                                                               FILED
                                                          Nov 23 2016, 8:34 am

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Eric D. Orr                                               Joseph M. Johnson, II
Berne, Indiana                                            Decatur, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Benjamin Sheetz,                                          November 23, 2016
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          01A05-1601-DR-80
        v.                                                Appeal from the Adams Circuit
                                                          Court
Ronnie Sheetz,                                            The Honorable Chad E. Kukelhan,
Appellee-Petitioner.                                      Judge
                                                          Trial Court Cause No.
                                                          01C01-1405-DR-44



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016            Page 1 of 29
                                           Case Summary
[1]   While Benjamin Sheetz (“Husband”) and Ronnie Sheetz (“Wife”) were

      married and Husband was in prison, Wife got pregnant by another man.

      Nevertheless, Husband agreed to raise the child as his own and did so for

      twelve years. He also told Wife not to contact the biological father, not to seek

      support from him, and not to institute paternity proceedings. Wife later filed

      for divorce, and at the final hearing, the parties entered into evidence a

      stipulation that although the child was born during the marriage, Husband is

      not the child’s biological father. The trial court nonetheless ordered Husband

      to pay support for the child, and Husband now appeals.

[2]   Under these circumstances where Husband told Wife when she was pregnant

      that he would raise the child as his own (and he did so for twelve years),

      Husband told Wife not to tell the biological father, not to seek support from

      him, and not to file a paternity action, and Wife relied on Husband’s

      representations in not establishing paternity in the biological father, we find that

      Husband is equitably estopped from rebutting the presumption that he is the

      child’s biological father. We therefore affirm the trial court.



                            Facts and Procedural History
[3]   Husband and Wife married in April 2002. Shortly thereafter, Husband was

      sent to prison. While he was in prison, Wife became pregnant by another man.

      When Wife was about twelve weeks pregnant, she told Husband that she was

      pregnant by another man. At first, Husband was upset. Wife offered to file for
      Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 2 of 29
      divorce, but Husband said no. They eventually agreed to tell everyone that she

      became pregnant during a conjugal visit, that she would not tell the biological

      father that she was pregnant with his child, and that they would raise the baby

      “as [their] own child.” Tr. p. 72, 142.

[4]   Shortly after Husband’s release from prison, Wife gave birth to G.B.S. on May

      17, 2003. Husband was present at the birth and signed the birth certificate as

      “father.” Id. at 78. Husband did not want Wife to contact the biological father,

      to seek support from him, or to institute paternity proceedings. Id. at 77, 143.

      Husband and Wife then had two more children.

[5]   For the next twelve years, Husband held G.B.S. out to the world and to G.B.S.

      as his child. Of their three children, Husband had the “closest relationship”

      with G.B.S. Id. at 76. When discussing the possibility of divorce in 2010, Wife

      asked Husband if they should tell G.B.S. that Husband was not his biological

      father, and Husband said “whether [they] were married or divorced he was

      [G.B.S.]’s dad[,] period.” Id. at 147.


[6]   Wife filed for divorce in May 2014 and claimed that the three children were

      children of the marriage. Appellant’s App. p. 26. Husband did not object to

      Wife’s claim that G.B.S. was a child of the marriage. The trial court then

      entered provisional orders for Husband to pay child support for all three

      children. Again, Husband did not object to paying child support for G.B.S.

[7]   The week before the September 2015 final hearing, Wife, upon the advice of

      G.B.S.’s counselor, told G.B.S. that Husband was not his biological father. At

      Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 3 of 29
      the final hearing, Husband and Wife admitted into evidence the following

      stipulation:

              [Husband and Wife] stipulate and agree that [Husband] is not the
              natural father of [G.B.S.], who was born during the marriage of
              the parties. [Wife], by so stipulating, is not waiving the right to
              seek child support for the benefit of said child.


      Id. at 52. Wife testified that she knows the name of G.B.S.’s biological father

      but that it had been “a long time” since she had had any contact with him and

      that she did not know where he lives. Tr. p. 108.

[8]   In dissolving the parties’ marriage, the trial court entered findings and

      conclusions. Specifically, the trial court found that Husband induced Wife “to

      forego establishment of paternity and child support for [G.B.S.] from his

      biological father, and promised that he would provide support for him.”

      Appellant’s App. p. 15. Also, the court found that Wife “firmly believed that

      both she and Husband would be responsible for [G.B.S.].” Id. Accordingly, the

      court concluded that Husband was “estopped from denying his obligations to

      [G.B.S.]” because “[t]o hold otherwise would be unjust” and “an injustice to a

      young man who was led to believe that [Husband] [was] his father when he is

      not.” Id. (quotation omitted). The court therefore ordered Husband to pay

      child support for G.B.S. In addition, the court awarded custody of the three

      children to Wife. While the parties were separated, the court had issued a no-

      contact order that prohibited Husband from having contact with Wife and the

      three children. The court therefore deferred the issue of Husband’s parenting


      Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 4 of 29
       time of the three children “until such time that the No Contact Order is

       terminated.” Id. at 21.


[9]    Husband now appeals.



                                  Discussion and Decision
[10]   Husband contends that the trial court erred in ordering him to pay child support

       for G.B.S. because even though G.B.S. was born during his marriage to Wife,

       G.B.S. is not his biological child.

[11]   The trial court entered findings and conclusions in this case sua sponte. In such

       a case, the specific findings control only with respect to issues they cover, and a

       general-judgment standard applies to issues outside the findings. In re Marriage

       of Sutton, 16 N.E.3d 481, 484-85 (Ind. Ct. App. 2014). The trial court’s findings

       or judgment will be set aside only if they are clearly erroneous. Id. at 485. A

       finding is clearly erroneous only if there are no facts or inferences drawn

       therefrom to support it. Id.


[12]   A dissolution court must determine whether a child is a child of the marriage

       for purposes of custody, support, and parenting time. Russell v. Russell, 682

       N.E.2d 513, 517 (Ind. 1997); see also Ind. Code art. 31-16 & 31-17. “Child”

       means “a child . . . of both parties to the marriage” and includes “[c]hildren

       born out of wedlock to the parties” and “[c]hildren born or adopted during the

       marriage of the parties.” Ind. Code § 31-9-2-13.



       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 5 of 29
[13]   For some years, different panels of this Court disagreed as to whom the

       legislature intended to include as a child of a marriage. Compare R.D.S. v.

       S.L.S., 402 N.E.2d 30 (Ind. Ct. App. 1980), with Russell v. Russell, 666 N.E.2d

       943 (Ind. Ct. App. 1996), trans. granted. Our Supreme Court, siding with

       R.D.S., held that the legislature intended that children born out of wedlock as

       well as children born or adopted during the marriage are children of the

       marriage “as long as both parties are the natural parents (or adopted the child).”

       Russell, 682 N.E.2d at 517.


[14]   In a dissolution action, a man is presumed to be a child’s biological father if the

       man and the child’s biological mother are married to each other and the child is

       born during the marriage. Ind. Code § 31-14-7-1. This presumption can be

       rebutted by “direct, clear, and convincing evidence.” Myers v. Myers, 13 N.E.3d

       478, 482 (Ind. Ct. App. 2014) (quotation omitted). A stipulation between the

       parties, by itself, is not enough to rebut this presumption. See In re Infant R., 922

       N.E.2d 59, 62 (Ind. Ct. App. 2010), trans. denied. The types of evidence used to

       rebut the marriage presumption for paternity include that the husband was

       impotent or sterile, the husband was absent during the entire time that the child

       must have been conceived, and DNA testing. Myers, 13 N.E.3d at 482-83.


[15]   Here, the parties stipulated that Husband is not the biological father of G.B.S.,

       as Wife became pregnant by another man after Husband was sent to prison. In

       addition to the parties’ stipulation, Husband sent letters to Wife while in prison

       demonstrating that he was incarcerated when she became pregnant. This



       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 6 of 29
       stipulation and evidence establish that Husband is not G.B.S.’s biological

       father. But this is not the end of the story.

[16]   Before G.B.S. was born, Husband told Wife that he would raise G.B.S. as his

       own child; Husband then signed G.B.S.’s birth certificate and raised G.B.S. as

       his own child for twelve years—G.B.S.’s whole life. Of Husband and Wife’s

       three children, Husband was closest with G.B.S. Husband also told Wife not to

       contact G.B.S.’s biological father and not to institute paternity proceedings. To

       date, no paternity proceedings have been initiated. Under these facts, Husband

       is estopped from rebutting the presumption that he is G.B.S.’s biological father.


[17]   Equitable estoppel is a judicial remedy by which a party may be precluded by

       his own acts or omissions from asserting a right to which he otherwise would

       have been entitled or from pleading or proving an otherwise important fact. 28

       Am. Jur. 2d Estoppel & Waiver § 27 (2011). The doctrine of equitable estoppel

       presumes that some legal requirement has not been met. See Schoettmer v.

       Wright, 992 N.E.2d 702, 709-10 (Ind. 2013) (finding a genuine issue of material

       fact as to whether the defendant was estopped from asserting the plaintiff’s non-

       compliance with the Indiana Tort Claims Act’s 180-day notice requirement as a

       defense based on the defendant’s insurer’s representations to the plaintiff that it

       could not settle his claim until his treatments were complete); see also Nolan v.

       Clarksville Police Dep’t, 60 N.E.3d 1128, 1132-33 (Ind. Ct. App. 2016) (finding a

       genuine issue of material fact as to whether the defendant was estopped from

       asserting the plaintiff’s non-compliance with the Indiana Tort Claims Act’s 180-

       day notice requirement as a defense based on the defendant’s representations to

       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 7 of 29
       the plaintiff that formal notice would not be necessary), trans. pending; 22A

       Stephen E. Arthur & Jerome L. Withered, Indiana Practice, Civil Trial Practice,

       § 39.9 (2d ed. 2007) (“The doctrine of equitable estoppel is a judicially-created

       rule which will relieve a plaintiff of the requirements of a statute of limitations

       in cases where constructive fraud is present.”).1

[18]   The purpose of equitable estoppel is to preclude a person from asserting a right

       when he has led another to form the reasonable belief that the right would not

       be asserted, and loss or prejudice to the other would result if the right were

       asserted. 28 Am. Jur. 2d at § 28. The doctrine of estoppel springs from

       equitable principles, and it is designed to aid in the administration of justice

       where, without its aid, injustice might result. Levin v. Levin, 645 N.E.2d 601,

       604 (Ind. 1994). This doctrine is not limited to circumstances involving an

       actual or false representation or concealment of an existing material fact. Id.

       Rather, equitable estoppel is a remedy available if one party through his course

       of conduct knowingly misleads or induces another party to believe and act upon

       his conduct in good faith without knowledge of the facts. Id.; see also 28 Am.

       Jur. 2d at § 27 (“Equitable estoppel serves to forbid one to speak against his . . .

       own act[s], representations, or commitments communicated to another who

       reasonably relies upon them to . . . her injury.”).




       1
         Contrary to the dissent’s claim that there can be no equitable remedy in this case because the legislature has
       addressed this area of the law, the legislature cannot reject equitable estoppel because it is a judicially created
       rule that seeks to prevent injustice to a party from the requirements of the law.

       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016                            Page 8 of 29
[19]   Here, Husband induced Wife to believe that he would raise and support G.B.S.

       as his own child (and Husband did so for twelve years). Wife reasonably

       believed that Husband would not challenge his paternity of G.B.S. and then

       relied upon Husband’s promise in not filing a paternity action against G.B.S.’s

       biological father. Indeed, Wife’s opportunity to establish paternity in G.B.S.’s

       biological father has long passed. See Ind. Code § 31-14-5-3(b) (providing that

       “[t]he mother” must file a paternity action “not later than two (2) years after the

       child is born”; although there are exceptions, none of them likely apply here).2

       To avoid injustice, Husband is equitably estopped from rebutting the

       presumption that he is G.B.S.’s biological father.

[20]   Although our Supreme Court has not applied the doctrine of equitable estoppel

       to a case with the same facts that are before us, it has applied the doctrine to

       prevent a husband from denying his obligations to his non-biological child. In

       Levin, husband, who was sterile, and wife decided to use artificial insemination

       in order to have a child. The procedure was successful, and wife became

       pregnant and gave birth. Husband and wife were listed as parents on the birth

       certificate. For ten years, husband supported the child and held him out as his

       own. The couple then divorced, and the divorce decree included the child as a




       2
         Although Wife could file a paternity action as G.B.S.’s next friend, see Ind. Code § 31-14-5-2(a),
       Wife’s personal right has been extinguished by the passage of time resulting from Husband’s
       representations. In any event, even if Wife filed a paternity action as G.B.S.’s next friend, the
       likelihood of success is diminished because Husband insisted that G.B.S. be raised as his own. At this
       point, more than thirteen years have passed since G.B.S. was born. Although Wife testified that she
       knows the name of the biological father, she has not had any contact with him in “a long time” and
       does not know where he lives.

       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016                       Page 9 of 29
       child of the marriage and required husband to pay child support. Five years

       later, husband filed a motion for relief from judgment under Indiana Trial Rule

       60(B), requesting the trial court to vacate its child-support order because the

       child was not his biological child.

[21]   On appeal, our Supreme Court noted that husband induced wife to go forward

       with the artificial insemination and consented both orally and in writing to the

       procedure. As such, husband promised to become the father of the resulting

       child and to assume his support. Wife relied in good faith upon husband’s

       actions and “consequently bore a child for which she believed both she and

       [husband] would be responsible.” Levin, 645 N.E.2d at 605. Moreover, the

       Court noted that husband held the child out as his own for fifteen years. And

       he made no objection to declaring the child a child of the marriage in the

       dissolution decree. Accordingly, the Court held that husband was equitably

       estopped from denying his child-support obligation. Id. at 604. “To hold

       otherwise would be unjust.” Id. at 605.3


[22]   Russell, decided before Levin, also provides support for applying equitable

       estoppel here. In Russell, our Supreme Court approvingly cited an equitable-

       estoppel case from Montana:




       3
         We disagree with the dissent that a deciding factor for the Levin Court was that the husband did not
       challenge his status as father until after the divorce decree was entered. If that were the determining factor,
       the Court could have decided the case by applying res judicata or waiver. It did not.

       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016                         Page 10 of 29
         [I]t is well within the discretion of the trial court to withhold
         approval until paternity has been established in another man. See
         In re Marriage of K.E.V., 883 P.2d 1246 (Mont. 1994) (court
         applied equitable estoppel to prevent mother from denying paternity
         of husband where mother was not seeking to establish paternity
         in another man; court reiterated that the holding would not bar
         biological father or child from establishing paternity in father).

Russell, 682 N.E.2d at 518-19 (emphasis added). We acknowledge that Russell

cited R.D.S. favorably and R.D.S. determined that the doctrine of equitable

estoppel cannot be used to enter a child-support order against a non-biological

and non-adoptive husband.4 However, Russell did not address the equitable-

estoppel aspect of R.D.S.; rather, as explained above, Russell recognized that

R.D.S. “as a matter of grammar” correctly interpreted “child” as used in

Indiana Code section 31-9-2-13. Id. at 516.5




4
  To the extent that R.D.S. and Cochran v. Cochran, 717 N.E.2d 892 (Ind. Ct. App. 1999), trans. denied, hold
that the doctrine of equitable estoppel can never be applied to cases like the one before us, we disagree with
those decisions.
5
 We disagree with the dissent that Snow v. England, 862 N.E.2d 664 (Ind. 2007), and State ex rel. Hight v.
Marion Superior Court, 547 N.E.2d 267 (Ind. 1989), rejected equitable estoppel in this situation. Snow does not
address equitable estoppel; instead, it reiterates the well-established principle that in loco parentis alone does
not establish a support obligation after a relationship ends.
Equitable estoppel also was not at issue in Hight. There, husband was not the biological father of the child
but married wife with full knowledge that she was pregnant, allowed his name to be placed on the child’s
birth certificate, and held the child out as his own. Wife filed for divorce after two years of marriage, and the
dissolution court ordered husband to pay child support and awarded him visitation with the child. Five years
after the divorce, husband filed petitions to modify visitation and for an order to appear and show cause
based on wife’s wrongful denial of visitation with the child. Wife filed a motion to dismiss claiming that the
trial court lacked subject-matter jurisdiction to address husband’s petitions because the child was not a child
of the marriage. Our Supreme Court held that wife should have argued that the child was not a child of the
marriage in the dissolution case—and had she done so the trial court’s order “would have been subject to
attack,” Hight, 547 N.E.2d at 269—but because she did not do so, she waived the issue. The Court did not
directly address equitable estoppel.

Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016                          Page 11 of 29
[23]   Moreover, public policy supports applying equitable estoppel here, because if

       not, G.B.S. essentially would be left without a father.6 Recognizing this

       concern, Russell acknowledges that a trial court can withhold approval of a

       stipulation from a divorcing husband and wife that a child is not a child of the

       marriage until paternity is established in another man in a paternity action

       collateral to the dissolution action. 682 N.E.2d at 519 (“[S]uch actions may be

       the only way in which to establish the paternity of a man other than [the]

       divorcing husband so as to satisfy the dissolution court that the child is not a

       child of the marriage and permit the divorce to proceed.”).7

[24]   Applying the principles of equitable estoppel requires the good judgment of the

       factfinder looking at the circumstances of each case. Under the circumstances

       of this case where Husband told Wife when she was pregnant that he would

       raise G.B.S. as his own (and he did so for twelve years), Husband told Wife not

       to tell the biological father, not to seek support from him, and not to file a




       6
        To be sure, public policy also favors requiring a biological father to pay support for his child. We do not
       disagree with it. While the application of this policy is sound in most cases, this is not the typical case.
       Husband voluntarily assumed the responsibility to parent his child, Wife did not file a paternity action for
       twelve years in reliance on this promise, and the location of the biological father is unknown. When faced
       with two competing policies, under the facts of this case the policy of not making a child fatherless prevails.
       This is not the first time that the policy favoring requiring support from the biological father has given way to
       other considerations. For example, in In re Paternity of R.M., 939 N.E.2d 1114 (Ind. Ct. App. 2010), we
       recognized that the doctrine of laches could apply to prevent the biological father from establishing paternity
       when he knew that he could have been the biological father yet he waited a long period of time to claim his
       paternity. In other words, the policy of requiring the biological father to pay support did not override the
       right of the child to recognize the man who raised him as his father.
       7
        We are confident here that the trial court would not have accepted the parties’ stipulation had it known that
       such acceptance meant that G.B.S. would be fatherless. Therefore, even if equitable estoppel did not apply,
       we would remand this case to the trial court for it to withhold acceptance of the parties’ stipulation until
       paternity was established in the biological father.

       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016                         Page 12 of 29
       paternity action, and Wife relied on Husband’s representations in not

       establishing paternity in the biological father, Husband is equitably estopped

       from rebutting the presumption that he is G.B.S.’s biological father.8 We

       therefore affirm the trial court.9

[25]   Affirmed.

       Baker, J., concurs.

       Najam, J., dissents with separate opinion.




       8
         To the extent that Husband is allowed parenting time with the other two children once the no-contact order
       is terminated, he is entitled to parenting time with G.B.S.
       9
         We also affirm the trial court’s order that Wife is not required to reimburse Husband for the amounts he
       paid with respect to a Chrysler Town and Country and a Chevrolet Impala. Although the provisional orders
       provided that Wife was responsible for these expenses, Wife testified that Husband voluntarily agreed to pay
       them. Because the trial court expressly relied on Wife’s testimony when it found that Wife is not required to
       reimburse Husband for these expenses, see Appellant’s App. p. 19, its judgment on this issue is not clearly
       erroneous.

       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016                      Page 13 of 29
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Benjamin Sheetz,                                          Court of Appeals Case No.
                                                                 01A05-1601-DR-80
       Appellant-Respondent,

               v.

       Ronnie Sheetz,
       Appellee-Petitioner.




       Najam, Judge, dissenting.


[26]   I respectfully dissent. The majority opinion that “Husband is equitably

       estopped” from claiming that G.B.S. is not a child of the marriage is contrary to

       law. See Slip op. at 9. The Dissolution of Marriage Act as well as precedent of

       the Indiana Supreme Court and this court have established that a child support

       order in a dissolution of marriage can be entered only for a child of both parties

       to the marriage. Indiana does not recognize equitable estoppel, adoption by

       estoppel, or in loco parentis as grounds for a child support order. That is, there is

       no equitable paternity in Indiana. The dissolution court erred when it ordered

       Husband to pay child support for a child who is neither his biological child nor



       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016            Page 14 of 29
       his adopted child and who is, therefore, not a child of both parties to the

       marriage.10


          Under the Dissolution of Marriage Act a “Child of Both Parties to the
        Marriage” is a Term of Art that Refers only to Natural and Adoptive Parents

[27]   The Dissolution of Marriage Act plainly states that the term “child” means “a

       child or children of both parties to the marriage.” Ind. Code § 31-9-2-13 (2015).

       Thus, the meaning of “child” under the Act is unambiguous and, as our

       supreme court has said, Indiana’s dissolution law governs only “children of

       both parties to the marriage.” Snow v. England (In re Snow), 862 N.E.2d 664, 668

       (Ind. 2007) (citing I.C. § 31-9-2-13). The term “children of both parties to the

       marriage” is “a term of art that refers only to natural and adoptive parents.” Id.

       That is, “child” refers to “children born or adopted during the marriage—as

       long as both parties are the natural parents (or adopted the child).” Russell v.

       Russell, 682 N.E.2d 513, 516-17 (Ind. 1997) (agreeing with, among other cases,

       R.D.S. v. S.L.S., 402 N.E.2d 30 (Ind. Ct. App. 1980)). This was also true under

       Indiana’s divorce statutes prior to the Dissolution of Marriage Act. See Pilgrim

       v. Pilgrim, 118 Ind. App. 6, 13, 75 N.E.2d 159, 162 (1947) (“[a]n order for [the]

       custody and support” of a child not born of the marriage “would have been

       improper. The statute . . . refers only to the children of the marriage.”)

       (discussing Burns’ Ind. Statutes Ann. § 3-1219 (1933)).




       10
          I agree with the resolution of the vehicle expenses in footnote 9 of the majority opinion. See Slip op. at 13
       n.9.

       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016                         Page 15 of 29
[28]   In Russell, our supreme court explained that the requirement that a child be a

       child of both parties to the marriage is grounded in public policy. 682 N.E.2d at

       517 n.7. Namely, the proper identification of parents and child is the predicate

       for both parental rights and parental obligations, including “the just

       determination of child support.” Id. The court concluded that public policy

       disfavors a support order against a man who is not the child’s father. Id. (citing

       In re S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992)). As the court said in Pettit v.

       Pettit, “the obligation of a parent to provide support for a child ‘is founded in

       nature, not in contract.’” 626 N.E.2d 444, 445 (Ind. 1993) (quoting Lower v.

       Wallick, 25 Ind. 68, 73 (1865) (emphasis in original)). That is, a child support

       obligation arises out of a natural duty of the parent, which is grounded in the

       unique, natural relationship of parent and child. Id. And when a man adopts a

       child in the manner provided by law, he assumes that duty.

[29]   Here, there is no dispute that Husband is not the biological or adoptive father of

       G.B.S. To the contrary, the parties stipulated to the dissolution court that

       Husband was neither. And the parties’ stipulation was corroborated by letters

       Husband wrote to Wife from prison that demonstrated that he was incarcerated

       at the time she became pregnant. See, e.g., Myers v. Myers, 13 N.E.3d 478, 482

       (Ind. Ct. App. 2014) (noting that a husband may rebut the presumption of his

       paternity where the evidence shows that he “was absent so as to have no access

       to the mother” during conception). The evidence clearly and convincingly

       demonstrates that G.B.S. is not a child of both parties to the marriage. See id.




       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 16 of 29
       The dissolution court correctly found as much, and the majority does not

       question the court’s finding.

[30]   Nonetheless, after finding that G.B.S. is not a child of both parties to the

       marriage, the dissolution court ordered Husband to pay support for G.B.S.

       That order exceeds the dissolution court’s statutory authority. See I.C. § 31-9-2-

       13. As our supreme court held in State ex rel. Hight v. Marion Superior Court, “the

       trial court order regarding child support and visitation, based on [husband’s]

       acknowledgment of the child who he did not father, would have been subject to

       attack as exceeding the authority granted by the statutes.” 547 N.E.2d 267, 269 (Ind.

       1989) (emphasis added).

[31]   Under the Dissolution of Marriage Act paternity and support are indivisible.

       Paternity is a condition precedent to child support under the Act and must be

       satisfied before a child support order may be entered. A support order in a

       dissolution action against a man who is not the father of the child violates the

       Act and the policies underlying the Act. Russell, 682 N.E.2d at 517 n.7.


                                There is No Equitable Adoption in Indiana


[32]   The Indiana Supreme Court and this court have rejected equitable estoppel as

       an attempt to circumvent the statutory requirement that support orders be

       entered only against biological or adoptive fathers.11 For example, in R.D.S.,




       11
          We have also considered and rejected the concept of equitable adoption in the context of intestate
       succession. Namely, in Lindsey v. Wilcox, we held that “no compelling reason surfaces to create a judicial

       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016                       Page 17 of 29
       the husband and wife met when the wife was visibly pregnant, and they married

       a few months later. After four years of holding the child out as his own, upon

       the dissolution of their marriage the dissolution court ordered the husband to

       pay support for the child.

[33]   We reversed and held that the support order was not authorized because the

       child was not a child of both parties to the marriage. R.D.S., 402 N.E.2d at 34.

       In reaching our holding, we explicitly rejected the following theories under

       which a husband in such circumstances might be ordered to pay child support:

       equitable adoption, equitable estoppel, in loco parentis, and an implied contract

       by the husband to provide support. Id. at 32-33. In rejecting each of those

       theories, we made clear that “the provisions of the statute” and “legislative

       intent,” not equity, control the dissolution court’s authority to enter a child

       support order. R.D.S., 402 N.E.2d at 34. Likewise, in Cochran v. Cochran, we

       recognized that “paternity by estoppel” is not a valid basis for a child support

       order in Indiana. 717 N.E.2d 892, 894-95 (Ind. Ct. App. 1999). Similarly, in

       Friar v. Taylor, we held that equity cannot serve as a basis for a child custody

       order under the Dissolution of Marriage Act. 545 N.E.2d 599, 600-01 (Ind. Ct.

       App. 1989).




       doctrine [of equitable adoption] to serve the same purpose when the statutory schemes of probate or adoption
       seem quite adequate.” 479 N.E.2d 1330, 1332-33 (Ind. Ct. App. 1985), trans. denied.

       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016                    Page 18 of 29
[34]   In Hight, the Indiana Supreme Court expressly agreed with this court’s

       reasoning and conclusion in R.D.S. and said:


               In R.D.S., the Court of Appeals held that a child must be a child
               of both parties to the marriage to come within the definition of
               “child” in [the Dissolution of Marriage Act] and to furnish the
               basis for child support. R.D.S., 402 N.E.2d at 34. As a
               consequence, the R.D.S. court rejected as a basis for imposing child
               support the husband’s acknowledgement or equitable adoption of a child
               he did not father. Id. In the present case, the trial court order
               regarding child support and visitation, based on [husband’s]
               acknowledgment of the child who he did not father, would have
               been subject to attack as exceeding the authority granted by the statutes.


       547 N.E.2d at 269 (emphases added; footnote omitted).

[35]   In other words, in Hight our supreme court agreed with R.D.S. that Indiana

       does not recognize “equitable adoption” and that a support order based on

       equity would “exceed[] the authority granted” by the Dissolution of Marriage

       Act. Id. Likewise, as Judge Baker wrote for this court in Seger v. Seger, “there is

       no equitable adoption in this state.” 780 N.E.2d 855, 858 (Ind. Ct. App. 2002).

       Rather, adoption is controlled by statute. See I.C. §§ 31-19-1-1 to -29-6.


                     In Loco Parentis is an Insufficient Basis for a Support Order


[36]   “In loco parentis means ‘in the place of a parent.’” In re Snow, 862 N.E.2d at 666

       (quoting Black’s Law Dictionary 803 (8th ed. 2004)). In In re Snow, our supreme

       court held, as we had in R.D.S., that the status of in loco parentis is an insufficient




       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016       Page 19 of 29
basis for imposing a child support order on a stand-in parent. Id. at 667; see

R.D.S., 402 N.E.2d at 32-33. As the court in In re Snow explained:


        we see a number of public policies that militate against imposing
        a child support obligation on stand-in parents, such as custodians
        and guardians. First, we note that Indiana policy disfavors entering
        a support order against adults who are not natural parents. See Fairrow
        v. Fairrow, 559 N.E.2d 597 (Ind. 1990) (statutes and sociological
        evidence favor supporting parent/child relationship; support
        order against adult known not to be parent is unjust).


        Second, it makes little sense to require child support from a
        person in loco parentis when that status is temporary in nature and
        essentially voluntary. The stand-in parent would effectively be
        able to choose whether or not he or she should be required to pay
        child support simply by choosing to continue or discontinue the
        relationship. It also seems unwise to create a layer of financial
        risk for adults who voluntarily provide financial and emotional
        support to children not their own. Lastly, it is difficult to
        imagine imposing parallel obligations on the institutions (like
        juvenile courts or universities) to which in loco parentis is
        commonly deployed. Therefore, we hold that when a relationship of
        in loco parentis exists, that status alone is an insufficient basis for
        imposing a child support obligation on the stand-in parent.


862 N.E.2d at 667 (emphases added). Here, the facts disclose a classic case of

an in loco parentis relationship, as Husband voluntarily made himself the stand-

in parent over G.B.S. during his marriage to Wife. The majority errs when it

holds that a husband creates a lasting support obligation when he voluntarily

assumes financial and emotional support over a child not his own. In loco

parentis does not establish paternity, and a child support order cannot be entered

against a man who has only an in loco parentis relationship to the child. See id.
Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 20 of 29
[37]   In sum, Husband cannot be equitably estopped from claiming that G.B.S. is not

       a child of the marriage, and to hold otherwise is contrary to the plain meaning

       of the Dissolution of Marriage Act and exceeds the authority granted to our

       dissolution courts under the Act. A support order based on either an adoption

       by estoppel or an in loco parentis relationship violates the Act and the precedent

       of our supreme court and this court. And I cannot agree with the suggestion

       that our supreme court in Russell “did not address the equitable-estoppel aspect

       of R.D.S.” Slip op. at 11. Rather, in Russell, our supreme court stated that this

       court’s opinion in R.D.S. was “correct,” and, when Russell and R.D.S. are read

       together, it is clear that Russell approved of this court’s rationale in R.D.S. See

       Russell, 682 N.E.2d at 516-17. Regardless, it is clear from our supreme court’s

       opinions in Hight and In re Snow that the court has approved of our conclusion

       in R.D.S. that equity does not supplant the statutory scheme.


                          Wife Has Not Stated a Claim for Equitable Relief

[38]   In any event, Wife has not stated a claim for equitable relief. As a threshold

       matter, to state a claim for equitable relief a party must prove that her remedies

       at law are inadequate. Martin v. Heffelfinger, 744 N.E.2d 555, 558-59 (Ind. Ct.

       App. 2001). “A legal remedy is adequate where it is as practical and efficient to

       the ends of justice and its prompt administration as the remedy in equity.” Id.

       at 559.

[39]   Citing Indiana Code Section 31-14-5-3(b), the majority opinion first contends

       that Wife is entitled to equitable relief because her “opportunity to establish

       paternity in G.B.S.’s biological father has long passed” and that, “[t]o avoid
       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 21 of 29
       injustice, Husband is equitably estopped” from claiming that G.B.S. is not a

       child of the marriage. Slip op. at 9. But then, citing Indiana Code Section 31-

       14-5-2(a), the majority concedes in a footnote that Wife can still “file a paternity

       action as G.B.S.’s next friend.” Id. at 9 n.2.


[40]   Wife testified before the dissolution court that she knows who G.B.S.’s

       biological father is, and she identified him by name. Wife, acting on G.B.S.’s

       behalf, may still establish paternity in G.B.S.’s biological father and, thus, she

       has an adequate remedy at law and cannot state a claim for equitable relief.

       Our supreme court has explained when equitable relief is unnecessary and

       unavailable to circumvent a statute, stating as follows:

               Equity has the power, where necessary, to pierce rigid statutory
               rules to prevent injustice. But where substantial justice can be
               accomplished by following the law, and where the parties’
               actions are clearly governed by the rules of law, equity follows
               the law. In this case the rights of the parties are clearly governed
               by the statute; and no injustice will result from following such
               statute. Therefore, equity in this case, must follow the law, there
               being no equitable reason for not doing so.


       Metro. Sch. Dist. of S.W. Parke v. Vaught, 249 Ind. 412, 417, 233 N.E.2d 155, 158

       (1968) (citation omitted).

[41]   Equity follows the law. Here, the rights of the parties are clearly governed by

       the Dissolution of Marriage Act. And because Wife may still bring a paternity

       action on G.B.S.’s behalf, she cannot state a claim in equity that would




       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 22 of 29
       circumvent the Act. As such, Wife has an adequate remedy at law and

       equitable relief is unnecessary.

[42]   We may not redefine the term “child,” a term already defined by our

       legislature. Our courts have repeatedly rejected equity as a means to overcome

       legislative intent. As our supreme court has explained, “there can be no

       inherent equity jurisdiction in the face of a statute specifically limiting the

       court’s jurisdiction in an otherwise valid statutory proceeding.” State ex rel. Root

       v. Circuit Ct. of Allen Cty., 259 Ind. 500, 506-07, 289 N.E.2d 503, 507 (Ind. 1972);

       see also Ryan v. Ryan, 972 N.E.2d 359, 370 (Ind. 2012) (“We think it unlikely

       that a court can invoke equity to overcome the mandate of a statute . . . .”).

       Here, there can be no equitable remedy because our legislature has clearly and

       unambiguously occupied the field and limited a dissolution court’s authority to

       enter a support order only for a child of both parties to the marriage, and a

       dissolution court generally has no equity jurisdiction to do otherwise. E.g.,

       R.D.S., 402 N.E.2d at 32-34.


                      Husband Timely Objected to the Allegation of Paternity

[43]   The Indiana Supreme Court and this court have held that under extraordinary

       circumstances a husband before a dissolution court may be estopped from

       denying a child support order, but only where the husband did not timely

       challenge his paternity and the dissolution court had previously entered a final

       order against him. E.g., Tirey v. Tirey, 806 N.E.2d 360, 364-65 (Ind. Ct. App.

       2004), trans. denied. For example, in Tirey we held that a dissolution court “has

       the authority to enter a child support order in a dissolution proceeding against a
       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 23 of 29
       non-parent . . . so long as the obligated party agreed to that term and the

       agreement was not the product of artifice or mistake.” Id. at 365.


[44]   In other words, when a husband does not timely challenge his paternity before

       the dissolution court, his subsequent challenge is barred by res judicata subject

       only to Trial Rule 60(B) review. As our supreme court stated in Russell, a

       husband is “precluded from later challenging [the dissolution court’s paternity]

       determination, except in extraordinary circumstances.” 682 N.E.2d at 518

       (emphasis added) (citing Fairrow, 559 N.E.2d at 600 (holding that a husband

       was entitled to relief from a support judgment when he obtained “gene testing

       results [pursuant to an unrelated medical procedure after the entry of

       dissolution,] which gave rise to the prima facie case for relief . . . independently

       of court action”)).12

[45]   Here, in ordering Husband to pay support for G.B.S., the dissolution court first

       concluded that Husband should be equitably estopped under Tirey from

       challenging his paternity. But Husband’s procedural posture before the

       dissolution court is entirely different from the posture of the husband in Tirey.

       In particular, at the time Husband challenged his paternity over G.B.S., there




       12
          As the majority notes, the court in Russell further acknowledged that a mother may be equitably estopped
       from arguing against her husband’s paternity where she was not seeking to establish paternity in another
       man, her husband had been unaware that he might not be the child’s biological father, and he had not
       challenged his own paternity during the dissolution proceedings. 682 N.E.2d at 518-19 (citing In re Marriage
       of K.E.V., 883 P.2d 1246 (Mont. 1994)); see also Myers, 13 N.E.3d at 482-84 (holding that the mother was
       barred by laches from challenging the dissolution court’s final judgment, which had established husband’s
       paternity, in a subsequent proceeding). But those circumstances simply do not apply in this appeal.

       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016                      Page 24 of 29
       had been no final judgment against Husband on the dissolution petition. Thus,

       Wife’s argument on appeal that Husband’s failure to object to the assertions of

       paternity in her petition for dissolution or in the court’s provisional orders is not

       well-taken in that neither the petition nor the provisional orders are equivalent

       to a final judgment. See, e.g., I.C. § 31-15-4-13 (“The issuance of a provisional

       order is without prejudice to the rights of the parties or the child as adjudicated

       at the final hearing in the proceeding.”). Husband timely objected to Wife’s

       allegation of paternity. Accordingly, the dissolution court erred when it relied

       on Tirey.


                                          Levin v. Levin Is Inapposite


[46]   Neither does Levin v. Levin apply in this case. Unlike in Levin, here Husband

       did not induce Wife to become pregnant by another man. Rather, she became

       pregnant through intercourse with another man without Husband’s prior

       knowledge or consent.

[47]   In Levin our supreme court recognized that equity may apply to estop a

       husband from denying paternity in a dissolution action where he had induced

       his wife to become pregnant by a third party. 645 N.E.2d 601, 605 (Ind. 1994).

       But nothing in Levin suggests that our supreme court sought to abrogate R.D.S.

       or Hight, and the subsequent decisions in Russell, Cochran, and In re Snow

       continued to reject equity as an appropriate basis for a child support order

       against a nonbiological and nonadoptive husband.




       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 25 of 29
[48]   Indeed, Levin is easily distinguished both substantively and procedurally from

       this case. In Levin, the Indiana Supreme Court affirmed our court’s opinion

       and concluded that the husband was equitably estopped from denying paternity

       on the grounds that he had induced the wife to become pregnant, and the court

       held that “as in the case of adoption” a child born under such circumstances is a

       “child of the marriage” under the Dissolution of Marriage Act. Id. Further, in

       Levin, as in Tirey, the husband did not object when the dissolution court found

       that the child was a child of both parties to the marriage and entered the

       dissolution decree. It was only in a subsequent Trial Rule 60(B) relief from

       judgment proceeding that the husband first raised the issue of whether the child

       conceived with the sperm of a third party donor was a child of both parties to

       the marriage. While the child in Levin was a child of both parties to the

       marriage, here G.B.S. is not a child of both parties to the marriage.

[49]   The facts and procedural posture in this case are not aligned with Levin but with

       R.D.S., in which the husband knew he was not the biological father of his

       already-pregnant wife’s child yet held himself out as such for several years

       before disclaiming paternity during dissolution proceedings. Again, after the

       trial court in R.D.S. nonetheless ordered the father to pay support, we reversed

       and vacated the support order. 402 N.E.2d at 35. We did not remand with

       instructions that the court maintain the fiction of husband’s paternity, despite

       the evidence, until paternity was properly established in another man. Id. The

       majority here is concerned that G.B.S. will be deemed a filius nullius. That term

       applies in paternity actions, which cannot be used to disestablish paternity.

       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 26 of 29
       This is not a paternity action. The only parentage issue in a dissolution of

       marriage is whether the child is a child of both parties to the marriage. In other

       words, in a dissolution action a husband is entitled to rebut the presumption of

       his paternity, and nothing more is required of him.

[50]   Again, equity follows the law and cannot be used to circumvent the law. Justice

       Oliver Wendell Holmes, Jr. wrote that “[t]he standards of the law are standards

       of general application.” The Common Law 108 (1881). This means that the rule

       of law applies across the board. And if the law is applied evenly, as our

       legislature intended, we cannot resort to equity to achieve what we perceive to

       be a better outcome simply because the law as applied in a particular case may

       yield an imperfect result. As we stated in Cochran, “[w]e are not unsympathetic

       to [the] argument[] that biology alone does not create a father” but, “‘in the

       end, such policy questions are the province of the legislature.’” 717 N.E.2d at 894-95

       (emphasis added) (quoting Russell, 682 N.E.2d at 517 n.7). Our first

       responsibility is to follow the plain meaning of the governing statutes. On this

       subject our legislature has spoken unambiguously and occupied the field with a

       comprehensive legislative scheme, and there is no legislative void left to be

       filled by judicial action on these facts.


                      Our Legislature Has Rejected the Majority’s Reasoning

[51]   Our legislature has considered and expressly rejected estoppel and in loco

       parentis as a means to establish paternity. Indiana Code Section 31-14-7-2

       clearly states that circumstances where, as here, “with the consent of the child’s

       mother, the man: (1) receives the child into the man’s home; and (2) openly
       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 27 of 29
       holds the child out as the man’s biological child . . . do not establish the man’s

       paternity.” Thus, our legislature has already addressed and rejected the

       majority’s reasoning that, on this fact pattern, Husband has assumed a duty to

       pay support. And our supreme court agrees. An in loco parentis relationship

       “generally may be terminated at any time.” In re Snow, 862 N.E.2d at 666.

       “[A]bsent an intent to continue in loco parentis, a stand-in parent does not have a

       duty to support following a marriage dissolution.” Id. at 666-67.


                                                    Conclusion

[52]   This court’s equity jurisdiction is not a license to disregard the unmistakable

       and unambiguous intent of our legislature and the plain meaning of a “child or

       children of both parties to the marriage.” In effect, the majority has redefined a

       defined term and usurped a policy question that belongs to the legislature. See

       In re Snow, 862 N.E.2d at 668; Russell, 682 N.E.2d at 516-17. Indeed, the

       legislature has already rejected equitable paternity. See I.C. § 31-14-7-2. The

       question presented has also been considered and decided by both our supreme

       court and this court in numerous cases, both under the Dissolution of Marriage

       Act and under prior law going back at least seven decades. See, e.g., Pilgrim, 75

       N.E.2d at 162. Neither our legislature nor our courts have recognized adoption

       by estoppel or paternity by in loco parentis. The majority opinion is contrary to

       Indiana Supreme Court precedent in Hight, Russell, and In re Snow and is a

       radical departure from our well-settled family law.

[53]   Paternity and a duty to pay child support are indivisible. In Indiana, a man’s

       paternity is a condition precedent to a child support order against him. The
       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 28 of 29
       majority opinion is contrary to law. The child in this case is not a child of both

       parties to the marriage. Husband and other Indiana husbands similarly situated

       have a reliance interest in the certainty afforded by the plain meaning of the

       statute and well-settled precedent. If the majority opinion stands, it will not

       only reverse decades of precedent but will also introduce uncertainty into child

       support determinations. In order to avoid the risk of an “equitable” child

       support order, a husband who knows or suspects that his wife’s child is not his

       child but is the child of another man will now be encouraged, if not compelled,

       to disavow paternity as soon as possible and rupture the marriage rather than to

       keep the marriage and family intact.

[54]   Thus, I respectfully dissent.




       Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016   Page 29 of 29
