Indiana Law Review


Survey of Developments in Indiana Family Law

Michael G. Ruppert*
PaulaJ.Schaefer**

Introduction

The reach ofour state law involving the formation, regulation and dissolution
of family rights and responsibilities, as well as the support, care and protection

of children is vast.' Given the breadth of the subject, the scope of this article is
primarily limited to developments in the case law, court rules and statutes

pertaining to the traditional family law areas ofdissolution ofmarriage, paternity,

child custody and support, and adoption. Additionally, decisions during the

survey period involving cohabitation and adoption by unmarried same-gender

parents are discussed in light of the timeliness of these topics.

I. Dissolution of Marriage

During the current survey period, as in past periods, our appellate courts

decided an abundance of cases involving property distributions, spousal

maintenance, settlement agreements and procedural matters. The cases discussed
in this section represent developments of note regarding the law of property

distribution.

A. Property Distribution

1. MaritalAsset Issues.—The distribution ofproperty in a dissolution action
can be reduced primarily to three questions: Is it property and, if so, is it marital

property? What is the value of the property? How should the property be
divided?^ Regarding the first question, it is well established in Indiana that.

* Partner, Ruppert & Schaefer, P.C. B.A., 1974, Indiana University; J.D., 1977,
Cleveland-Marshall College of Law.

** Partner, Ruppert& Schaefer, P.C. B.S., 1991, Ball State University;.I. D., 1994, Indiana

University School of Law.

1

.

At least fifteen titles of the Indiana Code have statutes affecting Indiana families. Title

31 of the Code, alone, contains ten articles expressly identified as pertaining to "Family Law"

which range from marriage to human reproduction. Eleven articles of Title 31 are specified as

"Juvenile Law." See IND. CODE § 31-9-2-72 (1998) ("'Juvenile law' refers to [Indiana Code

section] 31-30 through 31-40."). An additional article of general provisions and an article

containing 1 44 sections ofdefinitions apply to the whole ofTitle 31. Id. Sprinkled throughout the

other titles are provisions governing criminal offenses against children and the family, children's

and family protection services, marriage and family therapists, and trust and fiduciaries, to name

just some. Finally, the Indiana Supreme Court has promulgated child support rules and guidelines

and parenting time guidelines which are presumptively applicable to every legal case involving

child support or visitation in Indiana.

2. Michael G. Ruppert, Survey ofRecent Developments in Family Law, 23 iND. L. Rev. 363

( 1 990). See generally Robert J. Levy, An Introduction to Divorce-Property Issues, 23 Fam. L.Q.

147(1989).



1128 INDIANA LAW REVIEW [Vol. 37:1 127

unless excluded by statute, case authority or prenuptial agreement, all assets

acquired before or during the marriage are marital assets, regardless of which

spouse acquired the property.^ Two cases decided during the survey period,
Lawson v. Hayden^ and Beckley v. Beckley,^ added to the lists of property rights
that are included or excluded from marital property.

In Lawson, Husband was employed for a railroad covered by the Railroad
Retirement Act. He became permanently disabled and began receiving, during
the marriage, a Railroad Retirement annuity. The annuity was comprised of
several components. By federal law, the Tier 1 component is non-divisible. The
Tier II component is divisible by a state court.^ The trial court found that the
Tier II payments received prior to retirement age were occupational disability

benefits and were includable in the marital estate.^ However, the trial court

awarded none of the disability benefits to Wife until Husband had attained

retirement age.^ On appeal. Wife contended that the trial court erred by not
awarding her any portion of the annuity payment received before Husband's

attainment of retirement age; she also contended that the trial court erred by

awarding her less than half of the retirement benefit after Husband reached the

age of retirement.^

Lawson presented the court of appeals with an opportunity to clarify a line
of cases with different results about the includability of occupational disability

benefits.'^ The Lawson court noted that our supreme court limited Gnerlich in

its Leisure decision and held that worker's compensation benefits were not

marital property subject to division because, first, the recipient did not pay

anything during the marriage to obtain the state benefits against lost earnings and

did not in any other way deplete marital assets; and, second, the worker's
compensation benefit is intended to replace future wages that the recipient would

3. Property for purposes ofdissolution of marriage means all ofthe assets of either party or

both parties including pension and retirement benefits. IND. CODE § 31-9-2-98 (1998). Thus, the

court in a dissolution of marriage action divides all the property of the parties whether owned by

either spouse before the marriage, acquired by the spouses in their own right during the marriage

and before separation, or acquired by their joint efforts. See id. § 31-15-7-4. Property may be

excluded from the marital estate by a valid premarital agreement. See Huber v. Huber, 586 N.E.2d

887 (Ind. Ct. App. 1992).

4. 786 N.E.2d 756 (Ind. Ct. App. 2003).

5. 790 N.E.2d 1033 (Ind. Ct. App. 2003).

6. Law^ow, 786N.E.2dat758.

7. Id. at 761.

8. Id at 759.

9. Id

10. Leisure v. Leisure, 605 N.E.2d 755 (Ind. 1993) (limiting Gnerlich and holding that

worker's compensation benefits are not marital property subject to division); Jendreas v. Jendreas,

664 N.E.2d 367 (Ind. Ct. App. 1996) (holding that a disability pension is not marital property

subject to division); Gnerlich v. Gnerlich, 538 N.E.2d 285 (Ind. Ct. App. 1989) (finding that

benefits from private disability insurance were marital property subject to division); see also

Antonacopulos v. Antonacopulos, 753 N.E.2d 759 (Ind. Ct. App. 2001).



2004] FAMILY LAW 1129

earn if he could work." Further, the Leisure court noted that worker's

compensation benefits differ from a pension in that a pension amounts to

deferred compensation for current employment, while worker's compensation

amounts to compensation for decreased working capacity as the result ofa work-
related injury; once the former is vested it cannot be taken away, while the later

is contingent upon continued disability.'^ It is well established in Indiana that
future income is not divisible.'^ Yet, Gnerlich's disability insurance benefits

were held to be marital property, while the benefits in Leisure, Jandreas, and
Antonacopulos were not. The distinction is that in Gnerlich the disabled spouse
paid for the disability insurance benefits by contributions he had made during the
marriage to a disability retirement plan.''* The Lawson court reasoned that the
Husband's annuity before retirement clearly represented payment for loss of
future income, which favors exclusion as a marital asset; but, it noted that

Husband's payroll taxes were credited to trust funds from which the annuities

were paid, which favors inclusion as a marital asset. '^ Neither
factor—replacement offuture earnings or lack ofmarital contribution—appeared
dispositive to the court. Instead, it concluded that in order to exclude

occupational disability benefits from the marital estate, both must be present.

We discern nothing in the analyses oi Antonacopulos, Jendreas, and
Gnerlich conveying the idea that either factor is dispositive, or indeed

even more important than the other. Instead, it seems to us that both are

cited as being integral to the determination that disability benefits are not

marital property. For this reason, we view the two elements in the
conjunctive. That is, both must be present in order for the particular

disability benefit in question to be excluded as marital property and thus

not subject to division.'^

Stated conversely, it seems that includability ofthe disability benefit centers

upon whether contributions were made to it during the marriage or marital assets
were depleted to obtain it.'^

11. Law^ow, 786N.E.2dat761.

1 2. Id. (citing Leisure, 605 N.E.2d at 759).

13. G«eW/c/z, 538 N.E.2d at 286 (citing Wilcox V. Wilcox, 365 N.E.2d 792, 795 (Ind. App.

1977)).

14. Id.

15. Lavi/50«, 786 N.E.2d at 762.

16. Id

17. It is speculated in a prior edition of this review that the outcome found in Lawson v.

Hayden was inevitable:

Resting the outcome in disability benefit cases on whether the trial court finds the

benefit to be deferred compensation or replacement of future wages, as the Jendreas

court does in part, must ultimately fail. These cases seem to show that the distinction

between being in or out of the pot depends upon whether an actual contribution from

a marital asset can be shown for acquiring the disability benefit.

Paula J. Schaefer & Michael G. Ruppert, Survey ofIndiana Family Law in 1996, 30 Ind. L. Rev.



1130 INDIANA LAW REVIEW [Vol. 37:1 127

Beckley v. Beckley,^^ at first blush, seems to run counter to Lawson because
it held that a portion of benefits under the Federal Employer's Liability Act

(FELA) were included in the marital pot, despite the fact that the benefits were
clearly intended to compensate for future lost wages and the recipient spouse
contributed nothing to their acquisition nor depleted any marital assets to obtain

them. Instead, the former husband, who was permanently disabled during the
course of his employment with a railroad covered under the FELA, accepted a
lump-sum settlement with the FELA wherein he received $175,000 after
expenses and attorney's fees during the marriage. Part ofthe proceeds were used

to reduce the parties' mortgage, to pay offthe Wife's car, and to pay for personal

items. A few months after Husband received the settlement, Wife filed her
petition for dissolution of marriage. At that time, approximately $96,000 of the

settlement was left.'^ At trial, Husband argued that the FELA settlement, like a
worker's compensation award, was compensation in lieu of future income and
not marital property subject to division. The trial court, however, decided that
the FELA settlement was included in the marital estate and awarded Husband
sixty-nine percent ofthe marital estate and Wife thirty-one percent ofthe marital

estate. ^° Wife appealed her distribution. The Husband cross-appealed,

contending that the trial court erroneously included the lump sum settlement
received pursuant to FELA in the marital estate. On appeal, the court of appeals
noted that the initial inquiry—whether settlement proceeds under FELA should
be included in the marital estate—was one of first impression in Indiana.^'

Observing that other states have included, excluded, and devised hybrid

approaches, the court once again returned to Leisure v. Leisure^^ for instruction.

In Leisure, the supreme court reversed the lower courts' decisions, which

included in the marital pot a worker's compensation lump-sum payment received

by the husband during the marriage and periodic payments after the marriage,

reasoning that it is generally accepted that worker's compensation is awarded in

lieu of lost wages and not as damages for pain, suffering and monetary loss.^^

However, the Beckley court noted that the Leisure court qualified its own
holding, stating that "[t]he worker's compensation benefits received during the

marriage to replace earnings of that period are a marital asset subject to

distribution, but to the extent the worker's compensation benefits replace

earnings after dissolution, the benefits remain separate property."^"^ Beckley

remanded, holding:

Thus, we must reverse the trial court's order and remand this cause to the

1073, 1076(1997).

18. 790N.E.2d 1033, 1037 (Ind. Ct. App.), voc^^/e^/jy 804 N.E.2d 757 (Ind. 2003).

19. Id.

20. Id. at 1035.

21. Id

22. 605N.E.2d755(Ind. 1993).

23. Beckley, 790 N.E.2d at 1036 (citing Leisure, 605 N.E.2d at 759).

24. Id. at 1037 (quoting Leisure, 605 N.E.2d at 759).



2004] FAMILY LAW 1131

trial court so that it may re-divide the marital estate pursuant to the rule
announced in Leisure. To be sure, a small portion of the FELA
settlement will be a part of the marital estate inasmuch as [Wife] filed

for dissolution four months after [Husband] received the award. As a
result, part of the FELA proceeds attributable to these four months
should be included in the marital pot.^^

2. Valuation Issues.—Bass v. Bass^^ shows a trial court correctly and
incorrectly adjusting an expert appraisal of real estate. When the trial court
calculated the equity in the marital residence, it subtracted from the appraisal

value the cost ofestimated roof repairs and other repairs needed for the house to

achieve the appraisal value.^^ A roofer testified to the amount he would charge
to do the roof repairs ,and Wife testified generally to the amount necessary for
the other "necessary repairs." She testified that she was guessing as to the
estimate, and no other evidence was admitted showing the cost.^^ The trial court
subtracted the expert roofer's estimate and Wife's unsupported estimate. On
appeal, the court of appeals upheld the deduction for the roofer's estimate but

found the evidence insufficient to support the trial court's finding that the

appraised value should be further reduced for the amount that Wife guessed was
necessary for other "necessary repairs."^^

Case V. Case^^ involves a post-decree loss of value of an asset between the
time that the court entered its decree and the actual distribution of the asset.

Specifically, Husband's 401(k) plan was worth approximately $90,000 a few
days before trial. ^' The court awarded Wife a $50,000 sum out ofthe 401(k) and
awarded Husband the remaining sum of the 401(k).^^ Wife's counsel prepared
the decree for the court's signature. The decree was actually issued
approximately a month and a half after the final hearing date. Before

effectuation ofthe distribution ofthe 40 1 (k) could occur. Husband filed a motion
to modify the decree because the 401(k) had lost approximately $23,000 in value

since the final hearing purely as the result ofmarket forces." The trial court held
a hearing on the motion and concluded that it would be unfair for Husband to

25. Id.

26. 779 N.E.2d 582 (Ind. Ct. App. 2002).

27. Id. at 587.

28. Id at 588-89.

29. Id at 589.

30. 794 N.E.2d 514 (Ind. Ct. App. 2003).

31. Id at 515.

32. Id at 516.

33. Id. at 515. Trial courts are given broad discretion in selecting the valuation date for a

marital asset. See Quillen v. Quillen, 671 N.E.2d 98, 103 (Ind. 1996). As noted in Quillen, the

selection ofthe valuation date for any particular asset has the effect ofallocating the risk ofchange

in the value of that asset between the date of valuation and the date of the hearing. See also Reese

V. Reese, 671 N.E.2d 1 87 (Ind. Ct. App. 1996). The Bass case deals with a post-decree change in

value, before actual distribution of the asset.



1132 INDIANA LAW REVIEW [Vol. 37:1 127

exclusively bear the downside risk of the securities market. Accordingly, the

trial court determined the parties' original percentages of its distribution and

entered an order awarding the parties those percentages of the devalued asset.^"*

Wife first attacked the trial court's order on procedural grounds, contending

that Husband should have filed a motion to correct error since modification of a
propertydistribution was improper under the controlling statute.-'^ Wife's second
challenge to the trial court's ruling was that it abused its discretion even if
analyzed under Trial Rule 60 because its original order specifically awarded her

a set sum, $50,000, and did not specify any terms regarding growth or losses.^^

Wife seemed to ignore that the trial court also awarded Husband a set amount.^'
The appellate court noted that a similar situation had occurred in Niccum v.
Niccum?^ The court in Case noted that Wife conceded that there were no
express terms regarding growth or losses in the decree. Accordingly, it held:

Here, as in Niccum^ we hold that absent express language stating
otherwise, the decree implicitly contemplated that both parties would
share in the risks and rewards associated with the investment plan. Thus,

it was not the trial court's intent to award [Wife] $50,000 regardless of
the value of the 401(k) plan. Rather, the parties were each awarded a

percentage of the plan, of which [Wife's] share is slightly greater than

[Husband's] share. Ultimately, the trial court did not modify the original

decree as much as the trial court clarified the decree to reflect its original
meaning. Therefore, we hold that the trial court did not abuse its
discretion when it granted relief from the decree to ensure that both . .

.

34. C^^e, 794N.E.2dat516.

35. Id.

First, we agree that a petition to modify the dissolution decree was not the correct title.

Indiana Code section 31-15-7-9.1 provides, in relevant part, that "orders concerning

property disposition entered under this chapter may not be revoked or modified, except

in case of fraud." Because [Husband] does not allege fraud, a petition to modify was

inapposite.

Id. The court went on to state that even though Husband's motion could not be characterized as

a motion to correct error pursuant to Indiana Trial Rule 59(A)(1) because it was not filed within

thirty days of the final Judgment, his motion to modify could be treated as a motion for relief from

judgment under Indiana Trial Rule 60(B). Id. at 5 1 7.

36. Id

37. Mat 518.
38. 734 N.E.2d 637 (Ind. Ct. App. 2000). In Niccum the parties entered into a settlement

agreement which divided a retirement savings and investment program between the parties. The

agreement apparently did not allocate the rewards of growth or the risk of loss involved in the

investment plan. The trial court ultimately ordered that Wife would receive growth in the

investment attributed to her share ofthe program, and Husband appealed. On appeal, the court held

that "absent express language stating otherwise, the settlement agreement of the parties implicitly

contemplated both parties sharing all ofthe rewards and risks associated with an investment plan."

Id at 640.



2004] FAMILY LAW 1133

would bear the risk of the securities market.^^

3. Distribution Issues.—Hendricks v. Hendricks^^ adds a new twist to the
factors affecting distribution."^' It has long been held that the trial court does not

abuse its discretion if it considers evidence of a party's contribution during the

parties' pre-marital cohabitation when dividing the marital pot."*^ In Hendricks,
the parties lived together more than three years prior to their marriage, which

lasted approximately ten years. Husband was employed by General Motors
Corporation ("GM") approximately thirty-one years before retiring. Thus,
Husband was employed at GM throughout the more than three years of co-
habitation and approximately six-and-one-half years of the parties' ten years of

marriage. Husband complained that the trial court erroneously included the
parties' period ofcohabitation in its division ofhis pension between the parties."*^

The trial court distributed the pension between the parties by applying the
"coverture fraction" to the pension to arrive at "the niarital portion of the

pension," which it divided roughly in half'*'* Thus, Husband was complaining

39. Ca^e, 794N.E.2dat519.

40. 784 N.E.2d 1024 (Ind. Ct. App. 2003).

4 1

.

Indiana Code section 31-1 5-7-5 mandates that the trial court

presume that an equal division of the marital property between the parties is just and

reasonable. However, this presumption may be rebutted by a party who presents

relevant evidence, including evidence concerning the following factors, that an equal

division would not be just and reasonable:

( 1

)

The contribution of each spouse to the acquisition ofthe property, regardless

whether the contribution was income producing.

(2) The extent to which the property was acquired by each spouse;

(A) before the marriage; or

(B) though inheritance or gift.

(3) The economic circumstances of each spouse at the time the disposition

of the property is to become effective, including the desirability of

awarding the family residence or the right to dwell in the family

residence for such periods as the court considers just to the spouse

having custody of any children.

(4) The conduct of the parties during the marriage as related to the

disposition or dissipation of their property.

(5) The earning or earning ability of the parties as related to:

(A) a final division of property; and,

(B) a final determination of the property rights of the parties.

iND. Code §31-15-7-5 (1998).

42. Chestnut v. Chestnut, 499 N.E.2d 783, 786 (Ind. Ct. App. 1986).

43. Hendricks, 784 N.E.2d at 1026.

44. Id. at 1026. While Hendricks speaks in terms of the sum derived by applying the

coverture fraction to the pension as the "marital portion ofthe pension", id., it should be noted that,

without a prenuptial agreement, all of the pension is in the marital pot. Huber v. Huber, 586

N.E.2d 887, 889 (Ind. Ct. App. 1992), trans, denied. The "coverture fraction" is just one



1 1 34 INDIANA LAW REVIEW [Vol. 37: 1 1 27

that, by including the period of cohabitation in the coverture fraction, Wife
received more than her entitlement of his pension. In support of his contention.
Husband noted that he and Wife only lived together "on and off during their
cohabitation. Wife, on the other hand, presented evidence indicating that during

the period of cohabitation she worked, paid joint expenses and helped Husband
start a business. Viewing Husband's contention as a request to re-weigh the
evidence, the appellate court held that the trial court did not abuse its discretion

when it considered Wife's contributions during the parties' period of
cohabitation and, more specifically, when the court included the period of pre-
marital cohabitation in calculating the coverture ratio."*^ However, the case was
reversed in part and remanded with instructions to make appropriate adjustments
in the trial court's overall scheme to award Husband fifty-six percent of the
marital pot and Wife forty-four percent ofthe marital pot because oferrors in the
trial court's mathematical calculations.'**^

B. Spousal Maintenance

Bass V. Bass also involved Husband's contention upon appeal that the trial

court caused him to improperly pay spousal maintenance in a bifurcated divorce

proceeding by continuing its provisional order for spousal maintenance to Wife

during the period oftime between the dissolution ofthe parties' marriage and the

final hearing pertaining to distribution of property.''^ Wife was granted in-kind
temporary spousal maintenance in the form ofmortgage and utility payments on

the marital residence of which she had possession during the pendency of the

parties' dissolution proceedings. Additionally, Husband was ordered to pay her
auto loan payments and automobile insurance. The parties had a prenuptial

agreement which did not exclude Wife's right to the provision ofspousal support

during the pendency of the dissolution action, but it did exclude her right to

receive such maintenance after the granting of a dissolution petition.'*^ At

Husband's request, the court bifurcated the proceeding, divorced the parties, set

a final hearing for property distribution, and ordered that all preliminary orders

methodology that the court can use for division of a pension. Hendricks, 784 N.E.2d at 1026

(citing In Re Marriage of Preston, 704 N.E.2d 1093, 1098 n.6 (Ind. Ct. App. 1999)).

The "coverture fraction" formula is one method a trial court may use to distribute

pension or retirement plan benefits to the earning and non-earning spouses. Under this

methodology, the value ofthe retirement plan is multiplied by a fraction, the numerator

of which is the period of time during which the marriage existed (while pension rights

were accruing) and the denominator is the total period of time during which pension

rights accrued.

Id. (citing Tirmenstein v. Tirmenstein, 539 N.E.2d 990, 991 (Ind. Ct. App. 1989)).

45. Hendricks, 784 N.E.2d at 1026.

46. Id at 1028.

47. 779 N.E.2d 582, 591-92 (Ind. Ct. App. 2002).

48. Id at 587.



2004] FAMILY LAW 1135

would remain in full force and effect/^ On appeal, Husband argued that since the
marriage was dissolved on December 1 1, 2000, albeit the fmal decree did not
come out until May 7, 2001, the payments made during the interim constituted
an improper award of maintenance.^^ On appeal, the court noted:

"Bifurcation is a process created by statute that allows a trial judge to
complete a dissolution in two separate phases." Beard v. Beard, 758
N.E.2d 1019, 1023 (Ind. Ct. App. 2001), trans, denied. A dissolution
action is not complete until the second phase is finished and a fmal

decree is entered. Id. With regard to orders entered while the

dissolution is pending, Indiana Code 31-15-4-14 provides that "[a]
provisional order terminates when: ( 1 ) the fmal decree is entered subject

to right of appeal." [iND. CODE] § 31-15-4-14 (1998).^'

Simply put, the court of appeals found that the prenuptial agreement did not

preclude preliminary spousal maintenance, that a provisional order does not

terminate until a fmal decree is entered, and that the dissolution of marriage

action does not constitute a fmal order until the second phase of the bifurcated

proceeding is complete and a final decree entered.^"

Brown v. The Guardianship o/Brown,^^ involves spousal support but not in
the context of the dissolution of marriage. In this case, Mr. Brown's sons, his

only offspring, appealed the trial court's order requiring Mr. Brown's

guardianship to make a lump-sum support payment to Mrs. Brown ' s guardianship
after Mr. Brown died. Mrs. Brown was Mr. Brown's childless, second spouse.^"*
Mr. Brown died testate, leaving one-third of his personal estate and a life estate
in one-third of his real property to Wife. All of the rest was left to his sons.
Prior to his death, Mr. Brown's guardianship estate had been ordered to make
support payments to Mrs. Brown's guardianship estate. ^^ At the hearing before

the trial court, the sons sought to eliminate the obligation of their father's

guardianship to make support payments to Wife's guardianship. Wife's
guardianship sought an order for a lump-sum support payment based upon

multiplying her life expectancy by the amount of the monthly support payment
and then reducing that sum to its present value. ^^ The trial court agreed with
Mrs. Brown's guardian and ordered a lump-sum support payment of more than

$160,000 from the guardianship estate of Mr. Brown.^^ The trial court's order

had the obvious effect of decreasing the sons' inheritance and increasing the

amount that Wife received from her deceased husband's estate. On appeal, the

49. Id. at 592.

50. /^. at 591-92.

51. Id.

52. Id

53. 775 N.E.2d 1 164 (Ind. Ct. App. 2002).

54. Id

55. Id at 1165.

56. Id at 1165-66.

57. Id at 1165.



1136 INDIANA LAW REVIEW [Vol. 37:1127

sons presented a pure question oflaw: whether Husband's statutory and common
law duty to support Wife ends at his death. ^^ Reviewing the question of law

under a de novo standard, the court of appeals held:

It is clear that the original support order entered prior to [Mr. Brown's]

death established a monthly periodic allowance, akin to spousal
maintenance in dissolution actions or child support. A review of our
common-law treatment of spousal maintenance and child support leads
us to the conclusion that [Husband's] obligation to pay periodic support

to [Wife] ceased upon his death.

In Hicks v. Fielman, 421 N.E.2d 716 (Ind. Ct. App. 1981), we held,
"[u]nless an agreement or decree calling for maintenance clearly says

otherwise, maintenance payments can not accrue after the death of the

person liable for them." Id. at 720. We concluded that the appellant's
claim for maintenance after the death of her former husband could not

as a matter of law succeed because the decree awarding such

maintenance did not provide that the payments would continue after the
death of the payor.^^

The court further noted that the same rule was once true with respect to child
support until the enactment of section 31-16-6-7 of the Indiana Code.^'^ The
guardian over Mrs. Brown's estate urged that the philosophy ofthe statutory rule

extending child support after the payor's death should be extended to spousal

support. Noting that the argument would be better presented to the legislature,

the court explained its rationale:

Moreover, we observe that there is a critical distinction between the need
for continuation of spousal support payments and the need for

continuation of child support payments when inheritance law is
considered. Specifically, a divorced parent is free to disinherit a child

of his divorced marriage. See Estate of Brummett by Brummett v.

Brummett, All N.E.2d [616,] 619 [(Ind. Ct. App. 1984)] ("the statutory

provisions that extend support obligations beyond the death of the

supporting parent are commonly enacted to soften the harsh result of
disinheritance after divorce"). On the other hand, certain statutes protect

58. Id. at 1166.

59. Id. (footnote omitted).

60. Section 31-1 6-6-7 of the Indiana Code provides:

(a) Unless otherwise agreed in writing or expressly provided in the order, provisions

for child support are terminated:

(1) by the emancipation of the child; but

(2) not by the death of the parent obligated to pay the child support.

(b) If the parent obligated to pay support dies, the amount ofsupport may be modified

or revoked to the extent Just and appropriate under the circumstances on petition of

representatives of the parent's estate.

Ind. Code §31-16-6-7 (1998).



2004] FAMILY LAW 1137

a spouse from being disinherited by providing a spousal allowance and

the ability to take against the will, thus ensuring a certain degree of

future support.^'

While living, spousal maintenance paid as the result of the incapacity of a

spouse, however, can be turned on and off according to McCormick v.
McCormick.^- In McCormick, Wife was diagnosed with multiple sclerosis (MS)
in 1979, during the parties' marriage. The marriage was dissolved in 1990, at
which time Wife was not working due to the MS. She was awarded incapacity
spousal maintenance in the amount of $600 per month until such time as she
received governmental disability benefits." At that time, it was to be determined
what amount of spousal maintenance, if any, Husband would continue to pay.
The trial court's order for spousal maintenance was slightly modified on several
occasions after the divorce, including once due to Wife obtaining part-time

employment.^'*

In 1998, apparently as the result of receiving further education and

improvements in treatments for MS, Wife began working full-time. In that
employment, she was subject to layoffs. Husband sought to terminate or modify
his maintenance obligation, and Wife acknowledged that her medical condition

had somewhat improved since the divorce so that she could now work full-time.^^
However, she argued that she still had many physical limitations due to the MS
and that her job prospects in the economy at large were very much limited due
to those physical limitations. Husband testified that changes had occurred for
him also. He recently retired from a job in which he earned nearly $100,000 in
2000 and, at the time ofthe hearing, was earning approximately $2200 per month
in retirement income.^^ The trial court ordered that Husband should continue to
pay the full spousal maintenance amount in those months when Wife was unable
to work full time and a reduced amount in any month in which she did work full-
time.^^ On appeal, the court acknowledged the broad discretion afforded a trial
court to modify a spousal maintenance award^^ and stated,

[W]e find that the trial court abused its discretion in awarding

maintenance during periods when Helen is working full time at the
Census Bureau ....

We reject [Wife's] rationale that limited job opportunities necessarily
amount to a material [effect] on an incapacitated spouse's self-
supportive ability. Although these may go hand-in-hand, the essential

61

.

Brown, 775 N.E.2d at 1 167 (citations omitted).

62. 780N.E.2d 1220 (Ind. Ct. App. 2003).

63. /c/. at 1221.

64. Id.

65. Id. at 1221-22.

66. Id at 1222.

67. /£/. atl223.

68. Id at 1224.



1138 INDIANA LAW REVIEW [Vol. 37:1127

inquiry is whether the incapacitated spouse has the ability to support

himself or herself. . . . Therefore, we reverse the trial court's award of
maintenance in the amount of $300 per month when [Wife] is working
full time at the Census Bureau.^^

Turning to the portion of the judgment that ordered the continuation of

maintenance when the former spouse was unable to work full time, the court
stated,

We affirm the portion of the judgment that ordered continuation of
maintenance when Helen is unable to work full time at the Census
Bureau. The portion ordering maintenance, at a reduced amount, during

periods of employment at the Census Bureau is reversed.

Contrary to [Husband's] assertions, it is irrelevant whether [Wife's]

inability to work at the Census Bureau is based on her medical condition
or being laid off. In either instance, the relevant inquiry is whether her

ability to support herself through other employment is materially
affected by her MS.''

II. Cohabitation

The development of our case authority regarding cohabitation during this
survey period has not been limited to whether pre-marital cohabitation can be

considered as a factor in distributing assets. In Putz v. Allie^^ a former

heterosexual couple entered into a "Settlement Agreement" upon the termination

of eleven years of cohabitation. In the agreement, the parties recited that they

had commingled funds, contributed financially and emotionally to the betterment

of each other and that Ms. Allie had contributed time, effort and funds to the

business, real estate, and assets of Mr. Putz. Accordingly, the agreement

provided that Mr. Putz would pay Ms. Allie $40,000 in installments over six
years, pay her health insurance and car payments for one year, and pay offthree

charge accounts in her name. Mr. Putz made payments to Ms. Allie until
someone told him that the agreement was unenforceable.'^ Consequently, Ms.
Allie brought suit against Mr. Putz to enforce the agreement. Mr. Putz

unsuccessfully moved for summary judgment, claiming that the agreement was
against public policy. After a bench trial, the court entered judgment in favor of

Ms. Allie for the balance of payments owed on the lump-sum, for pre-judgment
interest, for the amount of several car payments, and the balances on the charge
cards. '^ Putz appealed raising as issues for review whether the contract was an

unenforceable palimony agreement and, alternatively, unenforceable as the result

69. Id. at 1224-25 (footnote omitted).

70. Id. atl225&n.8.

71. 785 N.E.2d 577 (Ind. Ct. App. 2003).

72. Id at 578.

73. /d/. at 578-79.



2004] FAMILY LAW 1139

of duress. Aliie cross-claimed on appeal, ascertaining that the trial court erred

by denying her attorney's fees.^"^

On appeal, Putz contended that the agreement was an unenforceable
palimony agreement because there was no consideration for the agreement
independent of the parties' relationship, which relationship is not recognized by
law.^^ In response, the court returned to its early "palimony" case, Glasgo v.
Glasgo.''^ In Glasgo, the former husband and subsequent cohabitant raised the

same contention on appeal as in Putz, after a successful contractual action by his
former spouse/cohabitant. He claimed that to permit an action based upon
contract principles of unjust enrichment accomplishes indirect adjustment of

common law marriage rights, which is prohibited in Indiana/^ In particular,
Glasgo had these prescient words:

Just as married partners are free to delineate in ante- or post-nuptial

agreements the nature of their ownership in property, so should

unmarried persons be free to do the same Recovery would be based
only upon legally viable contractual and/or equitable grounds which the
parties could establish according to their own particular circumstances.

While we do not subscribe to the theory that cohabitation
automatically gives rise to the presumed intention of shared property

rights between the parties, we fmd in this case that it would be unjust for
Laurel to assert in one breath that Jane can in no way be presumed to be
his wife for purposes of either the dissolution of marriage statutes or the

concept of putative spouse and to assert in another the presumption that

she rendered her services voluntarily and gratuitously.^^

The Putz court then went to the next case in this line of cohabitation of authority
and noted:

Subsequently, in Bright v. Kuehl, 650 N.E.2d 3 1 1 (Ind. Ct. App. 1 995),
this [cjourt considered the property claim of a non-marital partner, and

specifically determined "that a party who cohabitates with another
without subsequent marriage is entitled to relief upon a showing of an

express contract or a viable equitable theory such as an implied contract

or unjust enrichment."^^

The Putz court summed up its holdings:

74. Id. at 579-82.

75. See Ind. Code § 31-11-8-5 (1998) ("A marriage is void if the marriage is a common law

marriage that was entered into after January 1, 1958.").

76. 410 N.E.2d 1325 (Ind. Ct. App. 1980).

77. Putz, 785 N.E.2d at 579 (citing Glasgo, 410 N.E.2d at 1327-32).

78. Glasgo, 410 N.E.2d at 1332.

79. Putz, 785 N.E.2d at 580 (quoting Bright v. Kuehl, 650 N.E.2d 311,315 (Ind. Ct. App.

1995)).



1140 INDIANA LAW REVIEW [Vol. 37:1 127

We agree with the trial court that the Agreement may be construed as an
agreement fixing liquidated damages in lieu of an unjust enrichment

claim by Allie. AHie testified, and Putz did not dispute, that Allie

rendered services in Putz's jewelry store for three to five days per week,

over a four or five year period of time, without receiving a paycheck,

although household expenses were paid from the jewelry store receipts.

Over an eleven-year period of time, Allie and Putz co-mingled funds,
exerted joint efforts to make the jewelry store a success, and incurred
various liabilities (some of which were credit card cash advances on
Allie's cards to increase cash flow into the business).*^

The court of appeals dealt with Allie's cross-claim that the trial court erred
by failing to order attorney's fees by noting that attorney's fees are not provided
for by statute but that the agreement with Putz specifically called for attorney's

fees in the event that he breached the agreement resulting in enforcement

expenses to Allie. Thus, the cause was remanded for determination ofreasonable
attorney's fees.^'

Turner v. FreedF involved a female cohabitant who actually filed a "Petition
for Palimony" against her former male cohabitant, Turner.^^ Ms. Freed's claim

for relief was based on the theory of unjust enrichment. The evidence revealed
that the parties lived together for about ten years; that Freed took care of their

child and sometimes Turner's child from a previous relationship; that she

regularly maintained the home; and that she contributed financially by

performing one ofTurner's daily newspaper delivery routes.^'* In return, the trial

court found that Turner had time to develop his business and, from the income

generated through the business, purchased a home in his name.^^ On appeal
Turner claimed that the trial court erred when it found that he had been unjustly
enriched by Freed's domestic services. He argued that when parties live together
as a family, without marriage, there is a presumption that services are provided

to each other without expectation of payment.^^ Turner further complained that

the trial court erred by requiring him to pay the cost of a business appraisal.^^

The court quickly dispatched Turner's argument that living together as a
family raises a presumption that services are provided without expectation of

payment by noting that it disapproved of such thinking in Glasgo v. Glasgo}^
Thus, it held that there was sufficient evidence to support the trial court's

80. /c/. at 581.

81. /^. at 582.

82. 792 N.E.2d 947 (Ind. Ct. App. 2003).

83. Id at 949.

84. Id. at 950.

85. Id

86. Id at 949-50.

87. /^. at 951.

88. /^. at 950 (citing Glasgo V. Glasgo, 410 N.E.2d 1325, 1332 (Ind. Ct. App. 1980)).



2004] FAMILY LAW 114

findings that Turner had been unjustly enriched. ^^ However, concerning the trial
court's requirement that he pay the business appraisal, the court noted that there
was no statutory authority for him to pay any ofFreed 's litigation expenses in an
unjust enrichment action.

^^

Thomas v. SmitH^^ involved yet another attack upon asset distribution
incidental to cohabitation. In this case, Michelle Thomas appealed the trial
court's ruling dividing the assets accumulated by the parties during cohabitation.
Thomas and Smith actually had a marriage ceremony; however, no legal marriage
occurred because Thomas was still married to her husband at the time of the
ceremony with Smith. They discovered the marriage was not valid
approximately five years after the ceremony.^^ Neither Thomas nor Smith
thereafter attempted to enter into a valid marriage. Instead, they filed taxes as

single persons, acquired real estate in Michelle's name, and adopted three minor

children. In 2001, Michelle filed a petition for annulment of the marriage, but

she did not request the division of the parties' real or personal property, even

though she sought custody and child support. Leslie did not file a request for

division of the real or personal property either. Instead, the issue of property

distribution was tried by consent.^^ Leslie was awarded custody, child support,
and certain property. Michelle was awarded specific property and required to
pay child support. On appeal, Michelle contended that the trial court lacked
subject matter jurisdiction to divide the property because her marriage to Leslie

was bigamous and, therefore, void.^'* On appeal, the court noted that the question
of subject matter jurisdiction is purely a question of law and that a judgment
entered by a court lacking subject matterjurisdiction is void and may be attacked
at any time.^^ Since a bigamous marriage is void according to Indiana statutes,^^

an Indiana court lacks subject matter jurisdiction to dissolve the marriage and

order relief under the dissolution statute because the marriage is non-existent.^^

Nonetheless, the court noted that those in a bigamous relationship are not without

remedies. For example, parties who have never been married may file a partition
action as to real property.^^ Further, a trial court may equitably divide property

89. Id. at 951.

90. Id. Freed argued that the court should order expenses under the section of the paternity

statute providing for the payment of attorney's fees and costs, Ind. Code § 31-14-18-2(a) (1998),
because she had consolidated her unjust enrichment claim with the paternity proceeding she had

brought against Turner. Noting that the business appraisal was in no way used for Freed's child

support claim against Turner, the court ofappeals found that there was no basis upon which the trial

court could have required Turner to pay the business appraisal costs. Turner, 792 N.E.2d at 95 1

.

91. 794 N.E.2d 500 (Ind. Ct. App.), trans, denied, 804 N.E.2d 760 (Ind. 2003).

92. Id at 502.

93. /^. at 502-03.

94. Id

95. Id at 503.

96. Ind. Code § 31-11-8-2(1998).

97. Ranee v. Ranee, 587 N.E.2d 150, 152 (Ind. Ct. App. 1992).

98. Thomas, 794 N.E.2d at 503 (citing iND. CODE § 32-17-4-1 (1998)).



1142 INDIANA LAW REVIEW [Vol. 37:1127

acquired during a bigamous relationship ifone ofthe parties requests the action.^^

In light of the court of appeals' decisions in Thomas v. Smith, Turner v.
Freed, Putz v. Allie, and Hendricks v. Hendricks, the survey period presented

substantial development in the rights of cohabitants upon the breakup of their

relationship.

III. Child Custody AND Parenting Time

The most significant developments in the areas of child custody and
parenting time concern the avenues that third parties may take in actions against
the natural parents for custody and visitation. These cases involve blood

relatives, such as grandparents, and biological strangers, such as step-parents.

A. Third Party Versus Natural Parent Custody Dispute
s^^^

In re Paternity ofV.M.,^^^ the first appellate decision applying the supreme

court ruling in In re Guardianship ofB.H , quoted extensively from that decision.
In V.M. the natural father sought modification of a permanent guardianship

placing two of his children in the custody ofthe children's maternal grandfather.

The father, Benavides, originally consented to the guardianship "[bjecause ofhis
lack of fitness and willingness to parent the children, due in large part to his past

drinking problems and criminal behavior.'"^^ To his credit, Benavides
significantly changed his life for the better by getting sober, remarrying,

maintaining responsible employment, and becoming involved in church. Without

question, he had maintained a relationship with the children through visitation.
'°^

The court ofappeals, beginning its discussion by noting the strong deference that

the state pays to the presumption that it is in the best interests ofthe children that

they be in the custody of their natural parent, stated that it was the grandfather's
burden to rebut this presumption even in a modification action brought by the

father who had previously relinquished custody to him.'^'* Quoting, at length,
from the Indiana Supreme Court's decision in B.H, the court reiterated the rule

and standard of proof in custody disputes between third parties and natural

parents:

Despite the differences among Indiana's appellate court decisions
confronting child placement disputes between natural parents and other

persons, most of the cases generally recognize the important and strong

99. Id at 503-04 (citing Ranee, 587 N.E.2d at 1 52).

1 00. In a case decided on June 2
1

, 2002, outside the survey period, the Indiana Supreme Court

in In re Guardianship ofB.H., 770N.E.2d283 (Ind. 2002) resolved the conflicting and increasingly

divergent Indiana Court of Appeals' decisions regarding the rights of natural parents when

confronted by custody claims of third parties and the burden on third parties to prevail.

101. 790 N.E.2d 1005 (Ind. Ct.App. 2003).

102. Id at 1006.

103. Id at 1008.

104. Id at 1007-08.



2004] FAMILY LAW 1143

presumption that the child's best interests are ordinarily served by
placement in the custody of the natural parent. ... To resolve the
dispute in the caselaw regarding the nature and quantum of evidence
required to overcome this presumption, we hold that, before placing a
child in the custody of a person other than the natural parent, atrial court

must be satisfied by clear and convincing evidence that the best interests
ofthe child require such a placement. The trial court must be convinced
that placement with a person other than the natural parent represents a

substantial and significant advantage to the child. The presumption will
not be overcome merely because "a third party could provide the better
things in life for the child." In a proceeding to determine whether to

place a child with a person other than the natural parent, evidence

establishing the natural parent's unfitness or acquiescence, or

demonstrating that a strong emotional bond has formed between the

child and the third person, would of course be important, but the trial
court is not limited to these criteria. The issue is not merely the "fault

"

of the natural parent. Rather, it is whether the important and strong
presumption that a child 's interests are best served by placement with
the natural parent is clearly and convincingly overcome by evidence
proving that the child 's best interests are substantially andsignificantly
served by placement with another person. This determination falls
within the sounddiscretion ofour trial courts, and theirjudgments must
be afforded deferential review. A generalized finding that a placement
other than with the natural parent is in a child's best interests, however,

will not be adequate to support such determination, and detailed and

specific findings are required.
'°^

Thus, though Mr. Benavides had overcome his past and had a solid
relationship with his children, the court of appeals noted that the trial court had

covered all of its bases by finding that the children would have to share with their

father's new children if they lived with him whereas they would have the sole
attention of their grandfather and, further, that severing the relationship with the

grandfather by modifying custody would seriously mar and endanger their future

happiness.
'°^

1 05. Id. (quoting In re Guardianship o/B.H., 770 N.E.2d at 287 (emphasis added by the court

ofappeals) (citations omitted)). The italicized portion ofthe quote is arguably the supreme court's

synthesis of the two lines of appellate court decisions in this area. The line of fault-based cases,

represented by Hendrickson v. Binkley, 316N.E.2d 376 (Ind. App. 1974), cert, denied, 423 U.S.

868 ( 1 975), has survived. However, in deference to the line of cases abrogated by B.H., namely.

In re Marriage of Huber, 723 N.E.2d 973 (Ind. Ct. App. 2000); In re Paternity ofL.K.T., 665

N.E.2d 910 (Ind. Ct. App. \99(i)\Atteberryv. Atteberry, 597N.E.2d 355 (Ind. Ct. App. 1992); and

Turpin v. Turpin, 537 N.E.2d 537 (Ind. Ct. App. 1989), the supreme court added as an alternative

to Hendrickson' s parental fault-based criteria, the rather vague, "best interests . . . substantially and

significantly served by placement with another person." B.H., 110 N.E.2d at 287.

106. In re Paternity ofV.M., 790 N.E.2d at 109-09.



44 INDIANA LAW REVIEW [Vol. 37:1 127

The court of appeals' decision in Nunn v. Nunn^^^ stands for the proposition
that the de facto custodian amendment to the child custody statutes permits a
step-parent in a dissolution ofmarriage action to seek custody ofa step-child that

he has not adopted. '^^ The court—noting that a de facto custodian is "a person
who has been the primary giver for, and financial support of, a child who has
resided with that person for at least: (1) six (6) months if the child is less than

three (3) years ofage; or (2) one (1 ) year if the child is at least three (3) years of

age
">09—found that the step-father had presented evidence tending to rebut the

presumption in favor of the natural parent. Moreover, because the de facto

custodian amendments permit third parties to seek custody in a dissolution
action, the trial court erred by ruling that it did not have jurisdiction to make
custody orders as to the child. "^ The facts of the case seem tailor-made for the
holding. The child in question was born in September 1997, at which time the

107. 791N.E.2d779(lnd. Ct. App. 2003).

108. Id. at 784. Section 31-17-2-8 of the Indiana Code provides that the trial court "shall

determine custody and enter a custody order in accordance with the best interests of the child. In

determining the best interests ofthe child, there is no presumption favoring either parent. The court

shall consider all relevant factors, including the following . . . ." The statute then lists eight factors,

the last of which is "[ejvidence that the child has been cared for by a de facto custodian, and if the

evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this

chapter." Id. Section 3 1-1 7-2-8. 5(b) of the Indiana Code provides:

(b) In addition to the factors listed in section 8 ofthis chapter, the court shall consider

the following factors in determining custody:

(1) The wishes of the child's de facto custodian.

(2) The extent to which the child has been cared for, nurtured, and

supported by the de facto custodian.

(3) The intent of the child's parent in placing the child with the de facto

custodian.

(4) The circumstances under which the child was allowed to remain in the

custody of the de facto custodian, including whether the child was

placed with the de facto custodian to allow the parent now seeking

custody to:

(A) seek employment;

(B) work; or,

(C) attend school.

(c) If a court determines that a child is in the custody ofa de facto custodian, the court

shall make the de facto custodian a party to the proceeding.

(d) The court shall award custody of the child to the child's de facto custodian if the

court determines that it is in the best interests of the child.

(e) If the court awards custody of the child to the child's de facto custodian, the de

facto custodian is considered to have legal custody ofthe child under Indiana law.

It should be noted that section 3 1-17-2-8. 5(a) of the Indiana Code requires the court to find

that a child has been cared for by a de facto custodian by clear and convincing evidence.

109. Nunn, 791 N.E.2d at 783 (quoting IND. Code § 31-9-2-35.5 (1998)).

110. Id at 785.



2004] FAMILY LAW 1145

parties were not married but were dating. Mother informed her future husband

that the child might not be his child. Nonetheless, the parties continued to date

after the child was born and married in August 1997. Approximately one year
later, the parties gave birth to a son. The Petition for Dissolution of Marriage
was filed in August 2001 , at which time the child in question was approximately
four years of age. DNA testing revealed that she was not biologically related to
the husband.'"

In re Custody ofGJ.,^^^ was initiated by the brother of the deceased father.
He filed an independent custody action pursuant to section 31-17-2-3(2) of the
Indiana Code,"^ as opposed to a guardianship proceeding underthe guardianship

statute. At the final hearing, the trial court granted the mother's motion to
dismiss, which contended that the uncle had no standing, concluding that section
31-1 7-2-3 ofthe Indiana Code related only to dissolution ofmarriage actions and
that his action should have been filed under the guardianship statute.'"' It should

be noted that the facts spurring the uncle to file his custody action involved the

mother's new husband, whom she married within weeks ofthe death of her first
husband, the child's father. Apparently, the new husband was a convicted child
molester who collected child pornography. The mother and the child's father
were involved in a dissolution of marriage proceeding at the time of the father's

death. Prior to his death, the dissolution court prohibited the mother from

allowing the child molester to have any contact with the child. "^ The court's

decision thus allows third parties with the option to pursue custody of a child in

a direct cause of action under section 31-17-2-3(s) of the Indiana Code."^

B. Grandparent Visitation Cases

McCune v. Frey^^'' stands for the proposition that Indiana's Grandparent's
Visitation statute"^ requires findings of facts and conclusions of law when

111. Id. at 782.

112. 796 N.E.2d 756 (Ind. Ct. App. 2003).

113. iND. CODE §31-17-2-3(2) (1998).

114. G.J.,796N.E.2dat759.

A child custody proceeding is commenced in the court by:

( 1

)

a parent filing a petition under [Indiana Code section] 31-1 5-2-4 [actions for

dissolution ofmarriage], [Indiana Code section] 31-15-3-4 [actions for legal

separation], or [Indiana Code section] 31-16-2-3 [actions for child support];

or

(2) a person other than a parent by filing a petition seeking a determination of

custody of the child.

iND. Code § 31-17-2-3 (1998). Section 29-3-5 of the Indiana Code governs proceedings for

appointment of guardians over the persons of minors.

115. G.J., 796 N.E.2d at 758-59.

116. Id. at 764.

1 17. 783 N.E.2d 752 (Ind. Ct. App. 2003).

118. Ind. Code §31-17-5-1 (1998).



1146 INDIANA LAW REVIEW [Vol. 37:1 127

issuing a decree granting or denying grandparent visitation.' ^^ In McCune, the
paternal grandparents, the Freys, filed their petition requesting set visitation with

their grandson. The child's mother, McCune, contended that she discontinued
visitation between the child and the Freys for the safety of her child because he

had alleged that Mr. Frey had abused him. After hearing, the trial court awarded
the grandparents visitation with the child on the first Sunday of each month. '^^

Mother appealed, contending that the trial court abused its discretion by failing
to determine that visitation was in the child's best interests and by failing to enter
findings of facts and conclusions of law.'^' McCune thus represents the first
clear and complete explication of the elements necessary for a decree granting

grandparent visitation, in addition to those contained in the statute. First, the

McCune court noted the requirements under the act:

Pursuant to the Act, a grandparent may seek visitation only if [] 1 ) the
child's parent is deceased; 2) the child's parents are divorced; or 3) the

child was born out of wedlock, but only if the child's father has
established paternity. IND. CODE § 31-17-5-1 (1998). The trial court
may grant a grandparent's petition for visitation if it determines
visitation is in the best interests of the child. iND. CODE § 31-17-5-2
(1998).'^'

Next, the court noted that section 31-17-5-6 of the Indiana Code provides:
"Upon hearing evidence in support ofand opposition to a petition filed under this
chapter, the court shall enter a decree setting forth the court's findings and
conclusions ''^^^ Finally, in order to satisfy the presumption from Troxel v.

Granville and to avoid unconstitutionality as applied, the court held:

[W]e conclude that when a trial court enters a decree granting or denying
grandparent visitation, it must set forth findings of fact and conclusions

of law in said decree. In those findings and conclusions, the trial court

should address: 1) the presumption that a fit parent acts in his or her

child's best interests; 2) the special weight that must be given to a fit

119. McCwwe, 783 N.E.2d at 759.

120. /^. at 754.

121. Id.dA 756. Mother also contended that the grandparent visitation act is unconstitutional

on its face because the Fourteenth Amendment's "strict scrutiny" standard should apply to it and

that, applying the standard, "there is no compelling state interest that 'outweighs the infringement

on the rights of parents to control the care and upbringing of a child's life.'" Id. at 758.

Additionally, Mother contended that the grandparent visitation act was unconstitutional as applied.

However, the former constitutional challenge was rejected in Crafton v. Gibson, 752 N.E.2d 78,

92 (Ind. Ct. App. 2001). The second constitutional challenge was dealt with by noting that any

concern with an unconstitutional application of the statute would be remedied by applying the

presumption in Troxel v. Granville, 530 U.S. 57 (2000), that a fit parent's decision with regard to

grandparent visitation is made in the child's best interest.

122. A/cCwwe, 783 N.E.2d at 756.

123. /(i. (emphasis added).



2004] FAMILY LAW 1147

parent's decision to deny or limit visitation; 3) whether the grandparent

has established that visitation is in the child's best interests; and 4)
w^hether the parent has denied visitation or has simply limited visitation.

Also, in determining the best interests of the child, the trial court "may
consider whether a grandparent has had or has attempted to have

meaningful contact with the child.
'"^'^

In re Visitation ofC.H.
'^^

was decided subsequent to the court's decision in
McCune. In C//., the trial court denied the grandparents' petition for visitation,
specifically fmding that the grandparent had not rebutted the presumption that a

fit parent acts in the best interest of her child regarding her decision concerning

visitations with third parties. Grandparents appealed, contending that the court

used an incorrect standard in making its decision.
'^^

The facts of the case
revealed that neither of the parents were unfit, and, with the exception of a brief

period of no visitation after a family quarrel, the grandparents actually had

visitation with the child—just not on their terms. '"^ Accordingly, the court found
that the trial court acted within its discretion in declining to order visitation

between the child and the grandparents under the circumstances.'^^

Spaulding v. Williams^^'^ involved a trial court's grant of a grandparent's

petition for visitation. In that case, the trial court issued a nine page order

containing factual findings in paragraph form in which the court basically found

that the father's motivation in restricting the grandparent's visitation was
"selfish.

"'^° The facts revealed that the mother, the grandparent's daughter, had

custody ofthe child and that the grandparents were practically a day-to-day part

of the child's life until the mother died. After her death, the father permitted

substantial visitation until he got into an argument with the grandfather over

whether he could live in one of the deceased mother's houses. Thereafter,

feelings between the father and the grandparents deteriorated, and the father

restricted visitation.'^' Thus, on appeal the court found no error with the trial

court's conclusion that the grandparents had met their burden ofovercoming the

presumption that the father's decision to restrict visitation was in the child's best

interest.
'^^

Spaulding, however, provides interesting guidance for how far the trial court
can go to fashion its visitation order. While the court affirmed the trial court's

124. Id. at 757 (citations omitted). In a footnote, the court noted that the consideration

—

whether a grandparent has had or has attempted to have meaningful contact with the child—is "not
the touchstone for determining the child's best interests." Id. at 757 n.4 (citation omitted).

1 25. 792 N.E.2d 608 (Ind. Ct. App. 2003).

126. Id at 609.

127. Id

128. Id at 610.

129. 793 N.E.2d 252 (Ind. Ct. App. 2003).

130. Id at 256, 259.

131. Id at 259-60.

132. Id 2X262.



1148 INDIANA LAW REVIEW [Vol. 37:1 127

grant ofvisitation, it remanded with instructions to revise parts ofthe trial court's

order concerning the grandparents right to travel with the child and which

incorporated portions of the Indiana Parenting Time Guidelines, permitting
unfettered communications between a non-custodial parent and a child bye-mail,

faxes, cards, letters, and packages, among other things. Apparently, Father's
complaint was not that the travel and additional contact was not "visitation"
contemplated by the Grandparent Visitation Act, rather, his complaint was that
the travel and additional contact was unrestricted.'^^

The Grandparent Visitation Act does not address contact between
grandparents and grandchildren other than "visitation," a term that our

legislature has not defined. Because Father does not raise a general

challenge to the court's decision to allow contact other than actual

visitation, we need not address whether any such contact falls within the
scope of the Act. Still, we agree with Father that any contact or
communication ordered, other than visitation, should be applied

narrowly to preserve and protect a parent's rights ....

Rather, we suggest that the court insert the same "unreasonable"
language that it included in the telephone contact provision, so that

Grandparents would be permitted to send written communications and

packages to [the child] without unreasonable interference from Father.

That qualification would preserve Father's parental role and allow him

reasonable discretion in overseeing the communications between

Grandparents and [the child].

Similarly, the provision that allows Grandparents to travel "out of the

area" with [the child] fails to provide Father with any say over when,

where or under what circumstances Grandparents may travel with [the
child]. If, for example. Grandparents travel to Virginia to exercise their

monthly weekend visitation and wish to take [the child] on a weekend

trip "out of the area," Grandparents should be required to receive

Father's permission, in addition to providing Father with emergency

contact information. In addition, if [the child] visits with Grandparents

in Indiana and Grandparents want to travel with the child, they should

first obtain Father's permission. And Father must use reasonable
discretion in allowing Grandparents to travel with [the child]. In sum,

we reverse the two parts of the court's order regarding written
communications, packages and travel and remand for the trial court to

revise those provisions consistent with this opinion.'^"*

Clearly McCune and Spaulding are important cases inasmuch as they are two
of approximately four'^^ decided since Troxel v. Granville limited the

133. /^. at 262-63.

134. /^. at 263-64.

135. The other cases are Woodruffv. Klein, 762 N.E.2d 223 (Ind. Ct. App.), trans, denied, 714



2004] FAMILY LAW 1149

circumstances under which grandparents could seek visitation.

IV. Child Support

Thurman v. Thurman^^^ discusses several issues raised by Father on his
appeal. The most interesting and relevant issue in this case is the first issue,
wherein Father argues that he was unfairly surprised in court when Mother raised
the issue of a child support arrearage owed by him. Father filed a petition to
modify custody and child support. At the hearing, Mother sought to introduce

evidence regarding Father's delinquent child support payments and arrearages.

Father objected to this evidence, and the trial court overruled Father's objection,

but indicated that it would give the parties additional time to address the

arrearage issue. Father's counsel agreed at trial that ten days would be sufficient

to submit arguments regarding the arrearage issues.
'^^

Father first argues that he was not given notice of Mother's intention to seek
arrearages. He argues that section 34-47-3-5 ofthe Indiana Code'^^ sets forth the
notice requirements necessary for charging someone with indirect contempt. The

N.E.2d 516 (Ind. 2002), and Crafton v. Gibson, 752 N.E.2d 78 (Ind. Ct. App. 2001).

136. 777 N.E.2d 41 (Ind. Ct. App. 2002).

137. Id. at 4 1-42.

138.

(a) In all cases of indirect contempts, the person charged with indirect contempt is

entitled:

(1) before answering the charge; or

(2) being punished for the contempt;

to be served with a rule of the court against which the contempt was alleged to have

been committed.

(b) The rule to show cause must:

(1) clearly and distinctly set forth the facts that are alleged to constitute the

contempt;

(2) specify the time and place ofthe facts with reasonable certainty, as to inform

the defendant of the nature and circumstances of the charge against the

defendant; and

(3) specify a time and place at which the defendant is required to show cause, in

the court, why the defendant should not be attached and punished for such

contempt.

(c) The court shall, on proper showing, extend the time provided under subsection

(b)(3) to give the defendant a reasonable and just opportunity to be purged of the

contempt.

(d) A rule provided for under subsection (b) may not issue until the facts alleged to
constitute the contempt have been:

( 1 ) brought to the knowledge of the court by an information; and

(2) duly verified by the oath of affirmation of some officers of the court or

other responsible person.

IND. Code § 34-47-3-5 ( 1 998).



50 INDIANA LAW REVIEW [Vol. 37:1127

court noted that the statute is not applicable here because Mother had not filed
a petition for contempt. The court next addressed Father' s argument that the only
appropriate way to raise a complaint about an arrearage is through a petition for
contempt. Mother did not filed such a petition. The court of appeals disagrees
that a petition for contempt must be filed, citing section 31-16-12-1 ofthe Indiana

Code/'' Kuhn v. Kuhn,'''' and Haton v. Haton.'''
The court concluded that "ifa party petitions the trial court to modify a child

support order, the entire issue of child support, including arrearages, may be
heard without unfair surprise to theparty seeking the modificationT^^^ This case

clearly distinguishes this fact situation from one where the parent receiving

support petitions for modification of support. It seems clear that the person to

whom the support is owed must still provide notice if she intends to seek
arrearages.

Another case with a litigant arguing "that wasn't an issue raised in the
pleadings" xsDrweckiv. Drwecki.^^^ Noncustodial parent. Father, petitioned the

court for contempt, modification of support and for allocation of college

expenses. The trial court found that Father had overpaid child support to Mother
and ordered ajudgment in Father's favor in excess of$10,000. "^"^ Mother argued

that Father's petition did not allege "that there should be a reduction in child

support for the time that the parties' son [B.] was in college. Father only sought
an allocation of college education expenses.

"'"^^ The court discussed the Child
Support Guidelines and found that both the Commentary to the Guidelines and
the child support worksheet include as part of the calculation process a

recalculation of the amount of child support paid to a custodial parent.'"*^ Thus,

Father's petition for college expense allocation automatically requested a

determination ofthe child support that Father owed Mother. It was not error for
the trial court to address this issue.

139.

Notwithstanding any other law, all orders and awards contained in a child support

decree or an order directing a person to pay a child support arrearage may be enforced

by:

( 1

)

contempt, including the provisions under section 6 of this chapter;

(2) assignment of wages or other income; or

(3) any other remedies available for the enforcement of a court order;

except as otherwise provided by IC 3 1 - 1 6-2 through IC 3 1 - 1 6- 1 1 or this chapter.

Id. §31-16-12-1.

140. 402 N.E.2d 989 (Ind. 1980) (where a plaintiff filed a suit for accrued child support, but

not a petition for contempt).

141. 672 N.E.2d 962 (Ind. Ct. App. 1 996) (which discussed a petition to determine and reduce

delinquent child support to judgment, without a petition for contempt).

142. Thurman, 111 N.E.2d at 43.

143. 782 N.E.2d 440 (Ind. Ct. App. 2003).

144. Id. at 442-45.

145. Id. at 445 (citing Appellant's Br. at 1 1).

146. Id at 446.



2004] FAMILY LAW 1151

Other issues raised by Mother in Drwecki addressed Father's overpayments

of support in light of the recalculation of support and allocation of college

expenses. Mother's argument was twofold: that his payments were either
voluntary gifts; or, that allowing a credit for his overpayments resulted in an

impermissible retroactive modification of child support.''*^

The court found that Father's payments were not voluntary because they
were being paid by a wage withholding order during a time period between the
child's emancipation and the court's order modifying Father's payment to a
lower amount. "^^ Father was doing nothing more than obeying the order of the
court in effect at the time.

On Mother's next argument, the court recognized the general rule that child
support orders cannot be modified retroactively."*^ In this case, however, the

effective date of the modification was a date that occurred after Father filed his
petition. '^° The court cited Kruse v. Kruse^^^ for the premise that not allowing
a court to retroactively modify an order to the date ofthe petition '"detracts from

the purposes of the changed circumstances rule and serves to encourage and

benefit dilatory tactics.
'"'^^

Thus, this is not an impermissible retroactive

modification, but should overpayments be applied prospectively? The general
rule is that "'child support payments cannot be applied prospectively to support

not yet due at the time of the overpayment.""" The purpose of the rule is to

ensure a regular cash flow for the custodial parent and to prevent the payor from

building up a large credit and then ceasing payments. The court ofappeals found
that this was not Father's intent in this case, since he did not voluntarily

accumulate the large credit. '^'^ Had Father taken it upon himself to terminate or
reduce the payments, he could have been found in contempt. The court stated:

[I]fwe do not allow Father to recoup his excess payments made pursuant
to the court order, then we will be encouraging non-custodial parents
who are current on their support obi igation and who bel ieve they deserve
a decreased support requirement to unilaterally decrease their support

payments before the court orders such a reduction. A better public
policy is to encourage parents to stay current on their child support

obligations and to follow the court's order until that order is modified;

we should not encourage parents to violate court orders out of concern
that they will be unable to receive credit for the excess money they

147. Id. at 446-48.

148. Id. at 447.

149. Thacker v. Thacker, 710 N.E.2d 942, 945 (Ind. Ct. App. 1999).

1 50. Retroactive application of a modified order is permissible back to the date of the filing

of the petition. Drwecki, 782 N.E.2d at 449.

151. 464 N.E.2d 934, 939 (Ind. Ct. App. 1 984).

1 52. Drwecki, 782 N.E.2d at 449 (quoting Kruse v. Kruse, 464 N.E.2d 934, 939 (Ind. Ct. App.

1984)).

153. Id at 448 (quoting Matson v. Matson, 569N.E.2d 732, 733 (Ind. Ct. App. 1991)).

154. Id at 449.



1152 INDIANA LAW REVIEW [Vol. 37:1127

paid
155

The court limited its holding to the narrow facts of this case, finding that a
payor parent could have an overpayment prospectively applied,

where 1) the petitioning parent has stayed current on his support

obligation such that little arrearage exists; 2) the petitioning parent

continued to follow the trial court's previous order despite a change in

circumstances justifying a decrease in the support obligation; and 3) the

trial court modified support to a time after the petition was filed. '^^

Smith V. Smith^^^ is an example of the application ofequitable law to protect

a litigant. In this case, the parties divorced in January 1996, and Mother was
granted custody of both minor daughters. Almost immediately following the
dissolution, the oldest daughter moved to Florida and lived with Father for
several years. Shortly after the oldest daughter returned to live with Mother, the

younger daughter moved in with Father. The living arrangements remained as
such until the youngest daughter was emancipated as a matter of law in June
200 1 . Following the dissolution, neither party sought to modify the court's order
regarding custody or child support.

'^^
In April 2002, the State filed a petition

seeking child support arrears from Father. Mother did not step forward in an

attempt to resolve this matter; rather, she joined the State in their efforts to

collect child support. The trial court found that there existed "an in gross order
of support with a de facto split custodial arrangement not sanctioned by court

order, [thus] the Court has no authority under the existing case law to award

credit for nonconforming payments.'" ^^ Father's arrearage was found to be
$20,302.

'"'

The court of appeals pointed out that there are situations where a non-

custodial parent can be awarded a credit for nonconforming child support

payments. In DeMichieli v. DeMichieW^^ the court ofappeals found that a credit

will be granted to a noncustodial parent where

the obligated parent by agreement has taken the children in his or her

home, assumed custody ofthem, provided them with necessities, and has

exercised parental control over their activities for such an extended

period of time that a permanent change of custody has in effect

occurred.
'^^

155. Id.

1 56. Id. at 449-50.

1 57. 793 N.E.2d 282 (Ind. Ct. App. 2003).

158. Id at 283-84.

159. Id at 284.

160. Id at 283.

161. 585N.E.2d297(Ind. Ct. App. 1992).

162. Id at 302.



2004] FAMILY LAW 1153

Additionally, consistent with Isler v. Isler,^^-^ a trial court

may afford relief from an unmodified support order if the noncustodial
parent has, by agreement with the custodial parent, assumed custody and
has provided food, clothing, shelter, medical attention, and school

expenses and has exercised parental control for an extended period.'^'*

The court ofappeals determined that Father would be paying child support twice
if the arrearage was affirmed. The court stated that affirming the trial court's
decision would "unjustly penalize" Father and "unjustly enrich" Mother.

'^^

Further, it stated that "such prejudicial and unscrupulous 'gotcha' litigation

tactics should not be tolerated.'"^^ The case was remanded for further
proceedings to determine whether to grant some relief to Father from the
arrearage previously ordered and, if so, the amount.

'^^
It is strongly implied by

the court's opinion that some significant degree of relief should have been
granted to Father.

V. Paternity

El V. Beard^^^ is an interpretation of the UIFSA'^^ statutes. In this case.

Father (a well known athlete in Indiana) filed his paternity action in Indiana, but
Mother and child resided in Illinois. The trial court held that it had jurisdiction
over paternity and child support, but not over custody and visitation. '^° The trial

court established paternity in Father and then set the matter for hearing on the

support issues. The court entered several orders regarding support, and Father
appealed those orders.'^' Mother filed a cross appeal in this action alleging that

Indiana lacked personal jurisdiction over her and, thus, could not issue any child

support orders in this case. The court of appeals found the jurisdictional issue
to be dispositive; therefore, it did not address Father's issues on appeal.

'^^

Indiana Code 31-18-2-1 sets forth the basis for obtaining jurisdiction over a
person in an action filed under UIFSA. Father alleged that he had jurisdiction for
the following reasons:

In a proceeding to establish, enforce, or modify a support order or to

determine paternity, an Indiana tribunal may exercise personal

163. 425 N.E.2d 667, 670 (Ind. Ct. App. 1981).

164. ^m/V/z, 793 N.E.2d at 285.

165. Id. at 286.

1 66. Id. • see Wilson Fertilizer & Grain, Inc. v. ADM Mill. Co., 654 N.E.2d 848, 856 (Ind. Ct.
App. 1995).

167. ^m/z/i, 793 N.E.2d at 286.

1 68. 795 N.E.2d 462 (Ind. Ct. App. 2003).

169. Uniform Interstate Family Support Act, iND. CODE § 31-18-1-1 to -9-4 (1998).

170. £/, 795N.E.2dat464.

171. Id

172. Id



1154 INDIANA LAW REVIEW [Vol. 37:1 127

jurisdiction over a nonresident individual ... if:
* * *

(2) the individual submits to the jurisdiction of Indiana by:

(A) consent;

(B) entering an appearance, except for the purpose of contesting

jurisdiction; or

(C) filing a responsive document having the effect of waiving
contest to personal jurisdiction.

* * *

(6) the individual engaged in sexual intercourse in Indiana and the child:

(A) has been conceived by the act of intercourse; or

(B) may have been conceived by the act of intercourse if the
proceeding is to establish paternity.

'^^

The court of appeals discounted Father's argument under subsection (2) readily.
Prior to the first hearing establishing paternity, Mother filed a motion to dismiss

for lack of jurisdiction. When the trial court denied her petition. Mother
proceeded to file other pleadings seeking reliefand presented her case vigorously

in court. The court ofappeals stated that a party is not required to sit by idly and

not present evidence in the hopes of winning a jurisdictional issue on appeal.
'^"^

The issue to which the court devotes more time is interpreting subsection
6(B). The court found that by the clear language of the statute, the trial court
could not have properly exercised jurisdiction over Mother on the child support

issues. '^^ This subsection clearly states that the only time a court can exercise

jurisdiction over a non-resident party when the child "may have been conceived"
in Indiana is for a paternity proceeding. The language ofthe statute precludes the
use of UIFSA for child support under these circumstances.'^^

The court then looked at whether there is evidence to support the argument
that the child was born in Indiana. The only evidence that Father presented that
the child was born in Indiana was in his initial verified petition for paternity.

Mother filed a verified affidavit with her motion to dismiss, asserting that the
child was conceived in Illinois. Unfortunately for Father, no other evidence was
presented on his behalfto rebut this presumption.'^^ The Indiana Supreme Court

has stated that "once the party . . . challenges the lack ofpersonal jurisdiction, the

plaintiffmust present evidence to show that there is personaljurisdiction over the
defendant.'"^^ The court went on to state that "a plaintiff cannot 'maintain his
position by pleading under oath and then resting on that pleading.' . . . [NJeither

. . . the trial court [n]or the appellate court [may] rely on [a] petition as evidence

173. IND. CODE §31-18-2-1 (1998).

174. £/, 795N.E.2dat466.

175. Id.

176. Id.

177. Id at 467.

178. Id (citing Anthem Ins. Cos. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1231 (Ind.

2000)).



2004] FAMILY LAW 1155

ofthe facts alleged therein.'"^^ Because Mother presented the best evidence that
the child was conceived in Illinois, the court held that the trial court did not have
jurisdiction over Father for the support issues and reversed the trial court's order

on support.

In the case of /w re Paternity ofM.R.,^^^ the UIFSA and UCCJL"^ were
applied and interpreted to determine whether the Indiana court had jurisdiction

to enter orders on this case. Another popular athlete fathered a child out of

wedlock and filed a Petition to Establish Paternity with the trial court. M.R. was
born on July 14, 2000. Father executed a paternity affidavit. Mother and M.R.
moved to Georgia in late September or early October 2001 . Father was traded
to the Chicago Bulls, but maintained residency in Indiana. Father filed his

petition to establish paternity on April 15, 2002. A hearing was scheduled for
April 20, 2002, and, on April 24, 2002, Mother filed her petition to establish

paternity in Georgia. Before the hearing, Mother filed a Motion to Dismiss for

Lack of Personal Jurisdiction and Insufficient Notice to Persons Outside This
State. Mother argued that under the UCCJL, a hearing must be conducted at least
twenty days after notice is given to a person living outside Indiana.

'^^
Father

conceded this issue, but argued that the notice requirement did not apply to the

support issues. The trial court took evidence and, after briefing by both parties,

denied Mother's motion to dismiss and ordered Father to pay support.
'^"^

Father argued that the UCCJL is not applicable because custody is not an
issue, he only sought to determine paternity and child support. However, this

argument was contradicted by Father's own petition and request for relief, as
Father did seek an order regarding "a plan of care for the minor child . . . .'"^^

Further, in open court Father's own counsel asked that the custody and parenting
time issues be rescheduled for another hearing date. Following a lengthy

discussion about custody and how it is a valid component ofa paternity case, the
court found that an action for paternity does necessarily include a determination

of custody. Therefore, since Mother had been in Georgia for at least six months,

Georgia was the child's "home state" and the Indiana trial court lacked
jurisdiction to make a custody determination.

The court next found that the UCCJL only applied to custody determinations,
not support. '^^ Thus, the UIFSA statutes would need to be examined to
determine whether the trial court's order on support was proper. Mother argued
that the trial court lacked jurisdiction under UIFSA. Section 31-1 8-2-4(b) ofthe
Indiana Code is dispositive ofthis issue.

'^^
Not only did Mother file her petition

179. Id. (citing State v. Sanders, 596 N.E.2d 225, 227 (Ind. 1992)).

180. Id. at 468.

181. 778N.E.2d861 (Ind. Ct. App. 2002).

182. Uniform Child Custody Jurisdiction Law, Ind. Code § 31-17-3-1 to -25 (1998).

183. Id §31-17-3-5(b).

184. M/?.,778N.E.2dat866.

185. Id at 865.

186. Id

1 87. Section 31-1 8-2-4(b) of the Indiana Code states:



1156 INDIANA LAW REVIEW [Vol. 37:1127

for paternity in Georgia before the time allowed to file a responsive pleading in

Indiana expired, she also timely filed her motion to dismiss challenging

jurisdiction in the Indiana court. Finally, as the court already determined,

Georgia is the home state of the child, not Indiana. The court held that the trial
court's order for support must be vacated, but that the order establishing paternity

was affirmed.
'^^

In Seger v. Seger,^^"^ the court narrows the limits to which Indiana's paternity

statutes will stretch to make someone legally responsible for a child. The facts
ofthat case are quite interesting. Wife gave birth to a child prior to the marriage.

Both Wife and Husband knew that Husband was not the biological father of
child. Following the marriage, the parties went to the local health department

and executed a paternity affidavit purporting that Husband was the biological
father of child. In his petition for dissolution. Husband stated that no children
were born of the marriage. The trial court agreed and rescinded the paternity
affidavit. Wife filed an appeal.

The Indiana Court of Appeals recognized in its decision that the signing of
a paternity affidavit only creates a legal presumption that the man is the child's
biological father. ^^^ A paternity affidavit is valid only when a mother and a man
who "reasonably appears to be the child's biological father" execute the
document.'^' The court found that since both parties knew the child was not the
biological child of Father, the paternity affidavit was a falsehood from the outset
and Mother was precluded from using the paternity statutes in her efforts to make
Husband legally responsible for the child.

Mother further argued that the execution of this document was, in effect, an
adoption ofthe child. The court stated that there is no equitable adoption in the

An Indiana tribunal may not exercise jurisdiction to establish a support order if the
petition is filed before a petition or comparable pleading is filed in another state if:

(1) the petition or comparable pleading in the other state is filed before the

expiration of the time allowed in Indiana for filing a responsive pleading

challenging the exercise ofjurisdiction by Indiana;

(2) the contesting party timely challenges the exercise of jurisdiction in

Indiana; and

(3) the other state is the home state of the child, if relevant.

IND. Code § 31-18-2-4(b) (1997).
188. In a footnote, the Indiana Court of Appeals noted that Father argued in his brief that

Indiana should not relinquish jurisdiction because the Georgia court in which Mother hopes to

pursue her paternity action does not have personal jurisdiction over Father. The court declined to

issue an opinion about the jurisdictional issue in Georgia, stating, in essence, that would be

Mother's problem, but the court noted that if Father was concerned about jurisdiction in Florida,

he could merely consent to jurisdiction. This statement by the court was further clarified on

rehearing. See In re the Paternity of M.R., 784 N.E.2d 530 (Ind. Ct. App. 2003) (where Father

petitioned to transfer the case, but transfer was dismissed on September 26, 2003).

1 89. 780 N.E.2d 855 (Ind. Ct. App. 2002).

190. Id.

191. Ind. Code § 16-37-2-2.1(b)(l) (1999).



2004] FAMILY LAW 1157

state of Indiana.
'^^

There are specific procedures that are prescribed by statute
that must be followed to complete an adoption. Those procedures were not
followed; thus, Mother's adoption argument must fail. The court of appeals
agreed with the trial court that the paternity affidavit should be rescinded.

In re Paternity of K.R.H.,^'^^ Mother appealed the trial court's decision to
uphold a settlement agreement granting custody of the parties' minor daughter

to the Father. The parties to this case spent two days immediately before the trial
ofthe case in depositions. At the conclusion of the depositions, at 7:30 p.m. on
the day before trial, the parties entered into settlement negotiations and at 1 1 :00
p.m., the parties reached an agreement that was reduced to writing and signed by
both parties. The next day at trial. Mother repudiated the agreement. The trial
court upheld the agreement.

Mother argued that the Alternative Dispute Resolution ("ADR") Rules were
not followed and that the agreement should have been declared void.'^'* The
court points out that this was not a formal mediation requiring the application of
the ADR Rules. Those rules are only applicable when a court orders mediation.
The record was clear that neither party requested mediation and the trial court did
not order mediation. Thus, the trial court did not commit error by failing to apply
these rules and accepting the agreement.

'^^

Mother next argued that the agreement should not have been enforced
because she was under duress and the agreement was unconscionable. The court
found that there was no duress, as there was no evidence of any threatened
violence or physical restraint to Mother if she refused to sign the agreement.

'^^

Mother's unconscionability argument was not successful either. To prove
unconscionability, one must prove that "there was a gross disparity in bargaining
power which led the party with the lesser bargaining power to sign a contract
unwillingly or unaware of its terms and the contract is one that no sensible

person, not under delusion, duress or distress would accept.'"^^ Again, the court

found that Mother failed to show evidence that these factors existed.
Mother's final arguments are that there was not a finalized agreement and

that the agreement was not in the best interest of the child. The court found that
the parties signed a document called a "Binding Terms Sheet" and that a

"meeting of the minds" took place.
'^^

Thus, the document, while not

contemplated to be in final form, was acceptable to form a binding agreement.

192. Seger, 780 N.E.2d at 858 (citing Lindsey v. Wilcox, 479 N.E.2d 1330, 1333 (Ind. Ct.

App. 1985)).

193. 784 N.E.2d 985 (Ind. Ct. App. 2003).

194. Id. at 990.

195. Id.

196. Id (citing Rutter v. Excel Indus., Inc., 438 N.E.2d 1030, 1031 (Ind. Ct. App. 1982))

(stating that "there must be an actual or threatened violence or restraint ofa man's person, contrary

to law, to compel him to enter into a contract or discharge one" if a contract is to be void due to

duress).

197. Id at 991 (quoting Justus v. .lustus, 581 N.E.2d 1265, 1272 (Ind. Ct. App. 1992)).

198. Id at 992.



58 INDIANA LAW REVIEW [Vol. 37:1127

Finally, the court found that Mother was unable to prove that the agreement was
not in the child's best interest.

'^^

The Indiana Court of Appeals found that the agreement was typed and
signed; that both parties were represented by counsel; that an integration clause

was included in the document; and that no undue influence or duress was placed
upon Mother when she signed the document. In affirming the trial court's
decision to uphold the agreement, the court cited Reno v. Haler,^^^ which held
that "a written and signed agreement pertaining to custody, once the trial court

determines the terms are in the child's best interests, is enforceable, even if a

party wishes to repudiate it."^^'

VI. Adoption

One of the most socially controversial cases in this survey period is In re
Adoption ofM. M. G. C.^^^ This case carves out a narrow exception in the adoption

laws which will now allow homosexual couples to adopt children together. In
this case. Shannon Crawford-Taylor, the domestic partner ofthe litigant, Amber
Crawford-Taylor, adopted two Ethiopian children and one Chinese child in 1 999

through the international adoption process. She transacted the adoptions as a

single parent. In April, 2000, Shannon and Amber jointly filed three adoption
petitions with the trial court. The trial court denied the petitions finding that

foreign adoptions must be domesticated without modification. ^^^ On March 29,
200 1 , Shannon filed Petitions Requesting Comity and Full Faith and Credit in the

adoption of all three children. On March 30, 2001, Amber filed petitions to
adopt all three children as a second parent. Pursuant to section 3 1-1 9-9-1 (a)(3)

of the Indiana Code, Shannon filed consents to Amber's adoption as a second

parent. The trial court ultimately granted Shannon's petitions but denied

Amber's petition, finding that Amber must be a relative of Shannon's to adopt
the children and the only way to become a legal relative of Shannon is to marry
her. Because Indiana does not allow same sex marriage,^^"^ Amber cannot
become a relative and, therefore, cannot adopt with Shannon. The trial court
further stated that the only means by which Amber could adopt would be to
divest Shannon of her parental rights, and that this was clearly not the intent of
the parties.

The Indiana Court ofAppeals recognized this as a case of first impression in
Indiana. It pointed out first that the trial court erred in finding that Amber must
be related to Shannon in order to adopt the children. ^^^ The adoption statute only
requires that a person filing a petition for adoption be a legal resident of

199. Id at 993.

200. 734 N.E.2d 1095 (Ind. Ct. App. 2000).

201

.

K.R.H., 784 N.E.2d at 988 (citing Reno, 734 N.E.2d at 1099).

202. 785 N.E.2d 267 (Ind. Ct. App. 2003).

203. Id at 268.

204. Ind. Code §31-1 1-1-1 (1997).

205. MMC.C, 785 N.E.2d at 270.



2004] FAMILY LAW 1159

Indiana.^^^ The court went on to note that Indiana law "does not require that the
rights of an adoptive parent with respect to the child be divested in the event of

a second-parent adoption.
"^^^ The court found that the trial court's "legal

conclusions [were] not supported by statutory law."^^* Because no statutory law

exists on this issue, the court turned to common law.
The court noted that "[T]he primary concern in every adoption proceeding

is the best interest ofthe child. The state has a strong interest in providing stable
homes for children. To this end, early, permanent placement of children with
adoptive families furthers the interests of both the child and the state. "^°^ The
court further stated that it would be in the best interest of the children involved

in this case to be "entitled to the legal protections and advantages that a two-

parent adoption provides. "^'° In conclusion, the court held that "Indiana's

common law permits a second parent to adopt a child without divesting the rights
of the first adoptive parent."^" Thus, Amber was also able to adopt the three
children previously adopted by her partner. Shannon, in a second-parent

adoption.

206. lND.C0DE§31-19-2-2(a).

207. M.M.G.C., 785 N.E.2d at 270; cf. IND. CODE § 31-19-15-1 (providing that an adoption

divests all rights of a biological parent with respect to a child except in the case of a stepparent

adoption).

208. MMG.C, 785 N.E.2d at 270.
209. Id (citingB.G. V. H.S., 509N.E.2d214,217(Ind. Ct. App. 1987)).

210. Id

211. Id