                                                                                         FILED
                                                                                    Jan 31 2018, 11:40 am

                                                                                         CLERK
                                                                                     Indiana Supreme Court
                                                                                        Court of Appeals
                                                                                          and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Kristin T. Morrison                                        Jason M. Spindler
      Joann Jacob Krantz                                         Princeton, Indiana
      Fine & Hatfield, P.C.
      Evansville, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In Re: The Paternity of I.I.P.:                            January 31, 2018

      Kailei L. Poteet,                                          Court of Appeals Case No.
                                                                 63A01-1706-JP-1265
      Appellant-Petitioner,
                                                                 Appeal from the Pike Circuit Court
              v.                                                 The Honorable Jeffrey L.
                                                                 Biesterveld, Judge
      Justin Rodgers and Nathan T.                               Trial Court Cause No.
      Poteet,                                                    63C01-0701-JP-12
      Appellees-Respondents.



      Riley, Judge.




                                 STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Kailei L. Poteet (Mother), appeals the trial court’s

      dismissal of her petition to establish paternity of her minor child.
      Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018                        Page 1 of 16
[2]   We reverse and remand.


                                                      ISSUE
[3]   Mother raises three issues on appeal, which we consolidate and restate as the

      following single issue: Whether the trial court erred by dismissing Mother’s

      petition to establish paternity.


                       FACTS AND PROCEDURAL HISTORY
[4]   On November 21, 2012, Mother gave birth to I.I.P. (the Child). Near the time

      of the Child’s conception, Mother was in a relationship with Appellee-

      Intervening Respondent, Nathan T. Poteet (Legal Father). Around that same

      time, Mother also had an intimate relationship with Appellee-Respondent,

      Justin A. Rodgers (Biological Father), and ended her relationship with Legal

      Father. When the Child was approximately four months old, Mother and

      Legal Father resumed their relationship and eventually began cohabiting. On

      September 13, 2014, they married. Legal Father established a bond with the

      Child and provided care for her. On January 13, 2015, Legal Father executed a

      paternity affidavit to establish his paternity of the two-year-old Child. Mother

      also signed the paternity affidavit identifying Legal Father as the Child’s father.

      During the parties’ marriage, Mother gave birth to another child. Shortly after

      their first anniversary, on November 30, 2015, Legal Father filed a petition in

      the Pike County Circuit Court to dissolve his marriage to Mother.


[5]   On March 15, 2016, the trial court issued a provisional order regarding certain

      aspects of the parties’ dissolution. In particular, the trial court found “that the

      Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018   Page 2 of 16
      paternity affidavit signed by both parties on January 13, 2015[,] regarding [the

      Child] is valid and was not signed by [Mother] under fraud, duress, or mistake

      of fact and therefore [Legal Father] is the father of [the Child] with all attendant

      rights and responsibilities.” (Appellant’s App. Vol. II, p. 17). Accordingly, the

      trial court granted Legal Father the right to exercise parenting time with the

      Child during the pendency of the divorce.


[6]   On September 9, 2016, Mother—who had rekindled her relationship with

      Biological Father—filed a Verified Petition to Establish Paternity, 1 identifying

      Biological Father as the Child’s biological father. Mother also filed a motion

      for genetic testing and moved to join Legal Father as a party to the paternity

      action. On October 14, 2016, Legal Father filed a motion to intervene in the

      paternity proceedings, identifying himself as the Child’s father based on a

      validly executed paternity affidavit. Legal Father simultaneously moved to

      dismiss the paternity action, contending that there was no basis to rescind the

      paternity affidavit, that res judicata barred re-litigating the issue of paternity, and

      that the time for contesting paternity had passed. On October 19, 2016, Mother

      submitted the results of a DNA analysis, which established, with a 99.99%

      probability, that Biological Father is the Child’s biological parent. That day,

      the trial court joined Legal Father as an intervening respondent in the paternity

      action.




      1
        Mother originally filed the paternity action in Gibson County. Eventually, the Gibson County trial court
      transferred the paternity action to Pike County, where the dissolution action was pending.

      Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018                     Page 3 of 16
[7]   On February 14, 2017, Legal Father filed a Motion to Dismiss Petition to

      Establish Paternity, alleging that the petition to establish paternity fails to state

      a claim upon which relief can be granted; is time-barred by the applicable

      statute of limitations; is barred by laches, estoppel, and res judicata; and is

      contrary to the Child’s best interests. Legal Father further contended that

      Mother frivolously filed the paternity action as an apparent “means to obtain

      leverage in the dissolution action.” (Appellant’s App. Vol. II, p. 57).

      Accordingly, Legal Father requested an award of attorney fees for having to

      defend his paternity. On February 16, 2017, Biological Father filed a motion to

      establish his paternity and simultaneously disestablish Legal Father’s paternity.


[8]   On March 14, 2017, the trial court conducted a paternity hearing. On May 9,

      2017, the trial court issued Findings, Conclusions and Judgment, in which it

      granted Legal Father’s motion to dismiss Mother’s petition to establish

      paternity. The trial court determined that Legal Father had executed a

      paternity affidavit, and no party timely challenged his paternity or otherwise

      alleged fraud, duress, or material mistake of fact in the execution of the

      affidavit. The trial court further concluded that, by signing the paternity

      affidavit, Mother was estopped from attempting to establish paternity in

      another man. In addition, the trial court noted that Biological Father never

      filed a petition to establish paternity to be declared the Child’s father and that

      the time for doing so has expired. Finally, the trial court determined that

      nobody filed “a petition as next friend on behalf of the [C]hild to establish

      paternity in [Biological Father].” (Appellant’s App. Vol. II, p. 14).


      Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018   Page 4 of 16
[9]    Mother and Biological Father now appeal. 2 Additional facts will be provided as

       necessary.


                                 DISCUSSION AND DECISION
                                                 I. Standard of Review

[10]   In this case, Legal Father filed a motion to dismiss Mother’s petition to

       establish paternity, which the trial court granted. However, because the trial

       court held an evidentiary hearing prior to ruling, the motion must be treated as

       one for summary judgment under Indiana Trial Rule 56. See Drake v. McKinney,

       717 N.E.2d 1229, 1230-31 (Ind. Ct. App. 1999). Upon review of a grant of

       summary judgment, we employ the same standard utilized by the trial court. In

       re Paternity of R.M., 939 N.E.2d 1114, 1118 (Ind. Ct. App. 2010). We must

       carefully consider a summary judgment ruling “to ensure that a party was not

       improperly denied its day in court.” Id. Review is limited to the evidentiary

       materials designated to the trial court. Id. Based on the designated facts, “we

       must determine whether there is a genuine issue as to any material fact and

       whether the moving party is entitled to a judgment as a matter of law.” Id. We




       2
          Although Biological Father has appeared as an appellee and filed a brief, his position is entirely consistent
       with Mother’s argument regarding the trial court’s dismissal of the paternity position; thus, he is more akin to
       a de facto appellant and will be treated as such. In fact, following the dismissal of the paternity petition,
       Biological Father filed a motion to correct error, which was deemed denied. From there, Biological Father
       initiated a separate appeal. At Biological Father’s request, we have issued an order to consolidate his appeal
       with Mother’s as the issues are the same. Legal Father, on the other hand, has not filed an appellate brief.
       When an appellee does not file a brief, our court will not undertake the burden of developing arguments on
       that party’s behalf. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Rather, we apply “a less
       stringent standard of review” and may reverse the trial court if the appellant establishes prima facie error. Id.
       Prima facie “means at first sight, or on first appearance, or on the face of it.” Id.

       Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018                         Page 5 of 16
       construe all factual inference in favor of the non-moving party “and resolve all

       doubts as to the existence of a material issue against the moving party.” Id.

       The moving party bears the burden of making a prima facie showing that there

       are no genuine issues of material fact and that he is entitled to judgment as a

       matter of law, at which point, the burden shifts to the non-moving party to

       produce evidence demonstrating the existence of a genuine issue of material

       fact. Id. Upon Mother’s request, the trial court issued special findings of fact

       and conclusions thereon. While neither required nor binding on appeal, special

       findings and conclusions “offer this court valuable insight into the trial court’s

       rationale for its review and facilitate appellate review.” First Farmers Bank &

       Trust Co. v. Whorley, 891 N.E.2d 604, 608 (Ind. Ct. App. 2008), trans. denied.


                                II. Establishing and Disestablishing Paternity

[11]   The Indiana General Assembly has specifically stated that it “favors the public

       policy of establishing paternity under [Indiana Code article 31-14] of a child

       born out of wedlock.” Ind. Code § 31-14-1-1. The ultimate goal of allowing

       paternity suits “is to promote the welfare of the child.” Drake, 717 N.E.2d at

       1231. In this case, Mother claims that the trial court erroneously dismissed her

       petition to establish Biological Father’s paternity of the Child. Under our

       summary judgment standard of review, we must determine whether Legal

       Father, as the moving party, established that there are no genuine issues of

       material fact and that Mother was precluded from challenging his paternity as a

       matter of law.




       Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018   Page 6 of 16
[12]   The resolution of this matter hinges on an interpretation of Indiana’s paternity

       statutes. Statutory interpretation is a question of law reserved for the courts. In

       re Paternity of E.M.L.G., 863 N.E.2d 867, 868 (Ind. Ct. App. 2007). Thus, we

       independently review a statute’s meaning and apply it to the facts of the case.

       Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind. 2001). Where a

       statute is unambiguous, we “must give the statute its clear and plain meaning.”

       Id. Conversely, for an ambiguous statute—i.e., a statute that is susceptible to

       more than one interpretation—“we must ascertain the legislature’s intent and

       interpret the statute so as to effectuate that intent.” Id.


[13]   A man’s paternity may only be established by either filing a paternity action

       under Indiana Code article 31-14 or by executing a paternity affidavit. I.C. §

       31-14-2-1. A paternity affidavit executed in accordance with Indiana Code

       section 16-37-2-2.1 “conclusively establishes the man as the legal father of a

       child without any further proceedings by a court.” I.C. § 31-14-2-2.1(p). “A

       man is a child’s legal father if the man executed a paternity affidavit . . . and the

       paternity affidavit has not been rescinded or set aside under [Indiana Code

       section] 16-37-2-2.1.” I.C. § 31-14-7-3. There are two statutory mechanisms for

       rescission of a paternity affidavit. First, the man who signs the paternity

       affidavit has sixty days after executing the paternity affidavit to request a

       genetic test through the court, and if he is excluded as the biological father, the

       trial court may set the paternity affidavit aside. I.C. § 16-37-2-2.1(k),(n).

       Second, if more than sixty days have passed since the execution of the paternity

       affidavit, it may only be rescinded if a court:


       Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018   Page 7 of 16
                (1) has determined that fraud, duress, or material mistake of fact
                existed in the execution of the paternity affidavit; and
                (2) at the request of [the man who signed the paternity affidavit],
                has ordered a genetic test, and the test indicates that the man is
                excluded as the father of the child.


       I.C. § 16-37-2-2.1(l).


[14]   In this case, there is no dispute that Legal Father established paternity by

       executing a paternity affidavit. More than sixty days have lapsed since Legal

       Father executed the paternity affidavit on January 13, 2015. Furthermore,

       Legal Father never requested a genetic test; rather, Mother sought the DNA

       testing that excluded Legal Father as the biological parent. Moreover, the trial

       court determined during the dissolution proceedings that there was no fraud,

       duress, or material mistake of fact in the execution of the paternity affidavit.

       Thus, it appears that there is no statutory basis for rescinding the paternity

       affidavit. 3


[15]   Our courts have held that it is contrary to public policy to simply disestablish

       paternity, whereby a child would be declared fatherless. In re Paternity of Infant




       3
         Biological Father insists that, contrary to the trial court’s finding that no party had “alleged fraud, duress or
       material mistake of fact with respect to the execution of the Paternity Affidavit,” he did argue that Legal
       Father’s assertion that he was the Child’s father was fraudulent based on Mother’s testimony during the
       paternity hearing that she had not engaged in sexual relations with Legal Father for “well over a year before”
       the Child’s birth. (Appellant’s App. Vol. II, p. 12; Tr. p. 32). We first note that there was conflicting
       evidence at the hearing as Legal Father testified that he was, in fact, involved with Mother at the time of the
       Child’s conception, creating a genuine issue of material fact. Regardless, based on the plain language of the
       statute, the trial court was required to make a finding of fraud, duress, or mistake of fact and, at Legal Father’s
       request, order a genetic test. I.C. §13-37-2-2.1(l). Legal Father made no such request here; thus, we elect not
       to rely on this statute as a basis for setting aside the paternity affidavit.

       Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018                           Page 8 of 16
       T, 991 N.E.2d 596, 600 (Ind. Ct. App. 2013), trans. denied. Nevertheless, it is

       well established that paternity may be “indirectly disestablish[ed] once it has

       been established in another man.” Id. (internal quotation marks omitted); see

       also See In re Paternity of D.L., 938 N.E.2d 1221, 1225 (Ind. Ct. App. 2010)

       (discussing that establishing paternity in another man effectively operates to

       disestablish the paternity of a man who executed a paternity affidavit). Here,

       Mother and Biological Father seek to have Biological Father’s paternity

       established.


[16]   Pursuant to Indiana Code section 31-14-4-1, a paternity action may be filed by,

       in relevant part, the mother; a man alleging to be the child’s biological father;

       the mother and alleged father, jointly; or the child. Yet, there are certain

       statutory limitations for filing a paternity action. A child is permitted to file a

       paternity petition “at any time before the child reaches twenty (20) years of

       age,” and a child who is incompetent—i.e., based on age—“may file a petition

       through the person’s guardian, guardian ad litem, or next friend.” I.C. § 31-14-

       5-2(a)-(b). On the other hand, the mother or a man alleging to be the child’s

       father


                must file a paternity action not later than two (2) years after the
                child is born, unless:
                (1) both the mother and the alleged father waive the limitation on
                actions and file jointly;
                (2) support has been furnished by the alleged father or by a
                person acting on his behalf, either voluntarily or under an
                agreement with:
                   (A) the mother;
                   (B) a person acting on the mother’s behalf; or
       Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018   Page 9 of 16
                  (C) a person acting on the child’s behalf;
               (3) the mother . . . files a petition after the alleged father has
               acknowledged in writing that he is the child’s biological father;
               (4) the alleged father files a petition after the mother has
               acknowledged in writing that he is the child’s biological father;
               (5) the petitioner was incompetent at the time the child was born;
               or
               (6) a responding party cannot be served with summons during
               the two (2) year period.


       I.C. § 31-14-5-3(b). If one of these exceptions is met, “the paternity petition

       must be filed not later than two (2) years after the condition described . . .

       ceases to exist.” I.C. § 31-14-5-3(c).


[17]   Mother now contends that the paternity petition was timely filed because she

       filed it as the Child’s next friend, and even though the petition did not explicitly

       contain those words, the trial court should have recognized it as such or granted

       her leave to amend the petition accordingly. Biological Father additionally

       argues that the trial court disregarded the four applicable exceptions that

       permitted either him or Mother to file the paternity action more than two years

       after the Child’s birth. First, Biological Father asserts that even though he and

       Mother did not technically file a joint petition to establish his paternity to the

       Child, “it was made abundantly clear through both the [divorce and paternity]

       proceedings that [Biological Father] and [Mother] are of the same position,

       namely that [Biological Father] should be adjudicated the father of [the Child].”

       (Biological Father’s Br. p. 8). Similar to Mother, Biological Father contends

       that he and Mother should have been afforded an opportunity to file an

       amended joint petition. Second, Biological Father further argues that evidence
       Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018   Page 10 of 16
       was presented to the trial court establishing that he furnished support for the

       Child. Third, Biological Father contends that it is a mere technicality that

       could be fixed with an amended pleading that he did not acknowledge his status

       as biological father in writing prior to Mother filing the paternity petition.

       Fourth, now that Mother has acknowledged in writing that he is the biological

       father, Biological Father points out that he could file a paternity petition

       without violating the statute of limitations. 4


[18]   While we feel compelled to express our exasperation over the instability and

       confusion that the irregularity of these proceedings has undoubtedly caused the

       now five-year-old Child—who developed a bond with Legal Father only to be

       subsequently introduced to a new father figure and inevitably distanced from

       Legal Father—we nevertheless agree with Mother and Biological Father that

       Legal Father is not entitled to judgment as a matter of law on Mother’s petition

       to establish paternity. Biological Father and Mother could have effectively

       disestablished Legal Father’s paternity/established Biological Father’s paternity

       if Mother’s paternity petition had strictly complied with Indiana Code section

       31-14-5-2(a)-(b) or Indiana Code section 31-14-5-3(b)(1), (3), or (4). The trial

       court ignored Mother’s request to amend her paternity petition. Regardless, at

       the very least, there is a material question of fact as to whether Biological




       4
          It actually appears from the Chronological Case Summary that, on February 16, 2017, Biological Father
       filed a Motion and Brief Regarding Establishing Paternity in [Biological Father] and Disestablishing
       Paternity in [Legal Father]. This motion was not included in the record, and it is unclear why it was not
       treated as a petition to establish paternity pursuant to Indiana Code sections 31-14-4-1 and 31-14-5-
       3(b)(2),(4).

       Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018                   Page 11 of 16
       Father provided support for the Child. Biological Father testified that he had

       been living with Mother and the Child for eight months preceding the paternity

       hearing, during which time he provided financial support for the Child’s care.

       The provision of support would permit Biological Father or Mother to file a

       paternity petition more than two years after the Child’s birth, thereby

       establishing paternity in Biological Father and disestablishing the same in Legal

       Father. See I.C. § 31-14-5-3(b)(2),(c); Drake, 717 N.E.2d at 1232 (precluding

       summary judgment where genuine issue of material fact as to whether

       biological father contributed to the child’s support). We find that further

       proceedings are warranted in this case. 5


                                                 CONCLUSION
[19]   Based on the foregoing, we conclude that Legal Father was not entitled to

       judgment as a matter of law on Mother’s petition to establish paternity.


[20]   Reversed and remanded.




       5
         The dissent cites In re Paternity of H.H., 879 N.E.2d 1175, 1177 (Ind. Ct. App. 2008), for support that
       Mother may not use the paternity statutes to deprive Legal Father or his rights because she executed the
       paternity affidavit. However, that case is factually distinct from the present situation. In In re Paternity of
       H.H., the trial court rescinded a paternity affidavit on grounds of fraud because both parties signed it despite
       knowing that the alleged father was not the biological father. Id. at 1176. We reversed the trial court, noting
       that “the legislature intended to provide assistance to a man who signed a paternity affidavit due to ‘fraud,
       duress, or material mistakes of fact’”—not to women who “always [have] the information necessary to
       question paternity prior to signing the affidavit.” Id. at 1178. In the case at hand, Mother is not seeking to
       set aside the paternity affidavit on grounds of fraud. Furthermore, the mother in In re Paternity of H.H. sought
       to disestablish the father’s paternity, not because she had identified the actual biological father, but as a
       means of contesting his petition to establish custody, support, and parenting time. Id. at 1176. As already
       noted, we find it contrary to public policy to simply disestablish paternity and essentially declare a child to be
       fatherless. See In re Paternity of Infant T, 991 N.E.2d at 600. Here, however, Mother and Biological Father
       seek to establish Biological Father’s paternity, which would indirectly disestablish Legal Father’s paternity.

       Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018                         Page 12 of 16
[21]   Brown, J. concurs


[22]   Baker, J. dissents with separate opinion




       Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018   Page 13 of 16
                                                    IN THE
           COURT OF APPEALS OF INDIANA

       In RE: The Paternity of I.I.P.;                             Court of Appeals Case No.
                                                                   63A01-1706-JP-1265
       Kailei L. Poteet
       Appellant-Petitioner,

               v.

       Justin Rodgers and
       Nathan T. Poteet,
       Appellees-Respondents.



       Baker, Judge, dissenting.


[23]   I respectfully dissent. The plain language of Indiana Code section 16-37-2-2.1(l)

       provides that where, as here, a paternity affidavit has already been executed

       pursuant to that section, it may not be rescinded unless the trial court:


               (1)      has determined that fraud, duress, or material mistake of
                        fact existed in the execution of the paternity affidavit; and




       Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018             Page 14 of 16
               (2)      at the request of a man described in subsection (k), has
                        ordered a genetic test, and the test indicates that the man is
                        excluded as the father of the child.


       Neither of those circumstances has occurred in this case.


[24]   The majority cites Indiana Code section 31-14-5-3 as support for its conclusion.

       In my view, this statute applies only if a paternity affidavit has not already been

       executed pursuant to Indiana Code section 16-37-2-2.1. To say that judicial

       action can trump a valid paternity affidavit even if the parties have not

       complied with Indiana Code section 16-37-2-2.1 is to render that statute

       meaningless, which is a result that should be avoided.


[25]   Moreover, the majority points to In re Paternity of D.L., 938 N.E.2d 1221, 1225

       (Ind. Ct. App. 2010), in support of its conclusion that “establishing paternity in

       another man effectively operates to disestablish the paternity of a man who

       executed a paternity affidavit.” Slip op. para. 14. In D.L., however, paternity

       was not first established by a paternity affidavit under Indiana Code section 16-

       37-2-2.1; instead, it “was established by an action commenced pursuant to

       Article 31-14 . . . .” 938 N.E.2d at 1225. That paternity established by Article

       31-14 can be disestablished by the same set of statutes is both unsurprising and

       irrelevant to the case before us.


[26]   Both the plain language of Indiana Code section 16-37-2-2.1 and caselaw

       support a conclusion that once a paternity affidavit has been executed, it may

       not be rescinded unless the terms of that statute are met. See, e.g., In re Paternity


       Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018   Page 15 of 16
       of H.H., 879 N.E.2d 1175, 1177 (Ind. Ct. App. 2008) (holding that “[o]nce a

       man executes a paternity affidavit in accordance with I.C. § 16-37-2-2.1, he ‘is a

       child’s legal father’ unless the affidavit is rescinded or set aside pursuant to that

       same statute” and that “once a mother has signed a paternity affidavit, she may

       not use the paternity statutes to deprive the legal father of his rights, even if he is

       not the biological father”). I acknowledge that there is also caselaw supporting

       the opposite conclusion, but respectfully disagree with those cases given the

       plain language of the relevant statutes. See Davis v. Trensey, 862 N.E.2d 308,

       312-14 (Ind. Ct. App. 2007) (holding that prosecutor had a right to file paternity

       action and seek a genetic test where paternity had been established in another

       man by affidavit in the past); In re Paternity of N.R.R.L., 846 N.E.2d 1094, 1098

       (Ind. Ct. App. 2006) (noting that while a man is established as legal father after

       executing a paternity affidavit, “that does not preclude another man from

       attempting to establish paternity of the child” via a paternity action).


[27]   I believe that the plain language of Indiana Code section 16-37-2-2.1 compels us

       to affirm, and therefore respectfully dissent.




       Court of Appeals of Indiana | Opinion 63A01-1706-JP-1265 | January 31, 2018   Page 16 of 16
