*1 STRAUB, Appellant Edward Below),
(Respondent TODD, friend,
B.M.T., Francine By next Below). (Petitioner
Appellee 10A04-9302-JV-53.
No. Indiana, Appeals of
Court District.
Fourth 30, 1993.
Dec. 11,
Rehearing Denied Feb. *2 paternity sup-
to establish obtain expenses.1 spite In port and medical pay ordered agreement, the court Straub per week child the sum of $130.00 Todd medical $1005.00 and awarded the child. relating to the birth of costs 1) now claims that: the trial court Straub by holding that reversible error committed agreement was void as a matter 2) that the public policy; and indemnify him serve to should brought by Todd.2 support claim Mattox, Mattox, New Mattox & We affirm. Frank S. appellant.
Albany, for Evans, Mullins, Jr., Bishop, Mas- Earl C. FACTS Clarksville, Mullins, appellee. ters, & dating in 1985 began and Todd Straub ele- were teachers at same when both MILLER, Judge. 1986, Todd dis- mentary school. In late 1986, Straub, Edward December On a child with cussed her desire to have with Fran- have intercourse agreed to her doctor informed her Straub after Todd, 33, long signed as she so cine not work. insemination would artificial hold Straub harm- that would told Todd that he did want and financial for emotional less family due to his responsibility of another might result from their sexu- a child already he had chil- age and the fact that signed a hand- relationship. After Todd al However, previous marriage. dren from a felt satisfied his note that Straub written relation- Todd threatened to end their when conditions, began engaging in couple try impregnate ship, agreed he intercourse which re- sexual unprotected harmless” sign would a “hold providing she on of B.M.T. November sulted the birth 15, 1986, Straub agreement. On December 27, 1987. agree- holographic presented Todd with a hold harmless purporting ment raising B.M.T. with- years After three support of a Straub, financial and emotional January from any support from out couple’s might result from the friend child which suit as B.M.T.’sbest Todd filed part: lowing persons: A A (a) a litem, (c) Ind.Code 31-6-6.1-2 jointly. petition ther of an unborn tant mother biological logical (1) person (3) person (2) her child’s petition A any person alleged The The A child. A man or next every [******] who is otherwise under the father, mother and a man if he is mother, through father case, biological alleging and a man friend. or competent except or age of her unborn that he is the child. that he is the child’s expectant may father, guardian, guardian provides alleging eighteen to be the father incompetent be filed the child’s alleging mother. that he expectant (18) may child, for his that he is pertinent may mother, the fol- expec- is the filing age. bio- file file fa- ad 2. Straub did We also note riods for states file necessary parties ed). Ind.Code competent." case, incompetent reaches name because more court’s after the child lack of a visitation order tion issues later. over this petition “may Todd that the mother custody twenty the trial court has 31-6-6.1-6, parents and children. Subsection date of B.M.T.’s birth. file a could not on his not raise as error within two Subsection (20) award is born to file an action. case, petition eighteenth birthday, years the action. the statute of than two provides different time Straub could raise of B.M.T. to (or father) bring an action in her years for Straub. at (b). continuing any age. years after he becomes (Emphasis add- In the either the trial time before he has two If the child is limitations, had jurisdic- he instant passed or the years these may The pe- (a) agree- signed the Law Todd Conclusions relations. sexual Their nature took its course. ment and Straub, respondent, Edward years three after relationship continued for biological the natural father of B.M.T. ended when Todd B.M.T.’s birth common-law, has Edward statuto- paternity, *3 bring suit to establish decided to moral, ry, sup- and societal had married someone though Straub even port daughter. his minor else. away Francine cannot contract the findings of court entered fact The trial rights of the B.M.T. perti- of that found conclusions law and right illegitimate child 6. The of an part: nent and have a trial interest of
court determine the best
Findings
Fact
away.
child cannot be contracted
of
compel-
7. The State of Indiana has a
ending
rela-
8. Francine considered
ling
assuming
pri-
and at-
tionship with Edward [Straub]
mary obligation
illegiti-
of
through
pregnant
tempting to become
par-
mate children
natural
falls
did
man.
not
another
Edward [Straub]
taxpayers
not
of
ents and
on the
agreed
relationship
to end
want
State.
Francine after
attempt
impregnate
purported agreement
8. The
between
sign
agreed to
a document which he
she
pertains
Francine and
Edward as
in his own hand.
drafted
support of
B.M.T. is void as matter
document,
8,#
Exhibit
That
Petitioner’s
entirety
follows:
reads in its
as
Supp.R. 2-5.
it may
“To
concern
Whom
filed
Straub then
a motion to correct error
mind & fore
I Francine Todd in sound
claiming:
he
issues
raised three
marry,
thought have
not to
but
decided
(1)
distinguish
by failing
the court erred
my
baby
like to
own.
would
have a
pre-conception
post-con-
between
emotionally,
support financially &
To
(2)
children;
ception rights of minor
men who
approached several
will
have
parties’ agreement is a valid and enforce-
financially or
responsible
held
(3)
agreement;
able indemnification
emotionally
names will be
who’s [sic]
finding
paternity
sup-
court’s
was not
kept secret
life.
by probative
R. 3-6.
ported
evidence.
Signed
Todd
Francine
trial court denied his motion.
Dec.
1986”
court,
To this
now raises
two
Following the execution
[of
(1)
issues:
whether the trial court commit-
agreement] Francine
and Edward
[Todd]
holding that
ted reversible error in
began
unprotected sex
to have
[Straub]
voluntary
parties’
agreement was void as
Francine became
and March
against public policy; and
whether the
period
pregnant. During this
Francine
enforceable indem-
parties’
is an
sexually
testified that she
active
agreement by and between Ed-
nification
generally
any other man. Edward
with
Todd. Straub’s
ward Straub
Francine
acknowledged such.
Brief at 1.
During
pregnancy she
Francine’s
sexually active.
and Edward were
DECISION
[*]
[*]
[*]
[*]
[*]
[*]
I.
IS
THE
AGREEMENT
AGAINST
INDIANA’S
POLICY?
PUBLIC
to have sexual
12. Edward continued
argues
trial court committed
after the
relations with Francine
child’s
finding the
relationship
error
but did not establish a
reversible
birth
pub-
a matter of
seeing
and unenforceable as
stopped
child.
Fran-
void
with the
He
Here,
i.e., of law.
policy,
lic
a matter
after she
this action....
cine
filed
are
A child
dispute
are not in
and we
born out of wedlock who
the facts
estab
pure question
of law. We will
timely
faced with
lishes
fashion has
findings and conclusions of the trial
affirm
rights
father,
certain
inherit
they
clearly
erroneous.
court unless
29-l-2-7(b),
Ind.Code
as well as certain
Indianapolis Dept.
City
Williams
rights to claim other economic benefits
(1990),Ind.App., 558 N.E.2d
Public Works
upon the death of the father. S.
v.V.
52(A).
denied;
Ind.Trial Rule
trans.
Bellamy
The Estate
James A.
Ind.App.,
853
requirements
of no medical
any time We know
“at
bring
an action
such
—or
program
any sperm donor
contin-
twenty
years of of
he reaches
before
—that
injections after the
guardian
give
insemination
child’s
ues to
as the
age.”
brought
pregnant.
support,
donee becomes
the child’s
trustee
timely man-
of B.M.T.
on behalf
Finally, in this action
are not con-
ner.
rights
any alleged contractual
cerned with
argues
Finally, Straub
parents paternity actions
Indiana
—
en
signed by Todd should be
establishing pater-
are
concerned with
merely as a
acting
he was
forced because
rights
of the child.
nity and with
argues that we should
donor.” He
“sperm
public policy,
as created
Indiana’s
jurisdictions
from other
cases
follow
legislature, is clear. The trial court did not
intent of the
pre-conception
look to the
finding
agree-
Straub’s and Todd’s
err
en
deciding
whether to
involved
parties
ment
void because it
Brief at
agreement. Straub’s
force
Indiana’s
(1993), Tenn.,
citing
Davis
Davis v.
25-27
588,
nom.
cert. denied sub
842 S.W.2d
II.
INDEMNIFICATION
—
1259,
-,
(1993),
113 S.Ct.
122
U.S.
argues that he should be indemni-
657;
(1989),
In re Interest
R.C.
L.Ed.2d
1)
against any support
fied
claims because:
Colo.,
27; McIntyre
P.2d
v. Crouch
capable
supporting
Todd is
the child on
(1989), Or.App.
780 P.2d
review
own;
2)
injury”
the “economic
denied,
495 U.S.
cert. denied
to her
of contract”
Straub due
“breach
dy and visitation. Today, general public almost univer- approv- sally understanding looks with CONOVER, dissenting. Judge, single upon al woman’s desire bear and for the reasons respectfully I dissent nurture a child male interference. without stated below. woman, financially responsible A modern option, unqualified right has an to do simple facts here and without at her are so, words, perceives. adult it our decla- conflict. an unmarried female other teacher, subject currently incor- a child but did not rations on this wanted have remarry accomplish They policy that rect. reflect which has been end. want they Accordingly, medically advised artificial dead since 1960’s. When she view, case, changed, my in her in insemination would not work must be Straub, in subject public’s to the will such her current lover 56 are she asked teacher, using to cease matters. year old adult male Parentage approved by not father of a child Act was as if he were the natural
9. The Uniform (Alabama, thereby Eighteen conceived.” states the National Conference of Commissioners on California, Colorado, Delaware, Hawaii, Illinois, 5(b) Uniform State Section Laws Minnesota, Missouri, Montana, Nevada, Kansas, Parentage provides Act "The donor Uniform Dakota, Ohio, Mexico, Jersey, provided physician New North New of semen licensed Island, Wyoming) Washington, have artificial a married wom- Rhode use in insemination of adopted the Act. an other than donor’s wife is treated law vaga- ARTICLE I of the no statement I find better this: policy than public ries of DECLARE, SECTION WE That all described as has been policy Public equal; people they men are created varies will-o’-the-wisp of the law which by are endowed their CREATOR with interests, habits, changes with the among rights; certain inalienable sentiments, of the needs, and fashions life, liberty, pursuit these are and the generation one public policy of day; the (emphasis supplied) happiness; ... conditions, not, changed under may Thus, the public policy of another. sections of our constitution contain Other public poli- is very reverse of that which changes accomplish gender similar neu- public policy may cy at one time become Thus, trality. our constitution now man- Hence, no fixed rules time. at another equality people, dates absolute for all to determine what given by which can be just men. These amendments removed the for all time. When an public policy vestiges disability contractual last due to any given public policy on alteration of womanhood, any if still existed actually tak- general interest has point I, under Art. Sec. an Indiana wom- is indicated place, and such alteration en age an in this modern has had an inalien- long-continued change of conduct on any able to contract in manner she and has part people affected pursuit happiness, chooses in the of her universal, practically the court become case the of a child she birth could raise recognize the fact and declare the may interference, and nurture without male public policy accordingly. changes since 1983. While other in federal policy What the is must be ... and state law abound which articulate cur- from a consideration of the determined area, public policy rent in this the amend- constitutions, laws, and state federal I, my opinion, ment of Art. 1 in is the Sec. courts, the decisions of. the and the justify demonstration of we need to administration, vary- course of policy the restatement of ing opinions laymen, lawyers, or believe must be made. judges, as to the of the inter- demands equality comes with absolute public. ests of the responsibility concepts absolute under our Contracts, 258, Lawyers 17A Am.Jur.2d § the last law. Since obstructions to con- Accord, (1991). Cooperative Publishing Co. equality tractual due to womanhood have methods, public policy determination removed, irrevocably women are now been Russell v. 220 Ind. Johnson perform obligations they incur bound 225-226. contracting just when as men are. Courts change public policy I believe this power have neither the nor the in the readily Following discernible. Russell’s public policy simply name of to intervene *8 guidelines, simply highest turn to our contracting because the woman the with document, governing the Indiana Constitu- hindsight determines she has benefit any questions tion. To eliminate concern- bargain by entering made a bad into a ing equality Indiana, the in of women our contract of this kind. The courts now must 383-1983, legislature 1983 enacted P.L. parties they leave the find them in where “Clean-up so-called Amendment” to the such cases. Among things, Indiana Constitution. other it passages gender rendered certain therein my opinion, ques- the contract by striking neutral “men” from the word- tion is valid and enforceable because it is ing replacing “people” with conversant with current striking substituting “man” and “person.” Todd had an absolute to contract with Undoubtedly here, purposes did, absolutely she and is bound significant most changes of those appears obligations she incurred under that I, reads, Article Section 1. It now Quite simply, contract. bargained she part away to file a
856 publicly and to name him as Opinion at undoubtedly 852. While Exculpatory agree- the child’s father. policy statement of is correct when the agree in ments which advance one is child in fact needs the financial under no of care for another and for its nurturing upbring- liable future actionable conduct ing, that is not the case here. In other long recognized. have been Weaver v. words, B.M.T. will not want for either nec- (1972) American Oil 257 Ind. Co. 276 essaries or during minority. education 144, 148; N.E.2d County LaFrenz v. Lake gainfully employed Todd is fully capa- Ind.App. Fair 172 Board 360 providing ble of for all the needs of the 605, 607; Loper N.E.2d v. Standard Oil desperately child she so wanted. Under Ind.App. 211 Co. N.E.2d public policy, current the contract she 800-801. signed here is valid and enforceable. Nei- legislature ther the judiciary nor the can voiding As the second reason for impair obligations act to she incurred here, majority says contract at issue thereunder because the record demon- Although primary goal pater of a strates the child will never become a ward nity action is to secure and edu of the state. children, illegitimate legiti cation for “a action, subsidiary goal mate of this same I would reverse and remand with instruc- however, protect is ‘to judgment tions to set aside the and dismiss by preventing illegitimate child from petition. ” becoming a ward of the state.’ Matter of M.D.H., supra, citing, J.E.G. v. C.J.E.
(1977), Ind.App., 1030. Pub- policy
lie considerations mandate that the in providing
state take an active interest illegitimate
for the welfare of children placing
order to avoid an undue financial taxpayers. its
burden on