MEMORANDUM DECISION FILED
Sep 15 2016, 7:58 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
and Tax Court
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Matt Black Dan J. May
Adam Clay Kokomo, Indiana
Black Clay, LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Wright, September 15, 2016
Appellant-Petitioner, Court of Appeals Cause No.
34A04-1601-DR-60
v. Appeal from the Howard Superior
Court
Natasha G. Wright, The Honorable George A.
Appellee-Respondent. Hopkins, Judge
Trial Court Cause No.
34D04-1205-DR-467
Barnes, Judge.
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Case Summary
[1] James Wright appeals the denial of his motion to compel discovery in the
dissolution of his marriage to Natasha Wright. We affirm.
Issues
[2] James raises three issues, which we consolidate and restate as whether the trial
court properly denied his motion to compel discovery regarding the paternity of
their child. Natasha argues that she is entitled to damages and appellate
attorney fees pursuant to Indiana Appellate Rule 66(E).
Facts
[3] Q.W. was born to Natasha in November 1997, and the parties married in July
1998. In May 2012, James filed a petition for dissolution of marriage. On
November 20, 2012, the trial court dissolved the parties’ marriage. The trial
court noted that the parties were the parents of Q.W., ordered that the parties
have joint legal custody of Q.W., ordered that Natasha have physical custody of
Q.W., and ordered that James have parenting time and pay $174 per week in
child support. The trial court noted that issues pertaining to the division of the
marital estate and delinquent child support would be considered at a later
hearing.
[4] In November 2013, James filed an emergency motion to set aside portions of
the November 2012 order and terminate or stay the income-withholding order.
James alleged that Q.W. told him she had taken a paternity test and that he was
not her father. In an email exchange, Natasha’s attorney confirmed with
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James’s attorney that a paternity test indicates that another man is Q.W.’s
biological father. The trial court held a hearing, found that the email exchange
was not dispositive of the issues in this cause, and denied James’s motion.
[5] In February 2014, James sent an interrogatory to Natasha requesting “the date
of any and all paternity tests scheduled, attempted, completed, and/or
cancelled regarding the paternity of [Q.W.].” App. p. 42. Natasha objected to
the interrogatory based on medical privilege and Fairrow v. Fairrow, 559 N.E.2d
597 (Ind. 1990). James then filed a motion to compel, which the trial court
denied. James sought to file an interlocutory appeal, but this court denied his
motion. The trial court entered judgment regarding the property settlement
issues on January 14, 2016. James now appeals.
Analysis
I. Motion to Compel
[6] James argues that the trial court abused its discretion by denying his motion to
compel Natasha to answer the interrogatory regarding paternity tests. A trial
court has broad discretion in ruling on discovery issues, and we will reverse
only where it is apparent the trial court abused that discretion. WESCO
Distribution, Inc. v. ArcelorMittal Indiana Harbor LLC, 23 N.E.3d 682, 712 (Ind.
Ct. App. 2014), trans. dismissed. Indiana Trial Rule 26(B)(1) governs the scope
of discovery and provides in pertinent part that: “Parties may obtain discovery
regarding any matter, not privileged, which is relevant to the subject-matter
involved in the pending action . . . .” Initially, the trial court must determine
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whether the information requested is relevant to the issues being tried. Ramirez
v. Am. Family Mut. Ins. Co., 652 N.E.2d 511, 516 (Ind. Ct. App. 1995). If the
information is deemed relevant, then the trial court must next determine
whether a privilege exists to protect the information from discovery. Id.
[7] Both parties rely on our supreme court’s opinion in Fairrow v. Fairrow, 559
N.E.2d 597 (Ind. 1990).1 There, the parties had a child who tested positive for
the genetic trait that causes sickle cell anemia. Many years after the parties’
dissolution was final, doctors recommended that the ex-husband be tested for
the sickle cell trait. Testing revealed that the ex-husband did not carry the trait
and could not be the child’s biological father. The ex-husband filed a motion to
terminate his child support obligation under Indiana Trial Rule 60(B), which
the trial court denied. Our supreme court held that this was a “very unusual
case” and that the motion should have been granted. Fairrow, 559 N.E.2d at
599. In particular, our supreme court emphasized that the ex-husband had not
sought genetic testing because he wanted to stop paying child support. Rather,
he “stumbled upon medical evidence” that he could not be the child’s father.
Id. The court noted:
Although we grant Joe relief, we stress that that [sic] the gene
testing results which gave rise to the prima facie case for relief in
this situation became available independently of court action. In
1
James makes no argument that the trial court’s November 2012 order regarding Q.W. was not final and
that he was still entitled to challenge whether Q.W was a child of the marriage as part of the dissolution
proceedings. James’s argument is based only on Fairrow and the Indiana Parenting Time Guidelines.
Consequently, we will address the argument as presented.
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granting relief to a party who learned of his non-parenthood
through the course of ordinary medical care, we do not intend to
create a new tactical nuclear weapon for divorce combatants.
One who comes into court to challenge a support order on the
basis of non-paternity without externally obtained clear medical proof
should be rejected as outside the equitable discretion of the trial
court.
In sum, we strongly discourage relitigation of support issues
through T.R. 60(B)(8) motions in the absence of highly unusual
evidence akin to the evidence presented in this case.
Id. at 600 (emphasis added).
[8] Then, in Leiter v. Scott, 654 N.E.2d 742 (Ind. 1995), an ex-husband requested a
trial court to order DNA testing to prove that he was not the biological father of
a child identified as his child in the parties’ dissolution decree. The trial court
dismissed his petition and, based on Fairrow, our supreme court affirmed. The
court noted “the substantial disadvantages of allowing divorce litigants to use
paternity as a tool in the frequently rambunctious atmosphere following the
dissolution of a marriage.” Leiter, 654 N.E.2d at 743.
[9] Since Fairrow and Leiter, our courts have consistently held that “the use of
genetic testing to set aside paternity is outside the equitable discretion of the
trial court.” In re Paternity of T.M.Y., 725 N.E.2d 997, 1005 (Ind. Ct. App.
2000), trans. denied. The “externally obtained” clear medical proof required by
Fairrow “means that the evidence establishing non-paternity was not actively
sought by the putative father, but was discovered almost inadvertently in a
manner that was unrelated to child support proceedings.” Tirey v. Tirey, 806
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N.E.2d 360, 363 n. 2 (Ind. Ct. App. 2004), trans. denied; see also In re M.M.B.,
877 N.E.2d 1239, 1242 (Ind. Ct. App. 2007) (holding that the father was not
entitled to relief from the paternity judgments where he actively sought genetic
evidence after the children told him that he might not be their father and he did
not inadvertently obtain medical proof through ordinary medical care).
[10] Here, James is actively seeking genetic evidence that he is not Q.W.’s biological
father. He did not inadvertently obtain medical proof of non-paternity through
ordinary medical care, and the very limited exception discussed in Fairrow is
inapplicable here. Even if the trial court had wanted to grant James’s discovery
request, it was barred from doing so.2 See T.M.Y., 725 N.E.2d at 1005 (holding
that the trial court properly denied the father’s discovery request regarding
paternity testing). The results of the paternity testing were not relevant, and the
trial court properly denied James’s motion to compel.
II. Appellate Attorney Fees
[11] We next turn to Natasha’s request for damages and appellate attorney fees
pursuant to Indiana Appellate Rule 66(E). Indiana Appellate Rule 66(E)
2
James also seems to argue that he was entitled to the paternity test results pursuant to Indiana Parenting
Time Guideline I(D)(4), which provides that “both parents are entitled to direct access to their child’s
medical records, Indiana Code § 16-39-1-7; and mental health records, Indiana Code § 16-39-2-9.” Indiana
Code Section 16-39-1-7 provides: “[A] custodial parent and a noncustodial parent of a child have equal
access to the parents’ child’s health records.” A “health record” or “medical record” is defined as “written or
printed information possessed by a provider (as defined in IC 16-18-2-295) concerning any diagnosis,
treatment, or prognosis of the patient, unless otherwise defined. Except as otherwise provided, the terms
include mental health records and drug and alcohol abuse records.” Ind. Code § 1-1-4-5. There is no
indication that the alleged paternity testing concerned any diagnosis, treatment, or prognosis of Q.W., and
Parenting Time Guideline I(D)(4) does not apply here.
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provides in part that this court “may assess damages if an appeal, petition, or
motion, or response, is frivolous or in bad faith. Damages shall be in the
Court’s discretion and may include attorneys’ fees.” Our discretion to award
attorneys’ fees under Ind. Appellate Rule 66(E) is limited to instances when “an
appeal is permeated with meritlessness, bad faith, frivolity, harassment,
vexatiousness, or purpose of delay.” Ballaban v. Bloomington Jewish Cmty., Inc.,
982 N.E.2d 329, 339-40 (Ind. Ct. App. 2013). “[W]e must use extreme restraint
when exercising this power because of the potential chilling effect upon the
exercise of the right to appeal.” Id. at 340. “A strong showing is required to
justify an award of appellate damages and the sanction is not imposed to punish
mere lack of merit but something more egregious.” Id.
[12] We have classified claims for appellate attorney fees into substantive and
procedural bad faith claims. Id. To prevail on a substantive bad faith claim, the
party must show that “the appellant’s contentions and arguments are utterly
devoid of all plausibility.” Id. Procedural bad faith, on the other hand, occurs
when a party flagrantly disregards the form and content requirements of the
rules of appellate procedure, omits and misstates relevant facts appearing in the
record, and files briefs written in a manner calculated to require the maximum
expenditure of time both by the opposing party and the reviewing court. Id.
[13] Natasha argues that James’s appeal is devoid of all plausibility and that his
statement of the facts was inadequate. Although we find James’s arguments
unpersuasive, we cannot say that his arguments were devoid of all plausibility
or that he flagrantly disregarded the rules of appellate procedure. Accordingly,
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we deny Natasha’s request for damages and appellate attorney fees pursuant to
Indiana Appellate Rule 66(E).
Conclusion
[14] The trial court properly denied James’s motion to compel Natasha to produce
the results of paternity testing. We deny Natasha’s request for damages and
appellate attorney fees pursuant to Indiana Appellate Rule 66(E). We affirm.
[15] Affirmed.
Riley, J., and Bailey, J., concur.
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