Johnston v. Phelps

288 N.E.2d 782, 154 Ind. App. 9, 1972 Ind. App. LEXIS 871
CourtIndiana Court of Appeals
DecidedNovember 9, 1972
DocketNo. 971A183
StatusPublished
Cited by2 cases

This text of 288 N.E.2d 782 (Johnston v. Phelps) 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
Johnston v. Phelps, 288 N.E.2d 782, 154 Ind. App. 9, 1972 Ind. App. LEXIS 871 (Ind. Ct. App. 1972).

Opinion

Lowdermilk, J.

The issues in this cause were formed by the complaint of the plaintiff-appellee, who alleged that defendant-appellant was the father of a child born out of wedlock and sought to compel support of said child by defendant-appellant under the provisions of IC 31-4-1-9, et seq., Ind. Ann. Stat. § 3-631 (Burns 1968 Replacement). Trial was held in the Vanderburgh Superior Court, Juvenile Division, before the Juvenile Referee and taken under advisement by the said Juvenile Referee.

This is an appeal from a judgment for the plaintiff-appellee, Vera Phelps, awarding expenses and support for a child born out of wedlock and fathered by the defendant-appellant, Clyde Johnston. Appellant does not question the merits of the case and is appealing on technical grounds only.

[11]*11Defendant-appellant, in his motion to correct errors, combined in argument specifications 1 and 2 thereof, which read as follows, to-wit:

“1. That the Juvenile Referee did not have jurisdiction of the subject matter in this action for the reason that while Burns Indiana Statutes Annotated Section 3-632 confers jurisdiction of matters concerning children born out of wedlock upon the Courts of the State having juvenile jurisdiction, the Court has not prescribed in its order that the Juvenile Referee in this cause shall perform the duty of hearing actions concerning children [born] out of wedlock. While the Juvenile Court has jurisdiction of an action concerning children born out of wedlock, the Juvenile Referee herein has no jurisdiction to hear the subject matter of this cause. See Exhibit A and Exhibit B.
“2. The decision of the Court and/or the finding of the Juvenile Referee is contrary to law for the reasons set forth in Paragraph 1 hereof.”

We shall treat these specifications as one in this opinion.

In this combined specification defendant-appellant contends that the Juvenile Referee who heard the trial of this cause did not have subject matter jurisdiction. The jurisdictional section of the statute concerning children born out of wedlock is set out in IC 31-4-1-10, Ind. Ann. Stat. § 3-632 (Burns 1968 Replacement), which reads as follows:

“Jurisdiction and venue — Nonresidents.—The jurisdiction to hear and determine all actions brought pursuant to Article 2 of Part II of this act is hereby conferred upon the several courts of the state having juvenile jurisdiction in the respective counties. Such actions may be commenced in the county where the mother or child resides or is found, or in the county where the alleged father resides or is found. The fact that the child was born outside the state of Indiana, or that either the mother or child or both may not be residents of the state of Indiana, shall in no event be a bar to any such action.”
“Compiler’s Note. Part II, Acts 1941, ch.112, contained no Article 2. Part II appears herein as §§ 3-624 — 3-629. This section probably intended to refer to Article 2, Part III which appears herein as §§ 3-631 — 3-645.”

[12]*12We, like the compiler of the notes to the statute, supra, are of the opinion that there was either a mistake made in the final draft of the paternity statute or by the printer. It is a matter of common sense that there being no Article 2 of Part II and there is an Article 2 of Part III which, when read, is logical in its sequence and meaningful to lawyers and the courts, that the duty devolves upon the courts to construe the statute akin to the compiler’s footnote. It is our further opinion that to refuse such construction would be to flaunt the Legislature and work a great hardship on persons who would necessarily not have their day in court because of such error until such time that the Legislature could correct and amend the paternity statute.

This statute conclusively gives jurisdiction to the Juvenile Court to hear actions brought under the sections enumerated in Burns § 3-682.

The Vanderburgh Juvenile Court was created by statute IC 33-5-43-5, Ind. Ann. Stat. § 4-2965 (Burns 1971 Replacement) :

“Juvenile and probate jurisdiction. — The court and the judges thereof shall have and possess, within and for said county, all the powers and duties now conferred on the juvenile court and Vanderburgh Probate Court and the judge thereof, and said court shall have exclusive jurisdiction in all matters relating to children, including all cases of delinquent, neglected and dependent children, and in all cases wherein the custody and legal punishment of children is in question, and in all cases wherein persons are charged with contributing to or encouraging juvenile delinquency, and all such matters now pending in the juvenile courts or Vanderburgh Probate Court shall be transferred to the court when established, and the court and the judges thereof shall be governed by the laws pertaining to the juvenile courts of this state.”

Children born out of wedlock cases are juvenile matters, as set out in Burns § 3-632, supra, and should be heard in the Juvenile Courts.

[13]*13The Vanderburgh Superior Court has the power to appoint Juvenile Referees under IC 33-5-43-9, Ind. Ann. Stat. § 4-2969 (Burns 1971 Replacement), which reads, in part, as follows:

“Probate commissioner, juvenile referee — Powers and duties — Administrative personnel. — The court may appoint a probate commissioner, and a juvenile referee, who may be the same person, and such other personnel, including but not limited to, an administrative officer who shall operate under the jurisdiction of the presiding judge, as shall in the opinion of the court be necessary to facilitate and transact the business of the court, whose salaries and time of payment thereof shall be fixed by the court and to be paid out of the county treasury, and be entered of record. The court shall certify a copy of such order to the county auditor, who shall draw his warrant for the payment of such salaries at the times and in the amounts in said record set forth. The officers and persons so appointed shall perform such duties as are prescribed by the court.
“The juvenile referee so appointed by the court may be vested by said Court with all suitable powers for the handling and management of the juvenile matters of the court, including the fixing of bonds, the taking and hearing of evidence on or concerning any juvenile matters in litigation before the court, the enforcement of court rules and regulations, the making of reports to the court concerning his doings in the above premises, all of such matters, nevertheless, to be under final jurisdiction and decision of the judges of said court.

The Referee who heard this action was duly appointed and took the oath of office as required by statute.

Defendant-appellant contends that the statutes do not extend jurisdiction to the Vanderburgh Superior Court to hear actions arising under children born out of wedlock statutes as the Vanderburgh statute makes no mention of children born out of wedlock. Defendant-appellant contends that Lake and Marion Counties have been given specific authority to hear such actions, but Vanderburgh County has not. Defendant-appellant argues that Burns § 3-632, supra, does not concern the same subject matter that the Juvenile [14]*14Court is authorized to hear, except that both concern children.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Nichols v. State
591 N.E.2d 134 (Indiana Supreme Court, 1992)
State Ex Rel. Vermont Department of Social Welfare v. Cargile
546 N.E.2d 301 (Indiana Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
288 N.E.2d 782, 154 Ind. App. 9, 1972 Ind. App. LEXIS 871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-phelps-indctapp-1972.