In Re the Paternity of G.J.C. and C.E.C. J.T. v. N.R. and R.C.

• Court: Indiana Court of Appeals
• Decided: November 26, 2012
• Docket: 45A05-1205-JP-250
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res

FILED judicata, collateral estoppel, or the law of the case. Nov 26 2012, 9:40 am

CLERK of the supreme court, ATTORNEY FOR APPELLANT: court of appeals and tax court

DAVID PAUL ALLEN Hammond, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN RE THE PATERNITY OF G.J.C. AND C.E.C., ) ) J.T., ) ) Appellant, ) ) vs. ) No. 45A05-1205-JP-250 ) N.R. AND R.C., ) ) Appellees. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Mary Beth Bonaventura, Judge Cause No. 45D06-1201-JP-116 and 45D06-1201-JP-117

November 26, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge Case Summary

In this consolidated appeal, J.T. appeals the trial court’s dismissal of his petitions

to establish paternity of G.C. and C.C. We reverse and remand.

Issues

J.T. raises two issues, which we restate as:

I. whether the trial court properly denied his motions to strike the mother’s motions to dismiss; and

II. whether the trial court properly granted the mother’s motions to dismiss.

Facts

G.C. was born out of wedlock in June 2008 to N.R. (“Mother”). Mother and R.C.

executed a paternity affidavit regarding G.C., and R.C. claimed to be G.C.’s biological

father. C.C. was born out of wedlock in May 2009 to Mother, and R.C. again executed a

paternity affidavit regarding C.C.

In January 2012, J.T. filed separate verified petitions to establish paternity of G.C.

and C.C. In March 2012, Mother filed motions to dismiss. She alleged that J.T. had

failed to file notice with the putative father registry, that paternity of G.C. and C.C. was

established by the paternity affidavits, and that J.T. failed to file the actions within two

years of the children’s dates of birth.

J.T. filed motions to strike Mother’s motions to dismiss. J.T. argued that Mother

had failed to file a supporting brief pursuant to the local court rules and that the motions

to dismiss were not timely under Indiana Trial Rule 12(B). J.T. then filed amended

petitions in which he alleged he was G.C. and C.C.’s next friend.

2 After a consolidated hearing, the trial court found that the paternity affidavits

executed by R.C. and Mother “conclusively establish paternity of [R.C.] over [G.C. and

C.C.].” Appellant’s App. p. 12. The trial court dismissed J.T.’s amended petitions with

prejudice. J.T. now appeals.

Analysis

We first note that Mother did not file an appellee’s brief in this matter. When the

appellee does not submit a brief, we apply a less stringent standard of review with respect

to showings of reversible error. Paternity of Davis v. Trensey, 862 N.E.2d 308, 311 (Ind.

Ct. App. 2007). We may reverse if the appellant establishes prima facie error, that is, an

error at first sight, on first appearance, or on the face of it. Id. When the appellant fails

to sustain that burden, we will affirm. Id. We do not undertake the burden of developing

arguments for the appellee. Id.

I. Motions to Strike

J.T. first argues that the trial court should have granted his motions to strike

Mother’s motions to dismiss. “To overturn the denial of a motion to strike, a trial court

must have committed an abuse of discretion.” Nationwide Ins. Co. v. Heck, 873 N.E.2d

190, 195 (Ind. Ct. App. 2007). We will reverse such an exercise of discretion only when

the decision is clearly against the logic and effect of the facts and the circumstances

before the trial court. Id.

J.T. contends the motions to dismiss were improper because they were untimely

under Indiana Trial Rule 12(B). Rule 12(B) provides that a motion to dismiss must be

filed “before pleading if a further pleading is permitted or within twenty [20] days after

3 service of the prior pleading if none is required.” However, J.T. also acknowledges

Mother’s argument during the trial court hearing that the motions to dismiss were

actually motions for judgment on the pleadings under Indiana Trial Rule 12(C). Rule

12(C) provides: “After the pleadings are closed but within such time as not to delay the

trial, any party may move for judgment on the pleadings.” Indiana courts have repeatedly

held that “[p]leadings are to be treated according to their content rather than their

caption.” ABN AMRO Mortg. Group, Inc. v. Am. Residential Servs., LLC, 845 N.E.2d

209, 216 (Ind. Ct. App. 2006). Although Mother’s motions were entitled “motion to

dismiss,” because they were filed after the pleadings were closed, they were more

accurately treated as motions for judgment on the pleadings. Because a party may move

for judgment on the pleadings at any time unless the motion would delay the trial,

Mother’s motions were timely. The trial court did not abuse its discretion by denying the

motions to strike on this basis.

According to J.T., the motions to dismiss were also improper because they

violated the local court rules, which require a separate supporting brief. The Lake

County Rule of Civil Procedure 4(A) provides: “All motions filed pursuant to Trial Rules

12 and 56 shall be accompanied by a separate supporting brief.” We conclude that

Mother’s motions adequately explained her arguments that paternity had already been

conclusively established by the paternity affidavits and that J.T.’s actions were filed

outside of the statute of limitations. As such, we cannot say that the trial court abused its

discretion by denying J.T.’s motions to strike.

II. Motions to Dismiss 4 Next, J.T. argues that the trial court erred by granting Mother’s motions to

dismiss, which Mother conceded were actually motions for judgment on the pleadings

under Trial Rule 12(C). “Like a motion to dismiss for failure to state a claim pursuant to

Trial Rule 12(B)(6), a Trial Rule 12(C) motion attacks the legal sufficiency of the

pleadings.” Nat’l R.R. Passenger Corp. v. Everton, 655 N.E.2d 360, 363 (Ind. Ct. App.

1995), trans. denied. Our standard of review is de novo, and we draw all reasonable

inferences in favor of the non-moving party. Id. “A judgment on the pleadings is proper

only when there are no genuine issues of material fact and when the facts shown by the

pleadings clearly establish that the non-moving party cannot in any way succeed under

the facts and allegations therein.” Eskew v. Cornett, 744 N.E.2d 954, 956 (Ind. Ct. App.

2001), trans. denied.

Mother argued to the trial court that her motions for judgment on the pleadings

should be granted because: (1) the paternity affidavits conclusively determined G.C. and

C.C.’s paternity; (2) J.T.’s petitions were untimely; and (3) J.T. failed to register with the

putative father registry. The trial court granted the motions based on the first argument.

On appeal, J.T. argues that none of Mother’s arguments should have been successful.

We first address whether the paternity affidavits executed by Mother and R.C.

conclusively established paternity such that J.T. could not seek to establish his paternity

of G.C. or C.C. Indiana Code Section 31-14-2-1 provides that a man’s paternity may

only be established through an action under Indiana Code Article 31-14, which governs

the establishment of paternity, or by executing a paternity affidavit in accordance with

Indiana Code Section 16-37-2-2.1. “Except as provided in [Indiana Code Section 16-37-

5 2-2.1], if a man has executed a paternity affidavit in accordance with this section, the

executed paternity affidavit conclusively establishes the man as the legal father of a child

without any further proceedings by a court.” Ind. Code § 16-37-2-2.1(p).1 “A man is a

child’s legal father if the man executed a paternity affidavit in accordance with IC 16-37-

2-2.1 and the paternity affidavit has not been rescinded or set aside under IC 16-37-2-

2.1.” I.C. § 31-14-7-3. Because the paternity affidavits have not been rescinded or set

aside, R.C. is the legal father of G.C. and C.C.2

Contrary to the trial court’s order, however, this court has held that, although the

execution of a paternity affidavit establishes a man as a child’s legal father, another man

is not precluded from attempting to establish paternity of the child. See In re Paternity of

N.R.R.L., 846 N.E.2d 1094, 1097 (Ind. Ct. App. 2006) (“Although Rogge’s execution of

the paternity affidavit established him as the child’s legal father, that does not preclude

another man from attempting to establish paternity of the child.”), trans. denied; Trensey,

862 N.E.2d at 312 (holding that the presumption of paternity provided by execution of a

paternity affidavit may be rebutted); see also In re Paternity of S.R.I., 602 N.E.2d 1014,

1016 (Ind. 1992) (allowing a paternity action to proceed despite the fact that a dissolution

decree found the child to be of the marriage of the mother and another man). Our

supreme court has recognized “there is a substantial public policy in correctly identifying

1 This language was formerly found in Indiana Code Section 16-37-2-2.1(n), but the statute was amended effective July 1, 2012. See Pub. L. No. 128-2012, § 19 (eff. July 1, 2012). 2 As the legal father, R.C. is a necessary party to J.T.’s paternity action. See In re Paternity of N.R.R.L., 846 N.E.2d 1094, 1096 (Ind. Ct. App. 2006), trans. denied; see also Ind. Code § 31-14-5-6 (“The child, the child’s mother, and each person alleged to be the father are necessary parties to each action.”). Here, J.T. named R.C. as a party to the paternity actions.

6 parents and their offspring.” S.R.I., 602 N.E.2d at 1016. Consequently, despite the

paternity affidavits, J.T. was not precluded from attempting to establish paternity. The

trial court erred by entering judgment on this basis.

Mother also argued that J.T.’s petitions were filed after the expiration of the

statute of limitations. Indiana Code Section 31-14-5-3(b) describes the time limits for the

filing of a paternity petition by “[t]he mother, a man alleging to be the child’s father, or

the department or its agents.” The action must be filed “not later than two (2) years after

the child is born,” subject to six exceptions. I.C. § 31-14-5-3(b). J.T. did not file his

paternity petitions until January 2012, well over two years after G.C. and C.C. were born.

Further, J.T. does not argue that any of the exceptions to the two-year limitation are

applicable.

In an attempt to remedy this problem, J.T. filed amended petitions listing himself

as G.C. and C.C.’s next friend. A minor child who is incompetent to petition for

paternity on his or her own is entitled to petition by a next friend. In re Adoption of E.L.,

913 N.E.2d 1276, 1281 (Ind. Ct. App. 2009); see I.C. § 31-14-5-2(a). G.C. and C.C.

were less than five years old and accordingly were incompetent to petition for paternity

on their own. Therefore, they were statutorily entitled to petition by next friend.

“Although Indiana has no statutory definition of ‘next friend,’ this court has held a

putative father is a proper next friend for purposes of a paternity petition.” E.L., 913

N.E.2d at 1281.

In E.L., we noted that, even if a putative father is time-barred from petitioning in

his own name, he is not precluded from filing a petition as next friend on behalf of the

7 child. Id. at 1282. The time limitation of Indiana Code Section 31-14-5-3(b), which is

applicable to putative fathers, does not apply when the child is the petitioner. Id. Rather,

under the paternity statutes, “a child may file a paternity petition at any time before the

child reaches twenty (20) years of age.” I.C. § 31-14-5-2(b). “Our cases have ‘held that

where an adult files a paternity action as a child’s next friend, this twenty-year time

limitation for filing . . . applies, and not the much shorter limitation periods that would

apply if the adult was filing . . . on his or her own behalf.’” E.L., 913 N.E.2d at 1282.

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

Consequently, J.T.’s amended petitions, filed as G.C. and C.C.’s next friend, were timely.

Next, Mother argued that J.T.’s petitions should be dismissed because J.T. failed

to register with the putative father registry. The purpose of the putative father registry is

to provide notice of adoption proceedings to a putative father. I.C. § 31-19-5-3. Indiana

Code Section 31-14-5-7 provides that “[a] man who files or is a party to a paternity action

shall register with the putative father registry under IC 31-19-5.” Further, the putative

father registry statute provides that “[t]he filing of a paternity action by a putative father

does not relieve the putative father from the: (1) obligation of registering; or (2)

consequences of failing to register; in accordance with [Indiana Code Chapter 31-19-5]

unless paternity has been established before the filing of the petition for adoption of the

child.” I.C. § 31-19-5-6. The consequence of failing to register is that the putative father

“waives notice of an adoption proceeding” and his waiver “constitutes an irrevocably

implied consent to the child’s adoption.” I.C. § 31-19-5-18. However, the actions at

issue here are paternity actions, not adoption proceedings. Although J.T.’s failure to

8 register with the putative father registry would result in an irrevocable implied consent to

G.C. and/or C.C.’s adoption, we find no statutory authority for the proposition that J.T.’s

failure to register would require the dismissal of his petitions for paternity under these

circumstances.

In sum, J.T. has demonstrated that Mother’s arguments in support of her motion

for judgment on the evidence were incorrect. We conclude that J.T. has met his burden

of demonstrating prima facie error regarding the trial court’s judgment. The trial court

erred when it granted Mother’s motion for judgment on the evidence.

Conclusion

The trial court did not abuse its discretion when it denied J.T.’s motion to strike.

However, we conclude that the trial court erred when it granted Mother’s motion for

judgment on the evidence regarding the paternity of G.C. and C.C. We reverse and

remand for proceedings consistent with this opinion.

Reversed and remanded.

VAIDIK, J., and MATHIAS, J., concur.