Indiana Law Review


1977] SURVEY-DOMESTIC RELATIONS 149

that could not be resolved without a hearing giving the state the op-

portunity to defend/"

The Second District Court of Appeals upheld the trial court's

denial of the defendant's petition for election of treatment in an opin-

ion fraught with inconsistencies. In Bezell v. State,^''^ the defendant

had been enrolled in a drug maintenance program at the time of his

arrest, had been drug-free for one month except for methadone, and

stated that he had abused drugs. It was also charged that he had

sixteen bindles of heroin on his person when arrested. Bezell argued

that if a convicted individual states that he is a drug abuser and

shows that he is not ineligible by reason of the nature of the present

charge, his prior convictions, or his probation status, the court is re-

quired to offer him the opportunity to elect to submit to treatment

in lieu of sentencing."* The court held that evidence of his drug-free

status under the methadone program and the equivocal statement

on his current status as a drug abuser rendered him ineligible."*

The court's opinion casts doubt on the continued validity of McNary
V. State"'^ to the extent that it mandates the trial court to grant the

defendant the opportunity to elect treatment and suggests a forth-

coming reconsideration of the point.

VIII. Domestic Relations

Helen Garfield* **

A. Adoption— Termination of Parental Rights

1. Juvenile Court Proceedings. — The jurisdiction of juvenile
courts to order permanent termination of parental rights was the

"^See Hardin v. State, 254 Ind. 56. 257 N.E.2d 671 (1970).

"'352 N.E.2d 809 (Ind. Ct. App. 1976).

"*This contention is not without conflict. The Second District Court of Appeals

held that the court may deny election where it determines that treatment would not
rehabilitate the defendant. Glenn v. State, 322 N.E.2d 106 (Ind. Ct. App. 1975). The

First District Court of Appeals held that a defendant had no right to treatment in lieu

of imprisonment because he satisfied the statutory eligibility requirements. Reas v.

State, 323 N.E.2d 274 (Ind. Ct. App. 1975). In Thurman v. State, 320 N.E.2d 795 (Ind.

Ct. App. 1974), the Second District Court of Appeals limited the court's authority to

suspend a sentence and order treatment to a period of six months after the defendant

begins serving his sentence.

"»352 N.E.2d at 811.

"•156 Ind. App. 582. 297 N.E.2d 853 (1973).

•Associate Professor of Law, Indiana University School of Law — Indianapolis.
J.D., University of Colorado. 1967.

The author wishes to thank Bert Paul for his assistance in the preparation of this
survey.

**Several important abortion cases were decided during the survey period. These
decisions are discussed in Grove. Constitutional Law, 1977 Survey of Recent

Developments in Indiana Law, 11 Ind. L. Rev. 78 (1977).



150 INDIANA LAW REVIEW [Vol. 11:149

issue before the Third District Court of Appeals in In re Perkins.^

Ambiguities in the juvenile and adoption statutes^ were resolved in
favor of such jurisdiction by the majority, over a strong dissent by

Judge Garrard.'
The history of the Perkins children's involvement with the

juvenile court and the welfare department dated back seven years;

indeed, it antedated the birth of one of the two children made wards
of the department in the present proceeding. During this seven-year

period, all six children had at various times been found to be depen-

dent and neglected and placed in a children's home, although some
of them had subsequently been permitted to return to their parents'
home. During the same period, contempt proceedings had been
brought against the father for failure to comply with the court's
order to pay support for the children placed in the children's home,

and the mother had been hospitalized for psychiatric care. Ultimate-
ly, the welfare department initiated the present proceeding in which

it asked the juvenile court to declare all six children wards of the
department "for all purposes including adoption."* The parents^ ap-
pealed the court's decision granting the petition as to two of the
children, contesting the juvenile court's jurisdiction to order ter-

mination of their parental rights.

The jurisdictional problem presented by this case arises from a
lack of coordination between the provisions of the Indiana adoption
statutes^ and the juvenile statutes,' both dealing with children but
involving two essentially different kinds of proceedings. Adoption
proceedings are initiated in the circuit or probate court by a person
seeking to adopt a child.' If the child has living parents, they must
consent to the adoption, unless their consent is dispensed with on

grounds specified in the statute.* If the parents do not consent.

'352 N.E.2d 502 (Ind. Ct. App. 1976).

'Ch. 126, § 6, 1905 Ind. Acts 215 (amended 1975) (current version at Ind. Code §
31-3-1-6 (1976)); ch. 126. § 7. 1905 Ind. Acts 215 (amended 1975) (current version at Ind.
Code § 31-3-1-7 (1976)); Ind. Code § 31-5-7-1 (1976); id. § 31-5-7-7; ch. 356, § 2, 1957 Ind.
Acts 1040 (amended 1975) (current version at Ind. Code § 31-5-7-15 (1976)); Ind. Code §
31-5-7-17 (1976). Perkins deals with these statutes as they existed in 1973, when the
proceedings were initiated.

»352 N.E.2d at 511 (Garrard, J., dissenting).

*Id. at 504. The Perkins majority held that this was, in effect, a final termination
of parental rights. Id. at 507.

'Ind. Code §§ 31-3-1-1 to -11 (1976).
'Id. §§ 31-5-7-1 to -25.

Ud. § 31-3-1-1 states that adoption petitions are to be filed in the court "having

jurisdiction of probate matters," which would be the circuit or probate court. Id. §§
33-4-4-3, 33-8-1-9. Effective January 1, 1979. the Marion County Superior Court will
have jurisdiction in adoptions and juvenile proceedings. Id. § 33-5-35.1-4.

•/d. § 31-3-1-6.



1977] SURVEY-DOMESTIC RELATIONS 151

parental rights can be terminated by the court handling the adop-

tion either in the same proceeding or in a separate proceeding, and
such termination is sufficient to dispense with the necessity of the

parents' consent to the adoption.' The adoption statutes thus
specifically authorize the circuit or probate court to order perma-

nent termination of parental rights, and no serious question can be

raised as to these courts' jurisdiction to do so.

No such specific authorization is contained in the statutes
relating to proceedings in the juvenile courts, however. The adop-
tion statutes do contain an oblique reference to termination by other

courts "having jurisdiction to terminate parental rights on any

ground for termination specified in that law,"" which may have been
intended to refer to juvenile court proceedings but which is hardly

sufficient in itself to confer jurisdiction on the juvenile courts. The
type of proceedings handled by the juvenile courts are not directed

toward adoption but toward securing care, guidance, and control for
the child "preferably in his own home."" Such proceedings are in-
itiated by a court probation officer, by the Department of Public
Welfare, or by transfer from a court where the child has been charg-
ed with a crime, requesting that the juvenile court declare the child

to be delinquent, dependent, or neglected, as those terms are defin-

ed in the statutes.'^ Among the dispositional alternatives are com-
mitment to a public institution, probation, supervision in the child's
own home, and making the child a ward of the court, the welfare
department, or a licensed child-placing agency.'^ In the context of

juvenile proceedings, making a child the ward of the welfare depart-
ment does not ordinarily contemplate a final termination of parental
rights. It involves a temporary rather than a permanent wardship
designed to remove the child from the parents' custody while efforts
are made to rehabilitate the family.'* In fact, this is what was done
in Perkins during the seven years preceding the filing of the peti-

tion for permanent wardship.

The Perkins majority found a statutory basis for the juvenile
courts' power to terminate parental rights in the dispositional provi-

sions of the juvenile statutes (section 15),*^ particularly the catchall

provision which authorizes the court to "make such further disposi-

*Id. § 3l-3-l-7(c), (d).

'"Id. § 31-3-l-7(c) (emphasis added).

'7d § 31-5-7-1

''Id. §§ 31-5-7-4.1 to -8.

"/d. § 31-5-7-15.

"The distinction is discussed in Judge Garrard's dissenting opinion. 352 N.E.2d at
511.

"IND. Code § 31-5-7-15 (1976).



152 INDIANA LAW REVIEW [Vol. 11:149

tion as may be deemed to be in the best interests of the child."'* The
majority relied on In re Collar,^'' a 1973 case involving a proceeding

similar to that involved in Perkins, but in which the juvenile court's

jurisdiction was not directly challenged by the parent whose rights

had been terminated.'* Judge Garrard, in his dissenting opinion, did

not believe that so broad and drastic a power as the termination of

parental rights should be implied from the general authorization to

make "further disposition ... in the best interests of the child,"*'

especially since no standards or grounds for termination are set out

in either the juvenile statutes or the adoption statutes. The majori-

ty, however, supplied its own standards, holding that before an
order permanently terminating parental rights can be entered the

juvenile court must find: (1) a protracted history of dependency or

neglect by the parent(s) as defined by statute, (2) a substantial prob-

ability of such deprivation of the child in the future, and (3) that it

is not reasonably probable that it will serve the future welfare of

the child to continue such child's legal relationship with the

parent(s).^° Applying these standards to the facts and findings of

Perkins, the majority held the evidence sufficient to support the

trial court's decision to terminate the Perkins' parental rights.

Judge Garrard's analysis of the statutes construed in Perkins

and his perception of their deficiencies are eminently sound. The ma-

jority does stretch statutory interpretation to its outermost limits,

but the result reached in Perkins is clearly preferable to a holding

that the juvenile courts lack jurisdiction to order permanent ter-

mination of parental rights. Such a holding would have raised ques-

tions concerning the validity of all previous terminations ordered by

juvenile courts, and all adoptions made on the strength of them
would have been put in jeopardy. This would hardly have been in

the best interests of the children involved, which both statutes pur-

port to serve. However little support there may be for the ma-
jority's interpretation of the words in the statutes involved, the

court's holding is entirely in harmony with the overall intent and

purpose of both the adoption and the juvenile statutes.

Some indirect support for the majority's interpretation can be

"M § 31-5-7-15(5).
"155 Ind. App 668. 294 N.E.2d 179 (1973).
"The sole challenge raised in Collar was to the sufficiency of the evidence to sup-

port the trial court's determination. Id, at 670, 294 N.E.2d at 181.

"Ind. Code § 31-5-7-15(5) (1976). The effect of termination is to "divest the parent
and the child of all legal rights, privileges, duties and obligations, including rights of

inheritance, with respect to each other." Id. § 31-3-l-7(g).

"Judge Garrard also felt that the termination provisions of the adoption statute,
id. § 31-3-1-7, were too "vague and ambiguous" to vest the juvenile courts with power
to permanently terminate parental rights. 352 N.E.2d at 517 (Garrard, J, dissenting).



1977] SURVEY-DOMESTIC RELATIONS 153

inferred from a 1975 amendment to the adoption statutes, which was
enacted after the proceedings in Perkins. As amended, the statutes
now dispense with the necessity of consent where a child has been
declared an "abused, dependent or neglected child by the court of
jurisdiction" (presumably the juvenile court), and where the
parentis) have been deprived of his custody for a period of two years
prior to the adoption, "if there has been little or no change in the

environment from which the child was removed."^' Although this
amendment fails again to expressly authorize the juvenile courts to
order permanent termination of parental rights, it does implicitly

recognize the validity of the kind of proceedings that were upheld in
Perkins.^

2. Termination in Adoption Proceedings, — (a) Failure to Com-
municate. — Another termination case decided by the Third District
Court of Appeals during the survey period concerned a proceeding

for adoption, rather than a juvenile proceeding, and thus relied

directly on grounds for dispensing with parental consent contained

in the adoption statutes^^ rather than on the juvenile statutes. In re

Adoption of Thornton^* involved a petition filed by the prospective

adoptive parents seeking adoption of the child and termination of

the mother's parental rights in the same proceeding.^^ The trial
court's order terminated the mother's parental rights based on sec-

tion 6(g)(1) of the adoption statute, which dispenses with the necessi-

ty for a parent's consent where the parent has failed to "com-
municate significantly with the child" for a period of one year

without justifiable cause.^' The court of appeals held that the
evidence was sufficient to support the trial court's order, rejecting
the mother's arguments that the failure to communicate was
justified and that her filing of a habeas corpus action constituted an

"IND. Code § 31-3-l-6(g) (7) (1976).

"The standards enunciated in Perkins were again applied by the Third District

Court of Appeals in In re Wardship of Bender, 352 N.E.2d 797 (Ind. Ct. App. 1976).

which affirmed an order of the juvenile court permanently terminating a mother's

parental rights in her four children. (Judge Garrard also dissented in this case. Id. at

805.) Here, as in Perkins, the record showed a "protracted history" of involvement

with the welfare department. The facts of this case would not have satisfied the stan-

dards of the 1975 amendment, had it been in effect at the time, since the children had

not been removed from the mother's custody for two years prior to the filing of the

petition for final termination of her parental rights.

^'IND. Code § 31-l-3-6(g) (1976).
"358 N.E.2d 157 (Ind. Ct. App. 1976). This opinion was written by Judge Hoff-

man, with a concurring opinion by Presiding Judge Staton. Judge Garrard concurred,

without opinion.

""This is one of the alternative methods of proceeding authorized by Ind. Code §
31-3-1-7 (1976).

^M § 31-3-l-6(g)(l).



154 INDIANA LAW REVIEW [Vol. 11:149

effort to "communicate" under the statute. The statute was seen as

contemplating communication with the child directly and not merely

involvement in litigation over custody, although participation in

litigation might be relevant in a case where persons with custody

actively prevented a parent from communicating with the child.^^

(b) Abandonment. — In another proceeding under the adoption
statute, the First District Court of Appeals held that imprisonment

of the natural father did not per se establish his abandonment of his

child so as to justify dispensing with the necessity of obtaining his

consent to adoption of the child by the stepfather.^* Abandonment

requires a showing of intent, which was not established as a matter

of law merely by evidence that the father was imprisoned for a

period in excess of six months. The trial court's judgment denying

the petition for adoption filed by the mother and her second hus-

band was therefore affirmed.
3. Due Process Rights of Parents —Notice to Natural

Mother. —In Egan v. Finnegan,^ the Second District Court of Ap-
peals sustained a natural mother's challenge to an order permanent-

ly terminating her parental rights, but sustained a provision of the

same order awarding custody of the child to the mother's sister and

the sister's husband. The child, born out of wedlock, had been in the

sister's physical custody for the first five years of its life. The

natural mother later married, and her husband initiated proceedings

to adopt her child. The same day, he and the mother forcibly took

the child from the sister. The sister and her husband intervened in

the adoption proceedings, asking that they be permitted to adopt

the child, and also filed a petition for custody, alleging that the child

was dependent and neglected. The summons served upon the
mother referred only to "a petition alleging that said [child] is

dependent and a neglected child,"^ and neither the petition nor the

court's order fixing a hearing date contained any reference to final

termination of parental rights or to the necessity of the mother's

consent to adoption by the sister and her husband. Nevertheless,

the court's order included a finding that the natural mother had

abandoned the child and that her consent to the adoption was not
required."

"358 N.E.2d at 158-59.

^'Murphy v. Vanderver. 349 N.E.2d 202 (Ind. Ct. App. 1976). IND. CODE § 31-3-1-6

(g)(1) (1976) provides that a parent's consent is not required "if the child is adjudged to

have been abandoned or deserted for six [6] months or more immediately preceding

the date of the filing of the petition . . . ."

"351 N.E.2d 902 (Ind. Ct. App. 1976).

''Id. at 903.

"/d at 902-03.



1977] SURVEY-DOMESTIC RELATIONS 155

The court of appeals held that the natural mother's due process

rights had been violated by the court's order dispensing with her

consent, which in effect permanently terminated her parental rights

without adequate notice. Similar due process questions had been

raised and rejected in two other third district cases, In re Perkins^

and In re Wardship of Bender.^^ However, in both of those pro-

ceedings, the parents were notified that the welfare department

sought to have the children removed from parental custody and

made wards of the department "for all purposes including adop-
tion."^* The court held in each case that this constituted adequate
notice that termination of parental rights was at issue. In Egan, on

the other hand, there was no reference either to termination of
parental rights or to adoption in the documents served on the

mother, and termination had not clearly been put in issue at the

hearing.

•4. Rights of Putative Fathers. —The Indiana legislature has
amended the adoption statutes to add a new section permitting, but
not requiring, a hearing to be held in cases where the putative

father of an illegitimate child has "failed or refused to consent to

the adoption of the child" or in proceedings to terminate the

putative father's parental rights.'^ This is evidently an attempt by

the legislature to deal with the questions concerning rights of unwed
fathers, which were raised (but not answered) by the United States
Supreme Court in Stanley v. Illinois.^

In Stanley, the Supreme Court relied on both the due process

'^352 N.E.2d 502 (Ind. Ct. App. 1976).
"352 N.E.2d 797 (Ind. Ct. App. 1976).

^In re Perkins, 352 N.E.2d at 506: In re Wardship of Bender. 352 N.E.2d at 800.
'"Ind. Code § 31-3-1-6.1 (Supp. 1977), as amended by Pub. L. No. 307, 1977 Ind.

Acts 1398. The amendment became effective May 1, 1977; it provides:
In cases where the putative father of an illegitimate child has failed or refus-
ed to consent to the adoption of the child or terminate his parental rights as

provided in section 7 of this chapter, the court may, at the request of any per-
son having a legitimate interest in the matter, including the licensed child

placing agency sponsoring the adoption of such child, conduct a hearing on

any objections which the putative father has to the adoption of the child.

Notice of the hearing shall be given to the putative father, and such notice

and hearing shall satisfy fully the requirements of section 6(h) of this chapter

with respect to putative fathers. At the hearing the court may determine the
merits of any objections to the adoption or claims regarding the child to be
adopted made by the putative father. If the putative father fails to make ob-
jections to the adoption of the child at the hearing, he shall be foreclosed

from challenging or objecting to the adoption of the child at any later date.

Failure of the putative father to appear after proper notice shall be tanta-

mount to failure to object, and the court may make its determination accor-
dingly.

'•405 U.S. 645 (1972).



156 INDIANA LAW REVIEW [Vol. 11:149

and equal protection clause of the fourteenth amendment" to hold
that the natural father of illegitimate children was entitled to a
hearing on his fitness as a parent before his children could be taken

from his custody. The case concerned the validity of an Illinois
statutory presumption that unwed fathers were unfit parents. The
immediate issue was custody of the children rather than adoption;

however, the Court's decision has far-reaching implications in adop-

tion and termination proceedings. If due process requires that an

unwed father be given a hearing before his custody rights can be ad-
judicated, then due process must also require notice and an oppor-
tunity to be heard before all of his parental rights can be finally ter-

minated in an adoption or termination proceeding. Once the ex-

istence of the unwed father's parental rights is recognized, the law
can no longer summarily dispose of them, as the Illinois courts had

attempted to do in Stanley or as the Indiana adoption statutes do in

dispensing with the necessity for his consent to adoption.*® Consent

to adoption, which amounts to a permanent relinquishment of all

parental rights, is a far more serious and irreversible step than is a
change in custody. The logic of Stanley, though not its holding, re-

quires notice and a hearing before a putative father's rights can be

finally terminated.

The practical problems this requirement raises in the context of
adoption are enormous. It is still a fairly rare phenomenon for an
unwed father to assert his parental rights, as Stanley did. The finan-
cial and other burdens of parenthood being what they are, most
unwed fathers may still prefer to remain anonymous, even where
the child is being put up for adoption. Any requirement that a
putative father must give his consent before an illegitimate child
can be adopted might well have the effect of preventing or delaying
the adoption of many such children, a result hardly in keeping with
the law's often stated concern for the child's best interests. The
legislature has declined to take this alternative, leaving intact the

existing provision of the adoption statutes that dispense with the

putative father's consent. Instead, it has enacted the present amend-
ment, which authorizes a court, at the request of any interested per-
son, to conduct a hearing on any objections the non-consenting
putative father may have to the adoption. If the putative father fails

"U.S. Const, amend. XIV. § 1.

"IND. Code § 31-3-l-6(g)(2) (1976). For a general discussion of the question, see
Schafrick, The Emerging Constitutional Protection of the Putative Father's Parental
Rights, 7 Fam. L. Q. 75 (1973). A Supreme Court decision handed down January 10,
1978, contains some clarification of the substantive rights of unwed fathers, but should
not affect the Stanley notice and hearing requirements, since the father had been af-

forded a full hearing on his claims of parental rights. Quilloin v. Walcott, 98 S. Ct. 549

(1978).



1977] SURVEY-DOMESTIC RELATIONS 157

to object to the adoption or fails to appear at the hearing after pro-

per notice, he is foreclosed from raising objections later and from

challenging the validity of the adoption." The evident purpose of
these provisions is to benefit both the child and its adopting parents

by protecting the validity and finality of adoptions against any later

attempt by a non-consenting father to assert his Stanley rights.

B. Dissolution of Marriage

1. Antenuptual Agreements. — In Tomlinson v. Tomlinson^*" the
Second District Court of Appeals held that antenuptual agjreements

providing for the disposition of property in the event of divorce are

not invalid per se as against public policy and that the particular

agreement involved was neither a contract that promoted divorce,
nor voidable for concealment, fraud, or duress. The agreement,
however, was held not to be binding on the trial court but was
merely one factor for the court to consider in making an equitable
distribution of the parties' property." Thus, the holding of this case

goes no farther than the First District Court of Appeals' 1975

holding in Flora v. Flora^ but Tomlinson does contain an extensive
discussion of the policies underlying previous decisions invalidating

such agreements and indicates the court's support for a much
broader rule of validation than would have been required by the
facts of this case.

The agreement involved in Tomlinson provided only that if there
were a divorce, the wife would have no claim to share in certain
specified property — a residence and a real estate company — owned
by the husband prior to the marriage. It did not involve any limita-
tion on the husband's duties of support, which was the factor held to
invalidate the antenuptual agreement in the 1906 case of Watson v.
Watson.*^ The court could have merely distinguished the Tomlinson
agreement from that involved in Watson, but it preferred to rest its
decision on the broad policy grounds expressed in recent cases from
other jurisdictions." There is extensive quotation from a recent Il-
linois case, Volid v. Volid,*^ discussing the changing roles of men and

'»IND. Code § 31-3-1-6.1 (Supp. 1977).
'"352 N.E.2d 785 (Ind. Ct. App. 1976).

"/d at 791. This treatment is justified on the ground that circumstances may
have changed subsantially since the agreement was signed. Nothing in the Dissolution
of Marriage Act requires a court to approve any agreement of the parties, whether
made before or during the marriage. See Ind. Code § 31-l-11.5-10(b) (1975).

"337 N.E.2d 846 (Ind. Ct. App. 1976).
"37 Ind. App. 548, 77 N.E. 355 (1906).

"Posner v. Posner, 257 So. 2d 530 (Fla. 1972); Volid v. Volid, 6 111. App. 3d 386,
286 N.E.2d 42 (1972); Fricke v. Fricke. 257 Wis. 124, 42 N.W.2d 500 (1950) (dissenting
opinion); accord, Hudson v. Hudson, 350 P.2d 596 (Okla. 1960).

"6 111. App. 3d 386, 286 N.E.2d 42 (1972).



158 INDIANA LAW REVIEW [Vol. 11:149

women in modern society and the increasing incidence of divorce
and remarriage by older persons with established families and in-

dependent means. The quoted conclusion from Volid was that no
public policy is violated by permitting such persons to establish

their rights by contract so long as the contract is made with full
disclosure and without fraud or duress." It is clear from this dicta in

Tomlinson that the court would favor a broad rule upholding an

otherwise valid antenuptual agreement, even if it limited or

eliminated altogether the obligation of either spouse to support the

other in the event of divorce (support obligations being no longer

imposed solely on the husband, as they were when Watson was
decided).*^

2. Financial Awards. — Dwrmg the survey period the appellate
courts were still deciding cases involving alimony and property divi-
sions made under former divorce statutes." These decisions have lit-
tle relevance to cases arising under the present Dissolution of Mar-

riage Act" and will not be discussed. However, several cases were
decided under the Dissolution of Marriage Act, and these may throw
some light on the way the courts will be interpreting its various
provisions with respect to maintenance and property divisions (the

term "alimony" does not appear in the Act).

(a) Maintenance. — The scope of the limitations on maintenance
awards found in section 9(c) of the Dissolution of Marriage Act was
not precisely defined in any of the cases decided during the survey

period.^ Section 9(c) limits maintenance awards to cases where
either spouse is "physically or mentally incapacitated."" In Newman
V. Newman,^^ the husband was totally disabled by multiple sclerosis
and confined to a wheelchair, thus section 9(c) was clearly applicable.

"352 N.E.2d at 789-90 (quoting Volid v. Volid, 6 111. App. 3d 386, 391-93. 286

N.E.2d 42, 46-47 (1972)).

"IND. Code §§ 31-1-11.5-9, -10, -12 (1976).

"Stanford v. Stanford, 352 N.E.2d 93 (Ind. Ct. App. 1976); Wilson v. Wilson, 349

N.E.2d 277 (Ind. Ct. App. 1976) (attorney's fees); Burkhart v. Burkhart, 349 N.E.2d 707

(Ind. Ct. App. 1976) (property division and attorney's fees).

"Ind. Code §§ 31-1-11.5-1 to -24 (1976). Stanford contains an express disclaimer to
this effect. 352 N.E.2d at 93 n.l.

•"The First District Court of Appeals did address this question in a case decided

July 28, 1977, which is not within the period covered by this survey. Wilcox v. Wilcox,

365 N.E.2d 792 (Ind. Ct. App. 1977).

"Ind. Code § 31-l-11.5-9(c) (1976), which provides:

(c) The court may make no provision for maintenance except that when
the court finds a spouse \,o be physically or mentally incapacitated to the ex-

tent that the ability of such incapacitated spouse to support himelf or herself

is materially affected, the court may make provision for the maintenance of
said spouse during any such incapacity, subject to further order of the court.

"355 N.E.2d 867 (Ind. Ct. App. 1976).



1977] SURVEY-DOMESTIC RELATIONS 159

Although the trial court made no present award of maintenance to
the husband, it did recognize his right to maintenance and expressly

reserved jurisdiction over the question of possible future

maintenance for the husband in its decree.^

The husband was not contesting the court's failure to award him
maintenance, but objected to the property division, which awarded

substantially all of the property to the wife, who had received
custody of the parties' three children. The Second District Court of
Appeals held that this property division was not an abuse of discre-

tion in view of the limited earning capacity of the wife and the ex-

press reservation of the issue of possible future maintenance for the

husband, which the court considered a "proper and wise exercise of

the power" granted by section 9(c)." The court commented that this
section, which authorized awards of support for disabled spouses

that are modifiable in the future, allows the courts greater flexibili-

ty in providing for such spouses' future needs than did the former

statute under which a present lump sum alimony award had to be
made sufficient to take care of the unknown future needs of the
disabled spouse. Such awards were often weighted in favor of the
future needs of the disabled spouse to the disadvantage of the pay-

ing spouse.**

In re Marriage of Lewis^^ involved an order for temporary

maintenance to a wife who was not incapacitated under section 9(c).
The trial court entered its decree dissolving the marriage on
December 13, 1974, but reserved decision on the question of proper-
ty division. Its property division decree, handed down February 26,
1975, ordered the husband to pay $160 per week for the wife's
maintenance for the interim period. In reversing this portion of the

court's order, the Third District Court of Appeals made it clear that
section 7 of the Act authorizes temporary maintenance (to either
spouse) only up to the date of the final decree dissolving the mar-

riage, which in this case was December 13, 1974." The fact that the

"The decree provided:
Donald Newman is permanently disabled and unable to earn a living.

The court retains continuing jurisdiction over the issue of possible
maintenance to be paid by Gretchen Newman to Donald Newman, and such
matter will be considered upon future hearing at the request of Donald
Newman.

Id. at 869.

"Id. at 870.

"/d at 869.
"360 N.E.2d 855 (Ind. Ct. App. 1977).

"IND. Code § 31-1-11.5-7 (1976) provides in pertinent part:
(a) In any action pursuant to section 3 either party may make a motion

for temporary maintenance ....



160 INDIANA LAW REVIEW [Vol. 11:149

trial court had taken the property division question under advise-

ment did not alter the finality of the December decree as to the par-
ties' marital status.

( b ) Property Division. — Under the Dissolution of Marriage Act,
as under the former divorce statutes, separation agreements settl-

ing the property rights of the parties are recognized and en-

couraged;" but in order for such an agreement to be approved by

the court and incorporated into a dissolution of marriage decree, it

must be in writing.** Interpreting section 10 of the Act, the First

District Court of Appeals held that an oral property settlement

agreement could not be approved and incorporated into the decree

but that it could be considered by the trial court in making its own
equitable division of property. This is what the trial court did, in ef-
fect, in Waitt v. Waitt,*^ and the court of appeals affirmed the

decree incorporating the terms orally agreed upon by the parties.

Reversal would be justified only by showing that the trial court had

failed to consider the factors listed in section 11 of the Act, which

are to be considered in determining a "just and reasonable" division

of property;" no such showing had been made in Waitt.

(d) The court may issue an order for temporary maintenance or sup-

port in such amounts and on such terms as may seem just and proper ....

(e) ... [AJnd it [the order] shall terminate when the final decree is

entered ....

(Emphasis added).

^'Compare id. § 31-1-11.5-10 with ch. 120, § 2, 1949 Ind. Acts 312 (repealed 1973).

"IND. Code § 31-l-11.5-10(a) (1976) provides:

To promote the amicable settlements of disputes that have arisen or

may arise between the parties to a marriage attendant upon the dissolution

of their marriage, the parties may agree in writing to provisions for the
maintenance of either of them, the disposition of any property owned by

either or both of them and the custody and support of their children.

(Emphasis added).

"360 N.E.2d 268 (Ind. Ct. App. 1977).

"Ind. Code § 31-1-11.5-11 (1976) provides in pertinent part:

In determining what is just and reasonable the court shall consider the

following factors:

(a) the contribution of each spouse to the acquisition of the property,

including the contribution of a spouse as a 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 disposi-

tion of the property is to become effective, including the desirability 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 determination of the property rights of the par-

ties.



1977] SURVEY-DOMESTIC RELATIONS 161

In Covalt V. Covalt,*^ there was a written property settlement,
which was approved and incorporated into the dissolution of mar-

riage decree. The problem arose when the wife filed a motion for
relief from the decree under Trial Rule 60(B)(8), seventy-six days

after the decree had been entered. The trial court, after a hearing,
granted her motion, amended the decree, and awarded the wife an
additional $5,000. The Second District Court of Appeals held the
amendment "clearly erroneous" and reversed." The wife's motion
for relief from the decree was based on allegations that she had
been without counsel at the time the agreement was made and that
she had been misled by representations made by her husband and
his attorney concerning the value of the house that was to become
property of the husband under the parties' agreement. As a result,
she had later agreed to relinquish her right to $5,000 in cash under

the agreement, a sum which represented, at least in part, her share
of the parties' equity in the house. It was this $5,000 that the trial
court ordered restored to her in granting her motion for relief.

Since the wife's motion was based on alleged misrepresentations

made to her, it was in substance grounded on an allegation of fraud,
or constructive fraud, although brought under Trial Rule 60(B)(8),

which authorizes relief for "any other reason justifying relief from

the operation of the judgment," rather than under the fraud provi-

sion of Trial Rule 60(B)(3). The court of appeals' holding that there
was insufficient evidence of fraud, actual or constructive, to support
the trial court's judgment may have been all that was needed to
dispose of this case. The court's further holding that the provisions
of sections 10(c) and 17(a) of the Dissolution of Marriage Act limit

the remedies available under Trial Rule 60(B) might well have been

reserved for future decision in a more appropriate case.
Section 10(c) provides that property division provisions of a

decree incorporating an agreement of the parties may not be subse-
quently modified by the court unless the agreement itself provides

for modification or the parties subsequently consent to modifica-

tion." Section 17(a) provides that court orders "as to property divi-

sion . . . may not be revoked or modified, except in cases of fraud,''
distinguishing such provisions from child support provisions, which

are always subject to future modification or revocation on a showing

of substantial change in circumstances.*' It was the court's opinion in

•'354 N.E.2d 766 (Ind. Ct. App. 1976).
"M at 771. (Judge White dissented, without opinion.)
•'Ind. Code § 31-l-11.5-10(c) (1976).
**/d. § 31-l-11.5-17(a). The pertinent portions of this section provide:

(a) Provisions of an order with respect to child support may be
modified or revoked. Such modification shall be made only upon a showing of
changed circumstances so substantial and continuing as to make the terms



162 INDIANA LAW REVIEW [Vol. 11:149

Covalt that these two sections limit a trial court's power to grant

relief from the property division provisions of a dissolution decree

under Trial Rule 60(B), because to grant such relief would be to

modify the provisions in violation of sections 10(c) and 17(a). Under
Covalt, the only ground available for relief from a property division

decree would be fraud.**

It seems imprudent to so limit the equitable powers of courts to

relieve parties from the effects of an oppressive judgment, based on

statutory provisions relating to modifications of such judgments.

The kind of modification referred to in sections 10(c) and 17(a) is
made on the basis of future changes in circumstances. Relief from a
judgment, on the other hand, is granted for conditions existing at

the time the judgment was entered, such as fraud, mistake, sur-
prise, or newly discovered evidence.*^ These are two fundamentally
different concepts, and there is no reason to conclude that the

legislature, when it limited future modification of property division
decrees by sections 10(c) and 17(a), intended to also foreclose

equitable relief from such decrees where it would otherwise be
justified on the limited grounds specified in Trial Rule 60(B). Sup-

pose, for example, that a decree were based upon a property settle-
ment agreement made by the parties under a mutual mistake of fact
sufficiently material to justify rescinding the agreement under the

usual rules relating to equitable rescission of contracts. Nothing in

the Dissolution of Marriage Act justifies the conclusion that the

legislature intended to deprive the courts of power to relieve the
parties from such a decree under Trial Rule 60(B)(8), yet that would

seem to be the result under Covalt.
3. Child Custody. — ( a) Original Custody Decrees. —Two cases

were decided by the First District Court of Appeals in which the
trial courts' determinations of custody on dissolution of marriage

were directly challenged.** In each case, custody had been awarded
to the father; and in each, the trial court's determination of custody

was affirmed on appeal.
In Schwartz v. Schwartz,^^ the wife challenged the award on the

ground that the court should give preference to the wife and award
her custody if it finds that she is a fit and proper person to have

unreasonable. The orders as to property disposition entered pursuant to sec-

tion 9 may not be revoked or modified except in cases offraud which ground
shall be asserted within two (2) years of said order.

(Emphasis added).

"Fraud is one of the grounds for relief under IND. R. Tr. P. 60(B).

"Farley v. Farley. 359 N.E.2d 583 (Ind. Ct. App. 1977); Schwartz v. Schwartz. 351

N.E.2d 900 (Ind. Ct. App. 1976).
"351 N.E.2d 900 (Ind. Ct. App. 1976).



1977] SURVEY-DOMESTIC RELATIONS 163

custody. In this case, the wife had adopted the husband's child from

a prior marriage, and the court of appeals held she had the same

rights to custody as a natural parent would have/" However, those

rights do not include any preference with respect to custody under

section 21(a) of the Dissolution of Marriage Act, which provides: "(a)

The court shall determine custody and enter a custody order in ac-

cordance with the best interests of the child. In determining the

best interests of the child, there shall be no presumption favoring

either parent . . . ."" The italicized portion was added to the

Uniform Act's custody provision^^ by the Indiana legislature. Its ef-

fect is to emphasize, rather than to alter, the intent of the Uniform

Act to make the interests of the child, rather than those of the
parents, the predominant consideration in custody decisions. Rejec-

tion of any preference based on sex is also probably required by the

reasoning of recent Supreme Court equal protection decisions in the

area of sex discrimination.^' Based on the evidence presented in

Schwartz, the court of appeals held the award of custody to the

father was not an abuse of the trial court's discretion.

Farley v. Farley^* involved a somewhat more complex fact situa-
tion in which the wife had left the state after filing her dissolution

action, taking the parties' infant son with her. The wife was not pre-
sent at the dissolution hearing, although she had notice of it; her at-

torney did appear and attempted unsuccessfully to have the pro-

ceedings dismissed or continued. The wife had filed another action
for dissolution and custody in Texas, where she was then living with
her parents. The Indiana trial court proceeded with the hearing,
dissolved the marriage, and awarded custody to the husband. The
wife, through her counsel, attempted to amend the judgment and to
stay its enforcement, again without success. On appeal, the First
District Court of Appeals affirmed the actions of the trial court.

In refusing to overturn the trial court's custody decision, the

court of appeals emphasized the broad discretion courts necessarily

have in such matters and the fact that appellate review is limited to

the question of abuse of that discretion.^^ The wife's failure to ap-

"Ind. Code § 31-3-1-9 (1976) provides in pertinent part: "After such adoption such

adopting father or mother or both shall occupy the same position toward such child

that he, she or they would occupy if the natural father or mother or both, and shall be

jointly and severally liable for the maintenance and education of such person."

"M § 31-l-11.5-21(a) (emphasis added).
"Uniform Marriage and Divorce Act § 402.
"See, e.g., Stanton v. Stanton, 421 U.S. 7 (1975); Weinberger v. Wiesenfeld, 420

U.S. 636 (1975); Frontiero v. Richardson, 411 U.S. 677 (1973).
'*359 N.E.2d 583 (Ind. Ct. App. 1977).

"See, e.g., Gilchrist v. Gilchrist, 225 Ind. 367, 75 N.E.2d 417 (1947) (habeas corpus

action); Shaw v. Shaw, 304 N.E.2d 536 (Ind. Ct. App. 1973).



164 INDIANA LAW REVIEW [Vol. 11:149

pear and testify at the hearings and her direct violation of a prior

court order prohibiting removal of the child from the jurisdiction

were factors the court was entitled to consider in making its

custody determination, along with evidence of the husband's will-

ingness and ability to care for the child.^* The wife's presentation,

through her attorney, of a letter from her physician advising against

travel because of her pregnancy and of affidavits from her grand-

mother and great aunt attesting to her fitness as a mother did not

require the trial court to grant her relief from the judgment under

Trial Rule 60(B)(8)."

( b ) Custody Modification. —The First District Court of Appeals
also decided two custody modification cases^* in which custody had

been awarded to the father and a third case in which the father's

petition for change of custody was held to have been erroneously

dismissed.^'

The first of these decisions, Franklin v. Franklin,^ discussed the
standards to be used in custody modification cases under the

Dissolution of Marriage Act and concluded that these standards do

not differ significantly from those used under prior statutes. In

adopting the present statute, which is based on the Uniform Mar-

riage and Divorce Act, the legislature omitted the section dealing

with modification of custody decrees from the Indiana version.*^ This

omission left the Indiana statute with no explicit statement of the

standards to be used in determining custody modification, but the

general provisions relating to standards for determining custody in

accordance with the best interests of the child were held relevant to
modification as well as to the original determination of custody.*^

The statute also specifically authorizes the court to interview the

^'359 N,E.2d at 589.

"/d. at 586. The issue raised in Farley as to the effect of the automatic dismissal

provisions of section 9(a) of the Dissolution of Marriage Act is discussed infra at 168,

under -4. Procedure.

"In re Marriage of Lopp, 362 N.E.2d 492 (Ind. Ct. App. 1977); Franklin v. Franklin,

349 N.E.2d 210 (Ind. Ct. App. 1976).

'Tund V. Fund, 357 N.E.2d 257 (Ind. Ct. App. 1976).
»''349 N.E.2d 210 (Ind. Ct. App. 1976).

"Uniform Marriage and Divorce Act § 409.
''Ind. Code § 31-l-11.5-21(a) (1976). The statute lists the following factors to be

considered in determining the child's best interests:

(1) the age and sex of the child;

(2) the wishes of the child's parent or parents;

(3) the wishes of the child;

(4) the interaction and interrelationship of the child with his parent or

parents, his siblings, and any other person who may significantly affect the
child's best interests;

(5) the child's adjustment to his home, school and community; and

(6) the mental and physical health of all individuals involved.



1977] SURVEY-DOMESTIC RELATIONS 165

child in chambers to ascertain the child's wishes.*^ The court of ap-
peals held in Franklin that these statutory provisions did not change

the requirement of prior case law that a change in conditions must

be shown before a court can modify a custody decree.** In both
Franklin and In re Marriage of Lopp,^^ the court held there was suf-

ficient evidence of changed conditions to justify the trial court's ex-

ercise of its discretion to modify its prior custody decree and award

custody to the father.

In Pund V. Pund,^^ the father filed his petition for change of
custody in the Dubois Circuit Court, although the original 1974

dissolution decree awarding custody of the parties' two daughters to

the mother had been entered in the Spencer Circuit Court. At the
time the father's petition for change of custody was filed, all of the
parties were residents of Dubois County. The mother's motion to
dismiss for lack of subject matter jurisdiction was granted by the
trial court, but the First District Court of Appeals reversed, holding

that the Dubois Circuit Court did have subject matter jurisdiction

over the custody issue. At most, the issue of whether the case
should be tried in Spencer or Dubois County was a question of
venue, and the proper remedy would have been an order transferr-
ing the case under Trial Rule 75(B), rather than an order dismissing

the case.

As in Franklin, the absence of a specific provision relating to
custody modification proceedings in the Indiana Dissolution of Mar-
riage Act was the source of the problem faced by the trial court in
Pund. Section 3 of the Act refers to only two causes of action,
dissolution of marriage and child support.*' Section 20 states that a
child custody proceeding can be commenced by a parent "by filing a
petition pursuant to section 4(a) or (b),"** but section 4 describes only
the same two types of proceedings, dissolution and child support.**
The section of the Uniform Act dealing with child custody pro-

'"/d § 31-l-11.5-21(d).

''E.g., Rose v. Rose. 256 Ind. 440, 269 N.E.2d 365 (1971); Huston v. Huston, 256 Ind.
110, 267 N.E.2d 170 (1971); Perdue v. Perdue, 254 Ind. 77, 257 N.E.2d 827 (1970). Rose
states the requirement to be "a substantial and material change in conditions affecting
the welfare of the children." 256 Ind. at 443, 269 N.E.2d at 366.

A 1976 amendment to Ind. Code § 31-l-11.5-22(d) added a requirement that
custody orders be modified "only upon a showing of changed circumstances so substan-
tial and continuing as to make the existing custody order unreasonable." Pub. L. No.
128, §4(d), 1976 Ind. Act 616, 619.

'^362 N.E.2d 492 (Ind. Ct. App. 1977).
"357 N.E.2d 257 (Ind. Ct. App. 1976).
''Ind. Code § 31-1-11.5-3 (1976).
''Id. § 31-1-11.5-20.

"M § 31-1-11.5-4.



166 INDIANA LAW REVIEW [Vol. 11:149

ceedings,^" as well as that dealing with custody modification, were

omitted from the Indiana Act, leaving it without any express provi-

sions for a child custody action not connected with a dissolution or

child support action.®^ In Pund, the court of appeals had to look to

the general statutes that established the circuit courts and gave

them jurisdiction over "actions for divorce"'^ to support its deter-

mination that the trial court had subject matter jurisdiction in this

case.

These omissions in the Indiana Dissolution of Marriage Act have

now been corrected by adoption of the Uniform Child Custody
Jurisdiction Law,®^ which contains provisions both for original

custody proceedings and modification proceedings.'*

(c) Uniform Child Custody Jurisdiction Lat6». — This statute,
which was adopted in substantially unchanged form, does a great deal
more than fill in some gaps in the Indiana Dissolution of Marriage
Act. It is designed to minimize such problems as continual relitiga-

tion of custody, forum shopping by parents seeking a change in

custody, child snatching, and jurisdictional competition with courts

from other states. It also attempts to promote cooperation and

exchange of information between courts of different states concerned
with the same custody dispute.'^ To achieve these purposes, the
statute provides standards to determine when a court should
assume jurisdiction of a custody dispute.®* It sets up procedures to.
assist in resolving conflicts of jurisdiction where a court in another
state is also entitled to assume jurisdiction, essentially by the sim-
ple expedient of "communication" and exchange of information bet-

ween the two courts, with a view to determining which is the more
appropriate forum.*' The law provides for enforcement of out-of-
state decrees rendered by courts meeting the jurisdictional re-

quirements of the statute,** for cooperation between courts in for-
warding transcripts and other evidence, and for cooperation in

ordering persons within a court's jurisdiction to appear in custody

"Uniform Marriage and Divorce Act § 401.
"Ironically, § 20 does provide that a child custody proceeding can be commenced

by a "person other than a parent," but that provision would not apply to the father's

petition in Pund. IND. Code § 31-1-11.5-20 (1976).
"M § 33-4-4-3. The Indiana Dissolution of Marriage Act also gives the circuit

courts jurisdiction to "enter dissolution decrees," but the language of the above

statute is broader. Id. § 31-l-11.5-2(a).

»'/d. §§ 31-1-11.6-1 to -24 (Supp. 1977) (originally enacted as Pub. L. No. 305, § 4,

1977 Ind. Acts 1383). The Act became effective August 1. 1977.
"iND. Code § 31-1-11.6-3 (Supp. 1977).
'Vd § 31-1-11.6-1.

••/d § 31-1-11.6-3.

'Vd § 31-1-11.6-7.

"/d § 31-1-11.6-13.



1977] SURVEY-DOMESTIC RELATIONS 167

proceedings in another state." At least twenty states, in addition to
Indiana, have adopted the Uniform Child Custody Jurisdiction

Law.'""

-4. Procedure. — Two court of appeals decisions have been hand-
ed down interpreting section 8(a) of the Dissolution of Marriage Act,
which provides for automatic dismissal of the action if no motion for

dissolution of the marriage is filed by either party within ninety

days after a continuance has been granted for reconciliation pur-

poses/"^

In Bennett v. Bennett,^"^ the dissolution action had been initiated

by the husband. After the final hearing, held November 12, 1974, the
trial court ordered the matter continued and directed the parties to
seek reconciliation through Lutheran Family Services. A month
later, the agency reported that neither party felt reconciliation was
possible. On April 29, 1975, more than five months after the final
hearing, the husband requested a further hearing. Both parties ap-
peared at this hearing and a decree of dissolution was entered on
June 23, 1975. After the decree was entered, the wife raised the
issue of automatic dismissal under section 8(a) for the first time in

her motion for relief from judgment and motion to correct errors.
The Third District Court of Appeals held the wife had waived the
issue of automatic dismissal by failing to raise it until after the

dissolution decree was entered, rejecting her argument that section
8(a) was "jurisdictional."

The wife's contention was, in effect, that upon the expiration of
ninety days from the date of continuance, the court's jurisdiction

"M § 31-1-11.6-20.
""It was reported in [1977] 3 Fam. L. Rep. 1181 (BNA) that the following states

had adopted the Uniform Act: Alaska, Arizona, California, Colorado, Delaware,

Florida, Hawaii, Idaho, Indiana, Iowa, Maryland, Michigan, Minnesota, Montana, New
York, North Dakota, Ohio, Oregon, Pennsylvania, Wisconsin, and Wyoming.

'"IND. Code § 31-l-11.5-8(a) (1976) provides:

(a) In an action pursuant to section 3(a) [dissolution of marriage], a final

hearing shall be conducted no earlier than sixty (60) days after the filing of

the petition. Upon the final hearing: the court shall hear evidence and, if it
finds that the material allegations of the petition are true, either enter a

dissolution decree as provided in section 9(a) or if the court finds that there

is a reasonable possibility of reconciliation, the court may continue the mat-
ter and may order the parties to seek reconciliation through any available
counseling. At any time forty-five (45) days after the date of the continuance
either party may move for the dissolution of the marriage and the court may
enter a dissolution decree as provided in section 9(a). // no motion for the

dissolution is filed, the matter shall be, automatically and without further

action by the court, dismissed after the expiration of ninety (90) days from
the date of continuance.

(Emphasis added).
"''361 N.E.2d 193 (Ind. Ct. App. 1977).



168 INDIANA LAW REVIEW [Vol. 11:149

over the subject matter "automatically" terminated under section

8(a) so that any proceedings held thereafter, including issuance of

the dissolution decree, were void. However, the court of appeals

declined to construe section 8(a) as having so drastic an effect,

holding instead that the legislature adopted the automatic dismissal

provision merely as a "procedural vehicle ... to aid the efficient

housekeeping of the court," similar in effect to a statute of limita-

tions.'"' Being procedural rather than jurisdictional, it could be waiv-

ed by a party's participation without objection in the dissolution

proceedings, as the wife did in this case.

The automatic dismissal provision was also raised by the wife in

Farley v. Farley,^"* but the facts of this case were not such as to

make the provision applicable. The section provides for automatic
dismissal only where the court exercises its power to continue the

matter after final hearing so that the parties can seek reconciliation.

The automatic dismissal occurs if, ninety days after such a conti-

nuance, neither party has moved for dissolution. In Farley, the
reconciliation attempts had occurred before any final hearing had

been held. Even though more than a year had passed since the filing
of the petition for dissolution,'"^ no final hearing had occurred to

start the ninety-day period running. Under these facts, the First
District Court of Appeals held that the automatic dismissal provi-

sions of section 8(a) were inapplicable.

In State ex rel Stanton v. Superior Court,^°^ the Indiana

Supreme Court made a temporary writ of mandate and prohibition
issued against the Superior Court of Lake County permanent. The

writ directed the court to vacate an order joining the administrators

of the state and county departments of public welfare as additional

parties to a dissolution of marriage proceeding, and to vacate an

order restraining the administrators from denying to the wife any

benefits to which she would be entitled if she were unmarried. The
joinder order was entered by the superior court sua sponte on learn-
ing that the husband's purpose in filing the dissolution action was to
make his disabled wife eligible for medicaid benefits.'"^ The supreme
court held that the joinder was improper under Trial Rule 19(A)(2)"'*
since the welfare administrators claimed no interest in the pro-

""Id. at 196.

"'*359 N.E.2d 583 (Ind. Ct. App. 1977). Other aspects of this case are discussed

supra at 163, under 3. Child Custody.

'°^The parties filed separate actions for dissolution on June 6, 1974. The final hear-

ing was held September 19, 1975. Id. at 584-85.
""355 N.E.2d 406 (Ind. 1976).

""Id. at 407.

""Ind. R. Tr. P. 19(A)(2) provides:

A person . . . shall be joined as a party in the action if



1977] SURVEY-DOMESTIC RELATIONS 169

ceeding, and nothing in the Dissolution Act contemplated the joinder

of such additional parties in an action to dissolve a marriage.

C. Enforcement of Alimony and Support Judgments

The appellate courts of Indiana decided several cases relating to
enforcement of money judgments awarded in connection with
divorce. The cumulative effect of these decisions may be to limit the
remedies available for enforcement of decrees ordering payment of
periodic sums regardless of their denomination as alimony,
maintenance, property division, or child support.

1. Contempt. — In a divided decision. State ex rel Shaunki v.
Endsley,^"^ the Indiana Supreme Court held that a judgment for in-
stallment payments awarded as a division of property is not en-
forceable by contempt proceedings. Although the issue on appeal
was precisely, and correctly, defined as "whether payment of a judg-
ment awarded in lieu of property division and payable in weekly in-
stallments, is enforceable by contempt proceedings,""" throughout
the majority opinion there are references to enforcement of an

"alimony judgment." Since the decree here sought to be enforced

was rendered under the present Indiana Dissolution of Marriage
Act,"' in which the word "alimony" does not appear, such references
are at best confusing. Many alimony judgments rendered under
previous statues are still in effect, and they should not be so casual-
ly equated with property divisions entered under the Dissolution of
Marriage Act without consideration being given to the substantial
differences between the present and former statues. In fact, the rule
applied in Shaunki came into existence more than seventy years ago
under statutes significantly different from statutes that have been
in effect in more recent years.

The Shaunki majority cited and followed a 1904 case, Marsh v.
Marsh,^^^ which held that an award of alimony in gross (for a fixed
sum), though payable in installments, could not be enforced by con-

(2) he claims an interest relating to the subject of the action and is so
situated that the disposition of the action in his absence may:

(a) as a practical matter impair or impede his ability to protect that in-
terest or

(b) leave any of the persons already parties subject to a substantial

risk of incurring double, multiple, or otherwise inconsistent obliga-

tions by reason of his claimed interest.
""362 N.E.2d 153 (Ind. 1977) (Justices Arterburn and DeBruler dissented).
"°M at 153.
'"Ind. Code § 31-1-11.5-1 to -24 (1976). The decree was entered December 3. 1976,

dissolving the Shaunkis' marriage on the present statutory ground of irretrievable
breakdown of the marriage. In re Marriage of Shaunki, No. C 75-1531 (Marion Cir. Ct.
Dec. 3, 1976).

"'162 Ind. 210, 70 N.E. 154 (1904).



170 INDIANA LAW REVIEW [Vol. 11:149

tempt. The reason given was that such an award — the only form of
alimony permitted under the statute then in force"^— was "to all in-

tents and purposes a judgment, which may be collected on execu-
tion"; use of the "more drastic remedy" of contempt was therefore

considered unnecessary."* Marsh followed a long line of prior In-

diana cases that had held a judgment for alimony to be "an absolute

personal judgment, which is collected by execution as other

judgments.""^ The statute in force at that time not only required a

decree for alimony to be "for a sum in gross, and not for annual
payments," but gave the court discretion to allow payment by in-

stallments only if "sufficient surety" was given."' Thus, under that

statutory scheme, the Marsh court was justified in concluding that
the wife was adequately protected both by the surety provision of
the statue and by the ready availability of the execution remedy;

therefore, use of the contempt power as a means of forcing com-
pliance with the court's alimony decree was not necessary.

The statutory scheme had changed dramatically by 1974, when
the Marsh rule was applied in State ex rel Schutz v. Marion
Superior Court.^^'' No longer was an alimony judgment an "absolute
personal judgment" readily collectible by execution."* The 1949

statute,"' in effect at the time of the decree sought to be enforced in

Schutz, required neither a final judgment for a fixed and immutable

sum, nor sufficient surety for a judgment payable in installments.
Rather, it permitted installments to be discontinued or reduced on

the death or remarriage of the wife and made the giving of any kind
of security entirely discretionary with the court.^^° As Mr. Justice

'"Ch. 43, § 22, 1873 Ind. Acts 107 (effectively repealed 1949).

"'162 Ind. at 212, 70 N.E. at 155.

"^Musselman v. Musselman, 44 Ind. 106, 122 (1873).

""This statute, in force at the time Marsh was decided, was identical to that

quoted in Musselman. Ch. 43, § 22, 1873 Ind. Acts 112 (effectively repealed 1949); it

states: "The decree for alimony to the wife shall be for a sum in gross, and not for an-
nual payments; but the court, in its discretion, may give a reasonable time for the pay-
ment thereof, by installments, on sufficient surety being given."

'"261 Ind. 535, 307 N.E.2d 53 (1974).

'"Recent court of appeals cases limiting the availability and effectiveness of execu-

tion as a remedy for enforcement of alimony judgments are discussed infra at 173.

'"Ch. 120, § 3, 1949 Ind. Acts 312 (repealed 1973).

'^The pertinent portion of id. § 3, provided:

In determining the method of payment of alimony the court may require that
it be paid in gross or in periodic payments, either equal or unequal, and if to

be paid in periodic payments the court may further provide for their discon-
tinuance or reduction upon the death or remarriage of the wife, and, in his

discretion, the court may further provide for such security, bond, or other
guarantee as shall be satisfactory to the court for the purpose of securing

the obligation to make such periodic payments ....
(Emphasis added).



1977] SURVEY-DOMESTIC RELATIONS 171

Arterburn's dissent in Schutz pointed out, the situation hardly call-

ed for automatic application of the seventy-year-old rule of Marsh,

when the underlying reasoning of that rule had been completely
eroded by subsequent changes in the divorce statutes.'^' The Schutz

majority attempted to shore up the deficiency of Marsh as prece-
dent by reliance on the Indiana Constitution's prohibition of im-

prisonment for debt/^^ but the changes in the nature of alimony

under recent statutes and the limitations on the execution remedy
discussed in the following section also tend to cast doubt on the

court's characterization of alimony as "debt."^^^

The statute in force when the Schutz decree was entered had
been repealed and the present Dissolution of Marriage Act had been

adopted by the time the Shaunki decree was entered.'^* The Dissolu-
tion of Marriage Act introduced new concepts as well as new ter-
minology. In lieu of alimony, "maintenance" can now be awarded if a
spouse is "physically or mentally incapacitated,"'^^ or where the par-
ties agree in writing.'^* Maintenance is of indefinite duration and

subject to future modification by the court.'" It clearly does not

come within the holding of Schutz that "a specific sum of money pro-
vided in an alimony judgment is a judgment debt" within the defini-

In fact, the only security actually provided in the Schutz decree was beneficiary
status on two life insurance policies, which would be effective as security only in the
event of the husband's death. 261 Ind. at 536. 307 N.E.2d at 54.

'"261 Ind. at 538-40. 307 N.E.2d at 55-56 (Arterburn, J., dissenting).

'^^Ind. Const, art. 1, § 22. Marsh did not mention the constitutional provision.
'^^Other states having similar constitutional provisions have found it to be inap-

plicable to alimony judgments. The rationale of these cases is summarized by Pro-
fessor Clark, as follows:

It is well settled that the enforcement of alimony decrees by contempt

does not violate the prohibition against imprisonment for debt found in many
state constitutions. This is so even though the decree is based upon an agree-

ment of the parties. Alimony is said not be a "debt" in the sense used in such
provisions, but an obligation arising out of marriage. In addition the enforce-

ment of alimony is so important to the state as to justify the use of imprison-
ment as a matter of policy where necessary to insure that the husband will
perform his obligation. The purpose of the constitutional prohibition, which is
to protect the honest debtor who is unable to pay his debts, can still be ac-
complished by adherence to the settled principle that inability to pay alimony

is a defense to contempt proceedings.

H. Clark, Law of Domestic Relations § 14.10 (1968).
'^*In re Marriage of Shaunki, No. C 75-1531 (Marion Cir. Ct. Dec. 3, 1976).
'='^ND. Code § 31-l-11.5-9(c) (1976), quoted in note 51 supra.
'"Id. § 31-1-1 1.5-10(a), quoted in note 59 supra.

'"The maintenance award to an incapacitated spouse is to be made only "during
any such incapacity" and is "subject to further order of the court." Id. § 31-1-11.5-9. Id.

§ 31-1-11.5-10 authorizes the parties to agree in writing to provisions for maintenance,

property division, and custody and support of children, and expressly limits modifica-
tion of provisions for "disposition of property," but contains no such limitation on

future modification of provisions for maintenance, custody, or child support.



172 INDIANA LAW REVIEW [Vol. 11:149

tion of the Indiana constitutional provision that "there shall be no

imprisonment for debt.'"^* The provisions relating to property divi-

sion give the trial court broad powers to divide property owned by
either or both spouses, including property acquired prior to the mar-

riage. In so doing, the court may take into account, among other fac-
tors, the "earnings and earning ability of the parties,"^^ a factor

clearly more relevant to rights and duties of support than to a mere
disentangling of the property interests of the parties.^'" The Dissolu-

tion of Marriage Act thus tends to blur the dividing line between

awards labeled "maintenance" and those labeled "property division."

The Act also contains an express provision authorizing enforcement

of decrees entered in dissolution actions by contempt.^''

On its facts, Shaunki holds only that a "judgment awarded in
lieu of property division and payable in weekly installments"^*^ is

not enforceable by contempt. The court might well have considered
the changes in the Indiana divorce statutes and the general policies

relating to enforcement of dissolution decrees by contempt before

applying the Marsh-Schutz rule in Shaunki. These factors certainly

should be considered before extending the rule to other types of

financial awards under the Dissolution of Marriage Act, whether

labeled as "maintenance" or "property division."

In Kuhn v. Kuhn,^^^ the First District Court of Appeals stated
that a second judgment fixing the amount of arrearage is necessary
before a judgment for child support can be enforced by contempt.

This case is discussed in the section which follows because of its

'^'261 Ind. at 538. 307 N.E.2d at 55.

'^'IND. Code § 31-1-11.5-11 (1976).

"°A spouse's equitable interests in marital property generally extend only to prop-

erty acquired by the parties during the marriage. See H. Clark, Law of Domestic
Relations § 14.8 (1968).

"'Ind. Code § 31-l-11.5-17(a) (1976), the pertinent portion of which provides:
"Terms of the [dissolution] decree may be enforced by all remedies available for en-
forcement of a judgment including but not limited to contempt except as otherwise
provided in this chapter." (Emphasis added).

Under prior statutes, the Indiana courts had to rely on their inherent equity
powers as authority for enforcement of decrees by contempt. See Corbridge v. Cor-
bridge, 230 Ind. 201. 207, 102 N.E.2d 764, 767 (1952) (child support order).

'^''362 N.E.2d at 153 (emphasis added). The decree sought to be enforced in
Shaunki contained no findings relating to support factors. Rather it contained findings
that the wife was entitled to a share of a business owned and operated by the hus-
band, that the business could not be readily divided or sold, and that the wife "could

best benefit by a cash settlement in lieu of a division of the business." Based on these
findings, the court awarded the wife $35,000, payable in installments, "in lieu of prop-
erty division." In re Marriage of Shaunki, No. C 75-1531, slip op. at 2-5 (Marion Cir. Ct.
Dec. 3. 1976).

"»361 N.E.2d 919 (Ind. Ct. App. 1977).



1977] SURVEY-DOMESTIC RELATIONS 173

reliance on the rule announced in Owens v. Owens,^^* discussed
therein.

2. Execution. — In Owens v. Owens,^^^ the First District Court
of Appeals held that execution was not available to enforce a judg-
ment for child support until the amount of arrearages in support
had been reduced to judgment in a "second suit."'*' The court of ap-
peals affirmed the judgment of the trial court granting the
defendant-husband's motion to quash a writ of execution against his

property. The wife had previously filed a petition to reduce the sup-
port arrearages to judgment, which the trial court had denied.

Although the court of appeals' holding seems to indicate that the
trial court should have granted the wife's petition, the court held

the wife had waived the issue by failing to file a motion to correct

errors at the time her petition was originally denied. Moreover, the
court said, the statute on which the petition was based had been
repealed prior to the filing of her petition.'*^ The repealed statute^'*
permitted, but did not require, entry of a judgment for arrears in a
contempt proceeding. Since the court of appeals held in Owens that
entry of such a judgment is mandatory, despite the repeal of this
statute, it is difficult to see the relevance of its repeal to the out-

come of this case.

The wife relied on section 17(a) of the Dissolution of Marriage
Act, which now provides that terms of a support decree "may be en-
forced by all remedies available for enforcement of a judgment, in-
cluding but not limited to contempt . . . ."*'* It is at least arguable
that repeal of the former statute specifically providing for a judg-
ment for arrears and adoption of a statute providing in broad terms
for enforcement of the original decree indicates a legislative intent

to authorize direct enforcement of that decree without the necessity

'"354 N.E.2d 350 (Ind. Ct. App. 1976).

'''Id.

•'•M at 352.

'"/d The trial court dismissed the wife's Petition to Reduce Arrearages to Judg-
ment on July 16, 1975. It granted the husband's motion to quash the writ of execution

on September 17, 1975, at which time the wife orally moved to reinstate her petition;
her motion was denied. Id. at 351-52.

'^Ch. 282, § 1, 1967 Ind. Acts 901 (repealed 1973). The repealed statute provided:
Whenever any person is determined by a court to be guilty of contempt

for failure to comply with an order of that court to pay support for

dependents and that court shall make a determination of the amount of an
arrearage under such order, the amount of such arrearage so determined
may be entered as a judgment of record against such person and be enforced
in the same manner as provided for the enforcement and collection of money
judgments.

(Emphasis added).

''"Ind. Code § 31-l-11.5-17(a) (1976).



174 INDIANA LAW REVIEW [Vol. 11:149

of obtaining a second judgment for the amount in arrears."" Without
discussing either policy or statutory construction, the court of ap-

peals held in Owens that adoption of section 17(a) did not change
"existing Indiana practice." The only reason given is that "other-
wise, the person filing the praecipe [for execution] may state any
given figure and place the burden upon the other party to prove

that the amounts are incorrect.""'

Indiana is not the only state requiring the docketing of a second

judgment for arrears of alimony or child support before execution

may issue. But in many other states that follow this practice, a judg-
ment for alimony or child support can be modified up to the time the
second judgment is entered, even as to amounts already in arrears
(retroactive modification).'" In those states, the amount actually ow-
ed under such an order can never be finally determined until the

judgment for arrears is docketed, and the requirement of a second

judgment is "the logical corollary of the rule . . . that even arrears

of alimony may be modified up to the time that the [second] judg-
ment is docketed.""^ In Indiana, on the other hand, support
judgments are not retroactively modifiable.'" The amount of support
due is fixed by the original decree, and, as to past-due installments,

the only defense open to the obligor is the defense of payment.

Moreover, both the present and former statutes authorize the

court to order that payments be made through the clerk of the cir-
cuit court, who is required to maintain a record of such payments."*
Where this procedure is followed, there appears to be no reason at
all to require the parent with custody to spend time and money in
securing a second judgment, because the amount actually due is
readily ascertainable. In other cases, the need to provide adequate

support for children should outweigh any inconvenience to a parent

who might have to prove that he (or she) had actually made the
payments alleged to be due, especially when that parent could have

'*°As a matter of policy, such a legislative intent would be entirely consistent with

the intent expressed by the legislature in adopting the Uniform Reciprocal Enforce-

ment of Support Act, which recognizes the importance of improving and extending the

enforcement of duties of support. Id. § 31-2-1-1.

'"354 N.E.2d at 352. Three cases are cited in support of the Owens holding, but in
none of them was the necessity for a second judgment an issue. Corbridge v. Cor-
bridge. 230 Ind. 201. 102 N.E.2d 764 (1952); Grace v. Quigg, 150 Ind. App. 371. 276

N.E.2d 594 (1971); Smith v. Smith, 124 Ind. App. 343. 115 N.E.2d 217 (1953). Quigg did

involve a judgment for arrears in support, but it was the amount of the arrears, not
the necessity for a second judgment, which was at issue.

'"See H. Clark. Law of Domestic Relations §§ 14.9. 14.10. 15.3 (1968).
'"/d. § 14.10.

'"Zirkle v. Zirkle, 202 Ind. 129. 172 N.E. 192 (1930); see Corbridge v. Corbridge,

230 Ind. 201. 102 N.E.2d 764 (1952).

'"Ind. Code § 31-1-11.5-13 (1976); id. §§ 31-2-2-1. -2.



1977] SURVEY-DOMESTIC RELATIONS 175

protected himself by requesting that the payments be made through
the court.

Owens is cited by the First District Court of Appeals in Kuhn v.
Kuhn,^*'^ in support of a statement that a second judgment fixing the
amount of arrearage is necessary before judgment for child support
can be enforced by contempt, but resolution of this issue was not
necessary in Kuhn. The three children involved were all eman-
cipated before the contempt proceedings were brought, and under
prior Indiana case law, contempt is not available as a remedy to en-
force support orders after emancipation.'*^ The trial court granted
the defendant's motion for summary judgment on this ground, and
its action was affirmed on appeal.'" Since contempt was not
available as a remedy in any event on the facts of this case, there
was no reason for the court to decide whether one proceeding or
two would be necessary to enforce a support order by contempt; if
that question had been at issue here, there is even less reason for
requiring two proceedings for contempt enforcement than there is
for execution. Whereas in execution proceedings the obligor parent
may be subjected to the inconvenience of having his property seized
before he can contest the amount of the arrearage alleged to be due,
in a contempt proceeding, he would normally be afforded a hearing
on the court's order to show cause before any coercive action is
taken against him.'*' No reason was given in Kuhn for rejecting the
plaintiff-wife's contention that the trial court should have authority
to reduce child support arrearages to judgment and enforce the
judgment through contempt in the same proceeding. To require two
proceedings for every delinquency, where one would serve as well,
seems wasteful of both the courts' and the parties' time and serves
no purpose other than delay in enforcing the children's right to sup-

port.

3. Alimony as a Lien. — Owens is also cited by the Third
District Court of Appeals in support of its holding in Uhrich v.

Uhrich^^ that an alimony judgment, payable in the future, does not

constitute a lien on the obligor-husband's real estate. The judgment
in question was for the gross sum of $40,500, payable in 122 monthly
installments. None of the installments was in default at the time the
wife began her action to have the unpaid balance declared a lien on

•"361 N.E.2d 919 (Ind. Ct. App. 1977).

'"Corbridge v. Corbridge. 230 Ind. 201, 102 N.E.2d 764 (1952). This is in accord

with the general rule. See Annot., 32 A.L.R.3d 888 (1970).
'"361 N.E.2d at 921.

'"This was the procedure followed in State ex rei Schutz v. Marion Superior

Court, 261 Ind. 535, 307 N.E.2d 53 (1974), discussed in the preceding section.

'"362 N.E.2d 1163 (Ind. Ct. App. 1977).



176 INDIANA LAW REVIEW [Vol. 11:149

her former husband's real estate. The statute in force at the time

the alimony judgment was rendered provided:

Said judgment [for alimony] shall be a lien upon the real

estate and chattels real of the spouse liable therefor to the

extent that it is payable immediately but shall not he such a

lien to the extent that it is payable in the future unless and

to the extent such decree so provides expressly.^^^

The Uhrich decree did not expressly provide that the alimony judg-
ment would constitute a lien.

The wife's argument was that the above statute constituted a
limitation on the effect of an alimony judgment as a lien. She argued

that repeal of the statute in 1973 removed the limitation, leaving

alimony judgments subject to the provisions of the general lien

statute that "all final judgments for the recovery of money or costs . .

.

shall be a lien upon real estate and chattels real liable to execution in

the county where such judgment has been duly entered . . . ."^^^

The court of appeals, in a divided opinion, rejected this argument,
holding that the general lien statute does not apply to an alimony

judgment payable in futuro.'^^ By citing Owen in support of this
view, the majority implicitly held that the requirement of a second

judgment for arrears applies to alimony judgments as well as to
judgments for child support; therefore, the original alimony judg-

ment, though for a gross sum, is not immediately due, payable, and

enforceable by execution as ordinary money judgments are.'"
Presiding Judge Staton's dissent rejected this rationale and

reasoned instead that repeal of the former provision by the

legislature was a "clear expression of policy that alimony judgments
should be treated as any other judgment."'^^ He pointed out that the
effect of the court's decision was to subordinate alimony judgments
to later-acquired judgment liens. It would therefore require the
alimony judgment-holder to obtain repeated executions as payments

become due in order to protect the judgment, which would place an
"insufferable hardship" on the judgment holder "as well as the
judicial system which would have to process the repetitive execu-

tions."'" It should be noted that under Owens, each of these

""Ch. 120. § 3, 1949 Ind. Acts 312 (repealed 1973) (emphasis added).

'"IND. Code § 34-1-45-2 (1976).
"'362 N.E.2d at 1164 (opinion of Garrard, J.).

'"/d Child support judgments have been held not to create liens under the

general lien statute because they are subject to future modifications by the court and

therefore are not final judgments for a specific sum of money. Myler v. Myler, 137 Ind.
App. 605. 210 N.E.2d 446 (1965); Rosenberg v. American Trust & Sav. Bank, 86 Ind.
App. 552, 156 N.E. 411 (1927).

'"362 N.E.2d at 1165 (Staton, J., dissenting).

'"Id.



1977] SURVEY-DOMESTIC RELATIONS 177

repeated executions would involve entry of a separate judgment
specifying the amount then in arrears.

The question presented in Uhrich is far from easy. It represents
a direct conflict between the policy favoring free alienability of land

and the policy favoring enforcement of judgments for support.'"

Although some support can be found for the Uhrich holding in the
law of other states,'** it should be noted that in most states, though

not in Indiana, alimony decrees are enforceable by contempt.'*' In In-

diana, we have the anomalous situation of a rule denying contempt
enforcement to alimony judgments on the ground that they are

"judgment debts,"'*" based on a line of cases reasoning that con-
tempt enforcement was unnecessary because an alimony judgment
was "an absolute personal judgment, which is collected by execution
as other judgments."'*' This rule now exists alongside rules requir-
ing that a second judgment be obtained before an alimony judgment
can be enforced by execution and denying that alimony judgments
have the same effect as other judgments as far as the general judg-
ment lien statute is concerned. Collectively, these rules present a
curious implementation of the legislative policy expressed in the

provision of the Dissolution of Marriage Act that the terms of a
decree for maintenance, support, and property division "may be en-
forced by all remedies available for enforcement of a judgment in-
cluding hut not limited to contempt." ^'^^ This provision clearly ex-

presses a legislative judgment that judgments for support of a
spouse or children should be more readily enforceable than other
money judgments, rather than less.

The limitations now placed on enforcement of support judgments
by contempt and by execution serve to underscore the importance

of the question expressly reserved in Uhrich: whether a lien may be
expressly created in a decree under the Dissolution of Marriage

Act."' Section 15 of the Act expressly authorizes the trial court to

"provide for such security, bond or other guarantee that shall be

satisfactory to the court to secure the obligation to make child sup-
port payments or to secure the division of property."'" The
language of this provision is certainly broad enough to cover the

'"See H. Clark. Law of Domestic Relations § 14.10 (1968).
'"See cases collected in Annot.. 59 A.L.R.2d 656, 678 (1958).

'"H. Clark, Law of Domestic Relations § 14.10 (1968).
'"State ex rel Schutz v. Marion Superior Court, 261 Ind. 535. 538, 307 N.E.2d 53,

55 (1974).

'"Musselman v. Musselman, 44 Ind. 106, 122 (1873).

"^ND. Code § 31-1-1 1.5-17(a) (1976) (emphasis added).
'"362 N.E.2d at 1164 n.2.

'"Ind. Code § 31-1-11.5-15 (1976). Note this section makes no provision for securing
mainterumce payments.



178 INDIANA LAW REVIEW [Vol. 11:149

creation of a lien/*^ It also suggests that in all cases where the col-
lectibility of a financial award is in doubt, the parties should insist

that the decree contain adequate security provisions. Since under

Uhrich no automatic lien results from a money judgment in a
dissolution action, the parties must attempt to protect themselves

through the fullest possible use of the courts' power to provide

security under section 15.

D. Paternity

In J.E.G. V. C.J.E.,^'^ the natural mother filed a verified petition

alleging that J.E.G. was her eight-month-old child's father. At the re-
quest of the mother's attorney, the court issued a warrant for

J.E.G.'s arrest. Two months later, J.E.G. was arrested and detained
for eight days before being brought before the court. Although he

conferred with an attorney, none entered an appearance to repre-

sent him in the paternity proceeding. At the hearing, J.E.G. stated
under oath that he was "pretty sure that it [the child] is mine," and
later, when asked if he acknowledged the child to be his, he
answered, "Yes."'*^ Judgment of paternity was entered based solely
on this admission."* On appeal, the Second District Court of Appeals
reversed the judgment, holding that both the arrest and the deten-

tion were unreasonable, that the admission of paternity was tainted

by the illegal arrest and detention, and therefore the admission

could not properly constitute the sole basis for the judgment. Judge

Buchanan dissented on the ground that the exclusionary rule should

apply only to criminal proceedings."'

Since the mother did not participate in the appeal, Judge
Sullivan's majority opinion proceeded on the premise that J.E.G.

needed only to make out a prima facie case of reversible error in
order to be entitled to reversal. On this basis, the court noted that
there was nothing in the record to show that the trial court had prob-
able cause to believe that J.E.G. was the putative father and that he
would not respond to a summons. Even though the paternity
statutes specifically authorize issuance of an arrest warrant in lieu

of a summons,"" the constitutional prohibitions against unreasonable

searches and seizures'" require probable cause in civil as well as

"^In other jurisdictions, courts have generally upheld the power of courts to

create liens under similar statutes. See cases collected in Annot., 59 A.L.R.2d 656,

680-81 (1958).

'««360 N.E.2d 1030 (Ind. Ct. App. 1977).

"7d at 1033.
"Vd at 1032.
"7d. at 1037-38.

•™IND. Code § 31-4-1-13 (1976).

"'U.S. Const, amends. IV, XIV; Ind. Const, art. 1. § 11.



1977] SURVEY-DOMESTIC RELATIONS 179

criminal cases. Without a showing that the more drastic arrest war-

rant was necessary in order to effect the public interest in assuring

support of illegitimate children, the arrest was unreasonable. The

detention was also unreasonable, since it was not necessary to the

acquisition or retention of jurisdiction over the defendant or to

assure satisfaction of any judgment that might be obtained."^

Relying on United States Supreme Court cases decided in the

context of criminal proceedings,"' the majority held that the illegal

arrest and detention required suppression of the defendant's admis-

sion, leaving no evidence to support the trial court's judgment of

paternity. It was on this point that Judge Buchanan dissented; the

exclusionary rule should be confined to criminal proceedings and

should not be extended to proceedings essentially civil in nature. He
pointed out that the purpose of a paternity proceeding is not "to im-

pose a fine, a forfeiture or imprisonment," but to assure that the

child involved is supported from the time of its birth."* Conceding

that J.E.G.'s arrest may have been illegal, Judge Buchanan would
hold society's interest in the child sufficient to require admission in-

to evidence of J.E.G.'s acknowledgement of paternity.

The exclusionary rule applied to this case was not the more
familiar Miranda rule, which is based on the fifth amendment provi-
sion that no person "be compelled in any criminal case to be a
witness against himself.""^ That rule clearly would have no applica-

tion in a civil proceeding. The exclusionary rule applied in J.E.G.,
however, is based upon the defendant's fourth amendment right to
be secure against "unreasonable searches and seizures,""' and there

'"The statute authorizes a court to require a putative father to post a pre-trial

bond and provides that the bond can be declared forfeited if he fails to appear. The
proceeds of the bond may then be "put in suit" by the person in whose favor a judg-
ment for money is rendered. IND. Code § 31-4-1-14 (1976). Statutes also authorize en-
forcement of a judgment by contempt or by requiring a post-judgment bond. Id. §§
31-4-1-20, -22. In light of these provisions, and in the absence of anything in the record

indicating any necessity for detention, the majority held the detention to be unreason-

able.

'"Brown v. Illinois. 422 U.S. 590 (1975) (murder): Wong Sun v. United States, 371
U.S. 471 (1963) (sale of narcotics).

"•State ex rei Beaven v. Marion Juvenile Court, 243 Ind. 209, 184 N.E.2d 20

(1962), cited in J.E.G. v. C.J.E., 360 N.E.2d 1030, 1038 (Ind. Ct. App. 1977) (Buchanan,

J., dissenting).

"^U.S. Const, amend. V (emphasis added). This provision, as well as the right to
counsel, id. amend. VI, was the basis for the exclusionary rule announced in Miranda
v. Arizona, 384 U.S. 436 (1966). The Indiana paternity statutes contain on analogous
provision that the putative father "shall not be compelled to give evidence." Ind. Code

§ 13-4-1-16 (1976).

"'U.S. Const, amend. IV, provides:

The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be violated, and



180 INDIANA LAW REVIEW [Vol. 11:180

is nothing in the nature of the right or the language of the fourth

amendment which would foreclose its application to non-criminal
proceedings.'" It is therefore a question of policy whether abuse of

the statutory authorization for issuing arrest warrants in paternity

cases is sufficiently serious to justify excluding admissions resulting

from illegal arrest and detention. Although no criminal penalties

follow from a determination of paternity, it does impose a substan-

tial and continuing obligation of support, enforceable by imprison-

ment for contempt. Where an admission of paternity is given, as in
this case, under circumstances which at least cast doubt upon its

voluntariness,'^* it does seem a slender thread upon which to hang so
heavy a liability. Excluding such an admission serves to discourage

the careless or unnecessary use of arrest and detention in paternity

cases.

IX. Evidence

William Mar-pie*

A. Opinions

In Williams v. State,^ the Indiana Supreme Court held that "[a]n
opinion by an expert witness upon an ultimate fact in issue is not

excludable for that reason."^ The court also held that lay witness
opinion testimony concerning an ultimate fact issue is also permissi-

ble within the discretion of the trial court.^ The Williams holding ap-
pears to conflict with Strickland v. State,* a later decision by the

no Warrants shall issue, but upon probable cause, supported by Oath or affir-

mation, and particularly describing the place to be searched, and the persons

or things to be seized.

'"The Supreme Court has held that the fourth amendment right (though not the
exclusionary rule) is applicable to administrative searches not related to criminal pro-

secution. See, e.g., Camara v. Municipal Court, 387 U.S. 523 (1967) (refusal of entry to
city housing inspectors checking for violation of building occupancy permit).

'"The involuntary nature of the confession resulting from illegal arrest is, at least

in part, the basis for its exclusion. See Brown v. Illinois, 422 U.S. 590, 599 (1975).
* Member of the Indiana Bar; Attorney, Legal Services Organization of In-

diana, Inc. A.B., Indiana University 1970; J.D., Indiana University School of Law — In-
dianapolis, 1973.

'352 N.E.2d 733 (Ind. 1976).

'Id. at 714.

'Id. at 742 (citing Rieth-Riley Constr. Co. v. McCarrell. 325 N.E.2d 844 (Ind. Ct.

App. 1975), noted in Marple, Evidence, 1975 Survey of Recent Developments in In-

diana Law, 9 Ind. L. Rev. 239, 245 (1975)).
'359 N.E.2d 244 (Ind. 1977).