Indiana Law Review


VIII. Domestic Relations

Helen Garfield''^

A. Adoption

Ever since the United States Supreme Court announced, in
Stanley v. Illinois,'' that an unwed father has a due process right to
a hearing on his fitness as custodian of his children,^ courts and

legislatures have been concerned with the rights of the fathers of il-

legitimate children.^ Defining these rights presents a complex prob-

lem because there may be irreconcilable conflicts between the
rights of the father and the rights and interests of the children. Dur-

ing the survey period, the Indiana Court of Appeals decided two

cases dealing with the right of the father of an illegitimate child to

consent to the adoption of his child/

In In re Adoption of Infant Male,^ the child had been conceived

after the mother and the putative father were divorced, but during

a period when they had resumed cohabitation. At that time, the ex-
husband neither acknowledged paternity^ nor offered to pay medical

expenses. After adoption proceedings had been instituted, however,

he asserted a claim of paternity and asked for custody. On these
facts, the trial court found that the child's father was "unknown"
and granted the petition for adoption.^ The court of appeals affirmed,
holding that the evidence supported the trial court's negative

finding on the paternity issue.^

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

'405 U.S. 645 (1972).

^The father in Stanley had been deprived of the children's custody without a
hearing after the death of their mother as a result of a statutory presumption that
unwed fathers were unfit parents. The Supreme Court concluded that Stanley had a
due process right to a hearing on his fitness as a parent and that the Illinois statute
denying a hearing to unmarried fathers, while granting one to other parents, violated
the equal protection clause of the fourteenth amendment, U.S. Const, amend. XIV, § 1.
Id. at 657-58.

^The Supreme Court recently has decided two cases dealing with the unwed
father's rights in connection with adoption of his children. Caban v. Mohammed, 99 S.
Ct. 1760 (1979); Quilloin v. Walcott, 434 U.S. 246 (1978).

'Unwed Father v. Unwed Mother, 379 N.E.2d 467 (Ind. Ct. App. 1978); In re
Adoption of Infant Male, 378 N.E.2d 885 (Ind. Ct. App. 1978).

'378 N.E.2d 885 (Ind. Ct. App. 1978).

®The mother did file a paternity suit against him, which was ultimately dismissed
for lack ©f prosecution. Id. at 887.

Ud.

^Id. at 888. There was no presumption of legitimacy because the child was con-
ceived after the parents' divorce. The burden was therefore on the father to prove
paternity. Id. at 886-87.

215



216 INDIANA LAW REVIEW [Vol. 13:215

The holding of Infant Male is not remarkable, but the court's
discussion of Quilloin v. Walcotf has disturbing implications for
future cases. The Infant Male court said that "had paternity been
established," the putative father "would likely have acquired a veto

authority" over the adoption under Quilloin.^^ The court construed
Quilloin as implying that such a veto could be acquired during the

adoption proceedings themselves, even though there had been no

prior adjudication of paternity.'^ This suggests that, if the putative

father had been able to prove paternity in Infant Male, he would

have been constitutionally entitled to prevent the child's adoption,

regardless of the interests of the child or the wishes of the mother.

If this is an accurate reading of Quilloin, then in any future case in

which the evidence of paternity is uncontroverted, a belated claim of

paternity by a previously disinterested natural father would be suf-

ficient to give him a constitutional right to veto the child's adoption.

Fortunately, Quilloin does not support this interpretation.

Although Quilloin did discuss the natural father's ability to ac-

quire "veto authority" over the adoption of his child, the Supreme
Court was describing what Georgia law provided and not what the
Constitution required:

Generally speaking, under Georgia law a child born in

wedlock cannot be adopted without the consent of each liv-

ing parent .... In contrast, only the consent of the mother
is required for adoption of an illegitimate child. [Ga. CODE §
74-403(3) (1975)] To acquire the same veto authority possessed
by other parents, the father of a child born out of wedlock

must legitimate his offspring, either by marrying the mother
and acknowledging the child as his own, § 74-101, or by ob-

taining a court order declaring the child illegitimate and

capable of inheriting from the father, §74-103.'^

The father in Quilloin had filed his petition for legitimation at the
same time as he filed his objections to the proposed adoption of the
child by his stepfather. Under Georgia law, the effect of granting
the petition for legitimation would have been to give the father an

absolute veto over the adoption. The trial court, however, denied
the petition, and the Supreme Court of Georgia affirmed.'^

The only issue on appeal to the United States Supreme Court

was whether the father, whose status as such was not in dispute.

M34 U.S. 246 (1978).
'°378 N.E.2d at 888.

''434 U.S. at 248-49 (emphasis added).

^^Id. at 251-52. Like the petitioner in Infant Male, the father in Quilloin was

granted a hearing. Therefore, the Stanley due process issue did not arise.



1980] DOMESTIC RELATIONS 217

was denied due process or equal protection when the Georgia courts
refused to allow him to veto the adoption, without first finding that

he was an unfit parent.** The constitutionality of the state pro-
cedures involved was not before the Court. Nothing in Quilloin can

be read as holding that a state is constitutionally required to accept

a petition for legitimation (or paternity)/^ which is filed in conjunc-

tion with an objection to adoption. In fact, there are clear implica-

tions to the contrary. While the Court did not accept the

stepfather's argument that the father had forfeited his rights by

"his failure to petition for legitimation during the 11 years prior to

filing of . . . [the] adoption petition,"'^ the Court placed considerable

emphasis on the fact that the father had "never exercised actual or

legal custody over his child, and thus [had] never shouldered any

significant responsibility with respect to the daily supervision,

education, protection, or care of the child."'^ Quilloin thus implies

that an unwed father cannot claim constitutional protection for his
parental rights unless he actually has assumed parental respon-

sibilities.'^ A subsequent Supreme Court opinion makes this implica-
tion explicit: "In those cases where the father never has come for-
ward to participate in the rearing of his child, nothing in the Equal

Protection Clause precludes the State from withholding from him

the privilege of vetoing the adoption of that child."'^

If an unwed father can claim a veto power over his child's adop-
tion in Indiana, the power is not derived from the United States
Constitution, but from the Indiana adoption statutes. Section 6 of

the adoption statutes gives the father of an illegitimate child a veto

power over its adoption by requiring his consent to the adoption

whenever a court proceeding has established his paternity .^° Unlike the

'M34 U.S. at 253. The Supreme Court held that Quilloin's constitutional rights
had not been violated. Id. at 256.

'^There are important differences between the petition for legitimation authorized
by Georgia law and the paternity claim involved in Infant Male which are discussed in
the text accompanying notes 20-21 infra^

'•^434 U.S. at 254.

"Id. at 256.

'''The same implication was discernible in Stanley v. Illinois, 405 U.S. 645 (1972),
because Stanley had actual custody of his children after their mother's death and had

had close contact with them over an 18-year period.
'Taban v. Mohammed, 99 S. Ct. 1760, 1768 (1979). The Court held in Caban that

the equal protection rights of a natural father, who had participated in the rearing of
his children, were violated when a New York court allowed the children to be adopted
by their §^tepfather over the natural father's objections.

'°IND. Code § 31-3-l-6(a)(2) (Supp. 1979) provides:
(a) Except as otherwise provided in this section, a petition to adopt a

child under eighteen (18) years of age may be granted only if written consent
to adoption has been executed by:

(2) the mother of a child born out of wedlock and the father of such a



218 INDIANA LA W REVIEW [Vol. 13:215

Georgia legitimation proceeding discussed in Quilloin, a paternity

proceeding is often involuntary;^' therefore, a finding of paternity

does not necessarily indicate that the father has any real interest in

the child.^^ The Indiana statute provides an escape hatch, however.
The statute gives the adoption court power to override the father's
veto, if the court finds that his consent is being unreasonably

withheld.^^ The trial court in Quilloin allowed the stepfather to
adopt the child under Georgia law by simply denying the father's

belated petition for legitimation. If a similar case arose in Indiana,

the court would have difficulty dismissing a paternity petition in a

case in which the evidence of paternity was uncontested, as it was
in Quilloin. The court would have to make a finding of paternity,
which automatically would give the father a veto power over the
adoption.^" If the court felt that an adoption would be in the child's

best interest, the court would have to find that the father's consent

was being unreasonably withheld.^^ In any case in which the father
had never assumed any responsibility for the child beyond the finan-
cial responsibility compelled by the paternity order, a court could

find that the father's consent was unreasonably withheld without
violating either the Indiana statute or the holding of Quilloin.

Unwed Father v. Unwed Mother^^ involved a human problem
which was virtually impossible to resolve satisfactorily by the time
of appeal. For two years after the child's birth, the mother had suc-
cessfully blocked the father's attempts to obtain custody of his child.

She even had prevented him from discovering the child's

whereabouts; she had revealed only that the child was living in an
adoptive home somewhere outside the state. By the time the case
came to the court of appeals, there was little chance that the
father's interests could be recognized without seriously jeopardizing

the child's emotional stability. As the court observed, after the child
had experienced the stability of a two-parent home for two years,
"the prospect of uprooting the child appears to be undesirable."^^

child whose paternity has been established by a court proceeding ....

(emphasis added). See also id. § 31-3-l-6(g)(2).

^'M §§ 31-6-6.1-1 to -19. Under the new paternity statute, actions can be brought
by the mother, the putative father, or the child. See note 261 infra and accompanying

text.

^^A finding of paternity in an involuntary proceeding is less relevant to the

father's right to veto his child's adoption than is the voluntary legitimation proceeding

involved in Quilloin.

^^IND. Code § 31-3-l-6(g)(6) (Supp. 1979).
''Id. § 31-3-l-6(a)(2) (Supp. 1978), quoted in note 20 supra.

''Id. § 31-3-l-6(g)(6).

''319 N.E.2d 467 (Ind. Ct. App. 1978).

'Ud. at 472.



1980] DOMESTIC RELATIONS 219

One can only hope that Unwed Father will provide useful guidelines
which will prevent such injustice in future cases.

The child had been conceived while his parents were students in
Minnesota. The parents did not wish to marry; nor did they wish the
pregnancy to be terminated by abortion, although the mother did

consider this alternative after the father indicated his desire to have

custody.^^ The mother insisted that the child be placed for adoption

and that the adoptive parents remain anonymous. Ultimately, her

wishes prevailed. The child was born and placed for adoption at a
location known only to the mother. Even in the habeas corpus action
brought by the father, she refused to divulge the child's

whereabouts, and the trial court did nothing to aid the father's

discovery efforts. After the final hearing, the court held that the

father was estopped from asserting his parental rights because he
had promised the mother at one point during the pregnancy that he

would consent to adoption.^^ The court found that the mother had
relied on his promise in failing to go through with the planned abor-

tion and that the pregnancy was too far advanced for her to have an
abortion by the time he told her that he would not consent to the

adoption. The trial court therefore denied the father's petition for a
writ of habeas corpus and awarded the mother "damages" of
$3,000.^°

The court of appeals reversed, holding that the trial court had
erred in finding an estoppel against the father and in refusing to

order the mother to answer the father's interrogatories concerning

the whereabouts of the child.^' An oral promise to consent to adop-
tion of a child is not an enforceable promise under Indiana law;^^

therefore, it could not form the basis for an estoppel.

The right of the father of an illegitimate child to a court determina-
tion of his claim to custody of his child is now firmly established.^^
The trial court should have made the determination here, instead of

^^The father even provided money for an abortion, but the mother failed to go
through with it. Id. at 468. He also promised to pay all expenses connected with the
birth. Id.

^^The father's version was that he had promised to consent because he "wanted to

ease Mother's anguish." He said he planned to adopt the child himself without telling
her. Id. at 469.

^°M at 470. The legal theory underlying the award of damages was not explained
in the trial court's order.

^'/cL at 470-71. The court of appeals stated further that the court should have im-
posed sanctions upon the mother when she failed to comply with his discovery order
under Ind. R. Tr. P. 37(B). Id. at 471.

^^Under Indiana law, the consent must be in writing and must be given after the

birth of the child. Ind. Code § 31-3-l-6(a), (b) (Supp. 1979).
''E.g., Caban v. Mohammed, 99 S. Ct. 1760 (1979); Stanley v. Illinois, 405 U.S. 645

(1972); Hyatte v. Lopez, 366 N.E.2d 676 (Ind. Ct. App. 1977).



220 INDIANA LAW REVIEW [Vol. 13:215

allowing the mother, in effect, to usurp the court's function by

deciding the custody issue unilaterally. Because of the time required

to perfect an appeal, her decision may well have become irreversi-
ble. Even though she lost the appeal, she probably succeeded in
depriving the unwed father of his constitutional right to a hearing
on his fitness as a parent.^^ Although the father prevailed in the

court of appeals, it is unlikely that he could now succeed in gaining
custody. On remand, the trial court must consider the child's in-
terests, and it is hardly likely that the best interests of the child

would be served by removing it from a stable home environment
and delivering it into the custody of a stranger.

B, Child Custody

1. Jurisdiction. —In Campbell v. Campbell,^^ the Indiana Court
of Appeals reversed and remanded a custody modification decision,
without considering the merits, because the trial court had failed to

question its own jurisdiction over the custody issue.^*^ Neither party
had raised the issue of jurisdiction, but the court of appeals in-

dicated that the trial court should have raised the issue sua sponte.

The Uniform Child Custody Jurisdiction Law^^ was interpreted as
imposing an affirmative duty upon the trial court to determine, as a
threshold issue in every case, whether the jurisdictional standards
of the statute had been met.^^ Reversal in this case was necessary
"in order to further the laudable objectives of the Act and to bring

to the attention of the practicing bar the necessity, in jurisdictional

and practical terms, of complying with and implementing the provi-

sions of the Act."^^

Campbell is a particularly appropriate case for the appellate

court to use for this purpose because its facts indicate that it is at

least questionable whether the jurisdictional requirements of the

statute were met. The original Indiana divorce decree had awarded
custody of the three children to the mother. Proceedings to modify

the custody provisions were commenced by the father shortly after
the mother and childern had moved to Texas. Thereafter, the father
moved to Florida. Nevertheless, the proceedings continued in In-
diana, culminating in an order awarding two of the children to the

^""The doctrine of estoppel invoked by the trial court is inapplicable in light of

Stanley, which held that an unwed father has a due process right to a hearing on his
fitness for custody. Only a knowing waiver can justify depriving him of the hearing to

which he is constitutionally entitled. Cf. Fuentes v. Shevin, 407 U.S. 67, 95 (1972).
^^388 N.E.2d 607 (Ind. Ct. App. 1979).

''Id. at 608.

^iND. Code §§ 31-1-11.6-1 to -24 (Supp. 1979).
^«388 N.E.2d at 610.

''Id. at 608.



1980] DOMESTIC RELATIONS 221

father and one to the mother. Although a divorce court normally has

continuing jurisdiction over the issues of custody and support

because both are subject to future modification should cir-

cumstances change/" Campbell holds in effect that the trial court's

jurisdiction over custody continues only as long as the court con-

tinues to meet the jurisdictional standards of the Uniform Child

Custody Jurisdiction Law/^ Once conditions have so changed that
the statutory standards are no longer met, the Indiana court loses

subject matter jurisdiction over the issue of custody.

To this point, the court's reasoning is fully supported by the
statute. Section 3, the jurisdictional provision, states: ''A court of

this state which is competent to decide child custody matters has

jurisdiction to make a child custody determination by initial or
modification decree if . . . ."*^ The clear import of this language is
that an Indiana court has subject matter jurisdiction over custody

only if the conditions listed in section 3 are met. The court of ap-
peals is not on solid ground, however, with respect to what it
describes as the statute's ''second jurisdictional hurdle."" Section 7

contains the unique forum non conveniens provisions of the statute,

designed to facilitate the resolution of conflicts between two or
more states, each of which can meet the somewhat flexible jurisdic-
tional requirements of section 3. Section 7 provides in pertinent

part:

A court which has jurisdiction under this chapter to
make an initial or modification decree may decline to exer-
cise its jurisdiction any time before making a decree if it

finds that it is an inconvenient forum to make a custody
determination under -the circumstances of the case and that

a court of another state is a more appropriate forum.^^

The court of appeals observed that this section was "intended to
vest only one state with jurisdiction at any given time."" This state-

ment is true in spirit, but use of the word "vest" is unfortunate.
Viewed as a whole, the court's discussion treats section 7 as a
"jurisdictional hurdle"" which must be overcome before subject mat-
ter jurisdiction can "vest.'"*^ This language implies that section 7 is a

''See IND. Code §§ 31-1-11.5-17, -22(d) (1976 & Supp. 1979).
''Id. § 31-l-11.6-3(a) (Supp. 1979).

'^Id. (emphasis added).

*^3^8 N.E.2d at 609.

"Ind. Code § 31-l-11.6-7(a) (Supp. 1979) (emphasis added). The section also lists in

some detail the factors to be considered and the procedures to be used in making the

determination to decline jurisdiction.

^'388 N.E.2d at 610 (emphasis added).

'Hd. at 609.

'Ud. at 610.



222 INDIANA LAW REVIEW [Vol. 13:215

prerequisite to subject matter jurisdiction under the statute. The
commissioners' notes, quoted by the court, describe the purpose of

section 7 as being "to encourage judicial restraint in exercising

jurisdiction whenever another state appears to be in a better posi-
tion to determine the custody of a child.'"** This is consistent with

the language of section 7, which states that a court which already

has jurisdiction may decline to exercise that jurisdiction when
another state can provide a more appropriate forum. The language
used throughout section 7 is the permissive "may" rather than the
mandatory "shall." Once a court determines that it is an inconven-

ient forum,"^ it ''may dismiss the proceedings, or it may stay the
proceedings upon condition that a custody proceeding be promptly

commenced in another named state or upon any other conditions
which may be just and proper."^" Thus, even after the court deter-
mines that it is an inconvenient forum under section 7, the court is

not automatically divested of the jurisdiction which has already

vested under section 3. The court can, in its discretion, retain
jurisdiction unless and until a court in another state assumes

jurisdiction over the custody dispute.^^ Nothing in section 7 supports

the interpretation that it constitutes a condition precedent to

custody jurisdiction.

Properly construed, section 7 requires custody courts to inquire

into the forum non conveniens issue, regardless of whether the par-

*^Id. n.4 (emphasis added) (quoting Uniform Child Custody Jurisdiction Act § 7,
Commissioners' Notes. The commissioners' notes state that § 7 "serves as a second

check on jurisdiction once the test of [§§1 3 or 14 [modification of a decree of another

state] have [sic] been met." Id. The court apparently concluded that the commis-

sioners' "second check" on jurisdiction was equivalent to a "second jurisdictional hur-

dle" or a prerequisite to jurisdiction. Id. at 609. The commissioners' notes make it

clear, however, that § 7 comes into play only after jurisdiction attaches under § 3.

*^The factors to be considered in making the determination are set out in Ind.
Code § 31-l-11.6-7(c) (Supp. 1979):

(1) [I]f another state is or recently was the child's home state;
(2) if another state has a closer connection with the child and his family

or with the child and one (1) or more of the contestants;
(3) if substantial evidence concerning the child's present or future care,

protection, training, and personal relationships is more readily available in
another state;

(4) if the parties have agreed on another forum which is no less ap-
propriate; and

(5) if the exercise of jurisdiction by a court of this state would con-
travene any of the purposes stated in section 1 of this chapter.

'"Id. § 31-M1.6-7(e) (emphasis added).

^'Before making a decision on the forum non conveniens issue, a court "may" com-
municate with a court in another state and exchange information with that court to aid

in determining which can provide the better forum. Id. § 31-l-11.6-7(d). After the deci-

sion, the court "shall inform the court found to be the more appropriate forum of this
fact." Id. § 31-l-11.6-7(h).



1980] DOMESTIC RELATIONS 223

ties raise the issue. Such an interpretation is consistent with the

statute's objective of avoiding ''jurisdictional competition and con-

flict with courts of other states."^^ The usual rule, that the forum

non conveniens issue is considered waived unless it is raised by one

of the parties, is not appropriate in custody cases because the par-

ties to the action are not the only persons whose interests must be
considered. The child's interests are also involved, and the court has

a duty to protect them. The existence of this duty is sufficient
justification for treating the forum non conveniens question dif-

ferently in custody actions without treating it as a question of sub-

ject matter jurisdiction. Such jurisdiction is the very source of a
court's power. Without it, no court is competent to proceed. Courts

should always be wary of characterizing any issue as jurisdictional.
In Campbell, section 3 is properly identified as a prerequisite to sub-

ject matter jurisdiction, and that fact alone provides a sufficient

ground to support reversal of the trial court's custody order. Section

7 is not a prerequisite to subject matter jurisdiction and should not

be so characterized.

In Kelley v. Kelley,^^ the father's attack on the trial court's

jurisdiction was directed primarily toward its jurisdiction over his
person. The wife had filed a dissolution action while the husband
was in Germany with the parties' two sons. He was served in Ger-
many by registered mail. The husband entered a special appearance
in the action solely for the purpose of attacking the court's personal

jurisdiction over him. However, when the husband and the sons
returned to Indiana, he was personally served with a petition for
temporary custody and support.^" Thereafter, the parties filed an

agreed entry allowing the husband to take their daughter to Ger-

many; all three children were to be returned to the wife by July 8,
1977. The trial court approved the entry. The husband failed to
return the children at the agreed time and did not attend the final

hearing in the dissolution action, although he was represented by
counsel at the hearing. The trial court awarded custody of all three
children to the wife. The court of appeals affirmed, holding that the
husband was estopped to deny the trial court's personal jurisdiction
over him.^^ Having requested the court to exercise jurisdiction by
submitting the agreed entry for its approval, he had voluntarily sub-

mitted himself to the court's jurisdiction. The wife's residence

''I^. § 31-l-11.6-l(a)(l).

^^387 N.E.2d 452 (Ind. Ct. App. 1979).

^*The petition also requested an order restraining him from removing the parties'
daughter from the state until temporary custody was determined. Id. at 453.

^^Id. at 453-54. Personal jurisdiction over both parties is required for adjudication

of custody and other "incidents" of marriage. Id. at 454. See May v. Anderson, 345
U.S. 528 (1953); In re Marriage of Rinderknecht, 367 N.E.2d 1128 (Ind. Ct. App. 1977).



224 INDIANA LAW REVIEW [Vol. 13:215

within the jurisdiction was held to satisfy the statutory re-
quirements for in rem jurisdiction over the dissolution of the mar-
riage.^^

2. Parental Rights. — Upon the death of the custodial parent,
the other parent becomes entitled to custody. In In re Guardianship

of Phillips,^^ the mother had been awarded custody of the children.

After her death, the maternal grandmother and the brother of the

deceased mother asked to be appointed as co-guardians of the

children. The mother's will, executed prior to her divorce from the
children's father, had requested that her parents be named as guar-
dians in the event of her death. The trial court nevertheless award-
ed custody to the father. The court of appeals affirmed, holding that
in Indiana custody "immediately and automatically" reverts to the

surviving parent upon the death of the parent with custody.^^ The
"automatic" reversion is not necessarily permanent, however. The
presumption favoring the natural parent can be overcome by show-

ing that the parent is unfit or that the parent has, by long ac-

quiescence or voluntary relinquishment, consented to custody in

another.^^ No such showing was made in Phillips!'^
In In re Marriage of Myers,^^ the court of appeals reversed an

award of custody on the ground that the trial court improperly ap-
plied a presumption favoring the mother.^^ The Indiana Dissolution
of Marriage Act provides that, in determining custody, "there shall

^^387 N.E.2d at 454. In Kelley, the court of appeals tested the court's jurisdiction

only under the Indiana Dissolution of Marriage Act, Ind. Code § 31-1-11.5-6 (Supp.

1977) (amended 1979); id. § 31-1-11.5-20 (1976) (amended 1979). 387 N.E.2d at 454-55. The

court did not discuss jurisdiction over the custody issue under the Uniform Child

Custody Jurisdiction Law. Id. §§ 31-1-11.6-1 to -24 (Supp. 1979). Although jurisdiction

over custody traditionally has been regarded as incidental to jurisdiction over the

dissolution of marriage, adoption of the uniform law indicated an intent to make it "the

exclusive source of authority to adjudicate a custody dispute." Campbell v. Campbell,

388 N.E.2d 607, 608 (Ind. Ct. App. 1979) (decided April 26, 1979, about a month after

Kelley). Campbell implies that all assertions of jurisdiction over custody, including

those which are incidental to jurisdiction over dissolution, should be evaluated under

the standards set forth in the uniform law.

"383 N.E.2d 1056 (Ind. Ct. App. 1978).

^'Id. at 1059 (citing State ex rel. Gregory v. Superior Court, 242 Ind. 42, 176
N.E.2d 126 (1961); Bryan v. Lyon, 104 Ind. 227, 3 N.E. 880 (1885)).

''*383 N.E.2d at 1059; Hendrickson v. Binkley, 161 Ind. App. 388, 393-94, 316

N.E.2d 376, 380 (1974); see Garfield, Domestic Relations, 1978 Survey of Recent
Developments in Indiana Law, 12 Ind. L. Rev. 157, 162-63 (1979).

'"383 N.E.2d at 1059. The court of appeals held that the petition in Phillips could
not have succeeded in any case because Ind. Code § 29-l-18-21(a) (1976) prohibits ap-
pointment of more than one guardian of the person unless the co-guardians are hus-
band and wife.

«'387 N.E.2d 1360 (Ind. Ct. App. 1979).

'Ud. at 1364.



1980] DOMESTIC RELATIONS 225

be no presumption favoring either parent."^^ This means that when
either parent would be competent to care for the child, the judge

must award custody by "looking only to the best interest of the

child" without favoring either parent.^'' Under the facts of Myers,
the only way the trial court could have decided to award custody to
the mother was by indulging in the forbidden presumption favoring

her custody. The court of appeals held that this was an abuse of
discretion.^^ The father had custody of the child for three years prior

to entry of the decree dissolving the marriage and awarding custody

to the mother. Nobody questioned the father's ability to care for the
child. The mother, on the other hand, had a history of mental illness

and had three times attempted suicide.^® The trial judge had in-
dicated that he had "some concern" about the mother's ability to

take care of the child.^^

The facts of Myers offer considerable support for the appellate
court's decision. The court also relied upon remarks made by the
judge during informal conferences, as reported in an affidavit filed

by the husband's attorney in support of his motion to correct errors.

Judge Hoffman, in dissent, questioned the wisdom of basing a deci-
sion upon off-the-record remarks.^^ Judge Hoffman stated that such a
practice could "only encourage a multitude of appeals based on

events occurring outside the courtroom, thereby discouraging open

communication between the bench and bar."*^^
In a somewhat similar fact situation, the court of appeals affirmed

a judgment awarding custody of three children to the mother. In

Lovko V. Lovko,^° however, the issue on appeal was whether the
trial court had properly used the "best interests of the child" stan-

dard in making a custody termination after the dissolution decree
had been entered.^* Normally, a custody order entered after the

original decree would be a modification of a prior order, which can

'^Ind. Code § 31-l-11.5-21(a) (1976) provides in part: "The court shall determine
custody and enter a custody order in accordance with the best interests of the child. In

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

either parent."

•^^387 N.E.2d at 1363.

''Id. at 1364.

*^Two psychiatrists testified at the hearing. The only one of the two who had
treated the wife stated that he could not rule out the possibility that future stresses

related to full time care of the child might trigger a psychotic episode. Id.

'Udr at 1363.

'«M at 1365-66 (Hoffman, J., dissenting).

®Vd. at 1366 (Hoffman, J., dissenting). Judge Hoffman did not believe the facts of

the case in themselves warranted reversal. Id. at 1365.
^"384 N.E.2d 166 (Ind. Ct. App. 1978).

"Id. at 171, 175.



226 INDIANA LA W REVIEW [Vol. 13:215

be made only upon a showing of "changed circumstances so substan-
tial and continuing as to make the existing custody order
unreasonable."^^ But in Lovko, the dissolution decree specifically

awarded the husband "temporary" custody of the children "until the
end of the next school year."^^ The later order was therefore the
trial court's first opportunity to make a permanent award of
custody. The order was properly treated as an initial custody deter-
mination rather than as a modification. The "best interests of the
children" standard was therefore appropriate.^"*

In affirming the award of custody to the mother, the court of ap-
peals expressly reserved approval of the unusual procedure followed in

LovkoJ^ The original order granting temporary custody to the father
was based upon an agreement of the parties, which apparently
had been made because the wife was having problems with
alcoholism. At the later custody hearing, there was evidence that
the mother had overcome these problems.

3. Visitation Rights. — In Hegedus v. Hegedus,'^^ the court of ap-
peals decided that a mother could not be held in contempt for refus-

ing to allow visitation by the child's father in the absence of a court

order specifically granting him visitation rights.^^ Hegedus originally

"IND. Code § 31-l-11.5-22(d) (1976).
'^384 N.E.2d at 168-69.

^Vd at 171. In discussing the standards, the court of appeals stated that under

the Uniform Marriage and Divorce Act, the same standard would be used in a
modification as in the original determination, i.e., the "best interests of the child." Id.

This is a misreading of the Act provision. Although the words "best interest of the

child" are used in the Uniform Act, the overall intent of its modification provision is

clearly to require a substantial change of circumstances before an existing custody

order can be modified. Uniform Marriage and Divorce Act § 409(b) provides in part:
[T]he court shall not modify a prior custody decree unless it finds . . .

that a change has occurred in the circumstances of the child or his custodian,

and that modification is necessary to serve the best interest of the child. In

applying these standards the court shall retain the custodian appointed pur-

suant to the prior decree unless:

(1) the custodian agrees to the modification;

(2) the child has been integrated into the family of the petitioner

with consent of the custodian; or

(3) the child's present environment endangers seriously his

physical, mental, moral, or emotional health, and the harm likely to

be caused by a change of environment is outweighed by its advan-

tages to him.

Id. (emphasis added). As limited by the other provisions of this section, the Uniform
Act's "best interests" standard of modification may be even more stringent than the
Indiana standard. See id., Commissioners' Note.

"384 N.E.2d at 172. Because no appeal had been taken from the original decree

awarding temporary custody to the father, the propriety of that procedure was not

before the court. Id.

^«383 N.E.2d 446 (Ind. Ct. App. 1978).

"M at 448.



1980] DOMESTIC RELATIONS 227

filed an action for dissolution but later amended his complaint to ask
for a declaration of invalidity. The trial court's order declared the
purported marriage 'Void from its inception" because "the defen-

dant was in fact lawfully married to another person" at the time.^^
The order declared that a child had been born "during the time [the]
plaintiff and defendant were living and cohabitating together," but
it did not purport to determine custody or visitation rights.^^

Because there was no court order for the mother to violate, she
could not be held in contempt. The trial court therefore had proper-
ly dismissed the father's petition for rule to show cause.*'^

-4. Child Snatching. — The problem of child snatching has com-
manded national attention in recent years. The Uniform Child
Custody Jurisdiction Law was adopted in Indiana in 1977 to
discourage child snatching by parents.^^ The statute is particularly
effective in cases in which a child is removed from the state in open
defiance of an existing custody order by a parent who hopes to
secure a legal change of custody in the courts of another state. This

effectiveness should increase as more states adopt it.^^ The uniform
law cannot reach the covert child snatcher, however. The parent
who steals his child away from its custodial home and conceals the
child can be reached only by the criminal law. The Indiana
legislature has amended the criminal code to make child snatching a
crime, whether committed by a parent or by someone else.^^

The definition of "criminal confinement" has been expanded to
include removing a "person, who is under eighteen (18) years of age,
to a place outside Indiana when the removal violates a child custody
order of a court."^* Child snatching is a Class D felony if committed
by a parent but a Class C felony if committed by a person other

''Id. at 447-48.

'^Id. at 448. The order also failed to address the issue of the child's legitimacy.

Under an 1873 Indiana statute, the issue of a bigamous marriage is legitimate only if

"either of the parties . . . shall have contracted such void marriage in the reasonable

belief that such disability did not exist" and then only if the issue was "begotten

before the discovery of such disability by such innocent party . . . ." Ind. Code §
31-1-7-3 (1976). This seems to be a rather extreme example of the sins of the fathers

(or, here, the mothers) being visited upon the children.

«°383 N.E.2d at 448.

«Tub. L. No. 305, 1977 Ind. Acts 1383 (codified at Ind. Code §§ 33-1-11.6-1 to -24

(Supp. 1979)). The act is discussed at notes 35-52 supra and accompanying text.

''The Uniform Act had been adopted by 37 states, as of August 7, 1979. [1979] 5

Fam. Lr Rep. (BNA) 1151. For a general discussion of its effectiveness, see

Bodenheimer, Progress under the Uniform Child Custody Jurisdiction Act and Re-

maining Problems: Punitive Decrees, Joint Custody and Excessive Modification, 65

Calif. L. Rev. 978 (1977).

«'Act of April 22, 1977, Pub. L. No. 299, § 1, 1977 Ind. Acts 1383 (codified at Ind.

Code § 35-42-3-3 (Supp. 1979)).
'"Ind. Code § 35-42-3-3(a)(3) (Supp. 1979).



228 INDIANA LA W REVIEW [Vol. 13:215

than a parent.^^ The statute further provides that "it may be con-
sidered as a mitigating circumstance if the accused person returned

the other person to the custodial parent within seven (7) days of the

removal."^^

Definition of the crime in terms of "removal" from the state may
limit its application in cases in which the parent takes the child out

of state for visitation in compliance with a custody order and keeps

it beyond thq permitted time. If such a parent attempts to retain

the child permanently and conceal its whereabouts from the

custodial parent, his conduct would seem to be as reprehensible as
that of the parent whose initial removal of the child from the state
was in violation of a custody order. The effect on the child can be
equally devastating in either case.^^ The Indiana legislature's narrow
definition of the crime may be a manifestation of the reluctance of
legislatures generally to subject child snatching parents to criminal

penalties.^^ Some have argued that such a parent should not be
treated as a criminal because he (or she) acts out of love for the

child.^'^ Even so, subjecting a child to the trauma of abduction and con-
cealment merely to gratify the parent's own desire for custody is a
strange kind of love. A parent may seek to rationalize child snatch-
ing by focusing on the deficiencies of the custodial parent; however,

it is difficult to imagine a case in which the present custodial ar-

rangement would be more detrimental to the child than abduction. If
such a case were to exist, the best interests of the child would be
better served by seeking a remedy through the courts than by child
snatching. Criminalizing such irresponsible conduct by parents may

^Ud. § 35-4-3-3{a). Criminal confinement is a Class B felony if committed by a per-

son armed with a deadly weapon or if it results in "serious bodily injury to another

person." Id. Presumably this would apply even if the crime were committed by a

parent.

''Id. § 35-42-3-3(b).

''^The potential for trauma to the child may be somewhat greater when the child's

removal from the state is in violation of a court order, especially when the actual ab-

duction of the child is carried out by a person other than the parent. This potential

arises, however, from the manner in which the child is taken from the other parent's

custody and not from the legality of its removal from the state, which is the focus of

the statutory definition of the crime. From the child's point of view, the act of removal

from the state can be equally innocuous whether or not it is committed in violation of a

custody order, which is the crime as the statute defines it. In either case, unless the

method of abduction is traumatic, the real harm to the child results from being retained

and concealed by the snatching parent.

If the child is not removed from the state but rather is snatched and concealed in

Indiana, no crime is committed by the snatching parent. The parent would, however,

be subject to the custody court's contempt power for violation of the custody order.

''See, e.g.. Coombs, The "Snatched" Child is Halfway Home in Congress, 11 Fam.
L.Q. 407 (1978) (discussing federal legislation).

''Id. at 417.



1980] DOMESTIC RELATIONS 229

have some effect as a deterrent. A more important result, however,
is to make the criminal justice system available to assist in ap-
prehending the snatching parent and returning the child to its

home.

5. Other Statutory Changes. — Kn additional legislative change
protects the rights of the non-custodial parent in cases in which the

custodial parent wishes to change the child's name. Usually, this

occurs when a mother having custody of the child has remarried and
wants the child to adopt the stepfather's name. The amended
statute now requires that the non-custodial parent consent to the
name change.^" If the parent fails to consent or files an objection to
the name change, a hearing must be held.^' The court's decision is
based on the "best interests of the child," but the statute

establishes a presumption in favor of an objecting parent who has
made support payments and has complied with the other terms of a
custody decree.^^

C. Child Support

All of the child support cases decided during the survey period

deal with some aspect of enforcement of support orders. Issues
relating to modification of existing orders have arisen in the context

of actions for enforcement by contempt or otherwise. These issues

will be discussed under modification, regardless of the kind of en-

forcement proceedings involved. One case, which arose after the
survey period, has made significant changes in Indiana law relating
to enforcement of support orders and will therefore be discussed

herein.^^

1. Criminal Non-Support. — In Burris v. State,^^ a father who
had not contributed to the support of his three children since April

1970, was convicted of wilful nonsupport under the former Indiana
statute.^^ The court of appeals reversed, holding that the State had
failed to meet its burden of proving beyond a reasonable doubt that
the defendant was able to support his children and that he had

^"Ind. Code § 34-4-6-2(b) (Supp. 1979). Consent is dispensed with in any case in

which it would not be required for an adoption under id. § 31-3-1-6 (1976).

''Id. § 34-4-6-4(c) (Supp. 1979).

''Id. § 34-4-6-4(d).

muhn V. Kuhn, 389 N.E.2d 319 (Ind. Ct. App. 1979). Another case, Hexter v.
Hexter, 386 N.E.2d 1006 (Ind. Ct. App. 1979), is not discussed herein, although it deals

with enforcement of an order for support. For a discussion of Hexter, see Townsend,

Secured Transactions and Creditors' Rights, 1979 Survey of Recent Developments in

Indiana Law, 13 Ind. L. Rev. 369, 391 (1980).
^"382 N.E.2d 963 (Ind. Ct. App. 1978).

^^IND. Code § 35-14-5-2 (1976) (repealed 1977) (current version at Id. § 35-46-1-5

(Supp. 1978)).



230 INDIANA LAW REVIEW [Vol. 13:215

wilfully neglected to do so.^^ The defendant had been living in
Arizona since the divorce in 1975. The State's only witness, his ex-
wife, did not know whether he had been working or whether he was
physically capable of working. The only evidence from which the
trial judge could infer wilful nonsupport was testimony that the
defendant had traveled to Indianapolis once after the divorce and

that he had been married three times and divorced twice since leav-

ing Indiana. The court of appeals held that this evidence was insuffi-
cient to support the conviction.^^ The problem of proof encountered
in Burris should be relieved considerably under the new statute.
The statute makes inability to support an affirmative defense,
presumably shifting the burden of proof on this issue to the defen-

dant.^«

2. Modification. — In Indiana, child support orders can be
modified only as to future payments; they are not retroactively

modifiable.^^ The ramifications of this rule were explored in three

cases decided by the Indiana Court of Appeals during the survey

period.
^'^'^

In Haycraft v. Haycraft,^^^ the parties had verbally agreed to in-

crease the court-ordered child support from $35 to $40 per week, but

the agreement was never submitted to any court for approval. The
father paid $40 per week from January 1974, to September 1976,
when one of the two children began living with him. At that point,
the father ceased making any payments. Two months later, the
mother filed a petition seeking to have him held in contempt and re-

questing a judgment for arrears. The trial court found the father in
contempt and ordered him to pay $367.50 in arrears, calculated at

$17.50 per week (one-half of the support of $35 per week due under
the divorce decree). The court also modified its original decree, by
awarding custody of the son to the father. '"^^ The modified decree
ordered the father to pay $17.50 per week for the support of the

'«382 N.E.2d at 968.

^Ud. The State attempted to rely upon Hudson v. State, 370 N.E.2d 983 (Ind. Ct.
App. 1977), in which the court held that an unemployed father who "deliberately [pur-
sued] an irresponsible lifestyle" could be convicted of wilful nonsupport. Id. at 985. In

Hudson, however, the wife testified both as to the defendant's state of health (capability

of working) and his failure to seek employment. Hudson is discussed in Garfield, supra
note 59, at 167-68.

''See Ind. Code § 35-46-l-5(d) (Supp. 1978).
''Zirkle v. Zirkle, 202 Ind. 129, 172 N.E. 192 (1930); see Corbridge v. Corbridge,

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

'""Jahn V. Jahn, 385 N.E.2d 488 (Ind. Ct. App. 1979); In re Marriage of Honkomp,

381 N.E.2d 881 (Ind. Ct. App. 1978); Haycraft v. Haycraft, 375 N.E.2d 252 (Ind. Ct.

App. 1978).
•"'375 N.E.2d 252 (Ind. Ct. App. 1978).

''Hd. at 254.



1980] DOMESTIC RELATIONS 231

daughter, who remained in the custody of her mother. The court of
appeals affirmed/''^ but its opinion suggested that the trial court

may have erred in calculating the judgment for arrears. '""

The father's appeal challenged the trial court's failure to credit
him with the "overpayments" made from 1974 to 1976"^^ under the
parties' oral agreement. Because the agreement was ineffective as a
modification of the court's original order, the father had paid $5.00
more than he was legally obligated to pay for 139 weeks: a total of
$695. This sum exceeded the amount of the arrearage found to be
due ($367.50). The father therefore contended that the trial court
had erred in finding him in contempt. The court of appeals held,
however, that the trial court had correctly refused to treat the over-

payments as a prepayment of future installments. The court reasoned
that the purpose of a support order is to provide "regular, uninter-

rupted income" for the children's benefit. ^°^ To allow a parent to
"build up a substantial credit" by prepayment and then to cease
making payments for a lengthy period of time would defeat the pur-
pose of requiring periodic payments. '°^ The trial court was therefore
correct in treating the excess payments as voluntary contributions
to the children's support.

The court of appeals properly treated the parties' oral modifica-
tion of the support order as ineffective to alter the support obliga-

tions imposed by the divorce decree. When the father failed to make
the payments as agreed, the mother could not enforce the oral

agreement; she was entitled only to the amount due under the
original decree. The father was precluded from using the agreement
to reduce or offset the amounts due under the decree. The lesson of

Haycraft is that all modifications of support agreed to by the parties

should be promptly submitted to the court for approval. No such
agreement can modify an existing order until after the court has

entered a formal order of modification.

Much can be learned from an additional issue not decided in
Haycraft The divorce decree apparently had ordered the father to

pay $35 per week for the support of the parties' "two minor
children," who were in the custody of their mother, '°^ without speci-
fying the amount per child. After the contempt hearing, the order
was modified to provide that the father would thereafter pay $17.50
for the support of the daughter, who remained in the mother's

'"'id. at 256.

'""M at 254 n.3. The court of appeals did not consider the issue because the

mother had failed to file a brief or allege cross errors. Id.

'"'Id. at 255.

'"'Id.

">Ud.

'"'Id. at 253.



232 INDIANA LAW REVIEW [Vol. 13:215

custody. The arrearages ordered, however, were for the period
before the court's modification. Because the mother failed to
preserve the issue for appeal, the court of appeals never resolved

the question whether the trial court had correctly computed the ar-
rearage at the rate of $17.50 per week. The opinion suggests that
this method of computing the arrearage may have amounted to a
retroactive modification of the $35 per week support order, which
would be improper under Indiana law.'^^ One would hope, however,
that the Indiana courts will avoid such a mechanical application of

the rule allowing only prospective modification of support orders.

Generally, the rule operates benignly. It provides a measure of cer-
tainty to Indiana support decrees and assures that they will be
recognized and enforced in other states. In the minority of states in

which retroactive modification is permitted, ^'° the amount due under
a support order is not certain until the arrearage has been reduced

to judgment. Such support orders are not final and therefore are not

entitled to full faith and credit in other states. ^^' The Indiana
modification rule does not have to be changed to avoid inequitable

results in situations such as occurred in Haycraft, when the son's
custody was transferred to the father. In any case in which custody
is transferred to the parent obligated to pay support and the decree

fails to break down the support payments into X dollars per child,
the court should be able to apportion the payments ordered. It
would be a simple exercise in mathematics. An Indiana court should
then be able to hold, on appropriate evidence, that the support re-

quired by the order had been furnished in kind to the child, the real

beneficiary of the support order. ^'^ Payment to the other spouse ac-
cordingly should be excused. Such difficulties could be avoided

altogether if support orders were drafted more carefully. A support
order should indicate the amount due for each child, the duration of
the payments, and the conditions which would result in their ter-

mination, including a transfer of custody.

In Jahn v. Jahn,^^^ the father was ordered to pay $50 per week
for the support of his two children. The husband made all payments
as due, except during weeks when the children were in his care.^^"

'''See id. at 254-55 n.3.

''"See cases cited in Annot., 6 A.L.R.2d 1277 (1949).

"•Sistare v. Sistare, 218 U.S. 1 (1910). Retroactively modifiable orders are being

recognized increasingly as a matter of comity. See Worthley v. Worthley, 44 Cal. 2d

465, 283 P.2d 19 (1955); Kniffen v. Courtney, 148 Ind. App. 358, 266 N.E.2d 72 (1971).

"^In such a case, the custodial parent is not really requesting retroactive modifica-

tion of the support order but rather is arguing that he has substantially complied with

the order. See H. Clark, The Law of Domestic Relations in the United States §
15.3, at 514-16 (1968).

"^385 N.E.2d 488 (Ind. Ct. App. 1979).

''"The Jahn opinion does not indicate how long the periods were, stating merely

that the father did not make payments "when the children were in his custody for



1980] DOMESTIC RELATIONS 233

The mother brought a contempt action alleging arrearages totalling
$345/'^ The trial court refused to hold the father in contempt,
stating that he was not obligated to pay support "when the children
were in his custody."''^ The court of appeals reversed, holding that
the trial court's action, in effect, permitted retroactive modification

of the support order/'^

The temporary visits of the children with their father in Jahn

are substantially different from the permanent change in custody

that occurred in Haycraft. In Jahn, the custody of the children re-

mained always with the mother, although the children stayed with

the father for a week or more on occasion. Presumably, the perma-
nent expenses connected with custody (shelter, clothing, medical

care, and so forth) also remained with the mother, although she un-

doubtedly saved something by not having to feed the children dur-

ing these visits. If it had been contemplated that support payments
would cease during such visits, then it seems reasonable to require
that this be set out in the dissolution decree. In the absence of such

a provision, support payments should continue to be paid, as the
court of appeals stated, "in the manner, amount, and at the times re-

quired by the support order . . . until such order is modified or set

aside."'^^

In re Marriage of Honkomp^^^ also involved an attempt by the

non-custodial parent to obtain credit against his child support obliga-

tion, but in this case the payments for which credit was claimed had
nothing to do with the child. In a contempt action brought by the

mother, the trial court reduced the amount of support due under the
support order to compensate the father for amounts garnished from
his wages to pay a debt of the mother's. The court of appeals reversed,
holding that this amounted to a retroactive modification of the sup-
port order. ^^° The court pointed out that support payments are for
the benefit of the children and are "received by the custodial parent

in a fiduciary-like capacity ."^^^ The nature of support payments

more than a weekend." Id. at 490. The amount of the arrears claimed ($345) indicates,
however, that the periods involved were relatively brief.

"^The mother also asked for an increase in the support allowance and for a

declaratory judgment that she was entitled to claim one child as an exemption on her

federal income tax return, contrary to a provision of the decree of dissolution. Denial

of both requests for modification of the decree was affirmed by the court of appeals.

Id. at 492.

"*'/cf. at 490. Because no actual transfer of custody occurred in Jahn, the court's

use of the word "custody" in this context is inaccurate.

'"Id. at 490-91.

"'M at 490.
"«381 N.E.2d 881 (Ind. Ct. App. 1978).

''°Id. at 882.

'''Id.



234 INDIANA LA W REVIEW [Vol. 13:215

would preclude any set off of amounts garnished to pay a marital
debt against support payments. The court also held that evidence
that the father was being subjected to continuing garnish-
ment to pay the wife's debt was insufficient to establish the "substan-
tial change of circumstances" necessary to justify a pros-
pective modification of the support order. ^^^ Although the evidence

concerning the garnishments may have been sufficient to justify the
trial court's refusal to hold the father in contempt, the garnishments

could not excuse his liability for support due for the benefit of the

child.'^^

3. Statute of Limitations. — The Indiana Court of Appeals re-
examined a number of earlier cases and overruled two of its own re-
cent decisions in Kuhn v. Kuhn.^^^ Kuhn's implications in relation to
enforcement of child support orders extend far beyond the narrow

statute of limitations issue actually decided.

In a previous decision in the same controversy, ^^^ the court of ap-
peals had held that a child support order could not be enforced by

contempt after the child had been emancipated.*^^ The court stated
further, however, that denial of the contempt citation was proper
because the ex-wife had failed to obtain a second judgment

establishing the amount of the arrearage. '^^ This aspect of the
earlier Kuhn decision was critically re-examined in the present case.
After the first Kuhn decision, the ex-wife had sought a judgment fix-
ing the amount of support in arrears. The trial court, however, held
that her action was barred by the two-year statute of limitations for
injuries to personal property, relying on another recent court of ap-

peals decision, Strawser v. Strawser.^^^ The court of appeals reversed.

'''Id. at 883.

^'^Id. Inability to pay is generally recognized as a defense to a contempt citation,

but not to the underlying obligation to pay support. See H. Clark, supra note 112, §

15.3, at 510.

^'"'389 N.E.2d 319 (Ind. Ct. App. 1979). Although Kuhn was decided after the end

of the survey period, it makes significant changes in prior law and therefore merits

discussion here. The present Kuhn decision overruled Strawser v. Strawser, 364

N.E.2d 791 (Ind. Ct. App. 1977), and Owens v. Owens, 354 N.E.2d 350 (Ind. Ct. App.

1976), insofar as they were inconsistent with the court's new reasoning.

'^'Kuhn V. Kuhn, 361 N.E.2d 919 (Ind. Ct. App. 1977), discussed in Garfield,

Domestic Relations, 1977 Survey of Recent Developments in Indiana Law, 11 Ind. L.

Rev. 149, 175 (1978).

'^^This holding was consistent with prior Indiana law, Corbridge v. Corbridge, 230

Ind. 201, 102 N.E.2d 764 (1952), and was not disturbed in the later Kuhn decision.

'"In this aspect of the case, the court relied on its own recent decision in Owens

v. Owens, 354 N.E.2d 350 (Ind. Ct. App. 1976), which was overruled by the present

Kuhn decision.
'=^»364 N.E.2d 791 (Ind. Ct. App. 1977), overruled, 389 N.E.2d at '320.



1980] DOMESTIC RELATIONS 235

overruling Strawser and re-examining its reasoning in the first

Kuhn decision. '^^

Strawser is easily distinguishable from Kuhn because no court
order of support had ever been issued in Strawser; the mother in

Strawser was merely seeking reimbursement from the father for ex-
penditures she had made for the children prior to their emancipa-
tion. '^'^ The mother in Kuhn was enforcing a court order requiring
the father to make payments of $35 per week for the support of his
children, none of which had been paid prior to the children's eman-

cipation in 1972. The court of appeals held in the second Kuhn deci-
sion that the statute of limitations applicable to such a case was the
ten-year statute relating to judgments. ^^^ The court also disapproved
the reasoning of Strawser, which had resulted in the application of

the two-year statute of limitations for injuries to personal property

to an action for reimbursement of support. ^^^

In determining that the statute of limitations for judgments

should apply in actions to enforce court-ordered support, the court

had to deal with the contrary implications in Owens v. Owens.^^^ The
court had held in Owens that a second judgment for the amount in
arrears was necessary before a support order could be enforced by
execution.^^^ In the first Kuhn opinion, ^^^ the court had followed
Owens in stating that a second judgment was also necessary before
a child support judgment could be enforced by contempt. ^^^ In the sec-

ond Kuhn opinion, the court recognized that the requirement of a sec-

'^'389 N.E.2d at 320, 322. The result of the earlier Kuhn decision was upheld,
although the reasoning was questioned. Id. at 322, n.4.

^^^Strawser is discussed in some detail in Garfield, supra note 59, at 168-69.
''•389 N.E.2d at 322 (applying Ind. Code § 34-1-2-2 (1976)).
'^^The court of appeals explained its action:

The Strawser court reasoned as follows: first, the right to sue on a debt
is a chose in action; second, a chose in action is personalty; therefore, the

statute of limitations is that for injury to personal property (and not for an

action in debt). The defect in our reasoning is that while the first two prop-
ositions are correct statements of the law, the conclusion does not naturally

follow because the statutes of limitation apply to the nature of the right be-

ing enforced, and not the right to bring the action; that is, one does not

generally base an action on injury to the right to bring suit. . . . We are con-
strained to hold, therefore, that our reasoning in Strawser was inappropriate
and, insofar as it conflicts herewith, it is overruled.

389 N.E.2d at 320. The court expressed no opinion as to the correctness of the result
in Strawser. Id.

'^'354 N.E.2d 350 (Ind. Ct. App. 1976). See Garfield, supra note 59, at 169 n.82.
•'"^54 N.E.2d at 352.
''^361 N.E.2d at 921.

'^^This determination was not essential in resolving Kuhn because contempt en-
forcement is not available when the children involved are emancipated. See Garfield,
supra note 125, at 175.



236 INDIANA LAW REVIEW [Vol. 13:215

ond judgment was inconsistent with the usual analysis of support
orders in a jurisdiction such as Indiana where support orders are
not retroactively modifiable. Payments due under such a support
order are regarded as becoming final judgments as they accrue/^^
Unless a support order is retroactively modifiable, a second judg-

ment fixing the amount due is unnecessary because the overdue
payments are already final judgments.^^^ Recognizing the incon-
sistency, the court held in the second Kuhn opinion that support in-
stallments become judgments as they accrue, "and a second action
on the original judgment is unnecessary ."^^^

In any case where the amount due under a support order is
disputed, it may still be necessary or desirable to obtain a judgment
for arrears in Indiana. The number of such cases should decline,
however, if full use is made of the Indiana Dissolution of Marriage
Act provision authorizing the courts to require that support
payments be made through the clerk of the circuit court. ^''^

Judgments for arrears may also be desirable in some cases when
support orders are to be enforced in other states, although they cer-

tainly would be unnecessary in many such cases. ^"^ The need for a
second judgment for arrears in some cases, however, does not
justify requiring a second judgment in all cases. The second Kuhn
decision wisely eliminates this requirement, thereby eliminating the

possibility of the requirement being used as a delaying tactic in

future cases.

4. U.R.E.S.A.-ln State ex rel. Greebel v. Endsley,''^ the

Indiana Supreme Court held that a proceeding to enforce a support

'^^Such an analysis is implicit in the Indiana Court of Appeals decision of Kniffen

V. Courtney, 148 Ind. App. 358, 266 N.E.2d 72 (1971). The Kniffen court held that a
Kentucky support order, which the court presumed to be modifiable only prospectively
as an Indiana order would be, could be enforced in Indiana without the arrearage be-

ing first reduced to judgment in Kentucky. Id. at 365, 266 N.E.2d at 76. The same
analysis is used by the United States Supreme Court in cases involving interstate
recognition of support decrees. See Sistare v. Sistare, 218 U.S. 1 (1910).

'''See H. Clark, supra note 112, § 15.3, at 509; Garfield, supra note 125, at 174.
'^^389 N.E.2d at 322. Some of the confusion concerning support judgments arises

out of their nature. The original order to the parent to pay future support is an

equitable decree (in effect, a mandatory injunction). As the payments become due and

unpaid, however, they become indistinguishable from other judgments for money and

have been treated as such for purposes of interstate enforcement. Thus, the Supreme

Court has held that past-due installments under a child support order, when they are

not subject to retroactive modification in the state where rendered, are entitled to full

faith and credit in other states; that is, they must be enforced in other states as any

other money judgment would be. Sistare v. Sistare, 218 U.S. 1 (1910).
'""Ind. Code § 31-l-11.5-13(a)-(c) (Supp. 1979).

""See, e.g., Kniffen v. Courtney, 148 Ind. App. 358, 266 N.E.2d 72 (1971). Enforce-

ment under the Uniform Reciprocal Enforcement of Support Act, Ind. Code §§ 31-2-1-1

to -39 (1976 & Supp. 1979), normally would not require that the arrearage be first
reduced to judgment.

'^'379 N.E.2d 440 (Ind. 1978).



1980] DOMESTIC RELATIONS 237

order of another state under the Uniform Reciprocal Enforcement of

Support Act (U.R.E.S.A.)^" was analogous to proceedings supplemen-
tal.^'*'* The trial court was therefore not required to grant the
father's motion for a change of venue, and his petition for a writ of

mandate and prohibition to compel the court to do so was denied.'"'^
The proceeding in Greebel was brought by the mother to en-

force a support order contained in a Pennsylvania divorce decree.

The mother was invoking the "additional remedies" for enforcement
of "foreign support orders" contained in U.R.E.S.A.**^ The father's
argument that this was really a "new and independent cause of ac-
tion for which a change of venue should be permitted"*''^ was clearly
not applicable to this type of proceeding. The argument might apply,
however, to actions brought under other sections of U.R.E.S.A.,*'*^

which authorize a new determination of support to be made by a
court in the responding state. Such a determination can be made
even though no prior order of support has been entered in any state

and can be based upon duties of support imposed by the law of the

responding state. ^''^ If a prior support order exists, the U.R.E.S.A.

order does not purport to enforce iV^^ but instead constitutes a

separate, parallel remedy.'^' Such an order might well be

characterized as a "new and independent cause of action,"'^^ for
which a change of venue arguably should be permitted. The Indiana
Supreme Court could have avoided any confusion by carefully"
distinguishing between the two kinds of remedies available under
U.R.E.S.A.

Heretofore, the term "foreign support orders" as used in the
Indiana version of U.R.E.S.A. referred to an order entered in

another state, the District of Columbia, or in a territory or posses-

sion of the United States, in which reciprocal legislation had been

'"IND. Code §§ 31-2-1-1 to -39 (1976 & Supp. 1979).
'"^379 N.E.2d at 441.

^'«IND. Code §§ 31-2-1-32 to -37 (1976 & Supp. 1979). Section 32 bears the heading
"Foreign support order: additional remedies." Sections 32 to 37 provide for registra-

tion and enforcement of support orders entered in other states.
'^'379 N.E.2d at 441.

'^«IND. Code §§ 31-2-1-7 to -31 (1976 & Supp. 1979).
'''Id. § 31-2-1-7 (Supp. 1979).

'''Id. § 31-2-1-29 (1976) provides:

No order of support issued by a court of this state when acting as a
responding state shall supersede any other order of support but the amounts

for a particular period paid pursuant to either order shall be credited against

amounts accruing or accrued for the same period under both.

See Banton v. Mathers, 159 Ind. App. 634, 309 N.E.2d 167 (1974).

'''See Ind. Code § 31-2-1-3 (1976), which states: "The remedies herein provided are

in addition to and not in substitution for any other remedies."
'^'379 N.E.2d at 441.



238 INDIANA LA W REVIEW [Vol. 13:215

enacted.'" A 1979 amendment to the definition section makes all pro-
visions of the Indiana statute applicable to foreign countries as well,

if they have adopted reciprocal legislation substantially similar to
U.R.E.S.A.'^^

D. Dissolution of Marriage

1. Maintenance. — Only one case involving a maintenance award
was decided during the survey period. In Farthing v. Farthing,^^^ the
Indiana Court of Appeals affirmed an order reducing a 1975

maintenance award to the wife from $55 to $40 per week. In an ap-
peal brought by the husband, the court held that he had failed to

show that the circumstances of the parties had so changed since the
original order was entered that the maintenance award was no
longer justified under section 9(c) of the Indiana Dissolution of Mar-

riage Act.'^^ In so holding, the court first determined the standard

for modification of a maintenance order because the Indiana

statute'^^ does not contain a specific provision relating to modifica-

tion of maintenance.'^^ The court held that the standard for modifica-
tion of child support orders should be applied to maintenance orders

as well: "Such modification shall be made only upon a showing of
changed circumstances so substantial and continuing as to make the
terms unreasonable."'^^

The trial court in Farthing made specific findings that the wife
had "substantially recovered physical health but . . . [had] not fully

recovered her mental health," and that the husband "had suffered a
substantial loss in income in 1975."'^'^ These findings supported the

^"IND. Code § 31-2-l-2(a) (1976). Such legislation has been enacted in all fifty states,

the District of Columbia, Puerto Rico and The Virgin Islands. See Fox, The Uniform

Reciprocal Enforcement of Support Act, 12 Fam. L.Q. 113, 113 (1978).

'^"See Ind. Code § 31-2-l-2(a) (Supp. 1979). Some states have already made

reciprocal arrangements with West Germany. See [1979] 5 Fam. L. Rep. (BNA) 1153,

2185.

'^^382 N.E.2d 941 (Ind. Ct. App. 1978).

'''Id. at 944, 947. Ind. Code § 31-l-11.5-9(c) (Supp. 1979) provides that maintenance

can be awarded to a spouse only "when the court finds a spouse to be physically or

mentally incapacitated to the extent that [his or her] ability ... to support himself or

herself is materially affected."

'"Ind. Code §§ 31-1-11.5-1 to -24 (1976 & Supp. 1979).
'^*The legislature clearly intended maintenance awards to be modifiable because §

9(c) authorizes them to be made "during said incapacity, subject to further order of the

court." Id. § 31-l-11.5-9(c) (Supp. 1979).

•^^382 N.E.2d at 943-44; Ind. Code § 31-l-11.5-17(a) (1976). The heading of § 17(a)

refers to "modification and termination of provisions for maintenance, support and prop-

erty disposition" but the body of § 17(a) contains no mention of maintenance modifica-

tion. See id.
'«°382 N.E.2d at 943.



1980] DOMESTIC RELATIONS 239

trial court's order reducing the amount of the maintenance
payments but did not support the husband's argument that the trial
court was required by the statute to terminate maintenance
altogether. Evidently, the husband's argument was directed toward
the issue of whether there had been sufficient evidence of incapacity

to support the court's original maintenance award. The finding of in-
capacity in the dissolution decree had been based only on evidence

that the wife suffered from "nerves," but the husband had not ap-
pealed that judgment.'*^' The issue of whether evidence of a "nervous
condition" is sufficient to support a maintenance award under sec-
tion 9(c) was therefore not before the court in Farthing. This issue
remains unresolved.

The United States Supreme Court's recent decision on the con-
stitutionality of statutes allowing awards of alimony (or
maintenance) only to wives'*^^ should have little effect on Indiana

law. Section 9(c) already allows maintenance to be awarded to either
spouse, provided that spouse is incapacitated.'*^^

2. Property Division. — In three cases decided during the
survey period, the Indiana Court of Appeals continued to treat pen-

sions and other retirement benefits as assets to be "considered" but

not divided upon dissolution of marriage.'*^" In Libunao v. Libunao,^^^

substantial marital assets were awarded to the wife.'^*^ The husband
contested the property division, alleging that the trial court had

abused its discretion by considering his pension and profit sharing

plan and his Keough retirement plan without first ascertaining their
precise present value. ''^^ The court of appeals affirmed the division,

'^'M at 945. "[T]he Husband is in effect attempting to collaterally attack the basis

for the original judgment." Id.

'^'Orr V. Orr, 99 S. Ct. 1102 (1979), in which it was held that an Alabama statute

permitting alimony to be awarded to wives but not to husbands constituted gender-

based discrimination in violation of the equal protection clause, U.S. Const, amend.

XIV, § 1. 99 S. Ct. at 1113-14.

'^'IND. Code § 31-l-11.5-9(c) (Supp. 1979). The Indiana Court of Appeals has been

restrictive in interpreting the statutory requirement of incapacity. See, e.g., Wilcox v.

Wilcox, 365 N.E.2d 792 (Ind. Ct. App. 1977); Liszkai v. Liszkai, 343 N.E.2d 799 (Ind. Ct.

App. 1976).

''"See Savage v. Savage, 374 N.E.2d 536, 538-39 (Ind. Ct. App. 1978), discussed in

Garfield, supra note 59, at 182-85.
'^^388 N.E.2d 574 (Ind. Ct. App. 1979).

''•^The wife was awarded real estate and cash valued at more than $250,000. Id. at

576. The husband received his interest in the medical building, cash, notes, and stock

in the medical corporation, as well as his interests in a pension and profit plan and a

Keough plan. The present value of some of these assets was never precisely ascertained,
but their total value appears to have been somewhat less than $200,000. See id.

'^^The court of appeals defined the issue on appeal as being whether an abuse of
discretion was shown "because the marital assets were divided in such a manner that
one spouse received substantially all of the tangible assets and the other spouse retained



240 INDIANA LAW REVIEW [Vol. 13:215

holding that the trial court might ''consider the future value of an

asset, but [that] the final distribution [had to] be just and equitable"

taking into account the "present vested interest" in the asset. ^''^ For

this purpose, the trial court did not have to establish the precise

present value of each asset, as long as there was sufficient evidence
as to the overall value of the marital property. ^^^ The court held that
the Libunao division was fair in light of the husband's considerable
earning capacity, '^° the wife's limited earning capacity, and her con-

tributions to her husband's medical practice.'^'

In Hiscox V. Hiscox,^^^ the husband's military retirement pay had

a value which far exceeded that of the other assets accumulated dur-

ing the marriage. Based on his life expectancy, the husband could

expect to receive $499,545 in retirement pay, which had been earned

during the marriage; the wife assessed its discounted present value

at $220,265. Aside from this, the only marital assets were "items of
personal property," worth approximately $16,000, most of which

were awarded to the wife.'^^ The wife argued on appeal that the trial

court had erred in refusing to award her any portion of the
husband's retirement pay. The court of appeals held that the trial

only his interest in a pension or retirement fund." Id. at 577. This seems to be

somewhat of an overstatement because, as the court itself pointed out, the husband did
receive other substantial assets. Id.; see note 166 supra. It is true, however, that the

property distributed to the husband consisted predominantly of intangibles and future

interests. Even the medical building was held in a CHfford trust for the benefit of the
children; however, the property would revert to the husband on termination of the

trust. See 388 N.E.2d at 576.
"'»388 N.E.2d at 577.

'''Id. at 576-77.

'^°He was a physician earning gross income "well in excess of $100,000 a year." Id.

at 576. The wife had not completed high school, but was "capable of performing

various types of office work." Id.

'^'The wife had worked as a bookkeeper in her husband's office. Id. The court also

pointed out that the husband had "received over $20,000 in cash and a substantial

amount of equity in his medical practice and stock [in his medical corporation]." Id. at

577.

The court of appeals refused to consider the husband's second allegation of error,

relating to the propriety of awarding the parties' residence to the wife because he had

failed to preserve the issue in his motion to correct errors. Id. at 578.
^'385 N.E.2d 1166 (Ind. Ct. App. 1979).

'"M at 1166. The wife received personal property valued by the husband at
$13,600. Personalty awarded to the husband was valued by him at $2,840. The husband

also was awarded his interest in real property owned by him jointly with his mother

and was ordered to pay the wife $15,000 (apparently to offset the value of this real

property interest). This real property was subject to division under Ind. Code §
31-1-11.5-11 (1976) (amended 1979), but the court evidently did not consider it to be an

"asset of the marriage." See 385 N.E.2d at 1166-67. In addition, both parties were

awarded their respective retirement benefits. Id. at 1167. No valuation of the wife's
retirement benefits is reported in the Hiscox opinion.



1980] DOMESTIC RELA TIONS 241

court's division was correct because the retirement pay was "not a
vested present interest."'^" Because the husband already had retired

and was receiving monthly retirement payments at the time of the
hearing, the court's characterization of these benefits as not being

"vested" warrants closer examination.

The definition of vesting used by the court of appeals in Hiscox

was derived from Savage v. Savage,^^^ an earlier case in which the
husband had retired and was receiving railroad retirement benefits

at the time of the divorce. '^*^ The court held in Savage that the hus-
band did not have "a sufficient vested present interest" in his future

pension payments to qualify them as property subject to division

under the Indiana Dissolution of Marriage Act'" because the

payments were "contingent upon his continued survival."'^** In

Savage, the court had relied in turn upon Wilcox v. Wilcox,^^^ in which

it was held that a husband's future earnings were not property
subject to division on dissolution because he had no "vested present

interest" in them.'^'^ Although the court conceded in Savage that
there might be "material differences" between future earnings and
future pension payments/^' it nevertheless treated them the same,
apparently because both constituted "income to be received in the

future."'^^ The court ignored important differences between future
earnings and future pension payments that far outweigh any such
superficial similarity. For purposes of dividing the property of divor-

cing spouses "in a just and reasonable manner,"'**^ the crucial distinc-

tion would seem to be that future earnings are to be earned in the
future, after the marriage is dissolved, whereas future retirement
benefits are earned during the marriage, although they may not be
payable until after dissolution. Retirement benefits are a form of

deferred compensation, a fringe benefit derived from a spouse's

employment during the marriage.'^" The court of appeals implicitly
recognized this by holding in Libunao that retirement benefits
should be "considered" in making an equitable division of

'^'•385 N.E.2d at 1168.
'^^374 N.E.2d 536 (Ind. Ct. App. 1978).

'^®The Savage opinion did not identify the payments as railroad retirement

benefits, but the Hiscox court did. 385 N.E.2d at 1167.

'"Ind. Code § 31-1-11.5-11 (Supp. 1979).
'''*374 N.E.2d at 538-39.
'^'365 N.E.2d 792 (Ind. Ct. App. 1977). Both Wilcox and Savage are discussed in

Garfield, supra note 59, at 178-84.
"*''365 N.E.2d at 795.
'«'374 N.E.2d at 539.

'''Id.

'''Ind. Code § 31-1-11.5-11 (Supp. 1979).

'''See Brown v. Brown, 15 Cal. 3d 838, 843, 544 P.2d 561, 563, 126 Cal. Rptr. 633,
635 (1976).



242 INDIANA LAW REVIEW [Vol. 13:215

property. ^'^^ The Indiana Court of Appeals has not answered one
vital question: How can pension rights be "considered" in a case in
which there is no other property to divide? The question seems
unanswerable. The court has held in Wilcox^^^ and Savage^^^ that any
award of property over and above the value of the tangible assets of
the marriage would constitute an award of maintenance in violation
of section 9(c).'®^ Under this holding, no award can be made in any
case in which pension rights constitute the only substantial asset.

In these pension cases, the Indiana Court of Appeals has used

the term "vested" in a sense that is very different from the term's

usual meaning in pension matters. In federal legislation governing
pension rights, the word "vesting" refers to pension rights that are
not forfeited when the employee terminates his employment.^^^

Similarly, in pension cases from other states, the term "vested" is

used to indicate "a pension right which survives the discharge or

voluntary termination of the employee."^®^ Such a vested pension

right is subject to division on dissolution of marriage in many
states, ^^' and some states allow non-vested pension rights to be
divided as well.^^^ In states in which pensions cannot be divided as

property, pensions can be considered in awarding alimony or

'«^388 N.E.2d at 577.
'"'365 N.E.2d at 794-95.

'«'374 N.E.2d at 539.

'««lND. Code § 31-l-11.5-9(c) (Supp. 1979). See Garfield, Indiana's Displaced

Homemakers, 23 Res Gestae 80 (1979).
"*»The Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1053

(1976), describes pension rights which are nonforfeitable under the heading "minimum

vesting standards." It specifies that a right is not considered forfeitable merely

because it is contingent upon the employee's survival. Id. § 1053(a)(3)(A). "Non-

forfeitable" is defined as a pension benefit or right arising from employment "which is

unconditional, and which is legally enforceable against the plan." Id. § 1002(19).

''°In re Marriage of Brown, 15 Cal.3d 838, 843, 544 P.2d 561, 563, 126 Cal. Rptr.

633, 635 (1976). Brown distinguishes between a "vested" pension right and one that has

"matured:"

Depending upon the provisions of the retirement program, an employee's

right may vest after a term of service even though it does not mature until

he reaches retirement age and elects to retire. Such vested but immature

rights are frequently subject to the condition, among others, that the

employee survive until retirement.

Id. Under this definition, the pension rights in Hiscox and Savage were both "vested"

and "matured."

'''E.g., Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975); Swope v. Mitchell, 324

So. 2d 461 (La. Ct. App. 1975); Hutchins v. Hutchins, 71 Mich. App. 365, 248 N.W.2d

276 (1976); Schafer v. Schafer, 3 Wis. 2d 166, 87 N.W.2d 803 (1958).

'''E.g., In re Marriage of Brown, 15 Cal. 3d 838, 544 P.2d 561, 126 Cal. Rptr. 633

(1976). When too many uncertainties exist to permit division of future pension rights at

the time of the divorce, the court can award the other spouse a portion of each pay-

ment as it is received. Id. This is precisely the method that was used by the trial court

in Savage.



1980] DOMESTIC RELATIONS 243

maintenance because retirement income is clearly relevant to a

spouse's ability to pay.'^^ In Indiana, however, if the pension itself

cannot be divided, the other spouse may get nothing. The spouse
can be awarded other property, if there is any, or he or she can

receive maintenance, if incapacitated. If no other property exists

and the other spouse is not incapacitated, an Indiana court cannot

make any award regardless of the value of the pension rights. In
such a situation, no truly equitable resolution of the spouses' finan-

cial affairs is possible.

A recent decision of the United States Supreme Court has con-
fused the picture further. In Hisquierdo v. Hisquierdo,^^'^ the Court

held that California could not treat anticipated benefits under the

Railroad Retirement Act'^^ as community property upon dissolution
of marriage. '^^ The decision is based upon the Court's interpretation
of the federal statute, particularly the provision prohibiting assign-

ment or anticipation of benefits. '^^ The Court also noted that
benefits under the statute have some of the attributes of a social
welfare plan and were designed in part as a substitute for social

security. '^^ Although Congress has provided social security benefits

'''^Several states have expressly held that retirement income should be considered

in awarding maintenance or alimony. E.g., Ellis v. Ellis, 552 P.2d 506 (Colo. 1976);

Howard v. Howard, 196 Neb. 351, 242 N.W.2d 884 (1976). In no other state, with the
possible exception of Pennsylvania, is the decision about whether pensions are proper-

ty subject to division on dissolution as crucial as it is in Indiana. In all other states, ex-

cept Pennsylvania and Texas, awards of alimony or maintenance can be made on
divorce without the limitation of incapacity contained in the Indiana statute. See Freed

& Foster, Divorce in the Fifty States: An Overview as of August 1, 1978, [1978] 4
Fam. L. rep. (BNA) 4033, 4038. In Texas, pension rights are treated as community prop-
erty subject to division on divorce. E.g., Taggart v. Taggart, 552 S.W.2d 422 (Tex. 1977).

1977).

'^"99 S. Ct. 802 (1979).
''^45 U.S.C. § 231 (1976 & Supp. I 1977).
•'«99 S. Ct. at 813.

'^^The statute provides, in part:

Notwithstanding any other law of the United States, or of any State, ter-

ritory, or the District of Columbia, no annuity or supplemental annuity shall

be assignable or be subject to any tax or to garnishment, attachment, or

other legal process under any circumstances whatsoever, nor shall the pay-

ment thereof be anticipated.
45 U.S.C. § 231m (1976) (emphasis added). There is an exception to this provision for
child support or alimony. Id. § 659.

•^*The Hisquierdo court described the benefits under the statute:

[T]he Act resembles both a private pension program and a social welfare
plan. It provides two tiers of benefits. The upper tier, like a private pension,
is tied to earnings and career service. . . .

The lower, and larger, tier of benefits corresponds exactly to those an
employee would expect to receive were he covered by the Social Security

Act.

99 S. Ct. at 804-05.



244 INDIANA LA W REVIEW [Vol. 13:215

for divorced spouses, it has made no similar provision concerning
benefits under the Railroad Retirement Act.^^^ The Hisquierdo deci-
sion is limited by its reasoning to railroad retirement benefits

because it rests upon the Court's interpretation of the Railroad

Retirement Act. Hisquierdo should not be construed as establishing

a general federal rule against treating pensions and other types of

retirement benefits as community property or as property subject
to equitable division on divorce.^"*^

The effect of Hisquierdo on divorcing couples in California and
in most other states may be minimal because a spouse's pension
rights can be taken into account in making an award of alimony or
maintenance.^"^ Having lost her community property right to a share
of her husband's retirement benefits, Mrs. Hisquierdo can probably

qualify for an award of alimony, which can then be enforced against
the retirement benefits. ^"^^ In Indiana, however, the effect of the His-

quierdo interpretation of the Railroad Retirement Act would have

been much more drastic, if Savage and Hiscox had not already led to
the same result. Hisquierdo makes it less likely that the Indiana
courts will change their treatment of pensions on dissolution of mar-

riage because such a change could not affect railroad retirement

benefits. Under Hisquierdo, railroad benefits could only be made
available to the other spouse through an award of maintenance,
which is not possible in most cases under the Indiana statute.

Evidently, Congress assumed that state divorce laws would
authorize that a provision be made for nonworking spouses in the
form of alimony or maintenance when it provided an exception to
the provision prohibiting anticipation of Railroad Retirement Act

benefits which apply to alimony awards.^"^ This exception, however, is

largely ineffective in Indiana.

'^^A proposal to amend the statute to provide a benefit to divorced spouses was

specifically rejected in 1974. Id. at 810.

^""A somewhat similar question may arise under the Employee Retirement Income

Security Act (ERISA), which contains a provision against assignment or alienation. 29

U.S.C. § 1056(d)(1) (1976). See Bass, ERISA and the Treatment of Pensions etc., as Pro-
perty Divisible on Divorce, [1978] 4 Fam. L. Rep. (BNA) 4009, 4010. The reasoning of

Hisquierdo, however, would not foreclose a different result under ERISA.

^"'In determining to treat unvested pension rights as community property rather

than as the basis for an award of alimony, the California Supreme Court reasoned that

the nonworking spouse's entitlement to a share of the working spouse's pension

should be a matter of right, rather than dependent upon the trial court's discretion, as

alimony awards are. In re Marriage of Brown, 15 Cal. 3d 838, 848, 544 P.2d 561, 567,

126 Cal. Rptr. 633, 639 (1976).

^°^The prohibition against alienation of benefits under the Railroad Retirement

Act contains an exception for alimony and child support. 42 U.S.C. § 659 (1976); see

Hisquierdo, 99 S. Ct. at 806.

^"^42 U.S.C. § 659 (1976).



1980] DOMESTIC RELATIONS 245

In Goodwill v.. GoodwiH,^^"^ the wife received $6,000 in cash as

part of a property division. This award was made a lien upon the
husband's anticipated railroad retirement benefits.^"^ Because the

parties' property was heavily encumbered, the $6,000 exceeded the
net value of the marital assets. The trial court made no finding of in-
capacity that would justify the payment as an award of
maintenance. The court of appeals reversed, citing Savage,^^^
Because no tangible property existed,^"^ the wife was entitled to
nothing. Neither the husband's present earning capacity nor his pen-

sion rights could be considered under these circumstances. Even if
the cash award could have been justified as a division of property, it
could not be made a lien on the husband's railroad retirement
benefits under Hisquierdo. Although Goodwill was decided before
Hisquierdo, the Indiana decision is thus consistent with the

Supreme Court's reading of the Railroad Retirement Act. The
ultimate outcome of Goodwill, however, was probably not one that
was anticipated either by Congress or by the Supreme Court. The
denial of any financial settlement to the wife in Goodwill results

from Wilcox and Savage, which effectively limit property available

for division on dissolution to tangible assets.

The tangible asset limitation of Wilcox was avoided by the court
of appeals in In re Marriage of McManama,^^^ which affirmed an

award of $3,600 to a wife who had contributed to her husband's ex-
penses as a student at Notre Dame Law School. The dissolution
decree also awarded the wife the only substantial asset owned by
the parties, a residence in South Bend; she was made responsible for
the mortgage on it. Each party received the personal property in his

^"-'382 N.E.2d 720 (Ind. Ct. App. 1978).

^"^The cash award was designated as an "alimony judgment," but the court of ap-

peals treated it as an "attempted property division" because alimony is no longer

awarded under the present Indiana statute. Id. at 721-22.

'''Id. at 722-23.

^°^The parties' real estate and furniture were subject to encumbrances which ex-

ceeded their value. The only other asset was a 1966 Pontiac. The wife received

household furniture worth $1,500, in addition to the cash award, but this phase of the

division was not appealed. Thus, the court did not have to determine whether this cash

award also constituted an award in excess of the value of the tangible assets of the

marriage. See id. at 721.
''**386 N.E.2d 953 (1979). Judge Staton, in dissent, observed that McManama is in-

consistent with Wilcox because the cash award "of the husband's future income to the

wife is "above the total value of the marital assets." Id. at 956 (Staton, J,, dissenting).

The relevant conflict with Wilcox is the fact that the award exceeded the value of the

marital assets, not the fact that it was payable out of the husband's future income. An
award payable out of the other spouse's future income would not be inconsistent with

Wilcox if tangible property of equal or greater value had been awarded to the paying

spouse.



246 INDIANA LA W REVIEW [Vol. 13:215

or her possession, and the husband was made responsible for debts
totalling $1,080.^°^ The parties' tangible assets had been divided
before the cash award was made to the wife, with the bulk of the
assets going to the wife. The $3,600 was therefore an award "over
and above the actual physical assets of the marital relationship,"

which, under Wilcox, "must represent some form of support or
maintenance."^^" The two cases are distinguishable, however. In
McManama, the wife did not receive the cash award to compensate
her for the husband's greater earning power as the wife had sought
to do in Wilcox.^^^ The McManama award was in the nature of
restitution for sums contributed by the wife to her husband's legal
education. The court of appeals relied on the provision of the prop-
erty division statute which permits the trial court to consider "the

conduct of the parties ... as related to the disposition or dissipation

of their property ."^'^ The court interpreted the $3,600 award as com-
pensating the wife for marital assets "dissipated" for the sole

benefit of the husband.^'^

Although it is difficult to reconcile McManama with the broad
statements in Wilcox limiting property available for division to "ac-

tual physical assets,"^^'* the court of appeals is certainly correct in its

conclusion that the McManama award bears little resemblance to
maintenance. Unlike the wives in Wilcox and Savage, Mrs.

McManama was probably not entitled to maintenance even if the
Indiana statute allowed it. Such an award would have to be based
upon her need and her husband's ability to pay.^'^ At the time of the
separation, she was earning considerably more than her husband;^^^

^"^The debts were for the husband's medical bill ($500), a balance due on his law

school tuition ($220), and a federal tax liability ($360). Id. at 954.
^'"365 N.E.2d at 794. No maintenance award would be permissible under the facts

of McManama because the wife was not "incapacitated," as required by Ind. Code §
31-l-11.5-9(c) (Supp. 1979).

'"Ind. Code § 31-l-11.5-ll(e) (1976) (amended 1979) permits a court to consider the

"earnings or earning ability of the parties" in making an equitable division of property

on dissolution. The wife in Wilcox had argued that the court should consider the hus-

band's future income as an asset subject to division. 365 N.E.2d at 794.
^'^386 N.E.2d at 955; Ind. Code § 31-l-11.5-ll(d) (1976) (amended 1979).
^'^386 N.E.2d at 955. When the husband began his law school career, the parties

had $6,000 in cash, most of which was spent during his first year in law school. The

wife worked full-time during this period, and the parties separated the following sum-

mer. Id. at 953-54.

'•"365 N.E.2d at 794.

"^See, e.g., Uniform Marriage and Divorce Act § 307.

"®She earned $14,785 during the preceding year working as a full-time school

psychologist. He had earned $1,250 on a summer job as an assistant in the public
defender's office. 386 N.E.2d at 953-54. On these facts, it is doubtful that she could
have shown the need for maintenance. See In re Marriage of Graham, 574 P.2d 75,

78-79 (Colo. 1978) (Carrigan, J., dissenting).



1980] DOMESTIC RELATIONS 247

therefore, an award based on her support needs would have been
difficult to justify. In similar situations, some state courts have
treated advanced education, or the increased earning capacity
resulting therefrom, as an asset subject to division on dissolution of

marriage,^^^ but such an interpretation apparently is foreclosed in

Indiana by the holdings of Wilcox and Savage. In any event, the

Indiana legislature has now amended the property division statute^"^
to authorize the kind of award made in McManama.^^^

One additional property division case deserves mention.^^°

Generally, disputes over the amount of fees ordered to be paid by
one spouse to the attorney of the other^^^ are resolved without much
discussion. Such awards are confirmed absent a "clear abuse of
discretion."^^^ In Greiner v. Greiner,'^'^^ however, the propriety of an

''Un re Marriage of Horstmann, 263 N.W.2d 885 (Iowa 1978); Inman v. Inman, 578

S.W.2d 266 (Ky. Ct. App. 1979).

2>»Act of Apr. 10, 1979, Pub. L. No. 9, § 1, 1979 Ind. Acts 1375 (amending Ind.

Code § 31-1-11.5-11 (Supp. 1979)).

^'^A new § 11(b) now provides:
When the court finds there is little or no marital property, it may award

either spouse a money judgment not limited to the existing property.
However, this award may be made only for the financial contribution of one
(1) spouse toward tuition, books, and laboratory fees for the higher education

of the other spouse.

Ind. Code § 31-l-11.5-ll(b) (Supp. 1979). Unfortunately, this carefully limited amend-
ment may be interpreted as confirming the tangible assets limitation of Wilcox and
Savage. In extending relief only to the working spouse who helps put her husband
through school, the amendment implies that, in all other cases, awards are properly
"limited to the existing property." Id.

^^"Other cases decided during the survey period present issues of limited general

interest. In re Marriage of Hirsch, 385 N.E.2d 193 (Ind. Ct. App. 1979), was mainly con-

cerned with a dispute over property valuations.

In Blake v. Hosford, 387 N.E.2d 1335 (Ind. Ct. App. 1979), the parties had been

divorced in Arizona, but the decree failed to mention real property owned by the par-

ties in Indiana. The court of appeals held that a letter written by the wife was insuffi-

cient under the Statute of Frauds, Ind. Code § 32-3-1-1 (1976), as a memorandum of an
oral agreement by the wife to convey her interest in the real estate to the husband.

Henderson v. Henderson, 381 N.E.2d 451 (Ind. 1978), held that the signature of

the husband's attorney, "approving" a divorce decree, indicated approval as to form

only and did not constitute a waiver of errors. The case was transferred to the court of

appeals for a decision on the merits.

In re Marriage of Brown, 387 N.E.2d 72 (Ind. Ct. App. 1979), held that the wife's

motion for change of venue, filed within 30 days after she filed her petition for dissolu-

tion, should have been granted by the trial court under Ind. R. Tr. P. 76(3). Because a

respojjsive pleading is permissive rather than mandatory in dissolution cases, the court

held that the 10-day limitation of Ind. R. Tr. P. 76(2) had no application to such cases.

^^^Ind. Code § 31-1-11.5-16 (1976) authorizes the award of reasonable attorney's

fees.

'''E.g., In re Marriage of Hirsch, 385 N.E.2d 193, 197 (Ind. Ct. App. 1979); Far-

thing V. Farthing, 382 N.E.2d 941, 947 (Ind. Ct. App. 1978).
^^^384 N.E.2d 1055 (Ind. Ct. App. 1979).



248 INDIANA LA W REVIEW [Vol. 13:215

award of $12,400 to the wife's attorney was the only issue on appeal,
and the court of appeals affirmed the award in a split decision.^^"
The fee awarded was admittedly more than could be justified on an
hourly basis.^^^ The case was ultimately resolved as a non-contested
matter, with a property settlement agreement prepared by another
attorney .^^® The trial court evidently believed, however, that work
done by the wife's original attorney of record, largely in discovery

proceedings aimed at ascertaining the value of assets held by the

husband, may have contributed to the ultimate resolution of the
case.

Judge Staton argued, in dissent, that the trial court improperly
relied on the Hammond bar fee schedule in determining what a
reasonable attorney's fee would be. Because the schedule permitted

a fee based on a percentage of the property settlement, reliance on

the schedule to determine fees came perilously close to authorizing
a contingent fee.^^^ This argument is somewhat diluted because the
fee actually awarded in Greiner was approximately one-half of the
amount prescribed by the bar schedule. The majority concluded that
the trial court could consider the bar schedule as evidence of a

reasonable fee and noted that under Indiana cases a judge could

"take judicial notice of what a reasonable fee would be, even in the
absence of any evidence in the record."^^^

E. Marriage

The Indiana Supreme Court, in Miller v. Morris,^^^ invalidated a
provision of the Indiana marriage statutes which prohibited the is-

suance of a marriage license to any person who had not complied

^^*Id. at 1060. Judge Staton dissented. Id. at 1060-63 (Staton, J., dissenting).

^^^There was testimony that a fee based on the hourly rate usually charged in the

area would have been $4,800 or $5,000. Id. at 1058.

^^^Mrs. Greiner did not discharge her attorney but agreed to the settlement

against her own attorney's advice. Id. at 1057, 1059;
Judge Staton's dissent expressed the belief that the trial court had erred in

treating the dissolution as a "contested matter" because neither party contested the

dissolution itself. Id. at 1060-61 (Staton, J., dissenting). In dissolution of marriage ac-

tions, however, the real contest usually takes place over financial matters or custody.

The fact that an action is ultimately resolved on an agreed property settlement does

not necessarily mean that there was no contest. In the view of the majority, there was
sufficient evidence that the attorney's work was difficult to justify the award. Id. at

1060.

^^Ud. at 1062 n.l (Staton, J., dissenting). Contingent fees are not permitted in

divorce cases. Barelli v. Levin, 144 Ind. App. 576, 247 N.E.2d 847 (1969).

^'^Geberin v. Geberin, 360 N.E.2d 41, 47 (Ind. Ct. App. 1977), quoted in 384 N.E.2d

at 1060. The court noted that the presumption in favor of a trial court's determination

of attorney fees in dissolution cases is "one of the strongest presumptions applicable"

in an appeal. 384 N.E.2d at 1060.

"^386 N.E.2d 1203 (Ind. 1979).



1980] DOMESTIC RELATIONS 249

with a court order for support of his minor children.^^" The court af-
firmed a trial court decision holding that this provision violated the

equal protection clause^^' under Zablocki v. RedhaiU^^ The United

States Supreme Court held in Zablocki that a Wisconsin statute
similar to Indiana's deprived marriage license applicants with depend-

ent children of equal protection because it unduly burdened their

fundamental right to marry .^^^ Because the statutory classification^'^"
"significantly interfere[d]" with a fundamental right, it was sub-
jected to the court's highest level of scrutiny: the state was required

to show that the statute furthered "important state interests" and
that it was "closely tailored to effectuate only those interests."^^^

Although the state's interest in the welfare of children was conceded

to be substantial, the Court held that the statute was neither

necessary to further this interest, nor carefully tailored to achieve

its objective.^^*^

'^"Ind. Code § 31-1-3-3 (Supp. 1979) provides that no license shall be issued to per-
sons adjudged "of unsound mind," afflicted with a "transmissible disease," or "under

the influence of an intoxicating liquor or narcotic drug" at the time of application for

the license. The statute also provides: "[Njor shall a license be issued to any person
who has dependent children unless that person accompanies his application with
satisfactory proof that he is supporting or contributing to the support of each depend-
ent child in compliance with any court order or orders issued for their support." Id.

''•U.S. Const, amend. XIV, § 1.
'""434 U.S. 374 (1978). The Indiana trial court held that this portion of the statute

was severable from the remaining provisions of Ind. Code § 31-1-3-3 (Supp. 1978). 386
N.E.2d at 1204.

'^'434 U.S. at 383, 386-87. The Supreme Court criticized the Wisconsin statute:
Some of those in the affected class, like appellee . . . are absolutely
prevented from getting married. Many others, able in theory to satisfy the
statute's requirements, will be sufficiently burdened by having to do so that

they will in effect be coerced into foregoing their right to marry. And even
those who can be persuaded to meet the statute's requirements suffer a
serious intrusion into their freedom of choice in an area in which we have
held such freedom to be fundamental.

Id. at 381. The decision to marry is one of the personal decisions which the Court has
held to be protected by the due process right to privacy. Id. at 384 (citing Loving v.

Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965)).

''•The Court identified the class created by the Wisconsin statute as, in the words

of the statute, any "Wisconsin resident having minor issue not in his custody and

which he is under an obligation to support by any court order or judgment." 434 U.S.

at 375 (quoting Wis. Stat. § 245.10 (1973)).
^'^434 U.S. at 388. Although the Court did not use the words "compelling state in-

terest," the analysis used in Zablocki seems to be identical to that used in other equal

protection cases in which state statutes were held to burden the fundamental right of

interstate movement. E.g., Shapiro v. Thompson, 394 U.S. 618 (1969).

''"Sec 434 U.S. at 388-91. The State claimed that the statute provided an incentive

for parents to make support payments. However, the Court found the incentive un-

necessary because many other remedies for enforcement of support obligations already

existed. Id. at 388. The statutory classification was found to be underinclusive because



250 INDIANA LAW REVIEW [Vol. 13:215

The Indiana statute was somewhat less restrictive than the
Wisconsin statute invalidated in Zablocki because it did not require

a court order in every case in which a parent was obligated to sup-
port dependent children not in his custody. Nor did it require a
showing that the children were not likely to become public
charges.^^^ The effect of the Indiana statute, however, was to deny
the right to marry to many persons who were unable to
demonstrate compliance with prior support orders, regardless of the

reason for the noncompliance.^^^ The interests advanced in justifica-
tion of the Indiana statute were similar to those advanced by the
State of Wisconsin in Zablocki, and the Indiana court's answers

paralleled those of the Supreme Court.^^^ The argument advanced in
Miller, but not in Zablocki, that "members of the affected class can
seek modification of their support orders" and then be free to

marry ,^''° is untenable in view of the Indiana rule that support obliga-
tions are not retroactively modifiable. ^''^ A support order might be
modified as to future payments, but presumably "compliance" under

the statute would require that all arrears be paid. If the applicant

could not pay the arrears, he would be unable to obtain a marriage

license and would be effectively foreclosed from exercising his fun-

damental right to marry. 242

F. Paternity

1. Presumptions. — A strong presumption exists that a child
born during marriage is legitimate, which can be rebutted only by

it did not limit any new financial commitments except marriage and overinclusive
because it failed to take into account the possibility that remarriage (to a working

spouse) might actually improve an applicant's ability to satisfy prior support obliga-

tions. Id. at 390. The Court pointed out that the statute might result in more children
being born out of wedlock. Id. An additional purpose asserted by the State, that of en-
couraging persons with prior support obligations to obtain counseling, was rejected

because the statute contained no provision for counseling. Id. at 388-89.

'''See 386 N.E.2d at 1206 (Ind. 1979) (Pivarnik, J., dissenting).

^'*The statute might have been salvaged if it had been interpreted as being in-

applicable to anyone who could show that his noncompliance was due to inability to
pay. The Supreme Court, however, impliedly rejected any such interpretation when it
stated in Zablocki that having to seek a court order might in itself coerce many per-
sons into foregoing their right to marry. See 434 U.S. at 387.

=^^^386 N.E.2d at 1204-05 (citing Zablocki v. Redhail, 434 U.S. 374 (1978)).
^"''386 N.E.2d at 1204.

'*^FoT a discussion of cases dealing with modification of support orders, see notes

99-123 supra and accompanying text.

^•^Justice Pivarnik's dissent conceded that the right to marry is fundamental, but

concluded that the statute was a "permissible exercise of the state's power to regulate

family life and to assure the support of minor children." 386 N.E.2d at 1206 (Pivarnik,

J., dissenting). The statute therefore bore a "rational relation to a constitutionally per-

missible objective." Id. This is not the standard of review utilized for statutes which

violate fundamental rights, however. Such statutes must be shown to be necessary to

further a compelling state interest. See note 235 supra and accompanying text.



1980] DOMESTIC RELATIONS 251

"irrefutable proof."''^ The issue in L.F.R. v. R.A.R.''' was whether

this presumption should apply when the child was born after the
marriage had been dissolved and was conceived after the parties

had separated and dissolution proceedings had been commenced by
the husband. A majority of the Indiana Supreme Court held that the
presumption did apply, vacating a court of appeals decision to the

contrary .^"^

Although the testimony of the parties was in conflict, it was un-

disputed that the husband had access during the relevant period. ^"'^

Because he had access, his denial that the parties had sexual rela-

tions was insufficient to overcome the presumption that he was the
child's father. When a child is born "in wedlock," the presumption of
legitimacy can be overcome only by evidence proving conclusively

that the husband could not have been the father.^"^ The child in
L.F.R. was born out of wedlock only because the trial court had
allowed the dissolution action to go to final hearing, over the wife's

objections, before the child was born. The Indiana Supreme Court
indicated that the trial court should have delayed the dissolution un-

til after the child's birth. The presumption of legitimacy then un-
questionably would have applied. The court reasoned that the
"unusual procedural sequence" actually followed should not be allowed

to render the presumption inapplicable.^^^

'"Buchanan v. Buchanan, 256 Ind. 119, 123, 267 N.E.2d 155, 157 (1971).
'"^378 N.E.2d 855 (Ind. 1978).

'"/d. at 857. The court of appeals had affirmed the trial court's determination, in
the dissolution of marriage action, that R.A.R. was not the father of the child born to
his former wife. 370 N.E.2d 936 (Ind. Ct. App. 1977), vacated, 378 N.E.2d 855 (Ind.
1978). Justice DeBruler dissented in the supreme court, in an opinion in which Justice
Prentice concurred. 378 N.E.2d at 857 (DeBruler, J., dissenting).

^'^R.A.R^ testified that he had seen and talked to L.F.R. after the separation, but
denied having sexual relations with her. 378 N.E.2d at 856.

^*Ud. The evidence necessary to overcome the prescription was described as
follows:

[T]he presumption could be overcome by proof that the husband was impo-
tent; or that he was entirely absent so as to have had no access to the
mother, or was entirely absent at the time the child in the course of nature
must have been begotten; or was present only under such circumstances as
to afford clear and satisfactory proof that there was no sexual intercourse.

Whitman v. Whitman, 140 Ind. App. 289, 292, 215 N.E.2d 689, 690 (1966), quoted in 378
N.E.2d 855, 856 (1978) (emphasis in original).

"*378 N.E.2d at 857. The dissent believed, however, that the presumption should
not apply unless the child was actually born "during wedlock." Id. (DeBruler, J.,
dissenting). Under this view, the trial court had complete power to control the applica-
tion of the presumption because its application would depend upon the date set for
final hearing in the dissolution action. In L.F.R., the trial court could have made the
presumption applicable simply by sustaining L.F.R.'s objection to holding the final

hearing before the child was born.



252 INDIANA LAW REVIEW [Vol. 13:215

In Toller v. Toller,"^^^ the child had been born before the parties

married but after the mother's first husband had filed a divorce

complaint, alleging that she was pregnant by another man.^'^" The
Tollers' marriage lasted about eighteen months. The mother then filed
the present action for dissolution, alleging that the child had been

born as the issue of the marriage. A final decree was entered, award-
ing custody to the mother and ordering the husband to pay child

support. The husband made no objection to the decree. More than
two years later, he filed a motion for relief from the judgment under
Trial Rule 60(B)(8).'^^' The trial court denied the motion, and the court
of appeals affirmed, holding that the husband had waived any claim

of error by failing to file his motion within a reasonable time.^^^ The
facts of Toller indicate that the weighty presumption recognized in

L.F.R. can cut both ways. If Toller had raised the paternity issue

during the dissolution action, rather than two years later, the wife
probably could not have overcome the presumption that her first
husband was the father of the child. The result could have been to
deny the child any right to support from Toller, even though up to
that point he had at least tacitly acknowledged that the child was
his. In many similar situations, the ultimate result may be to leave
the child without support from either husband.

2. Procedure. — T^o other paternity cases decided during the
survey period were concerned with procedural issues. In D.M. v.

C.H.,^^^ nearly five years elapsed after the mother filed her com-

plaint before any action was taken to set the case for hearing. The
putative father, however, did not file his motion to dismiss for lack

of prosecution^^"* until after the mother had requested a trial date.

The court of appeals upheld the trial court's denial of the motion.^^^

In J.Y. V. D.A.,^^^ the court of appeals affirmed an order declar-

ing J.Y. to be the father of D.A.'s child and ordering him to pay $20

per week as child support. The trial court had imposed sanctions on
the mother for failing to answer interrogatories after the court had

^"375 N.E.2d 263 (Ind. Ct. App. 1978).

^^"The record in Toller is unclear about whether the divorce decree had been

issued before or after the child was born. Id. at 264. In either case, under L.F.R. , a

very strong presumption would have arisen that the first husband was the child's

father, but Toller was decided before the Indiana Supreme Court decided L.F.R.

^^'Ind. R. Tr. p. 60(B)(8) authorizes a court to grant relief from a judgment for

"any other reason justifying relief from the operation of a judgment." The rule

specifies that the motion "shall be made within a reasonable time." Id.
^^==375 N.E.2d at 265.
^^^380 N.E.2d 1269 (Ind. Ct. App. 1978).

'''See Ind. R. Tr. P. 41(E).

2^^380 N.E.2d at 1270.
''^''381 N.E.2d 1270 (Ind. Ct. App. 1978).



1980] DOMESTIC RELATIONS 253

ordered her to do so.^" The court later lifted the sanctions after the
interrogatories had been answered. The court of appeals held that

removal of the sanctions was not an abuse of the trial court's discre-
tion 5'"

3. Statutory Changes. — Beiore the new Juvenile Code became
effective October 1, 1979, its provisions relating to paternity actions

were amended or repealed/'^ and a new paternity statute enacted.^*^"
The new statute recognizes the interests of the child and the father
in the determination of paternity. A paternity action can now be filed
by a man claiming to be the father (or expectant father) of a child,
or by the child itself.^'^' Under the former statute, the prosecuting at-
torney was authorized to act as the attorney for the mother on her

request.^^^ Now, any of the parties who can initiate the action can re-
quest that the prosecuting attorney initiate it, but when he does, he
acts as the child's attorney. ^*^^ The new statute retains the two-year
statute of limitations of the former statute,^^" but it does not apply

to an action brought by the child or to an action brought by a man
alleging that he is the father, if the mother has acknowledged his

paternity in writing.^^^

^"The court had ordered that evidence concerning the matters contained in the in-

terrogatories would be refused at trial under Ind. R. Tr. P. 37(BK3).
''«381 N.E.2d at 1271.

'''Act of April 10, 1979, Pub. L. No. 277, § 4, 1979 Ind. Acts 1446 (repealing Ind.

Code § 31-6-3-3 (Supp. 1978)); Act of April 10, 1979. Pub. L. No. 277, § 4, 1979 Ind. Acts
1446 (repealing Ind. Code § 31-6-6-1 to -22 (Supp. 1978)); Act of April 10, 1979, Pub. L.
No. 277, § 2, 1979 Ind. Acts 1446 (amending Ind. Code § 31-6-7-8 (Supp. 1978)); Act of
April 10, 1979, Pub. L. No. 277, § 3, 1979 Ind. Acts 1447 (amending Ind. Code §
31-6-7-15 (Supp. 1978)).

'""Act of April 10, 1979, Pub. L. No. 277, § 1, 1979 Ind. Acts 1446 (codified at Ind.

Code § 31-6-6.1-1 to -19 (Supp. 1979)).
'"•Ind. Code § 31-6-6.1-2(a) (Supp. 1979). Id. § 31-6-6.1-2(a). Under the former

statute, a father could file only if the mother joined in a voluntary petition to establish
paternity. Id. § 31-6-6-8 (Supp. 1978) (repealed 1979). Otherwise, the action could be

brought only by the mother. Id. § 31-6-6-9(a).

'''Id. § 31-6-6-20 (Supp. 1978) (repealed 1979).

'''Id. § 31-6-6.1-3 (Supp. 1979).

'''Id. § 31-6-6-17 (Supp 1978) (repealed 1979).

"Ud. § 31-6-6.1-6(a)(4), (b) (Supp. 1979). The child may file a paternity petition at
any time until his twentieth birthday. Id. § 31-6-6.1-6(b). However, any action must be
filed within five years after the alleged father's death. Id. § 31-6-6. l-6(c). This is the on-

ly provision of the new statute indicating that the action survives the death of the
alleged father. Under the former statute, paternity had to be established during the
father's^life, but the obligation (established either by court order or by his voluntary

acknowledgement) was enforceable against his estate. Id. § 31-6-6-7 (Supp. 1978)
(repealed 1979). The new statute contains no comparable provision authorizing enforce-
ment of a support order against the father's estate, but if the action itself can be com-
menced after his death, it would seem to follow by necessary implication that an ex-
isting order could be enforced after his death. A child support order issued under the
Indiana Dissolution Act survives the death of the obligor parent. Id. § 31-1-1 1.5-17(b)
(Supp. 1979).



254 INDIANA LA W REVIEW [Vol. 13:215

The new statute creates presumptions of paternity when (1) the
putative father and the mother go through a ceremonial marriage

and the child is born during the marriage, or within 300 days after

its termination, even though the marriage turns out to be invalid, or

(2) where the child's parents marry or attempt to marry after the
child's birth, and the father has acknowledged paternity in a writing

filed with the registrar of vital statistics or with a local board of

health.^^^ If no presumption arises from an attempted marriage, then

a man still is presumed to be the father if, with the consent of the
mother, he either (1) receives the child into his home and openly
acknowledges paternity, or (2) acknowledges paternity in writing

with the registrar of vital statistics or a local board of health.^"^

The Indiana statute no longer assumes that the child always will
remain with the mother. Under the new statute, the court is em-
powered not only to issue support orders once paternity is established,
but also to determine custody and visitation rights.^^^ The statute
contains provisions for the determination of custody and support

which roughly parallel the provisions of the Indiana Dissolution of

Marriage Act^^^ but with some interesting changes and omissions.
For example, the court has greater power to limit the custodial
parent's authority and to modify existing custody rights in a pater-

nity action than it does in a dissolution or custody action.^^° The
court also has broader powers to modify visitation orders and sup-

port orders in a paternity action.^^'

The new statute removes the quasi-criminal provisions which re-
mained in the previous statute. The putative father no longer has a

^^^Id. § 31-6-6. l-9(a) (Supp. 1979). It remains to be seen whether this presumption

will be given the same weight as the common law presumption involved in L.F.R. v.
R.A.R., 378 N.E.2d 855 (Ind. 1978).

2«lND. Code § 31-6-6.1-9(b) (Supp. 1979).

'''Id. § 31-6-6.1-10(a).

'''Compare id. §§ 31-6-6.1-11 to -16 (Supp. 1979) with id. §§ 31-1-11.5-21, -22(d), -24,

-12. -17(a) -15, -14, -13 (1976).

""Under the dissolution statute, a court can limit the custodial parent's authority

to determine the child's upbringing only if it finds that the child's physical or emo-

tional health would otherwise be endangered and can modify a custody order only

upon a showing of "changed circumstances so substantial and continuing as to make
the existing custody order unreasonable." Id. §§ 31-1-11.5-21(b), -22(b) (1976). Under the

paternity statute, the standard for either is the "best interests of the child." Id. §§
31-6-6.1-1 Kb), (e) (Supp. 1979). A court may interview the child in chambers under
either statute, but in a dissolution action, the court "may" allow counsel to be present

and "may" make a record. In a paternity action, the court "shall" permit counsel to be
present at the interview, "which must be on the record." Compare id. § 31-l-11.5-21(d)

(1976), with id. § 31-6-6.1-1 1(d) (Supp. 1979).

'''Compare id. §§ 31-6-6.1-12(b), -13(f) (Supp. 1979), with id. §§ 31-l-11.5-24(b), -17(a)

(1976).



1980] DOMESTIC RELATIONS 255

right to remain silent,"^ and all references to punishment by con-

tempt have been removed. ^'^' In this respect, the legislature may
have gone too far because child support orders issued under the

dissolution statute remain enforceable by contempt under section

17(a) of the dissolution act."" In transferring the various provisions

of the dissolution act into the new paternity statute, however, this
portion of section 17(a) was omitted. Other means of enforcement, in-

cluding assignment of wages,"'' are provided, but in some cases the
threat of enforcement by contempt is the only effective means of
securing compliance with a child support order. When the obligor
parent changes jobs frequently or is self-employed, so that there are

no wages to assign, and there is no property to attach, support
orders issued under the new paternity statute may be impossible to
enforce unless the courts rely on their inherent power to enforce
support orders by contempt."*^

''Hd. § 31-6-3-3 (Supp. 1978) (repealed effective October 1, 1979).

"^The 1979 amendment deleted all references to punishment for contempt of a
support order entered in a paternity action. Id. § 31-6-7-15 (Supp. 1979).

"^^. § 31-1-11. 5-17(a) (1976). The relevant portion provides: "Terms of the decree
may be enforced by all remedies available for enforcement of a judgment including but
not limited to contempt or an assignment of wages or salary."

'''Id. § 31-6-6.1-16(e) (Supp. 1979).

^^^Courts assumed the inherent power to enforce support orders by contempt long
before the divorce statutes provided for it. See, e.g., Corbridge v. Corbridge, 230 Ind.

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