity, actual or Griffith parent that Mother should not have been or petition could at that time the court to modi- given physical custody of the children. The fy parental rights under the disso- Husband’s why not articulate it chose to trial court did lution decree. ignore made the recommendations guardian court-approved psychologist or the Moreover, had access to the evi- Mother why litem. did the trial court state it ad Nor alleged paternity from the dence of Griffith’s custody giving physical Husband felt that concеption. evidence can- date of J.R.’s Such was in the best interest of all three children “newly discovered” in not be considered the children. to correct error or a terms of a motion judgment. Accordingly, we must look the evidence motion for relief from Because the trial court abused on which Mother relies is not to determine whether evidence 60(B)(8) discovered,” against that it was “newly her motion is a its discretion. We hold logic to have disguise. supreme in court and effect of the evidence motion Our stat- Fairrow, custody given physical of the chil- in 559 N.E.2d at that “we Husband ed discourage relitigation dren. reverse the trial court’s award strongly 60(B)(8) physical custody in to Husband and remand through issues T.R. motions court, ordering primary trial that highly unusual evidence akin to back to the absence Mother, given and visitation be presented the evidence this case.” The be the needs of correctly given Mother’s motion to Husband as best meets denied judgment. the childrеn. relief action, tion the court shall look at the issue of V. determining the husband’s affir- Finally, must discuss whether obligation support. of child Id. at 31. mative failing trial court was correct to file Furthermore, majority’s affidavits, claim that pursuant Ap opposing to Rules of 7.2(3)(c). out Procedure, Husband R.D.S. “held himself pellate Appellate Rule father and entered into the child’s attempted get sworn affidavits knowledge that he was not the child’s Hanley. by Judge The affidavits certified father,” directly holding dispute with Hanley attempt prove Judge were an wherein, majority Judge opinion Shield’s stated, going to make a bastard “no one is evidence, specifical- after a review of the she in this court.” record does out of a child dissenting ly accept position declined Judge Hanley such a statement. not contain reflected of Hus- the record evidence certify refused to the affidavits submitted acknowledgment of the child as his. band’s Procedure, Appellate Rulеs of Mother. The Thus, disagree I Id. at 35. must with the 7.2(A)(3)(c) states, pertinent part: Rule majority’s conclusion that “the R.D.S. If statements or conduct of the trial rejected imposing as a basis for controversy, judge are in the statement acknowledgment equitable the husband’s or supported by shall be sworn affidavit adoption of a child In- he did father.” judge which shall be submitted to the trial stead, holding I believe the indicates that If for his certification. he refuses to certi- acknowledge because Husband did not fy opposing the statement he shall file child, equitably adopt the it would have been *15 affidavits. All such affidavits shall be in- inequitable impose upon him an award of cluded the record the clerk of the support. trial court. stated, Simply presumption that a man Hanley certify Judge refused to Mother’s biological during father of a child born opposing affidavits. He also failed to file direct, marriage may his be rebutted clear Hence, affidavits. Mother is correct as- Duke, convincing evidence. Duke v. serting of the trial court error behalf with Thus, (Ind.Ct.App.1962). N.E.2d 478 mere regard to this issue. because we automatically impute does not bio- have reversed the trial court’s decision with logical fatherhood to a husband. Husband, to the award of asserted, prove the error seeks Mother, against dispositive.
bias is not
encourage proceed- future
ings Appellate Pro- abide the Rules of
cedure. CORPORATION, RAIL CONSOLIDATED Affirmed, part. Reversed and remand- INC. West Central Indiana Railroad ed, part. Recreation, Inc., Appellants-Defendants, STATON, J., concurs. LEWELLEN, Jerry Howard, Pam Linda DARDEN, J., separate concurs with Howard, Remley, K. Dale Doris M. Rem opinion ley, Cynthia Denman, Denman, David DARDEN, Parker, Stephen Judge, concurring. Nola Charles Roude similarly situated, bush and all others agree I While the resolution this Appellees-Plaintiffs. case, I compelled acknowledge am that I No. 54A01-9508-CV-249. disagree do not with the Second District’s S.L.S., holding in R.D.S. v. Appeals of Indiana. Court (Ind.Ct.App.1980), majority. as does the 6, 1996. June Rather, holding I believe the is still R.D.S. good proposi- law and that it stands for the
tion that if the of a child bom is contested in a dissolu-