                                                                            FILED
                                                                       Oct 13 2017, 11:00 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
      Cody Cogswell                                               M.H.
      Cogswell & Associates                                       David W. Stone IV
      Indianapolis, Indiana                                       Stone Law Office & Legal
                                                                  Research
                                                                  Anderson, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In re the Paternity of: S.A.M.                              October 13, 2017
      (Child),                                                    Court of Appeals Case No.
                                                                  48A05-1704-JP-922
      M.M.,                                                       Appeal from the Madison Circuit
      Appellant-Intervenor,                                       Court
                                                                  The Honorable Angela Warner
              v.                                                  Sims, Judge
                                                                  Trial Court Cause No.
      M.H.,                                                       48C01-1307-JP-184
      Appellee-Petitioner,

      S.B.,
      Respondent



      May, Judge.


[1]   When S.A.M. was born, M.M. (“Father”) signed a paternity affidavit and

      became S.A.M.’s legal father. Over time, suspicion arose that another man,


      Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017                Page 1 of 22
      B.H., was S.A.M.’s biological father. However, B.H. died before paternity tests

      were conducted. Thereafter, B.H.’s father, M.H., filed a paternity action to

      determine whether S.A.M. was the biological child of B.H. During that

      proceeding, Father entered into a mediation agreement (“Mediation

      Agreement”) with M.H. Father later asked the trial court to declare that

      Agreement void ab initio, but the trial court denied his motion.


[2]   Father now appeals that denial, raising the following restated issues:


              (1) Whether the trial court erred when it concluded M.H. had
                  standing as S.A.M.’s next friend to file a petition to establish
                  B.H.’s paternity of S.A.M.;


              (2) Whether the trial court abused its discretion in denying
                  Father’s request to declare void the Mediation Agreement;


              (3) Whether the trial court abused its discretion in denying
                  Father’s request for attorney fees.


      We reverse and remand.



                             Facts and Procedural History
[3]   S.A.M. was born out of wedlock to S.B. (“Mother”) on May 8, 2007. When

      Mother became pregnant, she was in a relationship with both Father and B.H.

      On the day S.A.M. was born, Father executed a paternity affidavit

      acknowledging he was S.A.M.’s biological father. Father is also listed as

      S.A.M.’s father on S.A.M.’s birth certificate. Since S.A.M.’s birth, Father has


      Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017     Page 2 of 22
      shared custody of S.A.M. with Mother and has held himself out as S.A.M.’s

      father. S.A.M. refers to Father as “Dad.” (Appellant’s App. Vol. II at 106.)


[4]   The record indicates Father and B.H. had known each other and were “best

      friends” since they were roughly nine years old. (Id. at 105). However, the

      record is sparse with facts regarding whether B.H. had any involvement in

      S.A.M.’s life. On January 19, 2011, B.H. passed away. At the time of B.H.’s

      passing, paternity had not been established for B.H. through DNA testing or

      otherwise. Nevertheless, at some point, it came to be believed by the parties

      that B.H. was S.A.M.’s biological father.


[5]   On July 29, 2013, M.H. filed a petition as S.A.M.’s next friend to establish

      paternity of S.A.M. In the petition, M.H. alleged his deceased son, B.H., was

      the biological father of S.A.M. Mother was served with a copy of the petition,

      but Father was not. On August 28, 2013, M.H. filed a “Request for Custody or

      in the Alternative Request for Grandparent Visitation” of S.A.M. (Id. at 18.)


[6]   Father intervened in the action and upon his request, the court appointed him a

      public defender. On October 30, 2013, Father filed an Amended Motion to

      Dismiss, claiming M.H. was not a person who may file a paternity action under

      Indiana Code section 31-14-4-1. The court denied this motion.


[7]   On January 29, 2014, M.H. filed a motion for mediation. On February 6, 2014,

      the court ordered the parties to agree on a mediator and conduct mediation.

      The parties conducted mediation on March 19, 2014. Father and M.H. entered

      into the Mediation Agreement stipulating, among other things: (1) B.H. was the

      Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017   Page 3 of 22
      biological father of S.A.M.; 1 (2) Father and Mother had been “actively involved

      in the care and raising of [S.A.M.]” since S.A.M.’s birth and Father had been

      the “de facto custodian,” (id. at 20), of S.A.M. since S.A.M.’s birth; (3) Father

      and Mother shall have joint legal custody of S.A.M.; (3) Father shall have

      primary physical custody of S.A.M.; (4) neither Mother nor Father would have

      child support obligations to one another; (5) M.H. is the biological paternal

      grandfather of S.A.M.; and (6) M.H. and his wife, C.H., shall have

      “Grandparent visitation” with S.A.M. on certain dates set out in the agreement.

      (Id. at 21-23.) The parties also agreed to a “mutual restraining order,” (id. at

      23), requiring, among other things:


              [M.H.] shall not disclose, discuss, or communicate in any
              manner with [S.A.M.] the biological relationships of the parties
              and/or the identity of the biological FATHER without the
              expressed written authorization of [Mother] and [Father].
              [M.H.] shall take all steps necessary to ensure that third parties
              including [C.H.] adhere to and honor this provision.


      (Id. at 23-24) (emphasis in original). The trial court entered an order approving

      the Mediation Agreement that same day.


[8]   The arrangement between Father and M.H. fell apart. Father learned M.H.

      told S.A.M., during a visit with him, that B.H. was his biological father. As a




      1
       While M.H. alleges third-party “DNA testing” of S.A.M. was conducted, establishing paternity in B.H.,
      (Appellee’s Br. at 11), we note the record contains no direct evidence of any such DNA test conclusively
      establishing paternity in B.H. There is merely a reference to this alleged DNA test in the GAL’s report.

      Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017                     Page 4 of 22
       result, Father stopped honoring the Mediation Agreement’s provisions

       regarding visitation. M.H. also claimed Father was alienating S.A.M. from

       M.H. and C.H.


[9]    On August 15, 2014, M.H. filed an “Affidavit for Citation and Motion to

       Enforce Grandparent Visitation.” (Id. at 7.) On August 29, 2014, the court

       held a hearing on M.H.’s motion and affidavit. Noting Father had been

       denying M.H. visitation pursuant to the Mediation Agreement, the court set out

       specific dates over the course of the next year for M.H. to have visitation with

       S.A.M. Furthermore, the court noted if Father denied M.H. visitation with

       S.A.M., “any and all law Enforcement Authorities shall be granted authority to

       assist” in enforcing visitation. (Appellee’s App. Vol. II at 21.)


[10]   On July 15, 2016, M.H. filed a second Affidavit for Citation and Motion to

       Enforce Grandparent Visitation, alleging “[Father] and [Mother] had “holy

       [sic] failed and refused to allow [M.H.] to exercise Grandparent Visitation with

       [S.A.M.]” per the Mediation Agreement. (Appellant’s App. Vol. II at 28.)

       M.H. requested a hearing and contemporaneously filed a “Request for

       Custody” of S.A.M. (Id. at 26.) M.H. also requested the court appoint a

       Guardian Ad Litem (“GAL”) for S.A.M. On July 26, 2016, the court

       appointed a GAL.


[11]   On July 29, 2016, attorney Cody Cogswell entered his appearance in this cause

       on behalf of Father. That same day, Father filed a “Verified Petition to

       Terminate Grandparent Visitation,” (id. at 32), alleging he was “not effectively


       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017   Page 5 of 22
       represented at the time of the mediation or else he would have been advised to

       not enter said ‘Mediated Agreement.’” (Id.) Additionally, Father alleged M.H.

       lacked standing under the Grandparent Visitation Statute to bring petition for

       visitation. On September 30, 2016, the court held a hearing. The court noted it

       would take Father’s petition under advisement, ordered the parties to submit

       briefing on the issue, and ordered the GAL to complete her report and

       recommendations.


[12]   A series of briefings, hearings, and continuances ensued between October 2016

       and February 2017. On February 20, 2017, Father and Mother jointly filed an

       “Agreed Entry Establishing Paternity” in Father, 2 (id. at 63), and Mother filed

       an “Affidavit of [S.B.]” attesting Father “ha[d] been a wonderful Father to

       [S.A.M.][,] and “it was [her] opinion that [M.H.] and [C.H.] ha[d]

       detrimentally injured [S.A.M.] mentally and emotionally by stating that

       [S.A.M.]’s Father was dead and that [Father] was not his Father.” (Id. at 66-

       67.) On March 23, 2017, Father filed a “Petition to Dismiss Grandparent

       Visitation, to Establish Paternity, Motion for Order on the Pleadings, and

       Motion for Attorney Fees.” (Id. at 85.) Attached to the petition was a copy of

       the paternity affidavit signed by Mother and Father the day S.A.M. was born at

       Community Hospital in Anderson, Indiana.




       2
        As we will discuss in further detail below, paternity of S.A.M. Father’s paternity had already been
       established as a matter of law.

       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017                       Page 6 of 22
[13]   On March 29, 2017, the GAL filed her report. The GAL noted it was “a very

       difficult case” for her. (Id. at 113.) The GAL made the following

       recommendations:


               1) It is my recommendation that custody be continued with
                  [Father]. If this Court should decide to modify custody to
                  [M.H.] and [C.H.] then visitation should be put in place
                  between [S.A.M.] and [Father]. It will also be important to
                  allow [S.A.M.] to visit with his sibling, [M.X.M.]


               2) [M.H.] should be entitled to visitation and make up time
                  should be afforded to him.


               3) Mother should be ordered to have visitation as well.


               4) That [S.A.M.] undergo a full mental health evaluation, and
                  that [Father] follow all recommendations. [Father] provide
                  [sic] this Court a copy of the mental health evaluation within
                  60 days of the date of the order.


               5) The family engage in family counseling.


               6) Through the help of a therapist, [S.A.M.] should be informed
                  about his biological father.


               7) [Father] immediately apply for social security benefits for
                  [S.A.M.] and provide proof to the Court within 60 days from
                  the date of the order. If [Father] does not wish to use the
                  social security monies he should set up a savings account in
                  [S.A.M.]’s name.




       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017   Page 7 of 22
               8) All parties refrain from making negative comments about
                  each other in the presence of the child and speaking about any
                  court matters.


               9) [Father] be supportive before the visits with the grandparent,
                  [M.H.].


       (Id. at 115.)


[14]   The court held a hearing on April 7, 2017. Father, Mother, and M.H. were

       present at the hearing. Father again raised the issue of M.H.’s standing, argued

       the Mediation Agreement was void, and requested the court set aside that

       Agreement. Father also submitted an affidavit for attorney fees. M.H. argued

       both Father and Mother continued to violate the Mediation Agreement by

       preventing M.H. from visiting with S.A.M. by “hiding” or not being home at

       the designated times M.H. was supposed to pick up S.A.M. (Tr. at 17.)

       Mother also spoke at the hearing and expressed her disapproval of S.A.M.

       spending time with M.H. and C.H.


[15]   The court denied Father’s motion to set aside the Mediation Agreement and

       found M.H. had standing. The court stated:


               [The] Court’s ultimate though [sic] ruling here today is that
               paternity has been established with respect to [S.A.M.]. And that
               has been established by the order of the Court and that is the
               mediated agreement that was signed by the parties on March the
               19th, 2014 and the way the Court has undertaken this analysis
               is[,] um assuming this paternity affidavit is valid for purposes of
               the Court’s analysis[,] this document that doesn’t appear
               anywhere, in any Court documents that have been held here in

       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017   Page 8 of 22
         Madison County concerning orders that have been issued over
         the course of many years concerning S.A.M. Nowhere has
         [Father] asserted . . . um requested to establish paternity over this
         child by a petition filed with this Court until just recently. That
         was filed under the 184 case. The Court again looking at the
         record only finds one (1) order that exists with respect to the
         paternity of the child and that paternity was agreed to by all
         parties involved including [Father] and again that is the mediated
         agreement in paragraph one (1) that the parties stipulate that
         [B.H.] is the biological father of [S.A.M.] hereinafter [S.A.M.’s]
         date of birth 5/8/2007. So the Court is of the opinion that that is
         the order of the Court.


                                                *****


         And at this point that is the only order of the Court that the
         Court finds that does establish paternity of this child and as a
         result of that the Court also finds that the mediated agreement is
         not to be set aside, that [M.H.] . .[sic] the Court also finds does
         have standing to be involved in this case. He was allowed to
         intervene in the paternity case that existed over there in the 253
         case 3 um the Court finds that his standing isn’t necessarily via the
         Grandparent Visitation statute. . . . But the Court does find
         given the history of the case that [M.H.] does and has had a
         relationship with the child and would be permitted under a third
         party status to maintain custody rights or pursue custody or
         potential custody rights of this child[.]




3
 We take judicial notice under Indiana Rule of Evidence 201(2)(c) that in 2005, Mother filed a petition in
Cause Number 48C01-0507-JP-253 to establish Father’s paternity of M.X.M., Mother’s other child.

Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017                       Page 9 of 22
       (Tr. at 9-11.) The court ordered the parties to abide by the Mediation

       Agreement, specifically emphasized the parties must follow the visitation

       orders, and denied Father’s motion for attorney fees.



                                    Discussion and Decision
[16]   We first note Father’s claim the trial court failed to issue findings of fact and

       conclusions of law in its order. 4 Despite our preference for written findings of

       fact and conclusions of law, “a trial court’s failure to issue findings and

       conclusions in written form, in and of itself, does not constitute reversible

       error.” Nunn Law Office v. Rosenthal, 905 N.E.2d 513, 517 (Ind. Ct. App. 2009).

       The plain language of Indiana Trial Rule 52(A) does not require that the

       findings and conclusions be in writing. Id. The purpose of Rule 52(A) is “to

       provide the parties and the reviewing court with the theory upon which the trial

       judge decided the case in order that the right of review for error may be

       effectively preserved.” Carmichael v. Siegel, 670 N.E.2d 890, 891 (Ind. 1996).

       Oral findings and conclusions can achieve this purpose so long as they are

       thoroughly detailed in the record. Rosenthal, 905 N.E.2d at 517.




       4
         M.H. argues the trial court’s April 7, 2017, order denying Father’s request to void the Mediation Agreement
       is not a final order. Because the court’s order is enforcing the parties’ agreement as to custody, support, and
       parenting time, it constitutes a final order. See In re Paternity of M.R.A., 41 N.E.3d 287, 294 (Ind. Ct. App.
       2015) (finding, after paternity had been established, trial court’s order approving agreement between mother
       and father regarding custody, parenting time, and child support for children constituted a final order).

       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017                       Page 10 of 22
[17]   Here, although the trial court did not make written findings of fact or

       conclusions of law, the trial court’s oral findings at the April 7, 2017, hearing

       are detailed in the record and provide us the theory upon which the trial judge

       decided the case. “In reviewing findings made pursuant to Rule 52(A), we first

       determine whether the evidence supports the findings and then whether the

       findings support [the] judgment.” In re Paternity of M.R.A., 41 N.E.3d 287, 292

       (Ind. Ct. App. 2015). We shall not set aside the findings or judgment unless

       clearly erroneous. T.R. 52(A). “A judgment is clearly erroneous when there is

       no evidence supporting the findings, when the findings fail to support the

       judgment, or when the trial court applies the wrong legal standard to properly

       found facts.” M.R.A., 41 N.E.3d at 293. “Although we give considerable

       deference to trial courts in family law matters, ‘to the extent a ruling is based on

       an error of law or is not supported by the evidence, it is reversible and the trial

       court has no discretion to reach the wrong result.’” Id. (citing MacLafferty v.

       MacLafferty, 829 N.E.2d 938, 941 (Ind. 2009)).


[18]   Father argues M.H. lacked standing to have ever brought a paternity action as

       S.A.M.’s next friend, and thus the Mediation Agreement was void ab initio.

       Additionally, he argues the trial court abused its discretion in declining to

       award him attorney fees.


                                      1) Standing to File Paternity Action




       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017   Page 11 of 22
[19]   Whether a party has standing is a question of law, which we review de novo.

       J.R.W. ex rel. Jemerson v. Watterson, 877 N.E.2d 487, 490 (Ind. Ct. App. 2007).

       We owe no deference to the trial court’s decision. Id.


[20]   Under the Indiana Code, the following persons are permitted to bring a

       paternity action:


               (1) The mother or expectant mother.


               (2) A man alleging that:


                            (A) he is the child’s biological father; or


                            (B) he is the expectant father of an unborn child.


               (3) The mother and a man alleging that he is her child’s
                   biological father, filing jointly.


               (4) The expectant mother and a man alleging that he is the
                   biological father of her unborn child, filing jointly.


               (5) A child.


               (6) The department or a county office of family and children
                   under section 3 of this chapter.


               (7) The prosecuting attorney under section 2 of this chapter.


       Ind. Code § 31-14-4-1 (2006).


[21]   Regarding petitions by minors, the Indiana Code provides:
       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017   Page 12 of 22
                A person less than eighteen (18) years of age may file a petition if
                the person is competent except for the person’s age. A person
                who is otherwise incompetent may file a petition through the
                person’s guardian, guardian ad litem, or next friend.


       Ind. Code § 31-14-5-2 (1997). “There is no statutory definition of ‘next friend.’”

       R.J.S. v. Stockton, 886 N.E.2d 611, 614 (Ind. App. Ct. 2008).


[22]   Here, as S.A.M.’s alleged paternal grandfather, M.H., does not fall under any

       of the express categories of who may a petition to establish paternity under

       Indiana Code section 31-14-4-1. Thus, M.H. sought to have standing to file the

       paternity action as S.A.M.’s next friend. 5


[23]   We addressed the issue of standing to bring a paternity action as the next friend

       of a child in Jemerson. 877 N.E.2d at 490. The critical facts in Jemerson were:


                [T]he sister of a child’s deceased mother filed a petition to
                establish paternity of the child. The sister had been the child’s
                guardian, but this court had ordered that the guardianship be
                dissolved. Thereafter, the child was placed in the legal custody of
                the mother’s former husband, who was not the child’s biological
                father but who had executed a paternity affidavit for the child.
                Additionally, the biological father had been identified through
                genetic testing. After receiving the results of this test, the sister,
                acting as the child’s next friend, filed a petition to establish
                paternity of the child in the biological father. The ex-husband



       5
         A child may file a paternity action at any time before the child reaches twenty years of age. Ind. Code 31-
       14-5-2(b) (1997). “Where an adult files a paternity action as a child’s next friend, this twenty-year time
       limitation for filing such an action applies, and not the much shorter limitation periods that would apply if
       the adult was filing on [sic] a paternity action on his or her own behalf.” R.J.S. v. Stockton, 886 N.E.2d 611,
       614 n.2 (Ind. Ct. App. 2008).

       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017                         Page 13 of 22
               moved to dismiss the paternity petition, and the trial court
               granted the motion.


       Stockton, 886 N.E.2d at 615 (discussing Jemerson, 877 N.E.2d at 491-92). The

       ex-husband, while not the biological father, had “dated [the mother] during her

       pregnancy, married her when [the child] was only four months old, and lived

       with him as a parent until he was five years old[,]” when the mother and ex-

       husband divorced. Jemerson, 877 N.E.2d at 489.


[24]   On appeal, we affirmed the trial court’s order dismissing the maternal aunt’s

       paternity action, concluding the aunt lacked standing as the child’s next friend

       to file the action. Id. at 492. After reviewing a long line of cases proffered by

       the ex-husband, we declined to adopt the maternal aunt’s position that no

       limitation existed as to who may act as a child’s next friend and, instead,

       concluded “only parents, guardians, guardians ad litem, and prosecutors may

       bring paternity actions as next friends of children.” Id. at 491. We also noted:


               As a general rule, a next friend for an infant plaintiff is required
               only when the infant is without a parent or general guardian,
               since ordinarily it is the duty of the parent or general guardian of
               an infant to institute and prosecute an action on behalf of the
               infant for the protection of his rights.


       Id. at 492 (citing 42 AM. JUR. 2D Infants § 158 (2000)). Thus, we concluded the

       maternal aunt “[could] not reasonably argue [the child] was without a parent,”

       id., and given the fact the ex-husband had acted as the child’s natural father for

       most of the child’s life, we found “no persuasive grounds for treating [the ex-


       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017   Page 14 of 22
       husband] as anything other than a natural parent.” Id. We concluded, because

       the legal father and the biological father bore the duty of acting on behalf of the

       child, no proper basis existed for the maternal aunt to have asserted standing as

       the child’s next friend. Id.


[25]   Similarly, in Stockton, we held alleged grandparents lacked standing as a child’s

       next friend to file a petition in a paternity action where the child had a living

       natural mother and two court-appointed guardians, his maternal grandparents.

       866 N.E.2d at 616. There, the child’s mother, Amanda Stockton, represented

       to the Mullens that their son, Ryan Mullen, was the child’s biological father.

       Ryan had died a few months before R.J.S. was born. Amanda’s parents, the

       Stocktons, were named as the child’s guardians. The Mullens filed a petition to

       establish paternity of R.J.S., naming themselves as next friends of R.J.S., and

       contemporaneously filed a petition for grandparent visitation. The Stocktons

       filed a motion to dismiss the petition to establish paternity, claiming the

       Mullens lacked standing. The trial court dismissed the petition with prejudice,

       and the Mullens appealed.


[26]   We affirmed the trial court’s dismissal of the Mullens’ paternity action, finding

       support from Jemerson. We again rejected the notion that “there is no limit on

       who may file a paternity petition as a child’s next friend,” id. at 615, and noted

       “R.J.S. [had] a natural living mother and two court-appointed guardians, his

       maternal grandparents.” Id. Because “[t]he law has entrusted safeguarding of

       [R.J.S.’s] interests in those persons,” we reasoned, as we did in Jemerson, “[i]t

       [was] up to those persons to decide whether to initiate a paternity proceeding on

       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017   Page 15 of 22
       [R.J.S.’s] behalf.” Id. We thus concluded the Mullens could not “circumvent

       the authority entrusted in R.J.S.’s natural and court-appointed guardians by

       filing a paternity action as his next friend.” Id.


[27]   While we acknowledged “the legislature has enacted modest measures to allow

       grandparents to seek visitation with their grandchildren[,]” id., we noted “it has

       not . . . seen fit to allow alleged grandparents to file paternity actions.” Id. We

       thus concluded “allowing the Mullens to [have] proceed[ed] with a paternity

       action as R.J.S.’s next friend would [have] circumvent[ed] what we presume[d]

       to be the legislature’s deliberate choice not to include alleged grandparents as

       persons who may file a paternity action.” Id.


[28]   The rationale from Jemerson and Stockton applies here. Here, S.A.M.’s Mother

       and Father 6 are both alive and share joint legal custody of S.A.M. The law has

       entrusted safeguarding of S.A.M.’s interests to Mother and Father. It is their

       duty to act in S.A.M.’s best interests, not M.H.’s. Therefore, just as in Stockton,

       it is up to Mother and Father, as S.A.M.’s natural mother and legal father, to

       decide whether to initiate a paternity proceeding for S.A.M. As we pointed out




       6
         Father has been the legal father of S.A.M. since S.A.M.’s birth because he executed a paternity affidavit the
       day S.A.M. was born. See In re Paternity of H.H., 879 N.E.2d 1175, 1177 (Ind. Ct. App. 2008) (a man is a
       child’s legal father if the man executed a paternity affidavit in accordance with I.C. § 16-37-2-2.1 and the
       affidavit has not been rescinded or set aside pursuant to that same statute). To the extent the trial court found
       Father had never established his paternity of S.A.M., that finding is clearly erroneous. (See Tr. at 10 (trial
       court stating Father had never “requested to establish paternity . . . until recently”)); contra Ind. Code § 31-14-
       2-1 (“A man’s paternity may only be established: (1) in an action under this article; or (2) by executing a
       paternity affidavit in accordance with IC 16-37-2-2.1”). Father’s filing of a paternity petition as a last-ditch
       effort to defend his interests in this action was unnecessary as the law has always recognized him as S.A.M.’s
       legal father.

       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017                          Page 16 of 22
       in Stockton, the legislature made a decision to exclude alleged paternal

       grandparents as persons who may file a paternity action. Therefore, the trial

       court had no authority to allow M.H. to do so here.


[29]   It appears from the record, that, despite the law, the trial court arrived at its

       decision based on what it perceived as “the truth” regarding the biological

       parentage of S.A.M. (Tr. at 21.) The trial court stated:


               [T]he Court is troubled by the fact that um that everyone also
               understands what the reality is and knows what the truth is in
               this case. And while the legal issues certainly are important um
               and they matter, certainly the Court hopes everyone also
               understands what the reality is and um [S.A.M.] doesn’t live in a
               legal dictionary or a case law book. He’s a real little boy.


       (Id. at 21-22.) While the parties may have, at some point, agreed B.H. was the

       biological father of S.A.M., we note B.H. is no longer alive, B.H. never

       attempted to establish paternity to S.A.M., and there is no evidence B.H. had a

       relationship with S.A.M. when he was alive. S.A.M. is now ten years old, and

       Father is the only father S.A.M. has ever known. Father has acted as S.A.M.’s

       natural father all of S.A.M.’s life and S.A.M. refers to Father as “Dad.” Thus,

       despite the “reality” of who S.A.M.’s biological father may be, we find no

       persuasive reason to treat Father as anything other than S.A.M.’s natural father.

       See Jemerson, 877 N.E.2d at 492 (there were no persuasive grounds for treating

       mother’s ex-husband as anything other than child’s natural father where the ex-

       husband married mother when child was four months old and lived with him as

       a parent until he was five years old). To do so would not be in the best interests

       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017   Page 17 of 22
       of S.A.M., Father, or this State. 7 See In re Paternity of H.H., 879 N.E.2d 1175,

       1178 (Ind. Ct. App. 2008) (where legal father signed paternity affidavit knowing

       he was not the biological father of child, setting aside his status as child’s legal

       father many years later was not in the best interest of child, legal father, or the

       State).


                                            2) The Mediation Agreement


[30]   Father also argues the Mediation Agreement he entered with M.H. is void ab

       initio because M.H. lacked standing to file a petition to establish paternity. We

       agree.


[31]   The term void ab initio means “void from the beginning” and “denotes an act or

       action that never had any legal existence at all because of some infirmity in the

       action or process.” Trook v. Lafayette Bank & Tr. Co., 581 N.E.2d 941, 944 (Ind.

       Ct. App. 1991), trans. denied. “‘Void ab initio’ has essentially the same meaning

       as ‘void.’” Id. “[A] void judgment is subject to direct or collateral attack at any

       time.” M.S. v. C.S., 938 N.E.2d 278, 284 (Ind. Ct. App. 2010).


                 [A]n order is “void” only when the action or subject matter it
                 describes is of no effect whatsoever, and is incapable of
                 confirmation or ratification.” “Voidable,” however, describes an
                 action or subject matter which nonetheless operates to




       7
        We note the GAL’s report indicating S.A.M. is not “emotionally equipped,” (Appellant’s App. Vol. II at
       107), to be “placed in the middle” of the hostile relationship between Father and M.H. (Id. at 108.)
       Additionally, at the hearing, the trial court encouraged the parties to seek the professional help of a therapist
       or counselor to assist S.A.M. in processing the family dynamics he was experiencing at a young age.

       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017                          Page 18 of 22
               accomplish the thing sough to be accomplished, until the fatal
               flaw is judicially ascertained and declared.


       Id. (internal citations omitted). When a defect is merely “in form” or a

       “procedural irregularity, which is capable of being cured,” it is merely voidable.

       Id. “An order is void where the trial court lacks the authority to act.” Kitchen v.

       Kitchen, 953 N.E.2d 646, 651 (Ind. Ct. App. 2011).


[32]   Here, the trial court lacked authority to order the parties into mediation because

       M.H. lacked standing bring the paternity action. Because a lack of standing

       cannot be cured, the trial court’s order for the parties to conduct mediation, the

       resulting Mediation Agreement granting visitation rights to M.H., and the trial

       court’s order approving the agreement, are void. See Kitchen, 953 N.E.2d at 651

       (where maternal aunt and uncle lacked standing to petition for visitation with

       child, trial court lacked authority to grant visitation to them, and thus order

       granting visitation was void).


[33]   M.H.’s argument in favor of enforcing the Mediation Agreement is essentially a

       public policy argument for favoring contracts. However, a “contract made in

       violation of statute is void and unenforceable.” Lee v. State, 816 N.E.2d 35, 38

       (Ind. 2004). M.H. never had the legal right to file a paternity action or seek

       Grandparent visitation rights. The fact that Father and Mother initially




       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017   Page 19 of 22
       agreed—however gratuitously—to allow M.H. and C.H. visitation is not a basis

       for enforcing an otherwise void agreement. 8


                                                   3) Attorney Fees


[34]   We review a trial court’s decision to award or deny attorney fees for an abuse of

       discretion. M.R.A., 41 N.E.3d at 296. “An abuse of discretion occurs when the

       trial court’s decision is clearly against the logic and effect of the facts and

       circumstances before the court or if the court has misinterpreted the law.”

       G.G.B.W. v. S.W., 80 N.E.3d 264, 272 (Ind. Ct. App. 2017).


[35]   The court in a paternity action may order a party to pay:


                    (1) a reasonable amount for the cost to the other party of
                        maintaining an action under this article; and


                    (2) a reasonable amount for attorney’s fees, including
                        amounts for legal services provided and costs incurred,
                        before the commencement of the proceedings or after entry
                        of judgment.


       Ind. Code § 31-14-18-2 (2006). “In making such an award, the trial court must

       consider the resources of the parties, their economic condition, the ability of the

       parties to engage in gainful employment and to earn adequate income, and such




       8
         We can speculate Father and Mother’s initial willingness to cooperate with M.H. in this case was because
       the parties had a reportedly close relationship with each other for many years. The GAL’s report described
       Father and B.H. as having been “best friends since the age of nine[,]” (Appellant’s App. Vol. II at 105), and
       described the parties as having had “a long history with each other and regarded each other as family for a
       long period of time.” (Id. at 106.)

       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017                       Page 20 of 22
       factors that bear on the reasonableness of the award.” M.R.A., 41 N.E.3d at

       296. “The trial court may also consider any misconduct by one party that

       causes the other party to directly incur additional fees.” Id. “When one party is

       in a superior position to pay fees over the other party, an award of attorney fees

       is proper.” G.G.B.W., 80 N.E.3d at 272.


[36]   The trial court denied Father’s request M.H. pay his attorney fees, but made no

       findings in support thereof. We note M.H. filed this action in July 2013, over

       four years ago. In that time, Father has been forced to obtain a public defender

       and two different private attorneys to defend his interests as S.A.M.’s legal

       father in this action. In light of the fact this case has been allowed to proceed

       for over four years without M.H. having ever had standing, we remand this

       case to the trial court to make a determination as to the proper amount of

       attorney fees M.H. should pay Father. See In re Paternity McGuire-Byers, 892

       N.E.2d 187, 194 (Ind. Ct. App. 2008) (award of appellee’s attorney fees was

       proper in paternity action where all of appellate court’s conclusions were in

       favor of appellee), trans. denied.



                                                 Conclusion
[37]   M.H. lacked standing as S.A.M.’s next friend to file a petition to establish

       paternity of S.A.M., and the trial court acted without authority in ordering the

       parties to conduct mediation. Because the trial court acted without authority

       when it ordered the parties to conduct mediation, the Mediation Agreement is

       void ab initio. We vacate the trial court’s March 19, 2014, order enforcing the

       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017   Page 21 of 22
       Mediation Agreement and remand this cause so the trial court may decide a

       reasonable amount of attorney fees to award to Father.


[38]   Reversed and remanded.


       Barnes, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 48A05-1704-JP-922 | October 13, 2017   Page 22 of 22
