Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  Aug 15 2013, 5:35 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE:

STEVEN LYNN
Plainfield, Indiana




                                IN THE
                      COURT OF APPEALS OF INDIANA

IN RE THE PATERNITY OF C.H.:                       )
                                                   )
S.L.,                                              )
                                                   )
        Appellant-Petitioner,                      )
                                                   )
               vs.                                 )       No. 64A04-1304-JP-198
                                                   )
K.H.,                                              )
                                                   )
        Appellee-Respondent.                       )


                       APPEAL FROM THE PORTER CIRCUIT COURT
                            The Honorable Mary R. Harper, Judge
                       The Honorable Gwenn R. Rinkenberger, Magistrate
                               Cause No. 64C01-1002-JP-188



                                         August 15, 2013


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       C.H. was born to K.H. (“Mother”) in June of 2008. At the time of C.H.’s birth,

Mother was married to R.H. In 2010, Appellant-Petitioner S.L. (“Putative Father”) filed a

timely paternity action claiming to be C.H.’s biological father. While this paternity action

was pending, in unrelated divorce proceedings between Mother and R.H., the dissolution

court found that C.H. was a child born of Mother’s marriage to R.H. In light of the

dissolution court’s determination that C.H. was a child born of Mother’s marriage to R.H.,

the trial court dismissed Putative Father’s paternity action with prejudice. On appeal,

Putative Father contends that the trial court erred in dismissing his paternity action. We

agree. Accordingly, we reverse and remand to the trial court for further proceedings.

                       FACTS AND PROCEDURAL HISTORY

       The facts, as provided in Putative Father’s brief and the limited court documents

submitted on appeal, demonstrate that C.H. was born on June 17, 2008. At the time of C.H.’s

birth, Mother was married to R.H. On February 11, 2010, Putative Father filed a petition

seeking to establish paternity of C.H. In this petition, Putative Father stated that he and

Mother had been involved in an intermittent sexual relationship since April of 2003,

including a time in 2007 when Mother was allegedly separated from R.H. Putative Father

also stated that in October of 2007, Mother informed him that she was pregnant and claimed

that the child was a result of their sexual relationship. On February 26, 2010, the trial court

dismissed Putative Father’s paternity action. However, on April 23, 2010, the trial court

reopened the matter.




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       At some point, Mother and R.H. initiated divorce proceedings. On February 11, 2011,

the trial court found that there was a pending divorce matter in front of the dissolution court

involving Mother and R.H., and that as a result, it was unable to establish paternity. Putative

Father filed a request for DNA testing on November 27, 2012. On December 20, 2012, the

dissolution court issued a decree of dissolution, dissolving Mother and R.H.’s marriage. In

this dissolution decree, the dissolution court found that C.H. was “born of the marriage.”

Appellant’s App. p. 7. On March 22, 2013, citing to the dissolution decree, the trial court

entered an order denying Putative Father’s request for DNA testing and dismissing Putative

Father’s paternity action with prejudice. This appeal follows.

                             DISCUSSION AND DECISION

       Initially, we note that Mother did not file an appellee’s brief in the instant appellate

proceedings.

       When an appellee fails to file a brief, we apply a less stringent standard of
       review. McKinney v. McKinney, 820 N.E.2d 682, 685 (Ind. Ct. App. 2005).
       We are under no obligation to undertake the burden of developing an argument
       for the appellee. Id. We may, therefore, reverse the trial court if the appellant
       establishes prima facie error. Id. “Prima facie” is defined as “at first sight, on
       first appearance, or on the face of it.” Id.

Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind. Ct. App. 2006).

       Father contends that the trial court erred in dismissing his petition to establish

paternity of C.H. with prejudice. Specifically, Father argues that the trial court erroneously

found that Putative Father was not entitled to pursue paternity proceedings and undergo DNA

testing in light of the divorce court’s determination that C.H. was a child born of Mother’s

marriage to R.H. We agree.


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       In the instant matter, the trial court dismissed Putative Father’s paternity action after

the dissolution court found C.H. to be a child born of Mother’s marriage to R.H. The Indiana

Supreme Court has recognized that while “[s]tability in legally-established relationships

between parents and children is of paramount importance to the welfare of the children …

there is a substantial public policy in correctly identifying parents and their offspring.” In re

Paternity of S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992). Indiana Code section 31-14-4-1

provides that a paternity action may be filed by a man alleging that he is a child’s biological

father. As the Indiana Supreme Court has recognized, this provision makes no reference to

the marital status of the mother. Ind. Code § 31-14-4-1; In re Paternity of S.R.I., 602 N.E.2d

at 1016. As such, a putative father may establish paternity without regard to the mother’s

marital status at the time the child was born, so long as the petition is timely filed. In re

Paternity of S.R.I., 602 N.E.2d at 1016. Here, the record demonstrates that Putative Father’s

petition was timely filed.

       Generally, a putative father not named as a party to the dissolution of the marriage of a

mother and the presumed father is not precluded by a dissolution court’s determination as to

whether a child is a child of the marriage from filing a separate action to establish paternity.

Id. at 1016-17. In Russell v. Russell, 682 N.E.2d 513, 518 (Ind. 1997), the Indiana Supreme

Court articulated one exception to this rule, that being when the issue of paternity is fully

litigated during the divorce proceedings and the dissolution court makes its determination as

to whether the child is or is not a child of the marriage after following the appropriate

procedures for making paternity determinations, including considering evidence that is based



                                               4
upon and consistent with the results of blood or genetic testing. See also In re Paternity of

J.W.L., 682 N.E.2d 519, 521 (Ind. 1997). In this case, it does not appear from the record

provided on appeal, that the dissolution court fully litigated the issue of C.H.’s paternity. As

such, its conclusion that C.H. was a child born of Mother’s marriage to R.H. did not preclude

Putative Father from pursuing the underlying paternity action.

       Moreover, Indiana Code section 31-14-6-1 provides that “[u]pon the motion of any

party, the court shall order all of the parties to a paternity action to undergo blood or genetic

testing.” (Emphasis added). In Paternity of J.W.L. by J.L.M. v. A.J.P., Jr., 693 N.E.2d 959,

960 (Ind. 1998), the Indiana Supreme Court has held that by using the word “shall,” the

legislature “has made it clear that the trial court has no discretion in ordering a blood test.”

“Once a blood test is requested pursuant to a valid paternity proceeding, the request must be

granted.” Id. Here, Putative Father filed a request for DNA testing on November 27, 2012.

The clear language of Indiana Code section 31-14-6-1 and the Indiana Supreme Court’s

opinion in In Paternity of J.W.L., make it clear that the trial court erred in denying this

request.

       In sum, we conclude that the dissolution court’s determination that C.H. was a child

born of Mother’s marriage to R.H. did not preclude Putative Father from pursuing the

underlying paternity action. We also conclude that the trial court erred in denying Putative

Father’s request for DNA testing. As such, we reverse the order of the trial court and remand

for further proceedings consistent with this memorandum decision.

       The judgment of the trial court is reversed and the matter remanded to the trial court



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for further proceedings.

RILEY, J., and BROWN, J., concur.




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