Dlm v. Vem

438 N.E.2d 1023, 31 A.L.R. 4th 336, 1982 Ind. App. LEXIS 1353
CourtIndiana Court of Appeals
DecidedAugust 17, 1982
Docket1-981A290
StatusPublished
Cited by1 cases

This text of 438 N.E.2d 1023 (Dlm v. Vem) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dlm v. Vem, 438 N.E.2d 1023, 31 A.L.R. 4th 336, 1982 Ind. App. LEXIS 1353 (Ind. Ct. App. 1982).

Opinion

438 N.E.2d 1023 (1982)

D.L.M., Respondent-Appellant,
v.
V.E.M., Petitioner-Appellee.

No. 1-981A290.

Court of Appeals of Indiana, First District.

August 17, 1982.

*1025 Thomas J. O'Brien, Lind, Deckard & O'Brien, Danville, for respondent-appellant.

Linley E. Pearson, Atty. Gen., Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for petitioner-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

The petitioner-appellee brought this action under the Uniform Reciprocal Enforcement of Support Act against her ex-husband, the respondent-appellant. The petitioner sought arrearages plus current child support for her daughter. The Hendricks Circuit Court awarded arrearages plus current support and educational expenses. The respondent contends that principles of res judicata required dismissal of this action.

We reverse.

STATEMENT OF THE FACTS

The petitioner filed her "Complaint for Divorce" against the respondent on April 18, 1961, in the Vermillion Circuit Court of Illinois. At that time both parties resided in Illinois. The petitioner's complaint alleged that two children were born of the marriage. The respondent failed to make any appearance, and on May 26, 1961, the court entered a decree of divorce. The decree stated that the marriage had produced *1026 two children (these two are now emancipated) and that the petitioner was pregnant with a third of whom the respondent was the father. On February 19, 1962, the court issued an order modifying the decree. The order stated that the respondent was present in court and that after hearing evidence the court found that the child born to the petitioner on January 12, 1962, was the respondent's daughter. Accordingly, the court awarded the petitioner medical expenses and child support.

Between 1966 and 1976 the petitioner instituted several proceedings to enforce support, and on January 12, 1976, a petition for reciprocal support was evidently filed in Hendricks Circuit Court in Indiana. The respondent filed a motion for summary judgment, and after a hearing on December 23, 1976, the court granted his motion, stating:

"Comes petitioner by Seth B. Lewis, Prosecuting Attorney; comes also respondent by his attorney Thomas J. O'Brien. The Court hears defendant motion for summary judgment and being advised finds that the minor child ... was born after the divorce of petitioner and respondent and is not the child of [D.L.M.], and motion for summary judgment is now granted and petition[er] ordered to pay costs herein."

On January 10, 1977, the court denied the petitioner's motion to reconsider stating:

"Petitioner files motion to reconsider: (H.I.). Court examines motion and exhibits attached and finds that Divorce was granted on May 26, 1961, and that petition[er] gave birth to third child on January 12, 1962, and therefore petitioner had to know at time of divorce that she was pregnant, and having remained silent, cannot successfully charge respondent with being the father of said child without notice and hearing thereon, and motion to reconsider is denied."

The petitioner did not file a motion to correct errors.

On May 7, 1979, the petitioner commenced this second action in Hendricks Circuit Court under the Uniform Reciprocal Enforcement of Support Act (U.R.E.S.A.), Ind. Code 31-2-1-1 et seq.[1] Apparently a new judge had taken office since the first Hendricks County suit. The respondent filed a motion to dismiss based on Ind.Rules of Procedure, Trial Rules 12(B)(1), (2), (6), and (8) in which he asserted the defense of res judicata; a memorandum and a certified copy of the earlier Hendricks County judgment accompanied the motion. The petitioner filed a response to this motion, and the court set it for a hearing, electing sua sponte to treat the proceedings as a hearing on a motion for relief from judgment under Ind.Rules of Procedure, Trial Rule 60(B). After holding additional hearings on this issue, the court denied the respondent's motion to dismiss, but did not specifically grant relief under T.R. 60(B).

Following a trial on the merits in which both parties testified, the court made the following award of child support: arrearages totaling $4,360, current support of $30 per week, and educational expenses of up to $1,000 per year until the child reaches the age of 21 (she was 19 when this order was issued).

ISSUES

Respondent raises the following issues:

I. Whether the doctrine of res judicata required that the Petition for Reciprocal Support filed May 7, 1979, be dismissed;
II. Whether respondent's duty of support was to be determined under the law of the State of Illinois or the State of Indiana in an action seeking child support filed pursuant to the Uniform Reciprocal Enforcement of Support Act;
III. Whether the fact that the child for whom support was sought had reached the age of nineteen at the *1027 time of the trial deprived the court of jurisdiction to decide the case;
IV. Whether the fact that the child did not appear and testify at the trial deprived the court of jurisdiction to decide the case;
V. Whether the Illinois decrees establishing that respondent was the child's father were entitled to full faith and credit;
VI. Whether the court was required to determine its subject matter jurisdiction under the Uniform Child Custody Jurisdiction Law before deciding this case; and
VII. Whether the court erred in ordering respondent to pay certain of the child's educational expenses.

Because the first issue requires reversal of this case, we need not reach the remaining six.

DISCUSSION AND DECISION

The respondent's motion to dismiss under T.R. 12(B)(6) should have been treated as T.R. 56 motion for summary judgment as required by T.R. 12(B)(8). Indiana & Michigan Electric Company v. City of Anderson, (1978) 176 Ind. App. 410, 376 N.E.2d 114; United Farm Bureau Family Life Insurance Company v. Fultz, (1978) 176 Ind. App. 217, 375 N.E.2d 601.

We will therefore review the action of the trial court as we would the denial of a motion for summary judgment; we must determine whether there was any genuine issue of material fact and whether the law was correctly applied. County of Ventura v. Neice, (1982) Ind. App., 434 N.E.2d 907; Campbell v. Eli Lilly and Company, (1980) Ind. App., 413 N.E.2d 1054. The essential facts of this case are not in dispute, and the pivotal question of law is the validity of the prior judgment of the Hendricks Circuit Court. If that judgment is valid, res judicata should have prevented the parties from relitigating such issues as support, paternity, and full faith and credit.

This case concerns the branch of res judicata known as "estoppel by judgment" or "claim preclusion" which holds that the prior adjudication of a cause of action is a bar to future litigation of that claim. When a party relies on res judicata,

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438 N.E.2d 1023, 31 A.L.R. 4th 336, 1982 Ind. App. LEXIS 1353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dlm-v-vem-indctapp-1982.