In Re Paternity of DL

938 N.E.2d 1221, 2010 WL 5168598
CourtIndiana Court of Appeals
DecidedDecember 21, 2010
Docket88A01-1002-JP-224
StatusPublished
Cited by13 cases

This text of 938 N.E.2d 1221 (In Re Paternity of DL) 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
In Re Paternity of DL, 938 N.E.2d 1221, 2010 WL 5168598 (Ind. Ct. App. 2010).

Opinion

938 N.E.2d 1221 (2010)

In re PATERNITY OF D.L.
C.L., Appellant-Respondent,
v.
Y.B., Appellee-Petitioner.

No. 88A01-1002-JP-224.

Court of Appeals of Indiana.

December 21, 2010.

*1222 Alice L. Bartanen Blevins, Bartanen Law Office, LLC, Salem, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Y.B. ("Mother") gave birth to D.L. out of wedlock. In 1996, Mother brought a paternity action against C.L., who admitted to paternity and was ordered to pay child support. For over ten years, C.L. shared the financial costs of raising D.L. with Mother and exercised regular visitation with D.L. Eventually, C.L. and Mother agreed to genetic testing, which excluded C.L. as D.L.'s biological father. Genetic testing established another man as D.L.'s biological father, and paternity was formally established in that man. At that time, C.L. was behind on his child support payments. He asked the trial court to be relieved from paying the child support arrearage because the paternity test showed that he is not D.L.'s biological father. The trial court denied his request, and C.L. appeals. We conclude that because C.L.'s paternity was vacated due to mistake of fact, his child support, including any arrearage, must be terminated. Therefore, we reverse and remand.

Facts and Procedural History

D.L. was born on December 16, 1993. On April 24, 1996, Mother and the Washington County prosecutor filed a petition to establish paternity and compel support, which alleged that C.L. was the biological father of D.L. and his younger brother.[1] On June 13, 1996, a hearing on the petition was held, and C.L. admitted to being the father of D.L. and his brother. On June 26, 1996, the trial court entered an order finding C.L. to be the children's legal father. Subsequently, C.L. was ordered to pay child support for the benefit of both children.

On July 8, 2008, C.L., pro se, filed a motion to modify custody. On September *1223 8, 2008, a hearing on the motion was held, at which both parties and D.L. appeared.[2] On September 30, 2008, the trial court issued an order modifying custody and child support, in which it granted C.L. physical custody of D.L. and modified C.L.'s child support to $38.00 per week ($12.00 child support plus $26.00 toward arrearage).

On December 12, 2008, Mother requested a hearing on the matter of D.L.'s custody and child support. On March 4, 2009, the trial court entered an agreed order of modification and DNA testing, which the parties had jointly submitted. Appellant's App. 48-49. The agreed order provided that primary physical custody of D.L. be returned to Mother, that C.L.'s child support payment remain at $12.00 per week, and that the parties submit to DNA testing to determine D.L.'s paternity. The State did not object to the parties' agreement. On March 20, 2009, the trial court issued an order entering the DNA test results into evidence, which showed that C.L. was not D.L.'s father.

The chronological case summary ("CCS") indicates that on April 22, 2009, the State notified the trial court that it had met with the parties and would tender an entry to the court and that the matter was set for hearing on July 22, 2009. The CCS entry for May 6, 2009, states, "Entry for April 22, 2009, entered" and that a hearing on petition to modify custody and support was set for July 22, 2009.[3]Id. at 19.

At the July 22, 2009, hearing, C.L., Mother, and the prosecutor appeared. The prosecutor informed the trial court that she had talked to C.L. and Mother, and that she had advised Mother to get new paternity established for D.L. based on the genetic testing that showed that K.G. was D.L.'s biological father and C.L. was not. In addition, the prosecutor told the trial court that C.L.'s child support had been recalculated to $48.53 for one child, D.L.'s brother, to take effect from the date of the new paternity establishment, March 20, 2009. Tr. Vol. 1 at 5.[4] The prosecutor informed the trial court that C.L.'s arrearage for both children was approximately $9000, and that she had explained to C.L. that "until there is a new paternity established he is still responsible for that arrearage as well as the new support now that is established for the [] one child." Id. at 7. However, C.L. told the prosecutor that he should be relieved of the child support arrearage relating to D.L., and he asked the trial court for a public defender to represent him on that matter. The trial court ordered that C.L. be appointed counsel, and counsel was appointed on September 18, 2009.[5]

On September 25, 2009, in a separate cause number, the trial court issued an order entering Mother's and K.G.'s agreed stipulation to establish paternity, pursuant to which K.G. was established as D.L.'s legal father, D.L.'s birth record was to be amended to change D.L.'s legal father from C.L. to K.G., Mother was to retain custody of D.L., and K.G. was granted reasonable visitation. Appellee's App. at 11-12.

On October 21, 2009, the prosecutor filed a petition in the matter before us for information *1224 for rule to show cause, alleging that C.L. had been ordered to pay child support of $12.00 per week beginning on October 3, 2008, had failed to make payments, and was $9007.71 in arrears. Id. at 4. On January 20, 2010, a hearing was held. C.L. was present and represented by an attorney, and Mother and the prosecutor were present. The prosecutor informed the trial court that until genetic testing had established that C.L. was not D.L.'s biological father, C.L. had been paying more than required on his child support obligation to reduce his arrearage, but as of January 15, 2010, his arrearage was $8595.71. The prosecutor asked that C.L. comply with the order to pay $12.00 per week until the arrearage was satisfied.

C.L.'s attorney contended that C.L. should not be held responsible for the amount of child support arrearage relating to D.L. because it would be "inequitable and unjust." Tr. Vol. 2 at 7. She argued,

[W]e believe based upon testimony previously offered, offered to this court [] that it was that the mother knowingly [] deceived him in terms of the child's paternity and only sought to establish [] that my client was not the child's father when the child had chosen to come live with [C.L.].

Id.

After considering the parties' arguments, the trial court concluded, But it seems to me like that what happened here wasn't something that was just stumbled upon, you know, like you went to the doctor to get a[] test for something and they found out that the DNA's didn't match.
I think that [C.L.'s] was a, a deliberate attempt to see whether or not what [he] believe[d] to be true, was in fact true, which apparently it was. That you weren't the father. But until that time [,] even though you may have, even if what you say is true, that you've been deceived by it. It seems to me that for all inten[ts] and purposes you were Dad. [] I know that may seem unfair, but what happened during all that time [is] that the child was[,] if we do what you are asking me to do, then the child would have been deprived of support through no fault of his own. And I know you've been good to him, you took him in.
....

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Cite This Page — Counsel Stack

Bluebook (online)
938 N.E.2d 1221, 2010 WL 5168598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-paternity-of-dl-indctapp-2010.