Moss v. Eageny

668 N.E.2d 715, 1996 Ind. App. LEXIS 826

• Court: Indiana Court of Appeals
• Decided: June 26, 1996
• Docket: No. 49A02-9507-JV-397
• Status: Published

Opinions

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Petitioner-Appellant J.M. appeals the trial court's determination in a paternity action involving Respondent-Appellee ME.

We reverse and remand.

ISSUES

The following issue is dispositive: whether the trial court erred in failing to require that the children be made parties to the paternity action.

FACTS AND PROCEDURAL HISTORY¹

In 1991, J.M. petitioned the trial court to establish paternity of ² On December 10, 1992, she also petitioned the court to establish paternity of M.V.E. The parties agree that both petitions named M.E. as the putative father. In 1998, following consolidation of the separate actions, and M.E.'s admission of paternity, the trial court adjudicated ME. as the father of V.E. and M.V.E. The parties agrée that neither V.E. nor M.V.E. were made parties to the paternity action.

J.M. and M.E.'s subsequent interaction involving the custody and care of V.E. and M.V.E. was pervaded by rancor, distrust, and pettiness. The parties' actions culminated in a March 25, 1995, order awarding custody of V.E. and M.V.E. to M.E.

J.M. now appeals both the determination of paternity and the award of custody. As noted above, the issue of paternity is disposi-tive.

DISCUSSION AND DECISION

Ind.Code 831-6-6.1-2(c) mandates that "[in every [paternity] case, the child[ren], the child[ren]'s mother, and any person alleged to be the father are necessary parties to the action." A "necessary party" is one who must be joined in the action for a just adjudication. Matter of the Paternity of H.J.F., 634 N.E.2d 551, 552 (Ind.Ct.App.1994). A judgment entered without the presence of indispensable parties is void; thus, a paternity suit where the children have not been joined cannot result in a valid judgment. Id. at 552-553.

As noted above, the parties to this appeal agree that V.E. and M.V.E. were not made parties to the paternity action. The record shows that the caption on the petition to establish paternity of M.V.E. denominates the action as "J.M. v. M.E."; it does not name M.V.E. as a party. "[A] petition to establish paternity must show with erystal clarity that the child[ren} [are] actually [parties] to the action and not simply the subject[s] or object(s)] of the action." Id. at 553 (quoting J.E. v. N.W.S. by S.L.S., 582 N.E.2d 829, 832 (Ind.Ct.App.1991), reh'g denied). In this appeal, the petition does not indicate with sufficient clarity that the children were actual parties to the action.

Because V.E. and M.V.E. were not made parties to the paternity action, we are forced to reverse and remand back to the trial court for further proceedings. We instruct the trial court to appoint a guardian ad litem to represent V.E. and M.V.E.'s interests in the future paternity proceedings. We recognize that the appointment of a guardian ad litem generally is not mandatory in a paternity case, but rather is a matter entrusted to the trial court's discretion. Matter of Paternity of A.R.R., 634 N.E.2d 786, 790. However, we further recognize that in narrow cireumstances, such as when the children are not adequately represented, an appointment is required. Id.

In the present case, the very real possibility of a future award of custody to M.E. and a corresponding support obligation to J.M., coupled with the enmity between J.M. and M.E., makes it unlikely that the children's rights will be adequately represented by J.M. Accordingly, an appointment of a guardian ad litem is necessary.

CONCLUSION

We reverse the trial court's paternity determination and remand for further proceedings. We order the trial court to appoint a guardian ad litem to represent the children in the establishment of paternity. Because of the importance of the proceedings, the appointment and proceedings shall be accomplished within ninety days from the issuance of this opinion. In order to maintain stability in the children's lives, we order that the children remain in M.E.'s custody during these proceedings.

' Reversed and remanded.

SHARPNACK, C.J., concurs. CHEZEM, J., concurs in result in part and dissents in part with separate opinion.

1 . Initially, we note that the record does not contain many of the court orders pertaining to this case. However, "incompleteness or inadequacy of the record shall not constitute a ground for dismissal of the appeal or preclude review on the merits." Hill v. State, 611 N.E.2d 133, 134 (Ind.Ct.App.1993); Ind.Appellate Rule 7.2(C). The record as submitted is sufficient for our review.

2 . A copy of the petition is not contained in the record. However, both parties agree that it was filed.