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
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.
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.
It was expressly repealed, effective January 1, 1954, by the Probate Code,
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
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,
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
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.
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"
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.
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),
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 husband
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.
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.
It would seem to be basic, and beyond challenge, that anything decided in the case at bar is in no way binding on the
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.
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 mother
Trial Rule 21 also provides, in part:
Trial Rule 57 provides, in part:
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
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.
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 act
" See Wilson v. Bass, 70 Ind.App. 116, 118 N.E. 379, to the effect that such a statute refers only to inheritance, and does not make the child legitimate for other purposes.
"It was held in Pennsylvania that statutes of legitimation can have no force as affecting land outside of the state of their enactment, so as to enable one to take by inheritance in another state where the law of that state would not permit such inheritance. Smith v. Derr, 34 Pa. 126, 75 Am.Dec. 461 .
"This principle of law is also recognized in other states. Lingen v. Lingen, 45 Ala. 410; Stoltz v. Doering, 112 Ill. 234; Barnum v. Barnum, 42 Md. 251.
" Burns' Stat., §§ 10-1410 - 10-1411.
" Burns' Stat., §§ 10-1402 - 10-1409. Small v. State, 226 Ind. 38, 77 N.E.2d 578.
" Social Security. F.C.A. 42 § 402; Railroad retirement death benefits, F.C.A. 45 § 208e.
"The legitimated child was entitled to any legal compensation for death of her father. In re Marshall, 117 Ind.App. 203, 70 N.E.2d 772.
" So as to vested rights, Gregley v. Jackson, 38 Ark. 487; McGunnigle v. McKee, 77 Pa. 81, 18 Am.Rep. 428, but, of course, descent is not a vested right. Nor does a statute charging legitimation for descent purposes affect cases where the descent is cast by death of the ancestor prior to January 1, 1954. Garland v. Harrison, 8 Leigh (Va.) 368; and see Pfeifer v. Wright, 41 Fed.(2d) 464, 73 A.L.R. 932.
" Probate Study Commission Report Part II
" See Simes on Future Interest, vol. II, § 415."
The 1970 Cumulative Supplement to the above quoted text concedes that the Probate Code has abolished legitimation by marriage and acknowledgment after birth, but fervently pleads for the courts to restore it. Neither the original text nor the supplement suggests what specific rule of "liberal interpretation" or construction might authorize us to amend § 207 to restore the legitimation statute it repealed without our thereby usurping the power to legislate, which is entrusted by our state Constitution to the General Assembly and the Governor. Ind.Const. Art. 3, § 1; Art. 4, § 1; Art. 5, §§ 13, 14.
The supplement also asks whether the provisions of Ind. Ann. Stat. § 44-109 (Burns 1965) IC 1971, 31-1-7-4 "enable a court to determine the paternity of a child under Burns' Stat., § 6-207 as well as his legitimacy so as to enable the child to inherit under Burns' Stat., § 6-201 [IC 1971, 29-1-2-1]", suggesting that if it does "then much of the problem raised by Burns' Stat., § 6-207 (b) can be solved." The basic fallacy in that wishful thinking is that the statute (§ 44-109) purports merely to authorize judicial action by the court, i.e., the entry of a declaratory judgment. Legislative power is not, and could not be, granted to courts. Ind.Const.Art. III.
It is obvious that the statute does not so state. If the judge meant to say that its meaning and effect is the same as though it had so "stated", he failed to set forth the reasons which lead him to that conclusion. We are at a loss to supply them.
Additionally we acknowledge dicta in Profitt v. Profitt (1965), 137 Ind.App. 6, 9, 204 N.E.2d 660, 661, 4 Ind.Dec. 638, as follows:
The rationale of our decision in that case was that there was no basis for the trial court's finding "that two children born in 1957, and 1958, respectively, during the existence of a prior valid marriage, were born as a result of a marriage not entered into until September 26, 1959." (Id. at 10, 204 N.E.2d at 662). Thus the judge who wrote that opinion had no reason to investigate whether "appellee's authorities" were based on 1 R.S. 1852, Ch. 27, § 9 or on § 2070 of the 1953 Probate Code.
We also note that West's Indiana Law Encyclopedia contains a section (5 I.L.E. Children Born Out of Wedlock § 3) which states that "[a] child born out of wedlock will be deemed to be legitimate if either the paternity of such child has been established by law during the father's lifetime or if the putative father marries the mother of the child and acknowledges the child to be his own." The only authority cited is simply "Burns' Ann.St. § 6-207". Other sentences in that section which elaborate on that theme are documented by footnote citation of Indiana cases decided prior to the adoption of the Probate Code, but no mention is made of the statutes under which they were decided.
Lastly we note that Judge Wickens, in Witt v. Schultz (1966), 139 Ind. 142, 143, 217 N.E.2d 163, 164, 8 Ind.Dec. 500, has accurately characterized the effect of section 207(b) of the Probate Code, by saying: "Two statutory means by which this petitioner may be entitled to be treated as a legitimate child of the father for purposes of inheritance only, are contained in the Indiana Probate Code." (Emphasis added.)
Blackstone speaks of "the duty of parents to their bastard children", but makes no express mention of rights. However, he parenthetically negated parental rights by saying that "bastards are not looked upon as children to any civil purposes."
The only duty he mentions is maintenance, describing the method by which it is provided (pursuant to Stat. 18 Eliz. c. 3. 7 Jac. I c. 4, 3 Car. I. c. 4. 13 and 14 Car. II c. 12. 7 Geo. II, c. 31.) in words which read as though he were describing Indiana's pre-1942 bastardy statute (2 R.S. 1852, Ch. 3, as last amended by Acts 1935, ch. 168), apparently considered a criminal proceeding. He also mentions "that a man shall not marry his bastard sister or daughter". 1 Commentaries 458.
"Our statutes do not confer upon the putative father of a bastard the right to inherit from him, even though he may have acknowledged such child as his own... ." L.T. Dickason Coal Co. v. Liddil (1911), 49 Ind.App. 40, 45, 94 N.E. 411, 413. See also 2 Henry's Probate Law Descent § 11, p. 1404; Ellis v. Hatfield (1863), 20 Ind. 101, 102.
A statute replaced by the Probate Code, 1 R.S. 1852, Ch. 27, § 10, (Ind. Ann. Stat. § 6-2311 [Burns 1933]) provided:
Which obviously left no room for inheritance by the natural father nor have we found any pre-Probate Code statute which purported to confer any such right on him.
See also Profitt v. Profitt (1965), 137 Ind.App. 6, 10, 204 N.E.2d 660, 661, 4 Ind.Dec. 638, 641. (also cited ante, n. 18.)
At that time (1940) there were no inheritance rights between an illegitimate father and child. Saks v. Saks (1947), 189 Misc. 667, 71 N.Y.S.2d 797. L. 1966, c. 952, amended by L. 1967, c. 686, cited as E.P.T.L. § 4-1.2 (i.e., Estates, Powers and Trusts Law § 4-1.2) now provides:
Pursley v. Hisch (1949), 119 Ind.App. 232, 85 N.E.2d 270, of course antedated the Probate Code. At first blush it seems to suggest that a paternity adjudication in an action under the children-born-out-of-wedlock statute by a married woman would affect the status of the child, but it never actually speaks of the presumption of legitimacy, only of the presumption of the husband's paternity, and concludes:
Different judges of the Family Court, City of New York, have given opposite answers to the question of whether a putative father can maintain an action under New York's equivalent of our children-born-out-of-wedlock act. In Matter of Crane v. Battle (Fam.Ct.N.Y.Co. 1970), 62 Misc.2d 137, 307 N.Y.S.2d 355, it was held that he could maintain the action, based largely on the premise that it would be unconstitutional to deny plaintiff "[equal] access to the laws ... solely because he is a male." (The mother was married at all times [though informally separated], but nothing was said about plaintiff's standing other than the language of the statute authorizing the action which mentions the putative father only as a respondent.) Eight months later in Roe v. Roe (Fam. Ct.Kings Co. 1970), 65 Misc.2d 335, 316 N.Y.S.2d 94, the contrary result was reached. There the child was born to the mother while married to one other than the petitioning putative father. After the birth the mother divorced her husband and married petitioner. Again apparently solely on the wording of the statute, it was held the father had no standing, pointing out that he was not "deprived of access to the laws" because he had a remedy under the declaratory judgment act, citing Matter of Melis v. Dept. of Health (1940), 260 App.Div. 772, 24 N.Y.S.2d 51 (cited herein ante, p. 602).
Roe also quoted Comm. v. Koehler, supra, and suggests:
The establishment of paternity in Indiana in an action under the children-born-out-of-wedlock act, even when the mother's testimony is properly corroborated, poses like questions with regard to inheritance rights under Probate Code § 207, Ind. Ann. Stat. § 6-207, quoted ante, p. 603.
Since the New York decisions in both the Crane and Roe cases, the United States Supreme Court has invalidated an Idaho statute which provided that "males must be preferred to females" when several persons seeking letters of administration were otherwise equally entitled. Reed v. Reed (Nov. 22, 1971), 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225, reversing 93 Idaho 511, 465 P.2d 635. The decision clearly does not invalidate all discrimination between sexes.
The exclusion of putative fathers as sole plaintiffs under the children-born-out-of-wedlock act may well bear "a rational relationship to ... [the] state objective ... sought to be advanced by ... [the act]." Especially if declaratory judgment is held to be a proper procedure for establishing paternity for inheritance purposes.
If there be instances in which a child's interest is represented by a parent so that the judgment binds the child even though he is not a party, this case lacks the identity of interest between the child and either party necessary to make either the child's representative.