A----. B---- v. C----. D----

WHITE, Judge.

Defendant-appellee was married to plaintiff-appellant's present wife at the time she conceived and bore a son. She thereafter divorced defendant and married plaintiff. In the divorce decree she was awarded custody of the son as a child of the marriage. Plaintiff-appellant brought this declaratory judgment action to have himself declared the legitimate father of the child. The rationale of the action is that the child was born illegitimate, (or "out of wedlock"), by reason of the fact that its mother's then husband is not its biological father1, and that it has been legitimatized as plaintiff's son by plaintiff's marrying the mother and acknowledging the child as his own.

The trial court entered summary judgment for defendant upon finding

The factual situation which plaintiff alleges may be far from common, but it is not unique. Married women have borne children conceived in adultery and, after divorce from their husbands, some have married their children's biological fathers. In at least two jurisdictions the resulting variance between the legal and the natural paternal relationships can be eliminated by remolding the legal to conform with the natural. In one California case, a judicial decree made the child the legitimate child of the second marriage.2 In New York there are several cases indicating that such a result can be achieved in a declaratory judgment action.3 Whether there are other jurisdictions in which the same result could be or has been judicially achieved, we are not informed.4 We are satisfied, however, that the present substantive law of Indiana, with respect to legitimation, differs so little from the common law of England in Blackstone's time5 that such a result is substantively unattainable, procedural questions aside. Blackstone concluded his discussion of the parent-child relationship with a statement which, in substance, is the law of Indiana today. It reads:

In Indiana an illegitimate is capable of inheritance from and through its mother (and she through and from him) and he may be rendered capable with respect to his father "if but only if, (1) the paternity of such child has been established by law, during the father's lifetime; or (2) if the putative father marries the mother of the child and acknowledges the child to be his own,"7 but there is no way he can be made legitimate.8 Such, however, was not always our law.

From 1831 until 1954 a child which was born illegitimate became legitimate by its mother's subsequent marriage if her husband acknowledged the child as his own.9 The 1831 statute which thus provided for legitimation by subsequent marriage was apparently the first introduction of that civil law principle of legitimation into Indiana law.10 It was reenacted in 1843 and 1852. 1 R.S. 1852, Ch. 27, § 9 (formerly Ind. Ann. Stat. § 6-2310 [Burns 1933]) provided:

It was expressly repealed, effective January 1, 1954, by the Probate Code,11 and replaced by section 207 of the Probate Code12, which reads as follows:

As was said in Lund's Estate (1945), 26 Cal.2d 472, 159 P.2d 643, 162 A.L.R. 606, 609:

As we read that statute it is clearly of the second category. It contains no words even faintly resembling the legitimating words of the 1852 statute. These words were: "such child shall be deemed legitimate."

In Pfeifer v. Wright (10th Cir.1930), 41 F.2d 464, 466, the court quoted a Kansas statute, in pertinent part as follows:

The question of statutory interpretation in that case was the same as here although it arose in a more traditional manner, i.e., inheritance rights in a conflict of laws context. As stated by the court:

We have twice reached the same conclusion with respect to a very similar Indiana statute which was also replaced by § 207 of the Probate Code. It is Ind. Acts 1901, Ch. 126, § 1, p. 288, which reads in pertinent part as follows:

Of that statute we said in Wilson v. Bass (1918), 70 Ind.App. 116, 124, 118 N.E. 379, 382:

Again in Thacker v. Butler (1962), 134 Ind.App. 376, 184 N.E.2d 894, we made it clear that the acknowledged illegitimate-child-statute (§ 6-2309 [Burns 1933] quoted ante) was not a legitimation statute and conferred only an expectancy of inheritance (by the acknowledgment) which could be, and was abrogated by the Probate Code § 207 (quoted ante) which now requires, instead of mere acknowledgment, that "paternity ... has been established by law, during the father's lifetime."

It is to be noted that this one section of the Probate Code, § 207, not only makes provision for those illegitimates who would have been "deemed legitimate" under the 1852 statute, (i.e., the ones whose parents marry) but also provides for that other class of illegitimates who were given inheritance rights, but not legitimacy, by the other pre-Code statutes last above quoted (Burns 1933, § 6-2309).13 Under the above quoted § 207 of the Probate Code each of those classes of illegitimates is to "be treated the same as if he were the legitimate child of his ... [mother or father as the case may be]." The child whose putative father marries his mother is treated no differently as to legitimacy than is any other class of illegitimates mentioned. His relationship to his "putative father" is no different than the illegitimate whose putative father has not married his mother (if that putative father's "paternity ... has been established by law, during the father's lifetime"). From the four corners of the statute itself, there is as much reason (i.e., none at all) to say that all illegitimates are the legitimate children of their mother and that all children born paternally illegitimate are legitimated to the father when "the paternity of such child has been established", as there is to say that "if the putative father ... marries the mother and acknowledges the child to be his own", the child is the legitimate child of the acknowledging father.

We can see no reason why there should not be such a law, but, of course, that is not the question. Our concern is whether section 207 of the Probate Code is such a law. Obviously it is not. It simply does not contain words which say that illegitimates shall be deemed legitimate. It merely specifies the conditions for "inheritance to, through and from an illegitimate child."

We are not here involved with the terms of some privately drawn instrument which might, in a proper action, be amendable to judicial reformation to include something omitted as the result of a scrivener's mistake or the mutual mistake of the contracting parties. If we assume, as may well be the case, that the 1953 Legislature did not really intend to discard the more lenient civil rule of legitimation and return to the harsher common law rule of non-legitimation, we must bear in mind that such legislative oversights can rarely be rectified by any human agency save the legislature itself. While courts, including this intermediate appellate court, can and do correct errors in judge made law of long standing,14 nevertheless, "where the language of enactments is free from ambiguity and uncertainty, courts cannot supply defects or omissions in order to carry out more fully the supposed purpose and intent of the Legislature."15 It is only where there is a gross error apparent on the fact of the act that the courts will correct it by construing the statute to give effect to the obvious intent of the legislature.16

No words in the Probate Code suggest that the Legislature which enacted it did not intend to repeal the 1852 statute and to substitute for it the different provisions of section 207. In so doing, of course, it was relying on the report of the Probate Study Commission. Professor Grimes, in his 1954 edition of Henry's Probate Law, Vol. II, p. 1400, after quoting the new Probate Code's § 207, makes these comments:

We conclude that under the law of Indiana as it presently exists, and has existed since January 1, 1954, well prior to the conception and birth of the child in question, there is no substantive legal basis on which any court could declare that the child in question is the legitimate child of the plaintiff.18

Notwithstanding the fact that plaintiff can never, under existing law, attain the status of legitimate father of the child, it is theoretically possible that he may, nevertheless, have "standing" to bring a declaratory judgment action, with proper parties joined, seeking to be declared the biological father of the child. Before exploring whether public policy denies him standing, we examine his "interest". We take that approach in recognition of the general principle which is the basis of our real-party-in-interest rule19, the rule that one must have "a substantial present interest in the relief sought" to authorize him to invoke the judicial process.20

What, then, are the "rights", if any, of the father with respect to an illegitimate he has sired?

As late as 1955, it was, as it had been "from time immemorial", the law of England that the father of an illegitimate has no rights with regard to such child.21 And that was also the law of Indiana until 1954 when the Probate Code made the illegitimate father whose paternity had been established (judicially or by marriage and acknowledgment and during his lifetime) an heir apparent of the child.22 So long as the child and the father are both living the interest of either in the estate of the other as heir apparent is a mere expectancy, both practically and legally. Not only may either pre-decease the other, die unpossessed of a solvent estate, or leave a valid will disinheriting the other, but the law may be changed. An heir apparent's expectancy becomes a vested right only on the death of the person to whom he is potentially an heir, if ever it vests.23 Nor is it suggested in the record, briefs, or oral argument that any pecuniary or material advantage will immediately accrue to plaintiff by virtue of being declared the natural father of the child, such as, for instance, a beneficial interest in some trust estate or future interest in real property. We conclude, nevertheless, the expectancy as an heir apparent is a present interest sufficient to give plaintiff standing to maintain this action (provided public policy, considered post, permits).

There are several other considerations which lead us to the conclusion that a putative father of an illegitimate, has a sufficient interest, by reason of being potentially an heir, to enable him to maintain an action during the child's living infancy to have his paternity judicially declared, even though the practical possibility of realized pecuniary benefit may appear extremely remote. Foremost is the condition contained in the descent statute itself that if paternity alone is relied upon it must be "established by law, during the father's lifetime"24 and the additional qualification that

While it does not appear that when the father has married the mother there is any requirement that the marriage and acknowledgment be proved during the father's (or child's) lifetime, still it may be highly advantageous to do so while proof is available.25 The Probate Code does not specify in the type of court action by which paternity or acknowledgment can be or should be established in order to create heirship "to, through and from an illegitimate child". Absent the requirement for determination of paternity during the lifetime of the putative father, it might be assumed that proof of heirship pending administration of a decedent's estate pursuant to Ind. Ann. Stat. § 6-606 (Burns 1953), IC 1971, 29-1-6-6 or, in the absence of administration or probate of a will within one year of death, under § 7-1115, IC 1971, 29-1-17-15 would suffice. But since establishment during the father's lifetime is required, and the only expressly provided procedure for establishing illegitimate paternity is the so-called Children Born out of Wedlock Act of 1941,26 by which an illegitimate father's obligation to support his child can be established and enforced on the mother's petition, it has sometimes been assumed that that act provides the exclusive procedure for establishing paternity for heirship. That notion also finds support in the fact that juvenile courts are not known to have ever entertained jurisdiction of declaratory judgment actions27 but they do have exclusive jurisdiction of paternity-support actions by virtue of Ind. Ann. Stat. § 9-3103 (Burns 1971), IC 1971, 33-12-2-3, which provides that "[t]he juvenile court shall also have exclusive original jurisdiction to determine the paternity of any child born out of wedlock, and to provide for the support and disposition of such child... ."28 While the question of jurisdiction cannot arise here, because both courts below29 have juvenile jurisdiction, as well as all other general original jurisdiction (including probate jurisdictions), yet the question of procedure and parties cannot be ignored.

Although an adjudication of paternity made by a court exercising juvenile jurisdiction in an action under the born-out-of-wedlock act above cited may be sufficient to satisfy the requirements of § 207 of the Probate Code, provided the proof meets the § 207 requirements, we see no reason that it should be the exclusive avenue to such an adjudication. Its procedures are open only to the mother (if living and competent),30 or to the jointly petitioning mother and father31 thus leaving the real parties in interest under § 207(b) (i.e., the child and the father) without remedy if no other procedure is open to them. We see no reason for holding that illegitimate paternity is not a "legal relation[ship] ... affected by a statute" (i.e., Probate Code § 207) for the purpose of making an illegitimate father or child an interested party under section 2 of the Declaratory Judgment Act.32

If plaintiff had no standing to bring a declaratory judgment action it is not from want of interest. It may be, however, as the trial judge stated, "that it would be against public policy to permit [him to bring] such an action." We can think of no possible public policy which would be transgressed by permitting any man to attempt to establish his paternity of a child born to an unmarried woman and never thereafter legitimatized for any purpose by any method. But other considerations certainly enter the scene when the child has been born to a married woman. Whatever public policy the trial judge had in mind related, we feel certain, to the presumption of legitimacy of a child born to a married woman. Plaintiff's "standing" then may depend not on his "interest" (which we believe has been shown) but on whether the public policy of the State of Indiana permits a man to dispute the presumed legitimacy of a child born to a married woman merely in order to establish an illegitimate father-son relationship for inheritance purposes.

In a few jurisdictions there is a narrow limitation imposed by statute or precedent on the classes of persons who may dispute the presumption of legitimacy. It ranges from the strict rule barring all but the husband33 to the more liberal rule barring all but the husband, mother and their descends34, to the extreme liberality of imposing no limitation at all (except interest).35 Like most jurisdictions Indiana has never spoken directly to that question in any reported decision. But of course Indiana, as is true of most states, has never been confronted with a self-proclaimed adulterer as the would-be bastardizer.36 However, in the few instances coming to our attention in which an adulterer has sought a declaration of his illegitimate paternity of a child presumptively the legitimate child of another man, there has been no mention of the possibility of any public policy which would bar him. On the contrary, in the first case, the judge said of the adulterer who had lived with the child's mother as husband and wife, but had never married her, (although the first husband had divorced her after the child's birth):

But the judge also had this to say (which he repeated in his second opinion fifteen years later):

Like sentiments have recently been expressed by the Supreme Court of our state in a divorce case, Buchanan v. Buchanan (1971) Ind., 267 N.E.2d 155, 157, in which the husband (with some aid from the mother) unsuccessfully sought to have a child born seven months after marriage declared not his child.

Buchanan implies that a child's status of legitimacy is a valuable interest not lightly to be toyed with, but that such status may well be in the balance, if the husband and wife attempt to litigate paternity in the divorce action, and that it should not be "destroyed" without affording adequate protection to the child's interest. All of which brings us to the questions of 1) parties and 2) estoppel. The first will be deferred until the second has been considered.

Defendant contends that plaintiff is estopped by what he considers to be the adjudication of the child's paternity in the divorce action between plaintiff's present wife and the defendant. The parts of the final entry in the divorce case pertinent to that contention are:

Neither the pleadings in the divorce action nor the property settlement agreement are shown in the record of this case. Defendant does not contend that plaintiff was a formal party to the divorce or even that he took any part in the litigation, or had any right so to do, which might have bound him as though he were a party.39 Defendant contends that plaintiff is bound by the divorce entry finding40 because he has accepted the benefits of the divorce by marrying defendant's ex-wife and is now "able to enjoy the incidental benefit that his present wife was given custody of the child". He does not use the word privy or privity but it seems to be his thesis that the "acceptance of benefits" made plaintiff his wife's privy as to the divorce decree and all its incidents.

In support of his estoppel argument defendant cites only two authorities: Attebery v. Attebery (1961), 172 Neb. 671, 111 N.W.2d 553, which involved only a party to the divorce (not a third-person-non-party) who was estopped to question the validity of the divorce itself because (among other reasons) he had accepted its benefits. In re Anderson's Estate (1948), 121 Mont. 515, 194 P.2d 621, in which the children of a deceased second husband who had financed and counseled a Nevada divorce by the woman he later married were estopped to question the validity of that divorce to defeat her claim to a widow's share of his estate. Neither case is in point.

Even though we might be persuaded to agree that by marrying a person known to have been previously married and now purportedly divorced, one is estopped to question the marital status decreed by the purported divorce (which we do not concede), we cannot accept the thesis that he also estops himself to question the paternity implications of a support and custody order made incidental to the divorce decree. Such an order does not affect the child's status, especially when the child is not a party to the action. In fact, the want of any binding effect on the child's status seems to be the basic reason for the widespread practice of not appointing a guardian ad litem for him, or otherwise providing for his representation in divorce cases and paternity-support cases.41 The finding that the child "was born as the issue of this marriage" amounts to no more than a finding that he was born to the wife during the marriage, a fact not in dispute in the instant case, nor in the divorce case, so far as the record here reveals.

It would seem to be basic, and beyond challenge, that anything decided in the case at bar is in no way binding on the child or on his personal representative or his heirs after his death. That is so for the simple reason that he is not a party to this action. The child is not a chattel the title to which is in dispute between rival claimants. Each of the two rivals (who are the only parties to this action) lays claim to an exclusive interpersonal relationship between himself and a third person (the child). The law now presumes the existence of that relationship between the third person (the child), and the defendant. The other side of that coin, practically speaking at least, is the presumption that the relationship of father and son does not exist between plaintiff and the child. That presumption can be overcome and the relationship can be judicially established only in an action to which the child is a party.

It would avail plaintiff nothing to establish facts relating to paternity in a judgment binding only on himself and the defendant. Such a determination would not make him the child's heir apparent, nor, so long as Indiana continues to adhere to the mutuality requirement in its doctrine of res judicata, could the child avail himself of such a judgment to make the child the plaintiff's heir.42

Prior to the effective date of our current rules of procedure (January 1, 1970) the trial court would probably have been within the bounds of reasonable discretion to have dismissed this action, or to have refused to decide the controversy under the provisions of section six of the Uniform Declaratory Judgments Act (Ind. Ann. Stat. § 3-1106 [Burns 1968], IC 1971, 34-4-10-6), because, absent the child and mother43 as parties, his decision would not terminate the controversy.44 Now, and at the time judgment was rendered below, Trial Rule 19(A) provides in part:

Trial Rule 21 also provides, in part:

Trial Rule 57 provides, in part:

Since the absent persons reside in plaintiff's household, the trial court should experience no problem of feasibility in their joinder. A more likely practical difficulty may arise in providing adequate and effective representation of the child's interest. But the resourcefulness of Indiana's trial judges gives assurance that any such problem which may arise will be short-lived.

Both plaintiff and defendant filed motions for summary judgment. Plaintiff's motion was supported by the affidavit of a physician to the effect that a blood grouping test to which the parties, the mother, and the child submitted established that defendant cannot be the father and that plaintiff could be. Also, by the mother's affidavit that plaintiff is the only man with whom she had sexual intercourse during the time the child was conceived and that during her marriage to defendant he was impotent.

Defendant's only response to plaintiff's motion was to file his own motion for summary judgment, apparently relying primarily on the presumptions in his favor and on public policy arguments. He submitted no affidavit controverting the doctor's affidavit as to the blood test results but did argumentatively question the sufficiency of the affidavit as conclusive proof of his non-paternity. He also submitted his own affidavit denying impotency and asserting that he "regularly had sexual relations with the ... [mother, his wife] during their marriage." Plaintiff contends this is not a statement that he had sexual intercourse with the mother during the time of conception and therefore her sworn statement that plaintiff was the only man with whom she had intercourse during that time stands as an undisputed fact. We hold, however, that in the context of summary judgment procedure, her sworn assertion is disputed by defendant's affidavit and by the certified copy of the divorce entry which defendant also submitted with his motion.

Nor do we believe the doctor's sworn report states merely facts, rather than conclusions. We hold that its submission by the plaintiff does not create a situation in which failure to file a sworn denial of its conclusion that defendant is excluded as the father establishes it as an undisputed fact. We have said there are some issues, such as negligence, or standards of care and conduct, which seldom should be resolved by summary judgment. Further, that "[i]f there is a question as to ... credibility of witnesses or weight of testimony, summary judgment should be denied." Also, that "`[i]n deciding whether there is an issue of material fact in a case, all doubts must be resolved against the party asking for a summary judgment.'" Wozniczka v. McKean (1969), 144 Ind.App. 471, 496, 498, 499, 247 N.E.2d 215, 228, 229, 230, 17 Ind.Dec. 401.

The case of Houghton v. Houghton (1965), 179 Neb. 275, 137 N.W.2d 861, was a 4-3 decision that blood test results indicating nonpaternity of the husband in a divorce case in which a child's paternity was at issue should have been treated by the trial judge as conclusive. The results were presented, however, by the live testimony of the physician in charge of the tests. He was questioned at great length on both direct and cross-examination and testified in great detail as to all matters connected with the test, the experience and training of the personnel involved, the procedures followed, and the duplications designed to detect human error, etc. What was decided was not that every physician's affidavit of the results of blood grouping tests must be accepted as conclusive. What was held is that "the qualifications of his [the doctor's] technicians to make the tests have been adequately shown as have his qualifications to interpret them." The four judges concluded that "there is nothing in the record which would indicate any defect in the testing methods, and his testimony and conclusions remain unshaken."45

We believe that every party against whom is used a conclusion of nonpaternity arising from blood grouping tests should have the right to insist that the party seeking to use the blood tester's conclusion must first establish the accuracy of the test. We are also inclined to the view that just as there are public policy considerations which prevent the granting of divorces on summary judgment there is a similar consideration which prevents establishing paternity or nonpaternity on summary judgment, especially when the judgment would have the effect of rendering a previously legitimate child illegitimate.46 The dissenting opinion in Houghton v. Houghton, supra, recognized that consideration when it said of blood test evidence:

The judgment is reversed and the cause remanded with directions to overrule both motions for summary judgment; to make appropriate orders for the joinder of the child and mother as parties and for the proper representation of the child's interests; and to proceed to a final disposition in a manner not inconsistent with the views herein expressed.

Reversed and remanded.

HOFFMAN, C.J., and SHARP and STATON, JJ., concur.

NOTE BY THE COURT: The trial court transferred this case to the juvenile docket. We commend the trial judge thus invoking the provisions of section 15 of the juvenile court act47 for the protection of the child from the harmful consequences which may result from unnecessary notoriety that his social status of legitimacy is being questioned. To the extent possible the same protection should also be extended to him on the appellate level. We therefore direct that the clerk of this court withhold from public examination the record (transcript), briefs, and other papers in this case. Copies of this opinion should be mailed to court and counsel in the usual manner but all copies made available to the press and public should bear fictitious names for the parties, such as A----. B----., plaintiff-appellant, vs. C----. D----., defendant-appellee, and should carry no number. The official reporter of the court, all unofficial reporters, all news media representatives, counsel, and the parties are requested to co-operate in preserving the anonymity of the child by not using the true names of the parties in any report of this case, written or oral.