Indiana Law Review


1975] SURVEY—DOMESTIC RELATIONS 197

IX. Domestic Relations

William Fox*

A. Marriage

1. The Right to Marry

In Indiana High School Athletic Association v. Raike,^ the
Second District Court of Appeals held that rules prohibiting

married students from participating in high school athletics were
invalid, but refused to deem marriage a fundamental right suffi-
cient to trigger strict judicial scrutiny under the equal protection

clause of the fourteenth amendment.^ The court examined virtually
all of the modern United States Supreme Court cases which dis-
cussed marriage in the context of either the equal protection

clause or the due process clause of the fourteenth amendment and
concluded

:

[T]here is no conclusive United States Supreme Court
holding that the right to marry is a fundamental right.
Nor is there any such holding by our Supreme Court ....
Our reading of recent United States Supreme Court cases
indicates a shrinking rather than an expansion of the
concept of "suspect" classifications and fundamental
rights.^

Since the court continued on to strike down the nonpartici-
pation rules as violative of the equal protection clause on the
basis of both "intermediate" and "low tier" scrutiny, the court's
discussion of the fundamental nature of the right to marry is dicta.
Nonetheless, it is interesting dicta because it appears to discuss

the critical Supreme Court decision, Loving v. Virginia,^ in light
of an incomplete quotation from that decision which seriously
weakens an extremely strong statement by the United States
Supreme Court. Although Loving dealt with marriage in the con-
text of the due process clause of the fourteenth amendment, the
court of appeals used the decision in an effort to decide whether

^Assistant Dean, Catholic University Law School. B.G.S., George Wash-
ington University, 1970; J.D., Catholic University, 1973; LL.M., Harvard
University, 1974.

The author wishes to express his appreciation to Michael A. Shurn for his
assistance in the preparation of this discussion.

'329 N.E.2d 66 (Ind. Ct. App. 1975).
^See pp. 99-101 supra for additional discussion of the constitutional aspects

of this case.

^329 N.E.2d at 75.
^388 U.S. 1 (1967).



198 INDIANA LAW REVIEW [Vol. 9:197

marriage was a fundamental right sufficient to elicit strict judi-
cial scrutiny, here in relation to the equal protection clause.

Loving, a 1967 decision, invalidated a series of Virginia

statutes forbidding white persons to intermarry with nonwhites.*^

The United States Supreme Court held the statutes invalid on two
grounds. The Court found them violative of equal protection,
the racial classification requiring the statutes be viewed with

strict scrutiny, and due process. It is the due process discussion

in this alternative holding in Loving which is crucial to an under-
standing of Raike. In a unanimous opinion, Chief Justice Warren,
writing for the Court, discussed marriage as follows

:

These statutes also deprive the Lovings of liberty without

due process of law in violation of the Due Process Clause
of the Fourteenth Amendment. The freedom to marry has
long been recognized as one of the vital personal rights

essential to the orderly pursuit of happiness by free men.
Marriage is one of the

*

'basic civil rights of man,"
fundamental to our very existence and survival .... To
deny this fundamental freedom on so unsupportable a
basis as the racial classifications embodied in these

statutes ... is surely to deprive all the State's citizens
of liberty without due process of law.*

The Indiana court of appeals characterized this language,
as well as other language from analogous Supreme Court opinions,^
as "beguiling language . . . [which] represents the opinion of in-
dividual justices and not a holding of the United States Supreme
Court."® This is hardly a proper description of Loving, even if

it fairly characterizes some of the comments in dicta from other
Supreme Court opinions. Loving was a unanimous decision, and
the Court plainly framed the decision in alternative holdings—^the
miscegenation statutes fell on both equal protection and due process
grounds. Although the due process language in Loving concerning
marriage is weak with respect to the equal protection discussion
concerning racial discrimination, it nevertheless was not merely

^E.g., Va. Code Ann. § 20-54 (1960) (the main statutory provision making
interracial marriages illegal). This section, and others dealt with in Loving,
388 U.S. at 4-7, were later repealed by the Virginia legislature. Law of April 2,
1968, eh. 318, §2, [1968] Va. Acts 430, repealing Va. Code Ann. §§20-50
to -60 (1960).

*388 U.S. at 12 (citations omitted).

^See, e.g., Roe v. Wade, 410 U.S. 113 (1973) (the abortion decision, which
turned on the due process rights of pregnant women and not on the right to
marry) ; Griswold v. Connecticut, 381 U.S. 479 (1965) (a case decided be-
fore Loving, which involved the right of privacy within marriage and not the
right to marry).

*329 N.E.2d at 75.



1976] SURVEY—DOMESTIC RELATIONS 199

the "opinion of individual justices." Moreover, the court of ap-

peals, in dealing with the Loving language, too quickly disposed

of the powerful juxtaposition of the words "right" and "funda-

mental" in the statements: "Marriage is one of the 'basic civil

rights of man,' fundamental to our very existence and survival,"

coupled with the phrase in the next sentence which denominates

marriage a "fundamental freedom."

It is true, of course, that the Supreme Court has never placed
the word "fundamental" immediately before the word "right" in

any holding dealing with marriage. Furthermore, few will deny

that the framing of the Loving decision as a two-part holding,

with the due process discussion as the shorter, secondary state-

ment, inevitably weakens the impact of the due process portion

of the opinion—the portion which dealt with marriage. The
fact that Loving involved a racial classification that had long since

lost its attractiveness for most groups also tends to overwhelm
the due process discussion. Indeed, a number of courts have read
Loving as involving only a racial discrimination issue, thus

effectively reading out of the opinion the strong language of the

due process holding.'

It is not the purpose of this section to argue that the court

of appeals was required to deem marriage a fundamental right.
Undoubtedly the unequivocal holding of marriage as a funda-
mental right would trigger some singular problems. For example,
it would be difficult to argue that statutory licensing and solem-
nization requirements, ^° which fulfill essentially a recordkeeping
function, rise to the level of a "compelling state interest." In
addition, the assertion that marriage is a fundamental right
has been used to support an argument that strict scrutiny pro-
hibits a state from refusing a marriage license to same-sex
couples.'' Nevertheless, Chief Justice Warren's due process dis-
cussion in Loving contains language much stronger than the court
of appeals appears willing to admit. The Raike opinion would have
been much stronger had Loving been squarely faced and adequately
dealt with.

2. Statutory Age Requirements

In July, 1974, a 15-year-old girl and an 18-year-old man, both
residents of Blackford County, petitioned a Blackford County

''See, e.g., Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971) ; In re
Goalen, 30 U.2d 27, 512 P.2d 1028 (1973), cert, denied, 414 U.S. 1148 (1974).
But see O'Neill v. Dent, 364 F. Supp. 565 (E.D.N.Y. 1973) (strict scrutiny
applied to a merchant marine academy cadet marriage prohibition).

'°5ee, e.g., Ind. Code §§31-1-1-3, -4-1 (Burns 1973).
'^Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971).



200 INDIANA LAW REVIEW [Vol. 9:197

judge for waiver of the statutory minimum age requirement for
marriage. When the judge denied the application, the couple re-
newed the application in adjoining Grant County. A Grant County
superior court judge approved the application and issued an order
directing the Blackford County circuit court clerk to issue the

marriage license. A show cause order was entered by the Grant
County court after the Blackford County clerk refused to issue

the license, and the clerk then petitioned the Indiana Supreme
Court for an original writ of prohibition. In State ex rel. Leffing-
well V. Superior Court No, 2,^^ Chief Justice Givan, writing for a

unanimous court, made the writ permanent and ordered the Grant
County Superior Court to dismiss the contempt charge against

the clerk of Blackford County, holding that the Grant County

court had no jurisdiction to approve the application.

The two applicable statutes, Indiana Code sections 31-1-1-1'^

(section 1) and 31-1-1-4''^ (section 4) are somewhat confusing.
Section 1 permits men and women to marry at the age of 17
with parental consent; however, if the woman is at least 15 years
old and pregnant, "a circuit, superior or juvenile court of the

county of residence of either applicant"'^ may authorize the issu-
ance of the license.'* Section 4 applies only to persons between

17 and 18 years of age and requires parental consent to the
marriage unless consent is waived by the judge of a circuit or
superior court "of the county in which either or both of the parties
reside, or of a county immediately adjoining such county."'^ The
Grant County Superior Court had expressly referred to section 4
in ordering the Blackford County clerk to issue the marriage

license.

The Indiana Supreme Court held that the section 4 disposition
by the Grant County court was erroneous because those juris-
dictional provisions apply only to persons between 17 and 18
years old who seek waiver of parental consent.'® However, as

^^321 N.E.2d 568 (Ind. 1974).
'=IND. Code §31-1-1-1 (Burns Supp. 1975).
'^Id. § 31-1-1-4.

''Id. § 31-1-1-1 (b).

^*The issuance is authorized if "the putative father and the pregnant
female indicate to the judge that they decide to marry; and . . . the persons
required in section four of this chapter give consent to the marriage of

underage applicants." Id. §§ 31-l-l-l(b) (l)-(2) (citations omitted).

''Id. § 31-1-1-4 (b).

^^321 N.E.2d at 570-71. The court's mistake is understandable. Ind. Code
§31-1-1-4 (a) (Burns Supp. 1975) begins: "In the event an applicant for a

license to marry is under eighteen [18] years of age . . . ." Nowhere is there
a clear limitation to the 17 to 18-year-old category. Subsection 4(b), which

deals with application to the court for consent dispensation, begins: "Parties

intending to marry who require parental or guardian's consent in order to



1975] SURVEY—DOMESTIC RELATIONS 201

was the case here, "if the female is under seventeen, but is at

least fifteen years of age, the application must be made in the

county of the residence of either party and it must be established

that the female is pregnant before the license will issue."" The

parties were therefore actually applying to the court under sec-

tion 1.=°

The portion of the trial court order which stated that the

girl was a resident of Grant County because she was living with

her grandmother in Grant County was also set aside since the

girl remained in the legal custody of her mother, a Blackford

County resident, and an unemancipated child takes his residence

from his parents.^' However, the supreme court went on hold

that the license could not have issued in any event under section

1 because the girl was not pregnant at the time of the application,

even though she had already given birth to a child apparently

fathered by the man she presently sought to marry." In reading
the statutory language of section 1 literally, the court reiterated

the proposition that the legislature has "exclusive" power "to estab-

lish public policy as to who may marry . . . .""

The Leffingwell rationale is difficult to dispute. The court
wisely refused to substitute its judgment for that of the Indiana
General Assembly in an area that has traditionally been a legis-
lative province.^^ There is nothing wrong with forcing the legis-
lature to live with statutory language of its own making ; however,
affected parties must deal with a lack of reasoned consistency
between the statutes. There seems to be little logic in the two

separate jurisdictional provisions which allow 17-year-olds to shop
for a sympathetic judge in either their own county or in an

obtain a license to marry . . . ." In order to ascertain who these parties
requiring consent actually are, one presumably must return to section
31-1-1-1 (a), which provides: "A male who has reached his seventeenth [17th]
birthday may marry a female who has reached her seventeenth [17th] birth-
day, subject to the parental consent . . . ."

^'321 N.E.2d at 571. The court's reasoning presumably is based on Ind.
Code § 31-1-1-1 (b) (Burns Supp. 1975) which provides:

If proof is submitted to a judge of a circuit, superior or juvenile court

of the county of residence of either applicant establishing the fact that

the female is pregnant, the judge may authorize the clerk of the circuit
court to issue a marriage license to the pregnant female and the
putative father provided the female is at least fifteen [15] years of

age ....
2°321 N.E.2d at 571.
^'Id., citing 11 Ind. L. Encyc. Domicile § 3 (1958).
22The court cited Black's Law Dictionary 1342 (4th ed. 1951) for the

definition of "pregnant" to exclude "a mother with a child already born." 321

N.E.2d at 571.
"321 N.E.2d at 571.
•"^See, e.g., Maynard v. Hill, 125 U.S. 190 (1888).



202 INDIANA LAW REVIEW [Vol. 9:197

adjoining jurisdiction while restricting the 15-year to 17-year age

group to judges only in the county of residence.

If part of the legislative purpose underlying section 1, which

permits pregnant females to marry at the age of 15, is to promote
legitimacy and to help ensure that children are raised in a legally

established nuclear family, there is little sense in giving such

assistance to pregnant females but denying the alternative of

marriage to women who, having already given birth, seek to
marry the putative father." Since pregnancy is a condition prece-
dent to triggering the provisions of section 1, a girl in a Leffing-

wellAike situation appears to have only two choices: she may
become pregnant a second time by the first child's father and
then apply for permission to marry sometime during the pregnancy
or she may wait nearly two years until she is 17 years old and
apply for permission to marry under section 4. Neither is an
attractive choice, but under the statute as presently worded and
as construed in Leffingwell, there seems to be no alternative.

The statutes should be corrected: First, to eliminate the incon-
sistent jurisdictional provisions and, secondly, to provide that

both pregnant 15-year-olds and 15-year-olds who have already
borne a child may obtain court permission to marry the putative
father.

S. Married Woman's Name

Elizabeth Hauptly filed a petition under the first section of

the Indiana name-change statute^* asking court permission to re-

sume the use of her maiden name, Elizabeth Howard. At the
hearing she testified that her married surname detracted from
her own identity. Other testimony revealed that her husband con-
curred in the petition. The trial court denied the petition, and
the court of appeals affirmed. On a motion to transfer, the Indiana
Supreme Court reversed, in Petition of Hauptly,'^^ holding that
a trial court has no discretion to deny a name-change petition,
irrespective of reasons assigned, so long as the court is assured

that the change is not sought for the purpose of fraud or conceal-

ment of criminal activity. A name-change petitioner need show
^^Under the Indiana Probate Code, the subsequent marriage of the

natural mother and father legitimates the child for the purpose of intestate
succession by, from, and through the father, if there is also an acknowledg-
ment by the father. Ind. Code § 29-1-2-7 (b) (2) (Burns 1972). The same

applies to children in the testate situation. Id, § 29-1-6-1 (e).

2*lND. Code §34-4-6-1 (Bums 1973). This section provides: "The circuit
courts in the several counties of this state may change the names of natural
persons on application by petition."

2^312 N.E.2d 857 (Ind. 1974).



1975] SURVEY—DOMESTIC RELATIONS 203

no "particular reason other than his personal desire for change

of name ;"" therefore, the trial court's refusal to grant the petition
after a determination that no fraudulent intent was involved
constituted an abuse of discretion.^'

The court continued on to point out in dictum that there is
no requirement that a person proceed under the name-change

statute. Instead, a person may simply adopt another name, subject
to the fraud exception, because "[t]he statute merely provides

for an orderly record of the change of name in order to avoid
future confusion."^° The court lent no credence to the assertion
by the state that this name change would be detrimental to either
Mrs. Hauptly's husband or her child. In dissent, however, Jus-

tice Prentice took a much stricter view of the statutory lan-
guage, emphasizing the discretionary nature of the word "may*'
in the first section of chapter 6 on change of name^' and point-

ing out that the fourth section permits the trial court to frame

a decree which "to such court shall seem just and reasonable.""
He further contended that wholly permissive name changes might
seriously disrupt society's ability to keep track of people,*'" and

that the burden of demonstrating reasonableness under the name-
change statute should fall on the petitioner.^^

There are only two provisions in the Indiana Code providing
for change of name. One is the statute at issue in Hauptly. The
other is a provision in the Dissolution of Marriage Act, which pro-
vision appears to be much less discretionary than the name-change
statute: "If the woman requests restoration of her maiden or
previous married name, the court shall grant such name-change
upon entering the decree of dissolution."^^ As to any common law
requirement that a married woman take her husband's name,
there is a split among the various American jurisdictions." The
Indiana Supreme Court in Hauptly found such a common law tradi-

2«/d. at 859.

2'/d. at 860.

3°/d. at 859.

^'IND. Code § 34-4-6-1 (Burns 1973). See note 26 supra for the statutory
language.

^^IND. Code §34-4-6-4 (Bums 1973).
"312 N.E.2d at 863 (Prentice, J., dissenting).
^^/d. at 862.

^^IND. Code §31-1-11,5-18 (Burns Supp. 1975) (emphasis added). This
statute also requires the following: "Any woman desiring such name change
shall set out the name she desires to be restored to her in her petition for
dissolution as part of the relief sought."

^^See, e.g., the discussion in Stuart v. Board of Supervisors of Elections,
266 Md. 440, 295 A.2d 223 (1972). Hawaii is apparently the only state with a
statutory requirement that a woman adopt her husband's surname. Hawaii
Rev. Stat. § 574-1 (1968).



204 INDIANA LAW REVIEW [Vol. 9:197

tion but felt it in no sense deprived the married woman of her
right to a name change.^

^

In respect to the common law discussion, Hauptly is somewhat
confusing. On the one hand, Justice Givan, writing for the court,
agreed that *' a woman has a common law right to do business
in a name other than her married name;"'® however, he spoke of
"the common law requirement that she use the name of her
husband . . . ."^'^ The decision itself, under the statute, neverthe-
less appears quite sound and fully in keeping with the increased
awareness of the separate and individual interests of married
women apart from those of their husbands.

B. Dissolution

1, Financial Awards

Although the new Indiana Dissolution of Marriage Act^° has
been in effect since September, 1973, the appellate courts only

recently have been faced with appeals under the statute. Two
cases during this survey period, Cox v, Cox^^ and Temple v.
Temple,''^ involved the financial aspects of dissolution, and both
appear to be rather restrictive readings of the Dissolution Act.

In Cox, the trial court awarded $22,000 to the wife as her
share of the marital property, plus $2,000 in attorney's fees. On
appeal the husband attacked the $22,000 award as excessive and
not supported by the evidence. The First District Court of Appeals,
looking at the record which showed "an abundance of evidence"
that the wife had made a significant contribution to the couple's
financial well-being in the course of the marriage,'*' concluded that

the award of $22,000 did not constitute an abuse of the trial court's
discretion.'*'*

The actual outcome of the case is sound ; the $22,000 appears
fair under the circumstances. However, the court of appeals had

^^312 N.E.2d at 860.

^^Id. at 859.

^'/d. at 860 (emphasis added).
'^oiND. Code §§ 31-1-11.5-1 to -24 (Burns Supp. 1975) [hereinafter referred

to as the Dissolution Act]. For a general discussion of the Dissolution Act see
Domestic Relations, 1973 Survey of Indiana Law, 7 Ind. L. Rev. 153, 158-63

(1973) [hereinafter cited as 1973 Survey of Indiana Law"].
^^322 N.E.2d 395 (Ind. Ct. App. 1975).
^^328 N.E.2d 227 (Ind. Ct. App. 1975).
''^This contribution included physical labor, described by Judge Lowder-

milk, in a statement that surely wins this year's male chauvinist award, in
the following manner: "Sarah, while in Oregon, did the work of a man in
repairing and remodeling buildings . . . helping to lay tile, digging ditches

and building roads." 322 N.E.2d at 397.
^Vd at 398.



1975] SURVEY—DOMESTIC RELATIONS , 205

an opportunity to discuss this case in relation to the Dissolution

Act, but did not do so. In fact, the court did not even cite the

relevant sections of the Dissolution Act even though the Act was

applicable^^ and contained a specific provision governing property

settlement upon dissolution/* Instead, the court chose to cite a

fifteen-year-old Indiana appellate court opinion, Bahre v. Bahre,*^

for the criteria to be used in framing award decrees—criteria
different from those under the Dissolution Act.

As a threshold matter, the court persistently referred to the
award made in this case as "alimony." That was incorrect. While
the concept of alimony may once have existed in this state as a
description of certain financial aspects of divorce decrees,^* it is

not used in the Dissolution Act. The proper term to describe the
award at issue in the Cox case is "property settlement'* or "prop-
erty disposition.""*'

The criteria for the disposition of property are set out in
section 11 of the Dissolution Act. These factors appear to be

mandatory considerations for the trial court: "In determining
what is just and reasonable the court shall consider the following
factors . . . ."^^ The new statutory criteria,^ ^ which substantially

"^^The new Act clearly applied. The dissolution petition was filed on
February 1, 1974, five months after the effective date of the Act, September
1, 1973.

^^IND. Code § 31-1-11.5-11 (Burns Supp. 1975).
-^7133 Ind. App. 567, 181 N.E.2d 639 (1962).
^®The term itself was unclear under early case law and remained con-

fusing. See generally Note, Indiana*s Alimony Confusion, 45 Ind. L.J. 595
(1970). See also 1973 Survey of Indiana Law 160 & n.41.

^'IND. Code §31-1-11.5-11 (Burns Supp. 1975). Labels can be important.
See Zuckman & Fox, The Ferment in Divorce Legislation, 12 J. Family L. 515,
560 (1973).

"Ind. Code §31-1-11.5-11 (Burns Supp. 1975) (emphasis added).
^'Section 31-1-11.5-11 provides that the following criteria be considered

in a property disposition:

(a) The contribution of each spouse to the acquisition of the prop-
erty, including the contribution of a spouse as homemaker;

(b) the extent to which the property was acquired by each spouse
prior to the marriage or through inheritance or gift;

(c) the economic circumstances of the spouse at the time the dispo-

sition of the property is to become effective, including the desira-
bility of awarding the family residence or the right to dwell
therein for such periods as the court may deem just to the spouse
having custody of any children;

(d) the conduct of the parties during the marriage as related to the
disposition or dissipation of their property;

(e) the earnings or earning ability of the parties as related to a

final division of property and final determiantion of the prop-
erty rights of the parties.

Since this section uses the mandatory term "shall," it is arguable that the
trial record must expressly reflect court consideration of these factors. Thus,



206 INDIANA LAW REVIEW [Vol. 9:197

differ from those announced in Bahre,^^ therefore should have been
applied. It is difficult to understand how the court determined that
language in an intermediate appellate court opinion, decided under

a repealed statute," would control in the face of different language

in a new statute which is clearly intended to be a full-blown re-
vision of the earlier law.*'*

Furthermore, there is no indication in the Cox opinion that
the trial court applied the correct technique for examining the

extent of the couple's disposable property prior to framing the
|

ultimate disposition. The Dissolution Act adopts the "hotchpot"
|

approach" for accumulating the couple's property before applying f
the statutory criteria to dispose of it. The statutory "hotchpot"

|

scheme requires the trial court to lump all property together, t
"whether owned by either spouse prior to the marriage, acquired
by either spouse in his or her own right after the marriage and
prior to final separation ... or acquired by their joint efforts
. . .

."^* Concededly, the trial court in Cox may have accomplished
the same result sub silentio. In approving the trial court's disposi-
tion of the property, the appellate court referred to the husband's

tot^l net worth and also discussed the wife's separate financial
holdings ; nevertheless, that language lacked the persuasiveness of

a specific finding that the "hotchpot" approach was used.
The Cox court also addressed the award of attorney's fees in

a dissolution action, holding that a fee award of $2,000 was not
an abuse of discretion even though there had been no evidence
presented on the record regarding fees.*' Again, however, the

the enumerated criteria would be more than mere tests for appellate review of
the propriety of the award, the purpose for which the Cox court apparently
used the Bahre criteria.

*^Under Bahre the following criteria were to be considered in a property .
disposition

:

(1) The existing property rights of the parties; (2) the amount of
property owned and held by the husband and the source from which it
came; (3) the financial condition and income of the parties and the
ability of the husband to earn money; (4) whether or not the wife by
her industry and economy has contributed to the accumulation of the
husband's property; (5) the separate estate of the wife ....

133 Ind. App. at 571, 181 N.E.2d at 641 (citations omitted).

"Ch. 43, § 20, [1873] Ind. Acts 107 (repealed 1973).
'^5ee, e.g., Ind. Code § 31-1-11.5-1 (a) (Burns Supp. 1975), which states:

"This chapter shall be construed and applied to promote its underlying pur-
poses and policies . . . [which include] (3) to provide for the disposition
of property . . . ."

"/d. § 31-1-11.5-11. See the discussion of this approach in the Uniform
Marriage and Divorce Act § 307 (as amended 1973).

'^IND. Code § 31-1-11.5-11 (Burns Supp. 1975).
^^322 N.E.2d at 398. The court relied on prior law which provided that

a trial court could take judicial notice of what reasonable attorney's fees



1976] SURVEY—DOMESTIC RELATIONS 207

court neglected to cite the Dissolution Act, which contains an

express provision for fees in a "reasonable amount" and permits

an attorney to enforce the fee portion of the order in his own
name."

In the only other opinion during the survey period which

directly involved the Dissolution Act, Temple v. Temple,^'' the First

District Court of Appeals affirmed a decree of dissolution in which

the trial court refused to order spousal maintenance for a wife

who suffered from grand mal epilepsy. The wife based her claim
for maintenance largely on uncontroverted testimony from a
physician that the physical effects of the medication, which she

had to take to control her epilepsy, made her unemployable/^ The
husband testified that the wife did an adequate job running the

household and that she "*would be better off if she worked.*"^'

The statute controlling awards of spousal maintenance for-
bids awards of maintenance "except that when the court finds a
spouse to be physically or mentally incapacitated to the extent

that the ability of such incapacitated spouse to support himself

or herself is materially affected, the court may make provision for
the maintenance of said spouse . . . ."*^ This section is phrased in

discretionary terms as to the award itself, but it first requires a
specific finding of material impairment of earning capacity before

the maintenance award may be considered. Even where there is
a finding of material impairment, "a maintenance award is not
mandatory,"" but rather, may be decreed in the proper discretion
of the trial court.

In Temple, the appellate court found that the denial of mainte-

nance involved no abuse of discretion, implying that the trial court

had made no clear error in determining that the two-step statutory
criteria had not been satisfied by the wife. Quite obviously, the
result may be explained as the trial court's refusing to believe the
medical expert and the appellate court's acknowledging the trial

would be. See DeLong v. DeLong, 315 N.E.2d 412 (Ind. 1974), discussed at
pp. 222-23 infra, in which the Indiana Supreme Court held that an award of
$100 in a case involving modification of a support decree was not an abuse of
discretion.

"Ind. Code §31-1-11.5-16 (Burns Supp. 1975).
^'328 N.E.2d 227 (Ind. Ct. App. 1975).
*°/d at 228.

"iND. Code § 31-1-11.5-9 (c) (Burns Supp. 1975) (emphasis added). Fol-
lowing the common law tradition of first looking for court decisions construing
a statute before grappling with the statute itself, the appellate court inter-

preted this statute only after concluding that: "Neither of the parties cited

any authority under the [maintenance] statute and it now appears that none
has been enunciated by this court." 328 N.E.2d at 229.

"328 N.E.2d at 230.



208 INDIANA LAW REVIEW [Vol. 9:197

court's right to do so. The appellate court pointed out the tradi-
tional rule—not affected by the Dissolution Act—^that an expert
witness who gives uncontroverted testimony does not have to be
believed.*''

It is clear that the wife was taking maximum doses of anti-
convulsives." It is also implied by the court^s recitation of the
tasks she could do, and from her husband's testimony, that she had
not worked outside the home recently.** The wife therefore may
not have had marketable skills even if she were physically able to
work. Additionally, the trial court apparently made no inquiry as
to whether there had been a deterioration of prior skills which,
coupled with her epilepsy, would be sufficient to warrant an award.
In this vein, the Uniform Marriage and Divorce Act, in language
not adopted in Indiana, speaks of "appropriate employment"
rather than mere theoretical employability in any capacity.*^ Even
if the wife in Temple were able to work as a housekeeper, it is far
less certain on the record that she would be able to secure employ-
ment at a salary sufficient to keep the house, contribute to the sup-
port of the children, and feed herself. The trial court's decision
thus seems less than sensitive to the problems of an epileptic house-
wife thrown onto the job market with two children to raise and
rusty job skills.

There is, however, an additional basis on which the award of
maintenance might properly have been refused. A basic premise of
the Uniform Act's provisions regarding financial disposition states
that the trial court should look first to the property disposition to

help resolve the future financial needs of the spouses before it

orders maintenance.*® As the Act's commentary points out, the in-
tention of the property disposition section and the maintenance
section, not adopted verbatim in Indiana, "is to encourage the
court to provide for the financial needs of the spouses by property
disposition .... Only if the available property is insufficient for
the purpose . . . may an award of maintenance be ordered. "*'' In
Temple the wife received custody of the children, $50 per week
child support, the residence (with encumbrances), a 1970 auto-
mobile (without encumbrances), and the household goods.^^ A
court might conclude, again in the proper exercise of its discre-

^^/cZ. at 229, citing Dudley Sports Co. v. Schmitt, 151 Ind. App. 217, 279
N.E.2d 266 (1972).

*^328 N.E.2d at 228.
*VcZ.

'^Uniform Marriage and Divorce Act § 308 [hereinafter referred to as
the Uniform Act].

'''Id.

^^Id., Commissioners' Note.
7°328 N.E.2d at 228.



1976] SURVEY—DOMESTIC RELATIONS 209

tion, that these arrangements were sufficient to give the wife

financial stability without ordering maintenance. Maintenance is

simply not a favored award, under either the Uniform Act or the

Indiana Dissolution Act.

In contrast with Temple, the question of adequate financial

support following divorce for a disabled spouse was addressed

somewhat more sympathetically by the Second District Court of

Appeals in Zagajewski v. ZagajewskiJ^ In Zagajewski, a case

which arose prior to the effective date of the Dissolution Act, the

permanently disabled husband appealed from a trial court deci-

sion which gave virtually all the entireties property to his non-

disabled wife and ordered him to pay $850 for her attorney's fees
and costs. The wife was ordered to pay the husband only $1,626.55
when he conveyed their jointly owned real estate to her sole owner-
ship.^^ The court of appeals reversed this decree on the basis of
the trial court's abuse of discretion/^ The appellate court was dis-
turbed by the trial court's "failure to make a compensating provi-
sion for the permanently disabled husband which bears a reason-

able relationship to the past contributions of the parties and to
their prospective earning capacity."^'* The court continued on
to point out that it was not sufficient to determine that the husband
could live on his pensions since "the fact that he can survive on

those benefits alone does not appear to justify taking his equity in

the entireties property for the benefit of his able-bodied school

teacher wife who can earn some three times that much for her-
self.

"^^

2. Enforcement of Financial Awards by Contempt

Even in the face of court-ordered support payments, spouses
charged with this duty often do not pay. The Uniform Reciprocal

71314 N.E.2d 843 (Ind. Ct. App. 1974).

^^Id. at 846. As the court had pointed out earlier in its opinion

:

The appellee-wife, at time of trial, is in good health (except for
taking tranquilizers for her nerves), fifty-three years of age, is an
employed school teacher who earned over ten thousand dollars in the
year preceding trial. The appellant-husband, fifty-six years of age, is
totally disabled (as to gainful employment), but is ambulatory, ablo to
drive his automobile, and apparently able to care for himself. After
the divorce he will draw two hundred sixty dollars per month in social
security and veterans benefits, plus full medical and hospital expenses
and $98.00 monthly for the son's support.

Id. at 844.

^^Id. at 846. The husband had contended that the wife's award had

constituted 93 percent of their former property.

''Id.



210 INDIANA LAW REVIEW [Vol. 9:197

Enforcement of Support Act'* was designed to provide some
assistance in this regard when spouses flee into other jurisdictions.
Within single jurisdictions, however, the person to whom the pay-
ment is owed may usually invoke the regular machinery for the
enforcement of judgments, often including the remedy of contempt.

In State ex rel. Schutz v, Marion Superior Court/^ the Indi-

ana Supreme Court held that the use of contempt to enforce pay-
ment of an ''alimony judgment" ran afoul of the constitutional pro-
hibition against imprisonment for debt. A separation agreement,
which had been merged in the divorce decree, required the husband
to make monthly pajonents, termed "alimony" in the agreement, of
$475 per month. Over a 6-month period, he paid nothing in three
months and only $75 in each of three other months. The wife peti-
tioned for a contempt citation, and after a hearing, the superior
court found the husband in contempt.'® The husband then brought
an original action for a writ of prohibition in the Indiana Su-
preme Court, which made the temporary writ permanent and
reversed the trial court.

Article 1, section 22 of the Indiana Constitution provides, in

part, that "there shall be no imprisonment for debt, except in the
case of fraud." This provision is typical of those in many state
constitutions, which, in other jurisdictions, have not always served

as a barrier to the use of contempt for the enforcement of money
judgments in domestic relations cases. For example, in 1973, the
Idaho Supreme Court was faced with a situation strikingly similar
to that in Schutz involving an ex-husband who had defaulted on
payments under a merged settlement agreement.'' The husband
was held in contempt for failing to make his payments. He ap-
pealed, citing the Idaho Constitution's provision forbidding im-
prisonment for debt. The court permitted the use of the contempt
power, however, and held that this clause applied "to matters
basically contractual in nature. Problems of domestic relations
involving alimony, support payments, property settlements, to-
gether with court orders in connection therewith, are state con-

cerns and involve safeguarding the vital interests of the people."*®
In Schutz, though, the court flatly stated that contempt has

not been "a proper means of enforcing an alimony judgment,"*'
at least since a 1904 decision. Marsh v, Marsh.^^ The court used

^*For a discussion of the Act in Indiana see pp. 223-25 infra.
77307 N.E.2d 53 (Ind. 1974).
76/d. at 54.

^'Phillips V. District Court, 95 Idaho 404, 509 P.2d 1325 (1973).
«°7ci. at 406, 509 P.2d at 1327; accord, Harvey v. Harvey, 153 Colo. 15,

384 P.2d 265 (1963) ; Decker v. Decker, 52 Wash. 2d 456, 326 P.2d 332 (1958).
e'307 N.E.2d at 54.

«n62 Ind. 210, 70 N.E. 154 (1904).



1975] SURVEY—DOMESTIC RELATIONS 211

the remainder of the opinion to discuss a much later case, State ex

rel, Roberts v. Morgan Circuit Court,"^ which contained language

arguably eroding the Marsh holding. The court quickly pointed

out that the discussion of enforcement of alimony judgments by

contempt had been unnecessary to the Roberts decision, but never-

theless expressly overruled any portion of Roberts which might

be construed to conflict with Marsh, since the use of contempt pro-

ceedings to enforce the payment of a money judgment would violate

the Indiana Constitution.®*

While Schutz squarely prohibits use of contempt to enforce

alimony judgments, now property distributions under the Dissolu-

tion Act, the limits of Schutz are unclear.*^ For example, the case

said nothing about support payments, either to children or

spouses, not in the nature of property disposition. Neither did it

speak to default on support duties by persons in undissolved fami-

lies. It is possible, although unlikely, that Schutz may be narrowly
limited only to financial payments arising out of merged settlement

agreements and not extended to orders framed initially by a court.

Regardless, the threat of contempt is sometimes the last possible

leverage which may be used against a defaulting spouse; there-
fore, it may not be wholly wise to limit excessively its use through
the Schutz holding.

C Custody of Children
1. Change of Custody Between Natural Parents

a. Scope of Review of Modification Petitions

In Marshall v. Reeves^^^ a mother had been given custody of
a child by a 1970 divorce decree, and the father had been awarded
bi-weekly visitation rights. Two years later, with no notice to
the husband or the court, the mother took the child and moved to

"249 Ind. 649, 232 N.E.2d 871 (1968).
®'*307 N.E.2d at 55. The court in Roberts attempted to distinguish Marsh

on the basis of a 1949 statutory amendment which allowed alimony to be
considered a money judgment. Ch. 43, § 22, [1873] Ind. Acts 107 (repealed
1973). That provision was part of the old divorce law, which was still in effect
when Schutz arose.

®^The Dissolution of Marriage Act contains an express provision allowing

the use of contempt procedures. Ind. Code § 31-1-11.5-17 (Burns Supp. 1975).
This statute lumps together a discussion of child support and property disposi-
tion and provides that "terms of the decree may be enforced by all remedies
available for enforcement of a judgment including but not limited to con-
tempt . . . ." Id. Presumably this provision now has no effect, at least with
respect to property disposition, since Schutz was a decision resting on the
Indiana Constitution rather than on the earlier statutory law.

«*311 N.E.2d 807 (Ind. 1974).



212 INDIANA LAW REVIEW [Vol. 9:197

Arizona, where she apparently remarried. The father then filed
a petition for a change in custody, seeking to get custody himself.

Tlie wife defaulted, so the trial court granted the change in cus-

tody, ordered the child returned to the court's jurisdiction, and
held the wife in contempt on three grounds: (1) Removal of the
child without court permission, (2) refusal to allow the father

his visitation rights, and (3) failure to appear.®'' The Second Dis-
trict Court of Appeals had reversed the trial court and remanded

the action for a new trial on grounds that the record did not sup-
port a finding of a "decisive" change in circumstances.®® On trans-
fer, however, the Indiana Supreme Court reinstated the trial court
decision, adopting in part the dissent in the court of appeals,

written by Presiding Judge Buchanan.®'

Custody cases are difficult and sometimes ugly disputes, often
involving the use of children as pawns in the underlying disagree-
ments between the two parents. The best interest test was ini-
tially formulated to circumvent the traditional idea that children

were somehow chattels belonging to one or the other of the par-
ents and to force the trial court to focus on the child, not on the
parents.''® The Indiana Supreme Court has long recognized this
principle, pointing out in 1964 that the custody decision "cannot

be used as a means of punishing the parents. It is the children's
vv^elfare—not the parents'—-that must control the actions of the
[trial] courts."'^ Although the best interest test controls during
the initial custody dispute, modification of the custody decree re-

quires something more—a showing of a decisive change in condi-
tioiis which demands, in the child's best interest, a change in the
original custody decree.'^ Thus, on a modification petition, the

^Ud, at 809.

««Marshall v. Reeves, 304 N.E.2d 879 (Ind. Ct. App. 1973).
®'311 N.E.2d at 809. The supreme court's opinion principally consisted

of a quotation of part of Presiding Judge Buchanan's dissent in the court of
appeals.

^°The "best interest test" has been traced to a 1925 opinion written by
Judge Cardozo:

[The trial court] does not proceed upon the theory that the petitioner,
whether father or mother, has cause of action against the other or
indeed against anyone. He acts as parens patriae to do what is best for
the interest of the child .... He is not adjudicating a controversy
between adversary parties, to compose private differences .... Equity
does not concern itself with such disputes in their relation to the dis-
putants. Its concern is for the child.

Finlay v. Finlay, 240 N.Y. 429, 433-34, 148 N.E. 624, 626 (1925).
9^311 N.E.2d at 810, quoting from Wible v. Wible, 245 Ind. 235, 237, 196

N.E.2d 571, 572 (1964).
'^311 N.E.2d at 811, quoting from 304 N.E.2d at 888 (Buchanan, P.J.,

dissenting), which relied on a line of Indiana decisions including Wible v.
Wible, 245 Ind. 235, 196 N.E.2d 571 (1964).



1975] SURVEY—DOMESTIC RELATIONS 213

trial court must find a decisive change in conditions and then de-

termine that, in the child's best interest, the change in circum-

stances warrants a modification of the existing decree.'"*

These rules, of course, govern the trial court in its decision

and not the appellate court in reviewing the trial court's decision.

In Marshall, the supreme court decided that the majority of the

Second District Court of Appeals had applied the wrong standard
of appellate review of the trial court's modification order. Quoting

from Judge Buchanan's dissent, the court pointed out that the de-

cision to modify is within the trial court's discretion, and, on ap-

peal, the only determination reserved to the appellate court is

whether the trial court has abused its discretion.'^ Here, the su-

preme court, again by agreeing with the dissent below, felt the

court of appeals used the change in conditions test to weigh the

evidence and substitute its own judgment on the facts.'^ Thus,
Marshall appears to hold that an appellate court may reverse modi-
fication orders, as an abuse of discretion, only if the following
conditions are present: (1) The petition contains no allegation
of a decisive change in conditions, (2) evidence of such change is

totally lacking in the record, and (3) the trial court has made no
findings of fact which warrant the change in custody.'*

'^The 1973 Indiana Dissolution Act contains no express provision for
modification of custody, although it contains language which, by implication,
appears to permit modification. Ind. Code § 31-1-11.5-17 (Burns Supp. 1975)
(allowing modification of child support); id. § 31-1-11.5-22 (d) (in investiga-

tions, speaking of evidence "prior to the last custody proceeding") ; id.

§ 31-1-11.5-24 (expressly permitting modification of visitation rights) . More-

over, several recent cases not controlled by the Dissolution Act permitted

modification because the court retained jurisdiction after the initial decree.

See, e.g., Mueller v. Mueller, 259 Ind. 366, 287 N.E.2d 886 (1972).
Indiana did not adopt the custody modification provisions of the Uniform

Tvlarriage and Divorce Act, on which much of the Indiana Dissolution Act is
based. The Uniform Act is much more restrictive as to modification:

No motion to modify a custody decree may be made earlier than 2
years after its date, unless the court permits it to be made on the basis
of affidavits that there is reason to believe the child's present environ-
ment may endanger seriously his physical, mental, moral, or emotional
health.

Uniform Marriage and Divorce Act § 409(a). Indiana's lack of a similar
provision seems clearly destined to promote a multiplicity of petitions to
modify custody by litigious parents when the child desperately needs stability.
See Watson, The Children of Armageddon: Problems of Custody Folloiving
Divorce, 21 Syracuse L. Rev. 55 (1969).

9^311 N.E.2d at 811, quoting from 304 N.E.2d at 888 (Buchanan, P.J.,
dissenting).

"'Id.

"^Id. Marsho.ll indirectly sets out these three factors. Judge Buchanan
had stated in his dissent that the Indiana Supreme Court had reversed
custody modifications when these deficiencies were present, and the supreme



214 INDIANA LAW REVIEW [Vol. 9:197

b. Necessary Change in Conditions for a Change in Custody

Another factor which creates problems in custody situations

is the removal of children by a parent from the jurisdiction in

defiance of the custodial order—an act which troubles the courts.
There are at least two legal conditions which lead to this problem:

The American legal system contains precious little machinery to

enforce judgments across jurisdictional lines, and the United States

Supreme Court has refused to require that full faith and credit

be given child custody decrees since such a holding would prohibit

a court from analyzing the case solely in terms of the child's best
interest.'^ It was under this state of the law that the mother in
Marshall left Indiana in defiance of the father's visitation rights

and failed to participate in the Indiana petition to modify. For
these actions she was held in contempt by the trial court.

The Indiana Supreme Court condemned this sort of interstate
flight in the strongest terms as "an unchecked license to flaunt
and thwart the continuing jurisdiction of the court in child cus-
tody proceedings."'® Additionally, to further clarify this problem

area, the court held that the mere absence of a provision in a de-
cree of custody as to any removal of the child from the jurisdic-

|
tion does not, by silence, confer such a right on the custodial par- |
ent, at least when the noncustodial parent is given regular visita-
tion rights.^' The court stated that to hold otherwise would give
the custodial party the ability to "make a unilateral determina-
tion" as to custody and visitation and usurp the power of the
court to exercise continuing jurisdiction over the child's custody.'°^

Nevertheless, the court refused to hold that such a violation, stand-

ing alone, would provide a sufficient basis for the trial court to
find the requisite decisive change in conditions to modify cus-
tody.' °' This is only logical in that any rule appended to the best
interest test would, in effect, modify that test and thus interfere

court wrote an opinion which adopted and quoted that part of Judge Bu-
chanan's dissent.

9'May V. Anderson, 345 U.S. 528 (1953). In dissent, Justice Jackson
predicted that May would result in a "rule of seize-and-run." Id. at 542
(Jackson, J., dissenting). Moreover, some commentators are now urging
stability as a prime requirement for children of divorce. See generally J.

Goldstein, A. Freud, & A. Solnit, Beyond the Best Interests of the
Child (1973).

9«311 N.E.2d at 813.

''/d. Removal can be made only with prior judicial sanction: by agreement
of the parties approved by the court or after due hearing before the court. Id,

'''''Id.

''''Id. This factor may be one, however, to be considered with others to
indicate a change in circumstances concerning the best interest of the child. Id,



1975] SURVEY—DOMESTIC RELATIONS 215

with the court's analysis of the controversy solely in terms of

what is best for the child.

The First District Court of Appeals in Leohr v. Leohr^°'^ and
the Third District Court of Appeals in Ecker v. Ecker^"^^ dealt

with the question of what specific type of facts constitutes the
requisite "definitive change in conditions" necessary to obtain a

change in custody, but did not suggest any helpful general guide-

lines. In Leohr, the mother had been originally awarded custody;

however, at the hearing on his petition for a change of custody

to himself, the father was able to show rather bizarre conduct on
the mother's part. He demonstrated that on a number of occa-
sions the mother had displayed a violent temper in the presence
of the child and at least once had driven an automobile recklessly
with the child as a passenger. The trial court made specific find-
ings that these acts presented a serious danger to the child and
constituted the necessary change in conditions to order a change

in custody. '^"^ The court of appeals quickly determined that its
scope of review extended only to whether the trial court had
abused its discretion and concluded that it had not.'°^

The Ecker facts were a bit different, but the appellate court
merely affirmed the same principle involved in Leohr—the test
on review is only "abuse of discretion" by the trial court. In Ecker
also, the father had sought a change of custody away from the
mother to himself. The record on hearing showed that the mother
had engaged in illicit sexual activity which had a direct impact on
the children since the children were often left unsupervised. '°* On
one occasion, the mother "awakened her children at one o'clock
A.M., on a sub-zero, snowy night and took them with her to
search for her male friend." ^°^ The court of appeals examined
this record and the trial court award of custody to the father,
concluding there had been no abuse of discretion. '°®

2. Disputes Between Parents and Third Persons

Disputes over child custody often arise between a natural
parent and some other person. Because courts are understandably
reluctant to interfere between a natural parent and a child, the
best interest test, usually applied in custody disputes between two
natural parents, is modified in Indiana when the controversy in-

^°^316 N.E.2d 400 (Ind. Ct. App. 1974).
'°^323 N.E.2d 683 (Ind. Ct. App. 1975).
^°^316 N.E.2d at 402.

'°*323 N.E.2d at 684.



216 INDIANA LAW REVIEW [Vol. 9:197

volves a natural parent and someone else. The court requires a
showing of parental unfitness before custody may be given to a
third party. In two recent decisions, two appellate districts took
different approaches to this issue but apparently have not dis-

turbed this parental unfitness prerequisite for awarding custody
to a person who is not a natural parent.

In Hendrickson v. Binkley,^°'' the First District Court of Ap-
peals reversed a trial court decision giving custody of a child to

the grandparents rather than to the natural father, who had also
sought custody. Seven years prior to the present controversy, the

natural mother and father had been divorced, with custody of the
3-year-old son being awarded to the mother. The wife had re-
turned to her parents* home with the child, and the child had ap-
parently resided with his maternal grandparents for about seven

years until the father instituted the present habeas corpus pro-

ceeding to gain custody of the child. In the meantime, the natural

mother had died and the natural father had married another
woman with three children.' ^°

The record showed that the father had a well-paying job and
that his new wife was willing to have the son live with them;
however, it also revealed that the child enjoyed a happy, stable

existence with the grandparents. Following trial, the trial court

entered judgment for the grandparents based expressly on the
best interest of the child, although the grandparents* return to

the writ of habeas corpus had alleged that the father was unfit.
In reversing this decree, Judge Lowdermilk, writing for the

court, determined that there had not been the requisite showing
of unfitness necessary to rebut the presumption that it is in the
child's best interest to be in the custody of his natural parent.'"

From a synthesis of earlier cases, the court determined that this
presumption may be rebutted only by a "clear and cogent" show-
ing of one of three things : parental unfitness, *'long acquiesence"

by the natural parent in the existing custodial disposition, or "vol-
untary relinquishment."''^ The court also analogized to adoption

'^316 N.E.2d 376 (Ind. Ct. App. 1974).
'

^^°Id. at 377. The father had made two previous attempts to secure
visitation rights but was refused although he had the duty to support the
child stemming from the original divorce decree. After these denials, the
father stopped making support payments. A number of earlier payments made
to the court registry had never been picked up by the grandparents. Id. at
377-78.

^^^Id. at 381. The court had earlier pointed out the general rule that, on
the death of the parent with custody under a divorce decree, the right to

custody automatically passes to the surviving parent, unless the survivor is

unsuitable. Id. at 378-79, citing Gregory v. Superior Court, 242 Ind. 42, 176

N.E.2d 126 (1961); Combs v. Gilley, 219 Ind. 139, 36 N.E.2d 776 (1941).
'^=316 N.E.2d at 380.



1975] SURVEY—DOMESTIC RELATIONS 217

proceedings, which require a showing of parental abandonment

or failure to support before a child may be adopted contrary to
the wishes of his parents.''^ In justifying a test different from a

mere "best interest test," the court recognized

:

If the **best interest rule" was the only standard needed
without anything else, to deprive the natural parent of

custody of his own child, then what is to keep the govern-
ment or third parties from passing judgment with little,

if any, care for the rights of natural parents."**

In contrast, the Third District Court of Appeals in Franks v.

Franks^ ^^ refused to require the trial court to make an express
finding of parental unfitness before granting an award of custody

to a third party. The Franks custody dispute was also between
the natural father and, ostensibly, the maternal grandparents.

The dispute arose out of a divorce action between the natural
mother and father, both of whom also sought custody. In an un-
usual decree, the trial court granted the divorce but refused cus-

tody to both natural parents, instead giving the child over to the

maternal grandparents, with whom the natural mother lived. The
trial court's reasoning was apparently based on the fact that the
mother was mentally retarded and the father was sexually ir-
responsible; at one point during the marriage he had permitted
another woman to live in their home and had been abusive to
his wife."'

As in Hendrickson, the mother's cross-complaint for custody
contained an allegation that the father was unfit, but the trial
court did not make an express finding of parental unfitness be-
fore awarding custody to the grandparents. Unlike the Hendrick-
son court, however, the court in Franks refused to reverse solely
for the lack of an explicit finding of unfitness,"^ emphasizing that
custody matters are within the trial court's discretion and that
the trial court will be reversed only for an abuse of discretion."®

''Vd. at 380-81, citing In re Bryant's Adoption, 134 Ind. App. 480, 189
N.E.2d 593 (1963).

''^316 N.E.2d at 381.
"^323 N.E.2d 678 (Ind. Ct. App. 1975).

"Vd at 679-80.
'^''In dealing with the absence of a specific finding of parental unfitness

by the trial court, the appellate court contended that the trial court impliedly

made a finding of the father's unfitness by finding on the mother's cross-
complaint which alleged that the father was unfit. Also, the appellate court
noted that the father had cited no cases requiring that the trial court make
an explicit finding of unfitness. Id. at 679.

"®7rf. at 680-81. The natural father in Franks also cited the trial court's
refusal to interview the child in chambers (both counsel had agreed to the
interview) as reversible error. The appellate court held that an interview with



218 INDIANA LAW REVIEW [VoL 9:197

19

The appellate court found no such abuse of discretion in Franks,'

Franks and Hendrickson are initially difficult to harmonize.

One distinction, though, is the factual difference. In Hendrickson

the natural mother was dead ; in Franks she was living, although

retarded, and presumably would continue to care for her child'"

although legal custody was given to her parents. The Franks dis-

position might be regarded as an award made to the natural
mother for practical purposes, with only legal custody going to

the grandparents.'^' At any rate, the Franks decision does not

have the aspects of a third party snatching a child away from a
natural parent simply because the third party could provide more

"advantages"—a concern which obviously troubled Judge Lowder-
milk in Hendrickson,

Judge Lowdermilk*s worry is a compelling one, raising as it

does the bothersome question of when and to what extent a court
may disrupt a natural parent's rights in his child. In virtually
all the other situations in which a trial court may sever the rights
of a natural parent and give over the child to someone else, in-

cluding the state, some showing of unfitness—whether exemplified
by abandonment, abuse, or neglect—is required.'" It is difficult
to believe that the legislature contemplated any different standard
in custody disputes, although it is arguable that the new Dissolu-
tion Act does away with the parental unfitness test.'"

The problem appears largely attributable to the Indiana Su-
preme Court's failure to clarify the standard. In this respect, it

is instructive to note that both Hendrickson and Franks cited

the child prior to a custody disposition is similarly within the trial court's

discretion. Id, at 681.

. '''/d at 681.

'20/ci. at 680.

'^'In her cross-complaint, the mother had requested custody be awarded

to either her or her parents. The record reflected also a willingness on the

part of the maternal grandparents to care for the mother and child together.

Id,

'^^See, e.g., Ind. Code §31-3-l-6(g) (1) (Burns Supp. 1975) (dispensation

of consent of natural parents to adoption if the child is adjudged to have

been abandoned) ; id. § 31-3-1-7 (termination of parental rights).

'^^The child custody provisions of the Dissolution Act specify that custody

is to be decided "in accordance with the best interests of the child" with "no

presumption favoring either parent." Id. § 31-1-11.5-21 (a). The "wishes of

the child's parent or parents" is only one of six factors to be considered by

the trial court. Id. § 31-1-11.5-21 (a) (2). Moreover, it cannot be said that this

statute involves only disputes between two parents, because the immediately

proceeding section specifically provides that a custody petition may be brought

by either parent "or by a person other than a parent." Id. § 31-1-11.5-20.



1975] SURVEY—DOMESTIC RELATIONS 219

the same supreme court decision, Duckworth v, Duckworth.^^*
Duckworth, however, did not clearly address itself to the point

at issue here—whether parental unfitness must be expressly
found before an award of custody can be made to a third
party. Instead, the case seemed to be more concerned with the
test for review on appeal. A later case, Gilchrist v, Gilchrist,'^^
also cited by the Franks court, involved a dispute between the
natural mother on the one hand and the new wife of the natural
father on the other. The supreme court's discussion in Gilchrist,
though, again centered around the scope of review.

The arguments on both sides of this particular controversy
are compelling. Few would disagree that natural parents have
identifiable rights in their children and should not lose them to
third parties merely because the third party can make a stronger
showing of ability to provide and care for the child. This consid-

eration clearly underlies the requirement for showing abandon-

ment or unfitness in the statutes providing for adoption and ter-
mination of parental rights.'^* On the other hand, if the trial
court is to seek exclusively the disposition that would be in the
child's best interest, then it ought to be able to find the best possible

placement for the child irrespective of the fact that a potential

custodian is not a natural parent. The supreme court could resolve
the issue either by rejecting the Hendrickson rationale and per-
mitting the court to decide between contesting parties on the same
basis, irrespective of parental ties, or by clearly establishing un-
fitness as the test in controversies between natural parents and
third parties and retaining the best interest test only between
natural parents.

3. The Use of Habeas Corpus in Custody Disputes

The noncustodial parent quite often uses the petition of
habeas corpus to begin a challenge to the custodial parent's right

to custody of minor children. In Ortega v. Ortega^^^ the use of
the habeas corpus approach by the father produced an undesired
result for him, however. He and the children's mother had been
divorced in Venezuela, with the original Venezuelan custody de-
cree giving the father custody during the school year and the
mother custody during the summer. When the mother refused to
return the children at the end of a summer period, the father

^2^203 Ind. 276, 179 N.E.2d 773 (1932) (award to brother of child's
natural father), cited in Franks v. Franks, 323 N.E.2d 678, 680 (Ind. Ct. App.
1975) ; Hendrickson v. Binkley, 316 N.E.2d 376, 380 (Ind. Ct. App. 1974).

'"225 Ind. 367, 75 N.E.2d 417 (1947).
'2^lND. Code §§ 31-3-1-6 (g) (1), -7 (Burns Supp. 1975).
'27315 N.E.2d 370 (Ind. Ct. App. 1974).



220 INDIANA LAW REVIEW [Vol. 9:197

brought an Indiana habeas corpus action. At the habeas corpus
hearing, the mother was permitted to give evidence of a change
in conditions sufficient to modify the custody order, while the

father insisted that the only issue properly cognizable at the ha-

beas hearing was whether she had properly retained the children
under the original decree. The trial court overruled his objection,
however, and changed the award to give the mother schooltime
custody with the children going with the father only for the sum-

mer.'^° The First District Court of Appeals affirmed and refused
to restrict the scope of presentation by the parties in this sort of
habeas corpus action. In declaring that Indiana law was other
than the father had contended, the court pointed out: "[A] re-
turn as commanded by the writ of habeas corpiis is effective to
place the child in the custody of the court subject to its disposi-

tion with unlimited power as to custody, guided only by the child's
welfare and best interest."^ ^'

In a similar case, Ray v, Stanton,^^° the Second District Court
of Appeals decided that a superior court lacked jurisdiction to

act on a habeas corpus petition brought by a mother to regain
custody of her children from the county welfare department. The
court held that the provision of the juvenile court statutes which
give the juvenile court exclusive jurisdiction in neglect proceed-

ings'^^ deprived the superior court of jurisdiction to act on the
parallel habeas corpus petition.'"132

^. Te'i^mhmtion of Parental Rights in a Custody Dispute

The limits of a trial court's powers in framing a custody de-
cree are often ill-defined, primarily because appellate review of
the trial court's decision is limited to the abuse of discretion test.
In Sanders v. Sanders, '""^ however, the Third District Court of
Appeals did refuse to permit a trial court to terminate completely
the parental rights of both parents in a custody dispute arising
in a divorce action. Without discussing the specific facts which
led to the decree, the appellate court focused on the trial court's
order itself—that the children were to become wards of the state
and either be placed in a foster home or be put up for adoption,
the parents being denied visitation rights whatever the situation. ''*

'"/d. at 371, quoting from Scott v. Scott, 227 Ind. 396, 405-06, 86 N.E.2d
533, 537 (1949).

'^°324 N.E.2d 161 (Ind. Ct. App. 1975).

'3'lND. Code §33-12-2-3 (Burns 1975).
'3=324 N.E.2d at 162.
'33310 N.E.2d 905 (Ind. Ct. App. 1974).

'34/d. at 906.



1975] SURVEY—DOMESTIC RELATIONS 221

The court looked exclusively at the question of whether the trial

court had jurisdiction to order permanent termination of parental

rights and concluded that the former divorce statute'"'' did not

confer such power.

In so holding, the Sanders court looked at the other statutory

provisions for termination of parental rights, including adoption,"*

termination of parental rights,^ "^ placement of a child of divorced

parents in an orphan's home by the trial court under a series of
now repealed statutes,'^® and disposition of a dependent or ne-
glected child under statutes also presently repealed. '''' The court

of appeals concluded that the requisite statutory formalities for

each of these procedures had not been complied with; therefore,

the trial court could not have based its decree on any of these

provisions. Only by exceeding its jurisdiction could the trial court

have based its permanent termination of parental rights on the

divorce statutes then in force : While the primary focus of a cus-

tody dispute is on the child's interest, parental rights are "not

cut off by a determination of custody adverse to the parent, and
it [the custody award] may serve as a basis for a later award of
custody to that parent when the circumstances surrounding the
original award have changed." '^°

This decision appears correct. The legislature had provided
for termination of parental rights only under the most extreme
circumstances of abandonment, neglect, or abuse. '^' A custody
dispute in a divorce action normally contemplates a choice between
two parents, not a total severing of the parents* rights. Moreover,

'^^The divorce was granted under the former statutes, ch. 43, §§6-12,
14-24, [1873] Ind. Acts 107 (repealed 1973). However, there appears to be
nothing in the child custody provisions of the new Dissolution Act, Ind. Code
§31-1-11.5-21 (Burns Supp. 1975), which would change the Sanders result,
although the new Act does give the court power to order continuing super-
vision of a specific case by various state agencies to insure that its custody
orders are carried out. The court may do so if both parents agree to such
supervision or if the court finds the possibility of physical or emotional

danger to the child if such an arrangement is not made. Id. § 31-1-11.5-21 (c).

'^^IND. Code §§ 31-3-1-1 to -11 (Burns Supp. 1975). These sections require
a specific adoption petition, which was not in evidence in the trial court record
in Sanders.

^^^Id. §31-3-1-7. This section also requires a specific petition, which was
likewise not in the Sanders trial court record, before parental rights may be
terminated.

'2«Ch. 24, §§1-3, [1903] Ind. Acts 39 (repealed 1973). These sections

required such dispositions to be "specified and recited in the decree of the
court." The trial court in Sanders made no such recitations.

'39Ch. 41, §§ 1-4, [1907] Ind. Acts 39 (repealed 1974).
'^°310 N.E.2d at 907.
''^'See the grounds in Ind. Code §§ 31-3-1-1 to -11 (Burns Supp. 1975)

and ch. 24, §§ 1-3, [1903] Ind. Acts 39 (repealed 1973).



,1.

222 INDIANA LAW REVIEW [Vol. 9:197

as the Sanders court pointed out, a custody disposition leaves

open the possibility of a different disposition later in time. None
of the termination statutes allows for the opportunity for a change

of the decree subsequent to the original determination. Thus, a
complete termination of parental rights in a child is something

quite different from the normal determination of the custody of
a child when a marriage is dissolved.

D. Child Support

1. College Expenses

In DeLong v, DeLong^*^ the Second District Court of Appeals
resolved a dispute between divorced parents over the extent of

the father's duty to pay his daughters' college expenses. On the
father's petition to modify the divorce decree, the trial court had
ordered the father to pay a sum toward college expenses for his
two daughters, subject to a reduction in the amount of support to
the extent that scholarships received by the girls covered expenses.
The trial court had further ordered that the father's support obli-
gation would cease automatically when each child reached twenty-
one. The mother appealed the order, arguing that the trial court's
award was an abuse of discretion and contrary to the law and the
evidence. She further argued that the decree was vague and un-
certain because it was not explicit as to the effect of a daughter
reaching age twenty-one in the middle of a semester, as to the

possibility of partial scholarship funds, and as to the effect of a
trimester program on the order.

The court of appeals affirmed the trial court's judgment,
reiterating the principle that broad discretion is vested in the

trial court and pointing out with respect to modification of suj)-
port decrees that the support statute "permits the court, upon
proper application, to make whatever adjustments are necessary
for the welfare of the children . . . including the cost of post-high

school education." '^^ In this vein, the court went on to hold that
a trial court may, in the exercise of its discretion, order
a parent to provide college expenses for minor children,
establish a reasonable amount for expenses, and exert
continuing jurisdiction over the minor children and the
parents so as to keep such expense amounts in conformity
with changing circumstances.'^*
^^=315 N.E.2d 412 (Ind. Ct. App. 1974). The petition to modify the divorce

decree was filed in July, 1972; therefore, the case was decided on the basis of
the nov/-repealed support statute in the former divorce law. Ch. 43, § 21, [1873]
Ind. Acts 107 (repealed 1973).

'^^315 N.E.2d at 417 (citations omitted).
'^^id. at 418.



1975] SURVEY—DOMESTIC RELATIONS 223

The court also found no fatal lack of clarity with respect to the

issues of a daughter reaching twenty-one in mid-semester, since

the support for that term would already have been paid ; the issue

of a partial scholarship, since any partial scholarship funds would

reduce but not cut off the father's duty to support; and the tri-

mester problem, since the decree contemplated no summer sup-
port obligation.''*^

DeLong is an unexceptional case which is not only sound with
respect to earlier precedent'^* but also fully compatible with the

current Indiana child support provision under the new Dissolu-
tion Act. Since 1974, this section has allowed for educational ex-

penses to a child's twenty-first birthday.
'^^

Therefore, no new de-
velopment appears forthcoming from the revision of the support
statutes under the Dissolution Act.

2, Uniform Reciprocal Enforcement of Support Act

The Uniform Reciprocal Enforcement of Support AcV^ pro-
vides a useful mechanism for the interstate enforcement of sup-
port decrees. The Act permits the use of another state's judicial
system to enforce support obligations without forcing the stay-

at-home spouse to travel to the other state. For example, the
spouse or child to whom the duty of support is owed files a com-
plaint in a court of his or her home state, the initiating state.''*'
The complaint is examined only to ascertain whether a claim has
been stated, and if a claim has been stated, the complaint is sub-
sequently forwarded to the state in which the spouse who owes
the support duty is located, the responding state. '^° The respond-
ing state court then may conduct a hearing on the complaint to
determine whether a duty of support exists and fix the amount

'^5/cj. at 420.

'^^See, e.g., Lipner v. Lipner, 256 Ind. 151, 267 N.E.2d 393 (1971);
Dorman v. Dorman, 251 Ind. 272, 241 N.E.2d 50 (1968).

''^^The new child support section provides in part: "(b) Such child sup-
port order may also include, where appropriate: (1) sums for the child's
education in schools and at institutions of higher learning . . . ." Ind. Code
§31-l-11.5-12(b)(l) (Burns Supp. 1975). The section continues:

(d) The duty to support a child under this chapter ceases when the
child reaches his twenty-first birthday unless:

(1) the child is emancipated prior to his twenty-first [21st] birthday

in which case the child support, except for educational needs, termin-

ates at the time of emancipation; however, an order for educational

needs may continue in effect until further order of the court ....
Id. §31-1-11.5-12 (d)(1).

'*«IND. Code §§31-2-1-1 to -39 (Burns 1973) [hereinafter referred to

as URESA].
'^'/d. §31-2-1-10.

'2°M. §31-2-1-14.



224 INDIANA LAW REVIEW [Vol. 9:197

of support and order payment once a support duty is determined.'*'
Payment is usually made through the responding state's court
registry/ ^^ Conflicts may arise, however, when a stay-at-home
spouse seeks to use the URESA machinery while an earlier sup-
port order exists in the initiating state, since the responding state

court is empowered by URESA to decide in the URESA hearing
the question of the existence and amount of support owed.'^^

This latter problem was at the center of Banton v. Mathers.^^*
The husband had been ordered to pay his former wife $100 per
week child support by the Indiana trial court which had also dis-
solved their marriage. After his move to Oklahoma, the wife,
who remained in Indiana, filed a URESA complaint to enforce
the husband's support duty. The Oklahoma court, as the resjwnd-
ing court, apparently reduced the support order to $200 per month.

A number of years later, the wife sought a contempt citation in
Indiana against the husband based on the original $100 per week
Indiana support order, and the husband counter-petitioned for
modification of the original decree. While this latest Indiana ac-
tion was pending, however, the husband asked for and received a
modification of the Oklahoma order from $200 to $150 per month.
When the Indiana proceeding finally was heard, the trial court
adopted the second Oklahoma reduction, to $150 per month, be-
cause the Indiana court decided that full faith and credit required
adoption of the Oklahoma decree. The Third District Court of
Appeals reversed, holding that "[f]ull faith and credit is not ap-
plicable to support orders under the Uniform Reciprocal Enforce-
ment of Support Act," and that the Indiana decree "remained in
full force until modified by the Indiana court."'"

Banton serves to illustrate one of the singular problems in
the area of child support: jurisdiction-shopping. The problem
arises from the United States Supreme Court decision, Sistare v,
Sistare,^^^ in which the Court held that support decrees need not
be given full faith and credit because such decrees are not the
sort of ''final order" to v/hich full faith and credit applies.'^'' The
problem is complicated by the fact that a party like the wife in

,5,^^^ §31-2-1-23.

'"/d. §31-2-1-26.

'-'Id. §31-2-1-23.

^^^^309 N,E.2d 167 (Ind. Ct. App. 1974). Banton involved child support,
but URESA may properly be invoked for any type of support duty. The issue
of whether a duty is owing is decided "under the laws of any state where the
obligor was present during the period for which support is sought." Ind. Code

§ 31-2-1-7 (Bums 1973).
1*^309 N.E.2d at 168.
1^^218 U.S. 1 (1909).

'^Vd. at 17.



1975] SURVEY—DOMESTIC RELATIONS 226

Banton cannot be deemed to have elected the remedy of URESA
to the exclusion of any other remedy since URESA plainly states
that its remedies "are in addition to and not in substitution for

any other remedies."'" In a less-mobile society, jurisdiction-shop-

ping would not be a problem. In the United States today, how-

ever, the Sistare principle applied to child support, with the con-

comitant refusal of the United States Supreme Court to require

that full faith and credit be applied in custody actions,'^' has led

to the creation of a group of persons who spirit children across
state lines and hop from state to state seeking more favorable dis-

position of custody and support orders.^*° ^

Banton presents an additional observation on the issue of

what a spouse to whom support is owed may do. As the court of
appeals pointed out in a textual footnote,'*^ URESA was not nec-
essarily the best choice for the wife to ensure that a foreign court

would not tamper with the amount of the original Indiana decree.
She might have gone into Oklahoma by way of enforcing the In-
diana judgment; while this may not have controlled as to future
payments, she should have been able to recover the arrearages.

Alternatively, she could have used the URESA machinery simply
to register the Indiana decree, without giving the Oklahoma courts
virtually de novo powers over the support dispute.' ^^ Using the
conventional URESA procedures as she did, however, it is diffi-
cult to accept any argument that the wife should not now be
bound by the Oklahoma decree. The Oklahoma court, though,
could have applied some consideration of comity to the initial
Indiana support order, even in the URESA hearing.

E. Child Neglect and Abuse

In Howard v. State^^"^ the Third District Court of Appeals
reversed a conviction of cruelty and neglect of a child for lack
of sufficient evidence. The accused, the stepfather of the deceased

'^^See, e,g., Ind. Code §31-2-1-3 (Burns 1973). The Banton court cited
a Mississippi decision, Howard v. Hov/ard, 191 So. 2d 528 (Miss. 1966), and
an Idaho decision, Despain v. Despain, 78 Idaho 185, 300 P.2d 500 (1956),
as support for the proposition that URESA is a supplementary statute. 309
N.E.2d at 172-73.

'^'May V. Anderson, 345 U.S. 528 (1953).

^*°See the excellent discussion of the custody problem in Ferreira v.
Ferreira, 9 Cal. 3d 824, 512 P.2d 304, 109 Cal. Rptr. 80 (1973).

^6^309 N.E.2d at 170-71 n.2.

^^^See, e.g., the reg'istration provisions in Indiana's URESA, Ind. Code
§§ 31-2-1-32 to -37 (Bums 1973).

^63319 N.E.2d 849 (Ind. Ct. App. 1974). See Note, Neglected Children and
Their Parents in Indiana, 7 Ind. L. Rev. 1048 (1974), for a general discussion
of the subject of neglect in Indiana.



226 INDIANA LAW REVIEW [Vol. 9:1^

child, had had the 2-year-old child in his custody for slightly more

than three hours. Around 3 a.m., the stepfather brought the child

to a hospital emergency room where an examining physician ob-

served "multiple bruises covering his entire face, his upper arms,

his lower arms, his anterior chest, his back, his hips, and his legs,

and his lower legs, even including the tops of his feet."'*"^ The child

died the same day he entered the hospital, the cause of death being

given as either a "skull fracture or abdominal hemorrhage."'*^

Testimony as to the child's condition was in conflict. The
child's mother testified that the child had various bruises, but it

is difficult to believe that her rather innocuous description of the

child's physical state, "[H]e had just other bruises on him,"'** is
consistent with the physician's testimony. Moreover, the physician

who conducted the autopsy testified that the injuries were due to
force applied with a blunt object.'"*^ The stepfather gave several
conflicting versions of the manner in which the child received
his injuries.

While the Howard opinion does not raise the point, some
jurisdictions permit an inference of child abuse to be dravm from
the injuries themselves coupled with a lack of a satisfactory

explanation.'*® There seems to have been an inference of abuse
drawn in Howard, but the evidence did not appear to point con-
clusively to the stepfather as the perpetrator. For example, there

was no evidence whatsoever that the stepfather had ever struck
the child, and there was one other child in the house, the 5-year-
old brother of the deceased child. Additionally, the injuries oc-

curred from 12 to 24 hours before the child was taken to the
hospital, during which time the child "was under the control of
several persons other than [the stepfather]."'*' As the court went
on to point out, "[a]t most, the evidence shows that [the step-

father], among others, had an opportunity to inflict the in-

'^'^SlO N.E.2d at 850. Severe head injuries were also diagnosed.

'*Vd. at 851.

^*»iSee, e.g., In re Vulon Children, 56 Misc. 2d 19, 288 N.Y.S.2d 203 (Fam-
ily Ct., Bronx County 1968).

When there is insufficient evidence as to whether or not parents are
responsible for a child's injury, an inference of parental abuse or lack

of attention may, under special circumstances, be drawn from the
injury itself coupled with the lack of explanation (for example, when
a young baby has recurrent fractures, explicable only by either blows
or serious falls).

Id. ait 23, 288 N.Y.S.2d at 207-08. Here again, though, the evidence was not
sufficient to indicate abuse on the part of the parent.

i*'319 N.E.2dat 851.



1975] SURVEY—DOMESTIC RELATIONS 227

juries . . . ."'^° Thus, even viewing the evidence most favorably

to the state, the court had to reverse the conviction.

F. Parental Control of Medical Treatment

Traditionally parents have been given almost exclusive con-

trol over the medical treatment of their children.''' The excep-

tions to this rule are few and generally operative only when the

parent refuses to consent to a necessary life-saving treatment

such as a blood transfusion.
'^^ Some state statutes dispense with

the requirement of parental consent, however, when the social con-

sequences of the child's revelation of the ailment to his parents

often inhibit disclosure. In this vein, Indiana dispenses with pa-

rental consent for veneral disease treatment.'''^ A number of states
have also abolished the need for parental consent for contracep-

tive devices and information.'''* Likewise, several states have de-

veloped a "mature minor" role, either by statute or judicial de-

cision, by which minors close to the age of majority may consent
to or refuse medical treatment apart from the wishes of the
parents.''^

Very few courts have faced squarely the issue of a parent's
authority to order treatment which may not benefit the child.
The Third District Court of Appeals, in A,L. v. G.R,H.,'^^ though,
did make an effort to deal with just such an issue when it decided
that the common law rule of parental control does not extend to
the power to order sterilization of a retarded child, at least when
such sterilization is not required as a life-saving measure."' The

'^nd. at 851-52.
~~~

'^'See, e.g., Weston v. Hospital of St. Vincent, 131 Va. 587, 107 S.E. 785
(1921).

'7'5ee, e.g., People ex rel. Wallace v. Zabrenz, 411 111. 618, 104 N.E.2d
769 (1952). At least one jurisdiction, Iowa, has permitted a court to substitute
its judgment for that of the parents in a non-life-threatening situation, how-
ever. The case involved parental refusal to consent to a tonsillectomy for their
child. In re Karwath, 199 N.W.2d 147 (Iowa 1972).

'''aiND. Code §16-8-5-1 (Burns 1973).
^^^See the table and discussion in Paul, Pilpel & Wechsler, Pregnancy,

Teen-agers and the Law, 197A, 6 Family Planning Perspectives 142, 143
(1974). See also Note, Minors and Contraceptives in Indiana, 8 Ind. L. Rev.

716, 723-24 (1975).

^^^See Wadlington, Minors and Health Care: The Age of Consent, 11
OSGOODE Hall L.J. 115, 120-22 (1973).

'7*325 N.E.2d 501 (1975).
^^^Id. at 502. Courts have been rather hesitant to approve sterilization

as a method of social control. Compare Skinner v. Oklahoma, 316 U.S. 535
(1942), with Buck v. Bell, 274 U.S. 200 (1926). After the Nebraska Supreme
Court authorized sterilization of a woman inmate as a condition of parole
from a state home for the mentally retarded. In re Cavitt, 182 Neb. 712, 157
N.W.2d 171 (1968), the Nebraska legislature reversed the decision by statute.



228 INDIANA LAW REVIEW [Vol. 9:197

question arose when the mother filed for a declaratory judgment,
seeking court approval of the proposed sterilization; however,

the facts presented a surprisingly unpersuasive case for steriliza-

tion. The child, a boy 15 years old, was retarded as a result of
an automobile accident and had, at the time of the trial, a mea-

sured intelligence quotient of 83, normal usually regarded as some-

where around 90.

There was no indication whatsoever that any of the child's
retardation was genetic; thus, he would not pass on the retarda-
tion to his children. Moreover, there was an inference drawn that
the boy's intelligence was improving since his intelligence quotient
two years before trial had been 65, nearly 20 points lower than

at the time of trial. Apparently the nub of the mother's desire to
have her son sterilized lay in the fact that he "had become in-
terested in girls," and that since his social contact was mainly
with handicapped children in his class, any sexual activity on his
part ran the risk of impregnation of one of the handicapped girls

in his class.'
^^

The trial court had denied the mother's request. The court of
appeals, in a somewhat confused holding, affirmed by pointing
out that

the facts do not bring the case within the framework of
those decisions holding either that the parents may con-
sent on behalf of the child to medical services necessary
for the child, or where the state may intervene over the
parents' wishes to rescue the child from parental neglect
or to save its life.'^'

Having ostensibly disponed of the case on this factual basis, the
court nevertheless went on to state categorically that "the com-
mon law does not invest parents with such power over their chil-
dren even though they sincerely believe the child's adulthood would
benefit therefrom." '®° In so holding, the court cited two cases,
one from Missouri'®' and the other from California,'®^ both of
which held that the juvenile statutes did not validly give courts

Neb. Rev. Stat. § 83-218 (1969). The Indiana sterilization laws have also been
repealed. Ch. 241, §§ 1-6, [1927] Ind. Acts 713 (repealed 1974) ; ch. 244, §§ 1-2,

[1937] Ind. Acts 1164 (repealed 1974); ch. 227, §§1-2, [1951] Ind. Acts 649

(repealed 1974).

'^®325 N.E.2d at 502. The sterilization procedure involved w^as a vasectomy
which, as the court pointed out, is ''simple, virtually plainless and irreversible."
Id.

^^^Id. (citations omitted).

'^'In re M.K.R., 515 S.W.2d 467 (Mo. 1974).

'^^In re Kemp's Estate, 43 Cal. App. 3d 758, 118 Cal. Rptr. 64 (1974).



1975] SURVEY—DOMESTIC RELATIONS 229

the power to authorize sterilization of retarded minor females in

the absence of more specific legislation.

Once the appellate court chose to enter into this additional

discussion, it might have elaborated a bit more on this aspect of
the decision since the language used applies to a situation some-

what broader than the facts. If sterilization is impermissible on
the relatively nonthreatening facts of this case, the question re-

mains whether it is necessarily outside the scope of parental au-

thority when the retardation is genetic in origin, thereby being
capable of being passed on to offspring, or when the record shows
an established course of sexual misconduct on the child's part.

The decision might better have been restricted to the rather spe-
cial facts involved here—clearly this boy's situation did not war-
rant the drastic step of a vasectomy. The language as to the scope
of common law parental authority may now be extended to other
important areas of medicine, such as nontherapeutic medical ex-

perimentation, where the distinctions are not quite so clear. It is
presently questionable, after A.L, v. G.R.H., whether parents of

a minor may agree to any medical experimentation on a child if
the research is not directly beneficial to the child, but simply

beneficial to society as a whole. In the final analysis, this entire

area of medical treatment of children is in dire need of legislative

clarification.

G. Parental Tort Immunity

Although the Indiana Supreme Court abolished the doctrine
on interspousal tort immunity three years ago,'" the First Dis-
trict Court of Appeals, in Vaughan v. Vaughan,^^"^ refused to ex-
tend that decision to the issue of the immunity of parents from
suits by their children. Vaughan involved a grandfather who
brought a personal injury action on behalf of his 4-year-old grand-
son against the boy's parents. The suit alleged that the parents
had been negligent in supervising the child while on a visit to a
cemetery where the boy had suffered head injuries caused by a
falling tombstone. The trial court dismissed on two grounds, pa-
rental immunity and failure to state a claim upon which relief
could be granted. The grandfather then filed a motion to correct

errors which sought "an abrogation of the doctrine of parental

immunity in Indiana."' °^

^^^Brooks V. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972). See 6 Ind. L.

Rev. 558 (1973) for a general discussion of Brooks and the abrogation of the

common law doctrine of interspousal tort immunity.
1^^316 N.E.2d 455 (Ind. Ct. App. 1974).

'^'Id. at 456.



230 INDIANA LAW REVIEW [Vol. 9:197

The court of appeals affirmed the trial court's judgment. The
court, in a deliberately concise opinion/®* avoided virtually all of

the policy arguments for or against the doctrine of parental im-

munity and disposed of the case by distinguishing the abrogation

of spousal immunity in Brooks v, Robinson^ ^^ from the doctrine

of parental immunity attacked here. In doing so, the court focused

on two portions of the Brooks opinion. The first—^the supreme
court's rejection of the notion that husband-wife suits would pro-

mote ''fraud, collusion and trivial litigation"' °®—was similarly re-
jected by the court of appeals as an argument for maintaining
parental immunity.

The court refused, however, to accept as a controlling analogy
the second portion of the Brooks opinion, which rejected the ar-

gument that such suits would have a disruptive effect on family
harmony. Instead, the court reaffirmed "the seemingly ageless
observation'"®' contained in Smith v, Smith,^''° a 50-year-old land-
mark decision establishing parental immunity in Indiana. Unfor-
tunately, Smith was essentially a policy decision by the court of
appeals which seems to have rested on rather antiquated reason-

ing based on judicial notice of the then existing social conditions.

The Smith court had reasoned : "From our knowledge of the social
life of today, and the tendencies of the unrestrained youth of this
generation, there appears to be much reason for the continuance
of parental control during the child's minority . . . .'"" Although
the Smith court had recognized a possible exception to the im-
munity doctrine, that of extreme circumstances, the Vaughan court
refused to hold that mere failure to supervise brought the case
within that exception.

The court also rejected the arguments that the doctrine of
parental immunity was an unconstitutional denial of both equal
protection and access to the courts. The equal protection claim
was disposed of by holding that the classification which gave
parents immunity was reasonable for several reasons: "Unity
of interest of parent and child, no truly adversary situation, [and

^^*The court noted:

It [the court] does recognize, however, that the question has been
widely litigated as well as receiving the attention of numerous schol-
ars. Any substantial discussion on our part of the sub-issues (chang-
ing social values, parent-child relationship, etc.) could not significant-

ly add to what already exists, and only serve the course of redundancy.
Id. at 456 n.l.

'3^259 Ind. 16, 284 N.E.2d 794 (1972).
i°^/d at 21, 284 N.E.2d at 796.
'89316 N.E.2d at 457.
i'°81 Ind. App. 566, 142 N.E. 128 (1924).

""'Id. at 570, 142 N.E. at 129.



1976] SURVEY—DOMESTIC RELATIONS 231

the] difficulty of dissolving the relationship and prevention of

family discord . . . ."^" The access-to-the-courts argument was
premised on the provision of the Indiana Constitution giving

"every man" a legal remedy for personal injury.'" Although the
Brooks decision used this constitutional provision as additional

support for its holding, the Vaughan court linked the supreme
court's invocation of this provision to its statement that "the

reasoning advanced for retention of the doctrine [interspousel

immunity] is judicially unsound . . . ."""^ The constitutional pro-
vision was inapposite in Vaughan, according to the court of ap-
peals, because they believed "the doctrine of parental immunity

to be judicially sound."'
'^

As noted above, the court deliberately shortened its discus-
sion of the issues on the ground that further elaboration would

be redundant. While not categorically improper, it is highly dubi-

ous to use this technique in a case involving a frontal attack on a

shaky principle of law, one that is fast eroding throughout the

country. The technique is particularly troublesome when an anal-
ogous doctrine has been abrogated by a higher court and the only
support for affirming the continuance of the present rule is found

in an old decision, grounded on neither statute nor common law

—

a decision which disposes of an important argument by judi-
cial notice of "the tendencies of the unrestrained youth of this

generation."''*

In Vaughan the question was thoroughly briefed by both sides
and deserved a much more thorough analysis by the court. Indeed,
much of the opinion, albeit sub silentio, appears to reflect the
third district's basic policy disagreement with the supreme court's
abrogation of interspousal immunity.''^ There may be some valid-
ity to the basic proposition advanced—that parent-child suits dis-
rupt family harmony; however, this proposition is based on two
factors which deserve more discussion. First, there should be some
empirical evidence that disruption of the family in fact does occur

when the parental immunity doctrine is abrogated. This, clearly,
is not the place for unrestrained judicial notice. Secondly, there

'9=316 N.E.2d at 457.
^'^iND. Const, art. 1, §12. This section provides: "All courts shall be

open; and every man, for injury done to him in his person, property or
reputation, shall have remedy by due course of law . . . ."

'9^259 Ind. at 24, 284 N.E.2d at 798.
^'^316 N.E.2d at 457. See generally Note, Parental Tort Immunity Doctrine

vn Indiana, 8 Ind. L. Rev. 394 (1974).

''^Smith V. Smith, 81 Ind. App. 566, 570, 142 N.E. 128, 129 (1924).
'9^Note, for example, the rather grudging statement leading into the

quotation from Smith: "Assuming for the moment that nuptial peace and
harmony no longer requires judicial enforcement . . . ." 316 N.E.2d at 457.



232 INDIANA LAW REVIEW [Vol. 9:197

should be a recognition of the fact that disposition of this case

requires judicial policymaking, and thus, that the policy argu-
ments must be squarely faced. Rather than strengthening the
parental immunity doctrine, the Vaughan decision actually appears
to have weakened it because the court refused to grapple with the
difficult questions posed.

H. Waiver of Juveniles to Criminal Court

In one of the few major statutory developments in domestic
relations this survey period, the Indiana General Assembly enacted
a new statute revising the provisions under which a juvenile ac-
cused of a criminal act is waived into the adult criminal process."®

One revision is in Indiana Code section 31-5-7-3,"' which changes
the definition of **child" by specifically excluding from the defini-
tion in subsection (b) (1) "a person who is charged with first
degree murder," in subsection (b) (2) a youth sixteen or over who
is charged with a traffic offense, and in subsection (b) (3) a per-
son who has been waived by the new waiver provisions. Thus,
under the new statute, a person charged with first degree murder,
irrespective of age, will be tried as an adult.

As revised, the waiver statute, Indiana Code section 31-5-7-
14,^°° establishes two broad categories of youthful offenders. Sec-
tion (a) establishes the first category which includes persons
14 years of age or older. For minors coming under this
category, the statute permits waiver at the discretion of the

judge upon a motion by the prosecutor after investigation and
hearing, if the court makes certain specific findings. The court
first must determine that **the offense has specific prosecutive
merit . . . ."^°^ The court then must make one of three alternative
findings

:

(1) That the crime "is heinous or of an aggravated
character" giving greater weight to crimes against

person ;^°^

(2) that the crime is "part of a repetitive pattern of

juvenile offenses ;"^°^ or

(3) that "it is in the best interest of the public welfare

and for the protection of the public security gen-

^9^Ind. Pub. L. No. 296 (Apr. 25, 1975) (codified in (Bums Supp. 1975)),
amending Ind. Code §§31-5-4-2, -3; -7-3, -4, -13, -14, -15, -23 (Burns 1973).

'9'lND. Code § 31-5-7-3 (Burns Supp. 1975).

2°°M § 31-5-7-14.

2°^M §31-5-7-14 (a).
2°27rf. §31-5-7-14 (a)(1).

2°Vd. §31-5-7-14 (a) (2).



1975] SURVEY—DOMESTIC RELATIONS 233

erally that the juvenile be required to stand trial

as an adult offender."^°''

The second category under section (b) consists of youths 16
or older who are charged with specified felonies.^°^ A waiver in
this situation is mandatory, not permissive, after the prosecutor's

motion and investigation. The word "hearing" is not included in
this section; therefore, unless this omission is inadvertent, there

need be no hearing at all under this category. It is arguable,

though, that the omission of ^'hearing*' was not intended because
the court has the power to prevent waiver by making the requisite
negative "findings.** Findings, of course, usually indicate some
type of hearing. Specifically, the court must make a negative find-
ing of all the following:

(1) That the crime "is not heinous or of an aggravated
character ;"^°^

(2) that the crime "is not a part of a repetitive pattern

of juvenile offenses ;"^°^ and

(3) that "it would be in the best interest of the child

and of public welfare and public security for the
juvenile to remain with the regular statutory juve-
nile system."^°®

A substantial part of the language of the new waiver provi-
sions is an attempt to codify much of the language in State ex rel.
Atkins V. Juvenile Court^°'^ and Summers v. State.^^° However,
waiver in those cases remained discretionary, while waiver for
16-year-olds accused of serious felonies is virtually assured by the
new statute. If a juvenile judge is willing to make only one of the
specified findings, sizeable numbers of 14-year-olds also may find
their way into the adult criminal system.

To a certain extent, moving juveniles into the adult system
merely gives them additional procedural protections not available
in the juvenile system.^" However, one of the aspects of the juve-
nile system, wide discretion in the disposition of the child after

2°Vd. §31-5-7-14 (a) (3).
=°^These felonies include: "second degree murder, voluntary manslaughter,

kidnapping, rape, malicious mayhem, armed robbery, robbery, first degree
burglary, aggravated assault and battery, or assault and battery with intent
to commit any of the felonies in this subsection." Id. § 31-5-7-14 (b).

^°^Id. § 31-5-7-14 (b) (1). This provision also retains the offenses against
person/offenses against property distinction.

2°7/d. §31-5-7-14 (b)(2).

2°«/cZ. §31-5-7-14 (b)(3).
209252 Ind. 237, 247 N.E.2d 53 (1969).
2^°248 Ind. 551, 230 N.E.2d 320 (1967).
2'^ See the classic cases of McKeiver v. Pennsylvania, 403 U.S. 528 (1971)

(no jury trial requirement for juveniles), and In re Gault, 387 U.S. 1 (1967)
(discussion of juvenile system defects).



2S4 INDIANA LAW REVIEW [Vol. 9;197

conviction, will be lost. Also, the "public welfare" and "public

security'* grounds for waiver appear overly broad and virtually

undefinable. The total abolition of juvenile court jurisdiction over

all persons accused of first degree murder by way of changing the
definition of "child" to exclude such cases may, ultimately, prove

both absurd and tragic in those cases of very young children who
stand accused of murder. It is at least technically possible under

the new statute for a 10-year-old child to be tried for murder in
adult court and, upon conviction, to be imprisoned with adults.^'*

/. Paternity

In two paternity actions, separate Indiana courts of appeals

recently reaffirmed the principle that the mother bears the burden

of proving paternity. In E,G. v, M.5.^'^ the Second District Court

of Appeals, affirming a negative judgment for the putative father,
held that the test on appellate review for reversing a negative judg-

ment of paternity is not a question of whether there is an absence
of "sufficient evidence" to support the decision but rather

"whether it [the evidence] is without conflict and leads to but one
conclusion, which is contrary to the conclusion reached by the trial

court."^'^ Here, there was a substantial amount of conflicting,
inconsistent testimony. The actual gestation time was unclear,
and the putative father had testified that he was only one of sev-
eral persons to have sexual relations with the petitioner during the

critical time period. Since the evidence had to be viewed in the
light most favorable to the appellee-putative father,"^ the negative
judgment of paternity by the trial court had to stand. Even the
mother's evidence that the putative father had visited the mother
after birth and bought the infant some clothing was insufficient
proof to overcome the other conflicting evidence and support a
finding of paternity.^'*

By way of contrast, the First District Court of Appeals af-
firmed a declaration of paternity in O.Q, v. L.-R.^'^ In O.Q. the

court had to determine the applicability of the rules of civil pro-
cedure to a paternity action when the rules were in conflict with
a procedural requirement found in the statutes regulating a pater-

2'2iND. Code §31-5-7-23 (Burns Supp. 1975) provides that: "No child
shall be detained in any prison, jail or lockup . . . ." However, a child tried
for murder is now excluded from the definition of child. Id. § 31-5-7-3 (b) (1).

2'3326 N.E.2d 858 (Ind. Ct. App. 1975).
^'^7d. at 859.

^'*/d. at 860. The appellate court indicated, however, that such evidence
alone might be enough to affirm a judgment of paternity if there had been one
on those facts.

3''328 N.E.2d 233 (Ind. Ct. App. 1975).



1975] SURVEY—DOMESTIC RELATIONS 235

nity action. The paternity statute' '® purportedly required the los-
ing party to file a motion for a new hearing within 30 days of the
verdict.^'' Here, the defendant, as the losing party, had merely

filed a motion to correct errors within the 60-day period prescribed

by Trial Rule 59(C). The court of appeals resolved the conflict
in favor of Trial Rule 59, holding that the paternity statute "has

been superseded to the extent that it can be construed to require

the filing of a petition for a new hearing as a condition precedent
to appeal.''"° The preservation of the right to appeal is thus gov-
erned by a timely-filed motion to correct errors.^^'

Although the defendant-putative father won the procedural
dispute, the appellate court affirmed the finding of paternity on

the evidence. The plaintiff had testified to sexual relations with
the defendant around the approximate time of conception and fur-

ther had asserted that she had not had relations with anyone other

than defendant during that period. In affirming the judgment of

paternity below, the court quoted from some older cases to establish
a distinction between an act of intercourse plus the probability of
conception at the time of that act, which will support a finding of
paternity, and an act of intercourse plus only the possibility of con-
ception at the time of the act, which will not support a paternity
finding.^^^ Since a physician had testified that the probable date
of conception had been five days earlier than the first asserted
sexual relations, the defendant had argued that the five day dis-
crepancy established, at best, the mere possibility of conception.
The court quickly disposed of that contention, however, by point-
ing out that "[t]he period of gestation in the case at bar falls well

= '«IND. Code §31-4-1-18 (Burns 1973).
2^'/d. Section 31-4-1-18 provides:

If the finding of the court, or the verdict of the jury, be for or against

the defendant, the party aggrieved thereby may file a motion for a
new hearing within thirty [30] days after such finding or verdict
.... Otherwise the procedure on appeal shall be the same as is pro-
vided for by law and rules for appeal for civil cases.
^^°328 N.E.2d at 235. The court of appeals relied on an Indiana Supreme

Court case, City of Mishawaka v. Stewart, 310 N.E.2d 65 (Ind. 1974), which
dealt with a problem in a similar context: a 10-day period in which to file a
petition for rehearing of a disciplinary case was not permitted to be a condi-
tion precedent for appeal under Trial Rule 59(C).

^^'The court acknowledged Trial Rule 4, which provides that the
Indiana rules of civil procedure "shall supercede all procedural statutes in

conflict therewith." The First District Court of Appeals had already held
that paternity actions are civil in nature. Cohen v. Burns, 149 Ind. App. 604,
274 N.E.2d 283 (1971). The Second District Court of Appeals had previously
held that paternity suits are governed by the Indiana Rules of Procedure.

Houchin v. Wood, 317 N.E.2d 911 (Ind. Ct. App. 1974).
^22328 N.E.2d at 236, citing Roe v. Doe, 289 N.E.2d 528 (Ind. Ct. App.

1972) ; Beamon v. Hedrick, 146 Ind. App. 404, 255 N.E.2d 828 (1970).



236 INDIANA LAW REVIEW [Vol. 9:197

within the normal range of probability.""^ Thus, the inference of

conception fell within the probable, rather than the merely possible,

category, and the adjudication of paternity had to be affirmed."^

J. Guardianship

In Giiardianship of Carrico v. Bennett,^'^^ the Third District

Court of Appeals affirmed in an appeal on the evidence a denial of
a petition to terminate a guardianship. The court also examined the
question whether the petitioner might properly recover attorney's
fees even though her petition to terminate guardianship was de-
nied. Mrs. Carrico, the petitioner, was an elderly lady under the
guardianship of her son. There was considerable conflicting testi-
mony at the termination hearing, but an expert, Mrs. Carrico's
psychiatrist, testified that she was competent. There apparently
was no expert testimony in opposition to the petition, even though
the son did testify that his mother, while often rational, had peri-
ods when she was disoriented and incompetent. As a rebuttal wit-
ness, the ward, Mrs. Carrico, gave rather mixed testimony in
which she accused her son of instituting the guardianship "so
he could get her property.""^

In reviewing the evidence, the appellate court pointed out that

the petitioner had the burden of proving that she was no longer
incapable of managing her property and caring for herself. The
court also reiterated the rule that lay testimony is admissible in

questions of insanity and incompetence and may be weighed along
with expert testimony. In looking at all the testimony, both lay

and expert, the court concluded: "While such evidence may be
susceptible to more than one ultimate inference, we cannot say it
led solely to the conclusion that Mrs. Carrico was capable of man-
aging her affairs and caring for herself.""^ In so holding, the court

refused to pass on the argument made by Mrs. Carrico that mere
old age or physical infirmity is not sufficient to support a decree

of guardianship.

The court disposed of the second major issue, attorney's fees,
much less quickly. The question revolved around the statute which
provides for a petition for a adjudication of competency."^ That

223328 N.E.2d at 236. See E.F. v, G.H., 290 N.E.2d 795 (Ind. Ct. App. 1972)
(finding that a 290-day period of gestation was not Improbable, and implying
that the bounds of gestation periods are not yet scientifically established).

22"^Again, the appellate court must view the evidence in a lierht most
favorable to the appellee—here the mother—since there was a judgment of
paternity below. 328 N.E.2d at 235.

22^319 N.E.2d 625 (Ind. Ct. App. 1974).
226/cZ. at 627.

22filND. Code §29-1-18-48 (Burns Supp. 1975).



1975] SURVEY—DOMESTIC RELATIONS 2Z1

statute expressly provides that the ward who is adjudged still
incompetent shall pay "the expenses of such proceeding" if "the
proceeding was brought in good faith.""' The trial court had
denied Mrs. Carrico's motion to recover her attorney's fees and
expenses, apparently without stating reasons for the denial. In

passing on this portion of her motion to correct errors, the appel-

late court wisely examined the policies underlying guardianship

proceedings, quoting a 1965 Indiana Supreme Court decision which
"recognized the public necessity for insuring the ability of a person

to contest his, or her, asserted incompetence."^^° The Carrico court
went on to hold that the word "expenses" in this statute included
"reasonable attorney's fees incurred in maintaining the proceed-

ing.""' An inability to secure attorney's fees in this type of action,
the court stated, "would greatly restrict the ability of one adjudged

incompetent to seek a restoration of competency . . . .""^ The appel-
late court therefore remanded for an express finding of good faith
since the trial court had made no finding of good or bad faith
under the "expenses" portion of the statute, and there was no such
evidence on the record."^

To the extent that the statute permits recovery of expenses
for a petition to set aside a earlier declaration of incompetence, it

should fulfill the purpose assigned it by the court. The require-
ment of good faith, however, appears to be somewhat ill-considered,
when the ward is the petitioner. A finding of incompetence and a
decree of guardianship necessarily require a finding that the ward
does not have the present mental ability to cope with day-to-day

affairs. For example, in Mrs. Carrico's case, there was evidence
that she was sometimes disoriented, had lapses of memory, and
made occasional, unwarranted accusations. In other words, in-
competents often act irrationally. It is questionable how a court
may hope to make a valid finding as to the ward's state of mind
under the "expenses" portion of the statute—whether the ward

2^'/d. This implies that the estate of the ward would pay the expenses
since the statute continues to provide that, if the proceeding was brought in
bad faith "[t]he court shall give judgment therefore [for the expense of the
proceedings] against the person filing such petition." Id. The ward pays for
the expense through his or her estate. In this case, it happened that the person

bringing the proceeding was the ward herself, and the person in charge of
the estate, who must pay on behalf of the estate, was her guardian, her son.
The son hoped to shift the expenses from the ward, as represented by her
estate, to the ward personally, as a person who brought the proceeding
without good faith.

2^°319 N.E.2d at 629, citing State ex rel Koch v. Vanderburgh Probate
Court, 246 Ind. 139, 203 N.E.2d 525 (1965).

"1319 N.E.2d at 629.
"2/cZ.

=33/t^. at 630.



^8 INDIANA LAW REVIEW [Vol. 9:197

(petitioner) acted in good faith or bad faith—when by previous
decree the ward's mental processes are inferior to those of compe-

tent persons. It is one thing to weigh state of mind for the initial

competency proceeding, but it is wholly inane to suppose that an

incompetent ward makes good faith decisions in the same manner

as a competent person. Moreover, it does little good to leave the

good faith/bad faith decision to the ward's attorney who, by mis-

judging the ward's state of mind, loses his fees.^'"*

There is obviously no perfect solution to the problem. Clearly,
multiple, unwarranted petitions by wards may result in the "profli-
gate consumption of their estate.""^ However, the alternative
jeopardizes the prerogative of a ward to challenge the original
declaration when be believes himself competent. The Indiana
statute, by forbidding new petitions earlier than six months after
a determination of incompetency,^" is one means of balancing
the merits of each consideration. Beyond this, there are practical
controls apart from the spurious "good faith" test. A clearly in-
competent ward will not be able to show evidentiary support for
his assertion beyond his own statements. Few attorneys would
be willing to expend time and energy on such a case. However,
even if these controls were inadequate, the fact remains that the
law simply does not favor guardianships. The Indiana Supreme
Court has indicated: "[T]he law should be liberally construed . . .
to allow the presentation ... on behalf of the alleged incompe-
tent.""^ If this policy results in a few instances of "profligate
consumption," the error is simply one society ought to be willing
to suffer in order to ensure the expeditious termination of guard-
ianships of wards who become competent.

^^'^If it is adjudged that the petitioner, who happens to be the ward,
brought the proceeding in bad faith, the ward, vis-a-vis his estate, will not be

liable for the attorney's fees. Since the ward, as petitioner, may have no
assets in his personal capacity, the attorney is going to be without his fee.

"^319 N.E.2d at 629.

"6iND. Code § 29-1-18-48 (Bums Supp. 1975).
"^State ex rel. Koch v. Vanderburgh Probate Court, 246 Ind. 139, 141,

203 N.E.2d 525, 526 (1965).