MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                    Aug 04 2015, 9:39 am
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT
Gregory F. Zoeller
Attorney General of Indiana

Frances Barrow
Deputy Attorney General
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of                         August 4, 2015
A.D.                                                      Court of Appeals Cause No.
                                                          71A03-1502-JP-58
State of Indiana Ex. Rel.                                 Appeal from the St. Joseph
                                                          Probate Court
E.M.W.,                                                   The Honorable James N. Fox,
Appellant,                                                Judge
                                                          The Honorable Aric J.
        v.                                                Rutkowski, Magistrate
                                                          Trial Court Cause No. 71J01-
J.M.D.,                                                   0105-JP-394
Appellee,



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Opinion 71A03-1502-JP-58 | August 4, 2015           Page 1 of 12
                                          Case Summary
[1]   A.D. was born out-of-wedlock to Appellant Eva M. Williams (“Mother”) and

      Appellee James M. Dawning (“Father”) on March 28, 2000. Because Mother

      was under age at the time of A.D.’s birth, A.D.’s maternal grandmother, Zola

      Harris, was appointed to be A.D.’s guardian. Approximately one year after

      A.D.’s birth, Appellant the State of Indiana (the “State”) filed a petition to

      establish paternity. The trial court issued an order conclusively establishing

      Father’s paternity of A.D. and ordering Father to pay child support.


[2]   On July 8, 2014, the trial court found Father in contempt for being in arrears on

      his child support obligation. Father subsequently filed a motion requesting that

      the court re-calculate Father’s child support arrearage and to vacate the

      contempt finding. Following a number of hearings, the trial court issued an

      order vacating the prior order establishing Father’s paternity of A.D. The State

      filed a motion to correct error, which was subsequently denied by the trial

      court.


[3]   On appeal, the State contends that the trial court abused its discretion in

      denying its motion to correct error. Concluding that the trial court abused its

      discretion in denying the State’s motion, we reverse the trial court’s orders

      denying the State’s motion to correct error and vacating the trial court’s prior

      order establishing paternity and remand to the trial court with instructions.



                            Facts and Procedural History

      Court of Appeals of Indiana | Memorandum Opinion 71A03-1502-JP-58 | August 4, 2015   Page 2 of 12
[4]   A.D. was born on March 28, 2000. At the time of A.D.’s birth, Mother was

      seventeen years old and still living with her Mother. Father signed a paternity

      affidavit at the time of A.D.’s birth. Harris was named A.D.’s guardian shortly

      after A.D.’s birth because Mother was underage at the time of A.D.’s birth.

      Nothing in the record indicates that the guardianship order awarded Harris sole

      physical custody of A.D. or ordered that Harris should be the recipient of funds

      paid pursuant to any potential future child support obligation relating to A.D.1

      Mother and A.D. continued to reside with Harris while Mother was “under-

      age.” 7/8/2014 p. 10.


[5]   A little more than one year after A.D.’s birth, the State filed a petition to

      establish Father’s paternity of A.D. About the time the paternity proceedings

      were filed, Mother and A.D. moved out of Harris’s home. During a July 3,

      2001 hearing on the State’s petition to establish paternity, Father admitted that

      he was A.D.’s biological Father. At the conclusion of the July 3, 2001 hearing,

      the trial court issued an order conclusively establishing Father’s paternity of

      A.D. In addition to conclusively establishing paternity, the trial court’s July 3,

      2001 order also provided (1) that Mother was awarded custody of A.D., (2) that




      1
       Harris filed a motion for child support on November 22, 2000, but soon thereafter withdrew
      her motion. She has not made any subsequent requests for child support.

      Court of Appeals of Indiana | Memorandum Opinion 71A03-1502-JP-58 | August 4, 2015   Page 3 of 12
      Father was entitled to parenting time with A.D., and (3) that Father was

      ordered to pay child support in the amount of $42.00 per week.


[6]   On July 8, 2014, the trial court found that Father was $25,945.50 in arrears of

      his child support obligation. The trial court also found Father in contempt for

      failing to pay child support. The trial court, however, deferred sentencing on its

      contempt finding.


[7]   On August 6, 2014, Father filed a motion requesting that the trial court re-

      calculate his arrearage and vacate the contempt finding. In filing this motion,

      Father claimed that he should not have been found in contempt for failing to

      pay his child support to Mother because A.D. actually lived with Harris. The

      trial court conducted hearings on September 19 and September 29, 2014, in

      order to obtain more information about the guardianship and where A.D. lived.


[8]   During these hearings, the trial court heard evidence indicating that despite the

      fact that A.D. resided with Mother after A.D. and Mother moved out of

      Harris’s home in or around 2001, neither Mother nor Harris ever petitioned to

      terminate the guardianship order. The trial court also heard evidence that A.D.

      began splitting his time between Harris’s residence and Mother’s residence

      when he was approximately eight years old. Harris’s residence and Mother’s

      residence were located within close proximity and A.D. was free to go between

      the two residences as a matter of convenience. This arrangement continued as

      of the date of the September 29, 2014 hearing, with Harris, Mother, and A.D.

      all indicating that they believe that A.D. resides at both Mother’s and Harris’s


      Court of Appeals of Indiana | Memorandum Opinion 71A03-1502-JP-58 | August 4, 2015   Page 4 of 12
       homes. During the September 29, 2014 hearing, Harris indicated that the

       ongoing nature of the guardianship was not due to the fact that she felt the

       guardianship was still needed. Specifically, Harris indicated that the

       guardianship was never terminated or changed because it simply “never came

       up to being a problem.” 9/29/2014 Tr. p. 13. Harris also reiterated during the

       September 29, 2014 hearing that neither Mother nor Father had ever paid her

       child support relating to A.D.


[9]    On December 9, 2014, the trial court issued an order vacating the July 3, 2001

       order establishing Father’s paternity of A.D. Approximately eight days later,

       the State filed a motion to correct error. The trial court issued an order denying

       the State’s motion to correct error on January 28, 2015. This appeal follows.



                                  Discussion and Decision
[10]   On appeal, the State contends that the trial court abused its discretion in

       denying its motion to correct error.


                                      I. Standard of Review
[11]           A trial court has broad discretion when granting or denying a motion
               to correct error. Dughaish ex rel. Dughaish v. Cobb, 729 N.E.2d 159, 167
               (Ind. Ct. App. 2000), trans. denied 753 N.E.2d 2 (Ind. 2001). We will
               reverse its decision only for an abuse of that discretion. Id. An abuse
               of discretion occurs if the trial court’s decision was against the logic
               and effect of the facts and circumstances, or reasonable inferences
               therefrom, that were before the court, or if the trial court’s decision “is
               without reason or is based upon impermissible reasons or
               considerations.” Id.


       Court of Appeals of Indiana | Memorandum Opinion 71A03-1502-JP-58 | August 4, 2015   Page 5 of 12
               However, when an appellee fails to submit a brief, our standard of
               review is relaxed because we will not assume the responsibility of
               developing arguments for the appellee. In re Paternity of B.D.D., 779
               N.E.2d 9, 13 (Ind. Ct. App. 2002). We do not apply the typical
               standard of review. Id. Instead, we review the trial court’s decision for
               “prima facie error.” Id. Prima facie, in this context, means at first glance
               or on the face of it. Id.


       White v. White, 796 N.E.2d 377, 379 (Ind. Ct. App. 2003) (emphases in

       original). Thus, because the appellee has failed to submit a brief on appeal, we

       consequently review the trial court’s denial of the State’s motion to correct error

       for prima facie error.


                                                II. Analysis
              A. Questions Relating to Validity of the July 3, 2001
                           Paternity Determination
[12]   Indiana Code section 31-14-1-1 explicitly provides that the General Assembly

       “favors the public policy of establishing paternity” of a child born out of

       wedlock. A paternity affidavit executed under Indiana Code section 16-37-2-

       2.1 establishes paternity and gives rise to parental rights and responsibilities.




       Court of Appeals of Indiana | Memorandum Opinion 71A03-1502-JP-58 | August 4, 2015   Page 6 of 12
       Ind. Code § 16-37-2-2.1(j).2 In the instant matter, the parties’ testimony

       indicates that Father executed a paternity affidavit in accordance with Indiana

       Code section 16-37-2-2.1. Mother and Father both testified during the hearing

       conducted on July 3, 2001, that Father signed a paternity affidavit at the time of

       A.D.’s birth. Nothing in the record indicates that this paternity affidavit has

       been rescinded or set aside.


[13]   Indiana Code section 31-14-7-3 (2001), which went into effect after Father

       signed the paternity affidavit but before the trial court issued its order

       establishing Father’s paternity, provides that a man is a child’s legal father if the

       man executed a paternity affidavit in accordance with Indiana Code section 16-

       37-2-2.1 and the paternity affidavit has not been rescinded or set aside under

       said section. Further, we have previously held that the provisions of Title 31,

       Article 14 provide the means to establish paternity, not to disestablish it. See In

       re Paternity of H.J.B., 829 N.E.2d 157, 160 (Ind. Ct. App. 2005). In reaching this

       holding, we noted that if we were to hold otherwise, “our courts could create a




       2
         We observe that Indiana Code section 16-37-2-2.1 has been amended since the time of A.D.’s
       birth. At the time of A.D.’s birth, the above-cited language could be found at Indiana Code
       section 16-37-2-2.1(g) rather than Indiana Code section 16-37-2-2.1(j).



       Court of Appeals of Indiana | Memorandum Opinion 71A03-1502-JP-58 | August 4, 2015   Page 7 of 12
       ‘filius nullius,’[3] which is exactly what paternity statutes were created to avoid.”

       See id. (internal citation omitted). We further noted that being declared a “filius

       nullius” would undoubtedly carry with it countless detrimental financial and

       emotional effects. Id. (citation omitted).


[14]   A little over one year after A.D. was born, the State filed a petition to establish

       paternity. Indiana Code section 31-14-5-6 provides that “[t]he child, the child’s

       mother, and each person alleged to be the father are necessary parties” to a

       paternity action. In accordance with Indiana Code section 31-14-5-6, A.D.,

       Mother, and Father were listed as parties to the paternity action. Again, during

       the July 3, 2001 hearing on the State’s petition, both Mother and Father

       testified that Father had signed a paternity affidavit at the time of A.D.’s birth.

       Mother and Father also admitted before the court that Father was A.D.’s

       biological father. Following the conclusion of the July 3, 2001 hearing, the trial

       court issued an order conclusively establishing that Father was the biological

       father of A.D.


[15]   Given the fact that both Mother and Father repeatedly asserted that Father was

       A.D.’s biological father coupled with the General Assembly’s stated public




       3
         The term “filius nullius” is defined as the “son of nobody.” See generally, In re Paternity of
       Infant T., 991 N.E.2d 596, 600 (Ind. Ct. App. 2013).

       Court of Appeals of Indiana | Memorandum Opinion 71A03-1502-JP-58 | August 4, 2015       Page 8 of 12
       policy interest in establishing paternity, we conclude that the trial court’s July 3

       2001 order, which conclusively established Father’s paternity, was valid. It

       would be both emotionally harmful to A.D. and contrary to the public policy

       interests of this State to allow the trial court to come back approximately

       thirteen years later and vacate this conclusive paternity determination. We

       therefore conclude that the State has made a prima facie case demonstrating that

       the trial court abused its discretion in vacating the approximately thirteen-year-

       old paternity determination and in denying the State’s resulting motion to

       correct error.


         B. Trial Court’s Reliance on Our Prior Decision in White v.
                             White Is Misplaced
[16]   Furthermore, we conclude that the trial court’s reliance on our prior opinion in

       White is misplaced. Again, on December 9, 2014, the trial court issued an order

       vacating its prior July 3, 2001 paternity order. In vacating the prior court order

       establishing paternity and subsequently denying the State’s motion to correct

       error, the trial court relied on this court’s prior opinion in White for the

       proposition that Harris was entitled to receive notice of the underlying paternity

       proceedings.


[17]   In White, we were faced with the question of whether a court-appointed

       guardian who had custody of the child at issue and was the court-appointed

       recipient of child support payments made in relation to the child was entitled to

       notice of a motion for a change of custody and for the termination of a parent’s

       child support obligation. 796 N.E.2d at 378-81. Under the facts presented in
       Court of Appeals of Indiana | Memorandum Opinion 71A03-1502-JP-58 | August 4, 2015   Page 9 of 12
       that case, we concluded that the child’s court-appointed guardian was entitled

       to receive notice of the motion for a change of custody and for the termination

       of father’s child support obligation. White, 796 N.E.2d at 383. However, we

       believe that the situation at hand can easily be distinguished from our opinion

       in White.


[18]   Review of the record demonstrates that unlike the situation presented in White,

       while Harris was appointed by the trial court to be A.D.’s guardian, nothing in

       the record indicates that the trial court ever awarded Harris physical custody of

       A.D. or ordered that Harris should be the recipient of funds paid pursuant to

       any potential future child support obligation. Thus, the instant matter does not

       present a situation where a child’s custodian or the recipient of child support

       was not notified of a request for a custody change or the termination of one’s

       obligation to pay child support. Rather, the instant appeal presents the question

       of whether a non-custodial guardian is entitled to notice of a paternity

       determination. In light of the statutory authority setting forth who is a

       necessary party to a paternity action, we believe the answer is no. As such, we

       find that the trial court improperly relied on our prior opinion in White.


[19]   In addition, we fail to understand how lack of notification to Harris should in

       anyway relieve Father of his legal obligation to support A.D.


                                 C. Additional Considerations
[20]   Indiana code section 31-16-16-6 provides that a trial court “may not

       retroactively modify an obligor’s duty to pay a delinquent [child] support

       Court of Appeals of Indiana | Memorandum Opinion 71A03-1502-JP-58 | August 4, 2015   Page 10 of 12
       payment.” Stated differently, once the funds have accrued to a child’s benefit

       under a court order, the trial court may not annul them in a subsequent

       proceeding. See generally Nill v. Martin, 686 N.E.2d 116, 118 (Ind. 1997)

       (providing that a corollary to the rule that a custodial parent may not contract

       away a child support obligation is the rule that “once funds have accrued to a

       child’s benefit under a court order, the court may not annul them in a

       subsequent proceeding”). If we were to affirm the trial court’s denial of the

       State’s motion to correct error, we would effectively be allowing the trial court

       to retroactively annul child support funds that had accrued for A.D.’s benefit.

       In light of the plain language of Indiana Code section 31-16-16-6 and the

       Indiana Supreme Court’s opinion in Nill, it clearly would be error for us to do

       so.



                                               Conclusion
[21]   In sum, we conclude that the trial court abused its discretion in vacating the

       July 3, 2001 order establishing paternity and in denying the State’s resulting

       motion to correct error. Instructing the trial court to keep in mind the plain

       language of Indiana Code section 31-16-16-6 and the Indiana Supreme Court’s

       opinion in Nill, we remand the instant matter to the trial court for an order on

       Father’s motion to re-calculate his arrearage and to vacate the contempt

       finding.


[22]   The judgment of the trial court is reversed and the matter remanded with

       instructions for further proceedings.

       Court of Appeals of Indiana | Memorandum Opinion 71A03-1502-JP-58 | August 4, 2015   Page 11 of 12
May, J., and Crone, J., concur.




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