                                                                                 FILED
                                                                             Apr 27 2016, 8:37 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANTS                                     ATTORNEYS FOR APPELLEE
R. Robert Yeager                                            Robert T. Thopy
Yeager Good & Baldwin, P.A.                                 Eric M. Glasco
Shelbyville, Indiana                                        McNeely Stephenson
                                                            Shelbyville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Betty Thurman and                                           April 27, 2016
Carolyn Duncan,                                             Court of Appeals Case No.
Appellants-Petitioners,                                     73A04-1510-ES-1678
                                                            Appeal from the Shelby Circuit
        v.                                                  Court
                                                            The Honorable Charles D.
Kimberly L. Skinner,                                        O’Connor, Judge
Appellee-Respondent                                         Trial Court Cause No.
                                                            73C01-1407-ES-10



Baker, Judge.




Court of Appeals of Indiana | Opinion 73A04-1510-ES-1678 | April 27, 2016                      Page 1 of 10
[1]   Betty Thurman and Carolyn Duncan (the Sisters) appeal the trial court’s order

      on their petition to determine the heirship of their brother, Lloyd Dyer (Lloyd),

      who died intestate. The trial court found that Kimberly Skinner (Kimberly) is

      Lloyd’s daughter and is entitled to inherit as his sole heir. The Sisters argue

      that there is insufficient evidence supporting this conclusion. They also argue

      that the trial court erred by denying their motion for Kimberly to undergo a

      DNA test to establish (or refute) her claim that Lloyd was her father. Finding

      sufficient evidence and finding no other error, we affirm.


                                                        Facts
[2]   Kimberly was born on January 7, 1968, to Linda Adams, who was unmarried

      at the time. Kimberly’s birth certificate listed Linda as her mother and did not

      list a father.


[3]   Linda and Lloyd were married on December 25, 1974. For the next eight

      years, Linda, Lloyd, Kimberly, and Linda’s son, Greg,1 lived together as a

      family. They lived in the same household and participated in family activities

      such as picnics, softball games, movies, and vacations. They celebrated

      holidays as a family and visited with various extended family members. At one

      point when Kimberly was a child, she broke her arm. Lloyd took her to the

      hospital and provided his health insurance plan information to cover the costs




      1
       The trial court found that Greg has waived any right to claim that he is an heir of Lloyd. Greg is not a
      party to this appeal.

      Court of Appeals of Indiana | Opinion 73A04-1510-ES-1678 | April 27, 2016                         Page 2 of 10
      of her medical care. Lloyd explicitly acknowledged Kimberly as his daughter in

      the presence of at least one family friend. Lloyd told Kimberly that he was her

      father.


[4]   On July 5, 1983, Lloyd executed two affidavits: an Affidavit of Legitimation,

      in which he attested that he was Kimberly’s natural father; and an Affidavit

      Requesting Amendment, in which Lloyd requested that his name be placed on

      Kimberly’s birth certificate as her father. Subsequently, Kimberly received a

      new birth certificate showing that her last name became Dyer and that Lloyd

      was her father.


[5]   Lloyd and Linda divorced on May 13, 1985. Kimberly was seventeen years old

      at that time. Linda was not represented by counsel in the dissolution action and

      did not participate in the proceeding other than to sign a document stating, in

      part, that there were no children born of the marriage. The issue of Kimberly’s

      paternity was not investigated, litigated, or determined in the dissolution

      proceeding.


[6]   Lloyd died intestate on July 10, 2014. On July 28, 2014, Kimberly and the

      Sisters filed competing petitions for issuance of letters of administration of

      Lloyd’s estate. On August 13, 2014, the Sisters filed a petition to determine

      heirship, and in November 2014, they filed a petition for genetic testing.

      Following a hearing, the trial court denied the petition for genetic testing on

      January 27, 2015. Following an August 17, 2015, bench trial on heirship, the




      Court of Appeals of Indiana | Opinion 73A04-1510-ES-1678 | April 27, 2016   Page 3 of 10
trial court entered judgment in favor of Kimberly, finding, in relevant part, as

follows:


        5.       . . . The evidence clearly, unambiguously, directly, and
                 convincingly establishes that decedent acknowledged
                 Kimberly as his own; decedent executed, under oath, two
                 affidavits wherein he stated that he was the father of
                 Kimberly. . . .


        6.       Decedent provided shelter and support from the time
                 shortly before his . . . marriage to Linda . . . until
                 sometime in the year 1983. Furthermore decedent orally
                 acknowledged Kimberly as his daughter. . . .


        7.       The Affidavit of legitimation signed by both decedent and
                 Linda is entitled to significant weight. Although
                 Petitioners have presented numerous witnesses who
                 testified they were in close contact with decedent over a
                 long period of time but never heard decedent mention a
                 child or daughter[,] that evidence does not overcome
                 decedent’s affidavit stating that he was Kimberly’s natural
                 father.


        8.       Decedent caused his name to be placed as Kimberly’s
                 father on her birth certificate and requested her name to be
                 changed on her birth record from Kimberly L. Adams to
                 Kimberly L. Dyer. Decedent acknowledged Kim as his
                 own in writing, and no evidence was presented that
                 decedent was unduly influenced in making such
                 acknowledgement.




Court of Appeals of Indiana | Opinion 73A04-1510-ES-1678 | April 27, 2016      Page 4 of 10
[7]   Appellant’s App. p. 19 (internal citations omitted). The trial court held that

      Kimberly is Lloyd’s sole heir and denied the Sisters’ petition. The Sisters now

      appeal.


                                     Discussion and Decision
                                I. Sufficiency of the Evidence
[8]   First, the Sisters argue that there is insufficient evidence supporting the trial

      court’s conclusion that Kimberly is Lloyd’s heir. When reviewing challenges to

      the sufficiency of the evidence, our standard of review is well settled. We will

      neither reweigh the evidence nor assess witness credibility, and will examine

      only the evidence and reasonable inferences favorable to the judgment. Green v.

      Estate of Green, 724 N.E.2d 260, 264 (Ind. Ct. App. 2000). We will affirm if

      there is substantial evidence of probative value to sustain the judgment. Id.


[9]   Indiana Code section 29-1-2-7 provides that, for the purpose of inheritance on

      the paternal side by a child born out of wedlock, “the child shall be treated as if

      the child’s father were married to the child’s mother at the time of the child’s

      birth, if” one of a series of possible conditions is met. At issue in this case is the

      condition that “[t]he putative father marries the mother of the child and

      acknowledges the child to be his own.” I.C. § 29-1-2-7(b)(4). The burden of

      proof rests on the child seeking to inherit from a putative father. Regalado v.

      Estate of Regalado, 933 N.E.2d 512, 519 (Ind. Ct. App. 2010). This inquiry is a

      factually sensitive one that is evaluated on a case-by-case basis. See id., 933

      N.E.2d at 520 (finding that oral statements of acknowledgement of a child born

      Court of Appeals of Indiana | Opinion 73A04-1510-ES-1678 | April 27, 2016   Page 5 of 10
       out of wedlock were sufficient to meet the “acknowledgement” burden); Green,

       724 N.E.2d at 265 (finding that evidence including affidavit, life insurance

       application, dissolution petition, and medical expense plan enrollment listing

       out-of-wedlock child as decedent’s child was sufficient to meet

       “acknowledgement” burden).


[10]   The instant case is replete with evidence supporting the trial court’s conclusion

       that Lloyd acknowledged Kimberly as his own daughter:


            Lloyd, Linda, Kimberly, and Greg lived together as a family, in the same
             residence, for approximately eight years. They participated in activities,
             celebrated holidays, and took vacations as a family.
            When Kimberly broke her arm as a child, Lloyd took her to the hospital
             and listed his own insurance policy to cover her medical expenses.
            Lloyd explicitly introduced Kimberly as his daughter to family and
             friends on at least one occasion.2

       Most convincingly of all, Lloyd executed not one, but two, affidavits attesting

       that he was the natural father of Kimberly. He asked that her last name be

       changed to his. He executed these affidavits under oath. Whether the affidavits

       strictly complied with relevant statutes, as the Sisters contend, is beside the

       point. The clear import of these affidavits was Lloyd acknowledging Kimberly

       as his daughter.




       2
        The Sisters ask that we discount this evidence because it was introduced by allegedly leading questions. We
       address this argument only to note that even if this evidence had been improperly admitted—which we do
       not find—it would not affect the result of this appeal.

       Court of Appeals of Indiana | Opinion 73A04-1510-ES-1678 | April 27, 2016                       Page 6 of 10
[11]   The sum of the Sisters’ attempts to discount the above evidence amounts to a

       request that we reweigh evidence and assess witness credibility. As noted

       above, we will not do so. While we decline to address many of their specific

       arguments for this reason, we will consider their argument regarding the

       dissolution proceeding. In the dissolution proceeding, Lloyd and Linda

       represented to the court that no children had been born of the marriage. Under

       certain circumstances, Kimberly could be bound to that finding. See In re

       Paternity of J.W.L., 682 N.E.2d 519, 520-21 (Ind. 1997) (if paternity is “fully

       litigated” in a divorce proceeding, then result may be binding on child); Russell

       v. Russell, 682 N.E.2d 513, 518 (Ind. 1997) (if a dissolution court determines a

       child is or is not a child of the marriage and that finding is based on the results

       of blood or genetic testing and the issue was fully litigated, the child is bound by

       the determination). In this case, it is apparent that the issue of paternity was

       not “fully litigated.” Indeed, it appears as though it was not litigated at all.

       And there certainly was not a blood or genetic test completed as part of that

       proceeding. Under these circumstances, we find that Kimberly is not estopped

       by anything that transpired in her parents’ divorce proceedings. 3


[12]   We find that the evidence in the record readily supports the trial court’s

       conclusion that Lloyd acknowledged Kimberly as his child. We decline the

       Sisters’ requests to reweigh the evidence and assess witness credibility. We



       3
         To the extent that the Sisters argue that Lloyd’s failure to name Kimberly as a child in the dissolution
       proceeding constitutes evidence that he did not acknowledge her as his child, we note that this is yet another
       request that we reweigh the evidence. We decline to do so.

       Court of Appeals of Indiana | Opinion 73A04-1510-ES-1678 | April 27, 2016                          Page 7 of 10
       affirm the trial court’s conclusion that Kimberly is entitled to inherit from Lloyd

       as though he and Linda were married at the time of Kimberly’s birth.


                                           II. Genetic Testing
[13]   Finally, the Sisters contend that the trial court should have granted their motion

       for genetic testing. The precise legal basis for their motion is unclear. As part

       of a paternity action, a trial court must order genetic testing upon the motion of

       any party to the action. Ind. Code § 31-14-6-1. But the Sisters are not seeking

       to establish paternity, nor could they have filed a paternity action had they

       desired to. Ind. Code § 31-14-4-1 (only mother, putative father, child, or certain

       governmental entities may file a paternity action).


[14]   Instead, the Sisters are seeking to contest Kimberly’s claim of heirship. As

       noted above, the relevant statutory provision states that if Lloyd married Linda

       and acknowledged Kimberly as his own, then heirship is established. I.C. § 29-

       1-2-7(b). Thus, the results of any blood or genetic testing would be irrelevant to

       the trial court’s heirship determination.


[15]   This Court has had occasion to address similar issues on at least two occasions.

       In Estate of Lamey v. Lamey, the brother of the decedent petitioned the court to

       determine heirship; he challenged the right of the decedent’s sole child to

       inherit. 689 N.E.2d 1265 (Ind. Ct. App. 1997). The brother asked the court to

       order a genetic test to determine whether decedent was, in fact, the biological

       father of the child. The Court cautioned that the brother was “wrong in

       assuming that, by virtue of petitioning the court to determine heirship, he has

       Court of Appeals of Indiana | Opinion 73A04-1510-ES-1678 | April 27, 2016   Page 8 of 10
       automatic standing to petition the court to order paternity blood testing for a

       child for whom he is not also asserting his own paternity.” Id. at 1268. The

       brother argued that he was attempting to determine heirship rather than

       paternity, so his petition should not be constrained by the paternity statute. The

       Lamey Court did not find this argument compelling, holding as follows:


               In the present case there is no practical difference between
               [paternity and heirship] actions. Moreover, the laws of this state
               do not expressly authorize a third party, who is not asserting
               paternity in the child, to petition the court for a mandatory
               determination of a child’s paternity, under the guise of an
               “heirship” challenge . . . . We decline [the] invitation to
               judicially create such a law.


       Id. at 1269 (emphasis original).


[16]   Furthermore, in Schmitter v. Fawley, this Court held that the purpose of

       compelled genetic testing in the context of determining a child’s biological

       father is to “establish[] legal paternity.” 929 N.E.2d 859, 863 (Ind. Ct. App.

       2010). Therefore, if establishing legal paternity is not the purpose of the

       requested blood test, the motion is properly denied. Id.


[17]   In this case, the Sisters are not seeking to establish paternity. The purpose for

       which they seek genetic testing—to determine heirship—is not a valid reason to

       request genetic testing. Moreover, the results of any genetic or blood test would

       be irrelevant to the trial court’s ultimate determination under Indiana Code

       section 29-1-2-7(b). Consequently, we find no error in the trial court’s denial of

       the motion for genetic testing.

       Court of Appeals of Indiana | Opinion 73A04-1510-ES-1678 | April 27, 2016    Page 9 of 10
[18]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 73A04-1510-ES-1678 | April 27, 2016   Page 10 of 10
