J.Y. v. D.A.

381 N.E.2d 1270, 178 Ind. App. 238, 1978 Ind. App. LEXIS 1092
CourtIndiana Court of Appeals
DecidedNovember 6, 1978
DocketNo. 1-1177A272
StatusPublished
Cited by5 cases

This text of 381 N.E.2d 1270 (J.Y. v. D.A.) 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
J.Y. v. D.A., 381 N.E.2d 1270, 178 Ind. App. 238, 1978 Ind. App. LEXIS 1092 (Ind. Ct. App. 1978).

Opinion

Lybrook, P. J.

J. Y., respondent-appellant, brings this appeal following entry of judgment finding him to be the father of a child born to D.A., petitioner, and further ordering Respondent to pay $20 per week as child support.

Respondent presents three issues for our review:

(1) Did the trial court abuse its discretion in rescinding its order imposing sanctions upon the plaintiff for her repeated failure to respond to Respondent’s discovery attempts?
(2) Was the trial court prevented from entertaining a motion for rescission of sanctions at a pretrial conference by a local trial rule?
(3) Was sufficient evidence presented during the trial to support the findings of the trial court?

The facts most relevant to this appeal indicate that Petitioner, on December 8,1975, initiated an action against Respondent to establish paternity and to obtain support for a child born out of wedlock. On January 14,1976, Respondent answered denying the paternity, and on January 21,1976, he filed interrogatories to be answered by Petitioner. On March 19,1976, Respondent filed a motion for sanctions for failure to make discovery. On May 19,1976, Respondent filed a motion to compel discovery. On May 21,1976, the trial court ordered that Petitioner answer the interrogatories within 15 days. On June 8, 1976, Respondent filed a motion for sanctions pursuant to Ind. Rules of Procedure, Trial Rule 37(B)(3). On that same day the trial court entered a finding that Petitioner had been dilatory in responding to discovery, and that the sanction contained in TR. 37(B)(3) was proper; the court therefore [240]*240ordered that evidence upon the matters contained in the interrogatories would be refused at hearing or trial and that Petitioner was enjoined from introducing any such evidence. Notice of each of the above actions was properly sent to Petitioner, who continued to ignore the entire matter.

Over three months later, on September 23, 1976, Petitioner filed answers to Respondent’s interrogatories. On January 12,1977, at the pretrial conference, the trial court granted Petitioner’s oral motion to rescind the sanctions. On January 26,1977, Respondent filed a motion to reconsider the rescission of sanctions, and on June 24,1977, the trial court denied Respondent’s motion to reconsider. Trial was held on that date, and the above mentioned judgment was entered. Respondent then perfected this appeal.

I.

The first issue for our consideration is the propriety of the trial court’s action in rescinding the discovery sanctions and in subsequently admitting the previously excluded evidence at trial.

Apparently there are no Indiana cases dealing with the propriety of removing discovery sanctions once they are imposed. Our rules clearly provide that the imposition of sanctions is within the discretion of the trial court. TR. 37(B). Thus, in the absence of a dispositive rule to the contrary, we believe that the removal of sanctions is also a matter within the trial court’s discretion. Respondent has failed to demonstrate that the trial court abused its discretion in this regard.

Furthermore, it is difficult to see how the proceedings at trial could have prejudiced Respondent. He received Petitioner’s replies to his interrogatorie on September 23,1976, and the trial was not until June 24, 1977. Thus Respondent had 274 days to investigate Petitioner’s answers since first receiving them. We cannot but feel that diligent counsel should have done so.

Finally, Respondent failed to move for a continuance of the trial from its June 24, 1977 date. In Indiana the proper remedy for a party who has been denied the benefits of the discovery process is to move for a continuance of the hearing date. Butler v. State (1978), 175 Ind. App. 409, 372 N.E.2d 190. We hold that Respon[241]*241dent’s failure to seek a continuance operated as a waiver of his allegations of error concerning Petitioner’s noncompliance with the order compelling discovery.

II.

Respondent next alleges that the trial court committed reversible error when it granted Petitioner’s motion to rescind sanctions at the pretrial conference, in view of a local court rule. Local Rule 8(H) of the Wayne Superior Court, dealing with pretrial conferences, reads as follows:

“(H) The Court may entertain oral motions by counsel appearing at a pre-trial conference for Default or Dismissal, or the imposition of other sanctions, or the Court may on its own motion default or dismiss or impose other sanctions, for the failure of a party to appear for the pre-trial conference, or for failure to file timely PreTrial Statements. Such motions may be granted summarily and without notice or hearing.”

Respondent argues that this language prohibits the making or granting of any motions at the pretrial conference other than the motions specifically mentioned in the rule.

We disagree with Respondent’s interpretation of the rule. The rule, simply put, states that the court may pass upon certain motions at the pretrial conference; it does not state that the court is prohibited from ruling on other motions, nor does it prohibit the making of such motions at the pretrial conference. This court has before it only the rule as set out supra, and on its face that rule does not support Respondent’s position; if, in fact, the Wayne Superior Court consistently applies this rule in accordance with Respondent’s interpretation thereof it is incumbent upon the Respondent to demonstrate so on appeal. This he has failed to do; accordingly, we must accept the rule as written. We hold that the rule did not prevent the court’s rescission of sanctions at the pretrial conference.

III.

Respondent next alleges that the court had insufficient evidence before it to find that Respondent is the father of Petitioner’s child. We disagree.

[242]*242In determining the question whether there was sufficient evidence to support the trial court’s judgment this court neither weighs the evidence nor judges the credibility of witnesses; rather, it is our duty to review the record to determine whether there exists sufficient evidence, or reasonable inferences which can be drawn therefrom, from which the trier of fact could have found for the plaintiff. Meadowlark Farms, Inc. v. Warken (1978), 176 Ind. App. 437, 376 N.E.2d 122.

The basis of Respondent’s argument is that Petitioner testified only to having “‘sexual relations” with Respondent, and that there is no evidence which shows that the parties had sexual intercourse. We hold that the record .sufficiently supports the judgment. Respondent’s attempt to differentiate “sexual intercourse” from “sexual relations” presents a semantic argument which is academic when one examines the trial transcript. .

For example, Petitioner stated on direct examination:

“Q. During the time you dated [Respondent], did you ever have occasion to have sexual relations with him?
A. Yes, I did.
Q. When were those occasions?
A.

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Cite This Page — Counsel Stack

Bluebook (online)
381 N.E.2d 1270, 178 Ind. App. 238, 1978 Ind. App. LEXIS 1092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jy-v-da-indctapp-1978.