FILED
Jun 04 2020, 10:44 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE –
Jay Lauer FREDY SANCHEZ CORTES
South Bend, Indiana Elizabeth A. Bellin
Elkhart, Indiana
ATTORNEY FOR APPELLEE –
STATE OF INDIANA
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Paternity of J.G.; June 4, 2020
Wendy Sonora Hernandez and Court of Appeals Case No.
19A-JP-2429
Margarito Guzman,
Appeal from the Elkhart Superior
Appellants, Court
v. The Honorable David C.
Bonfiglio, Judge
Fredy Sanchez Cortes, The Honorable James N. Fox,
Commissioner
Appellee,
Trial Court Cause No.
and 20D06-1808-JP-262
State of Indiana,
Co-Appellee.
Najam, Judge.
Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020 Page 1 of 16
Statement of the Case
[1] During her marriage to Margarito Guzman (“Husband”), Wendy Sonora
Hernandez (“Mother”) gave birth to J.G. (“Child”). Nearly five years after
Child’s birth, the State filed a paternity action as Child’s next friend in which
the State sought to establish paternity in Fredy Sanchez Cortez (“Putative
Father”). Mother moved to dismiss the State’s petition, which motion the trial
court converted to a motion for summary judgment. After a fact-finding
hearing, the court denied Mother’s motion and found Putative Father to be
Child’s biological father.
[2] Mother and Husband appeal and raise three issues for our review, which we
revise and restate as follows:
1. Whether the trial court erred when it dismissed Husband
as a party to the proceeding after it had found Putative
Father to be Child’s biological father.
2. Whether the trial court denied Mother a reasonable
opportunity to present materials relevant to her motion for
summary judgment.
3. Whether the trial court erred when it concluded that the
State’s petition was properly filed even though it filed the
petition more than two years after Child’s birth and
Putative Father had not registered with the putative father
registry.
[3] We affirm.
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Facts and Procedural History
[4] Mother and Husband were married in 2009. During their marriage, on
September 18, 2013, Mother gave birth to Child. On August 2, 2018, the State,
as Child’s next friend, filed a petition to establish paternity. In that petition, the
State asserted that Child was born to Mother out of wedlock and that Putative
Father was Child’s father. 1 Thereafter, Mother filed a motion to dismiss the
State’s petition on the ground that the State had failed to name Husband as a
party, the State had not timely filed the petition within two years of Child’s
birth, and Putative Father had not registered with the putative father registry.
The State then filed a motion to join Husband as a party, which motion the trial
court granted. Shortly after Mother had filed her motion to dismiss, Putative
Father registered with the putative father registry.
[5] On November 15, without having yet ruled on Mother’s motion to dismiss, the
court ordered the parties to submit to DNA tests. The results of those tests
indicated that there is a greater than 99% chance that Putative Father is Child’s
biological father. The court then held a review hearing on January 9, 2019. At
the hearing, Putative Father asserted that, based on the results of the DNA
tests, he is Child’s father. Mother reiterated her arguments that the State’s
petition should be dismissed as untimely and because Putative Father had not
1
In its petition, the State indicated that it was filing at Mother’s request. However, at the evidentiary
hearing, Mother informed the court that Putative Father had asked the State to file the paternity petition. See
Tr. Vol. II at 8.
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registered with the putative father registry at the time the State had filed its
petition. At the conclusion of the hearing, the court informed the parties that it
would hold an evidentiary hearing in May, and the court directed the parties to
file their witness and exhibit lists seven days prior to the hearing.
[6] Then, on May 17, the trial court held an evidentiary hearing on both the State’s
paternity petition and Mother’s motion to dismiss. 2 During the hearing,
Mother and Husband did not testify or present any evidence. Putative Father
did not testify, but he presented as evidence a petition that Husband had filed to
dissolve his marriage to Mother. In that petition, Husband stated that, while
Child was born during his marriage to Mother, Child “is not a child of the
marriage[.]” Appellee’s App. Vol. II at 12. Putative Father also presented as
evidence a verified motion for provisional orders filed by Husband in the
dissolution proceeding in which Husband listed children other than Child as
children of the marriage.
[7] On July 19, the court entered an order on Mother’s motion to dismiss and the
State’s petition. In that order, the court noted that it was treating Mother’s
motion as a motion for summary judgment. The court then found that
“precious little” evidence had been presented and that the parties had offered
“absolutely no testimony.” Appellants’ App. Vol. II at 11. Accordingly, the
2
The day prior to the evidentiary hearing, Mother filed a second motion to dismiss the State’s paternity
petition in which she reiterated the same arguments she had made in her first petition. However, the court
struck that motion on the ground that it was “redundant and repetitive.” Appellants’ App. Vol. II at 14.
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court found that Mother had “not met the burden of evidence to dismiss this
action” and denied her motion for summary judgment. Id. The court then
stated that it could not “overlook the fact that DNA establishes [Putative
Father] as the father and disregard the filing where [Husband] denies being the
father,” and it found “by clear and convincing evidence” that Putative Father is
the father of Child. Id. Thereafter, on August 2, Putative Father filed a motion
to dismiss Husband as a party to the action, which motion the trial court
granted the same day. This appeal ensued.
Discussion and Decision
Issue One: Dismissal of Husband as Party
[8] On appeal, Mother and Husband contend that the trial court abused its
discretion when it granted Putative Father’s motion to dismiss Husband from
the proceeding. Specifically, Mother and Husband contend that the court “did
not wait for the expiration of the thirty (30) day deadline for [Husband] to file a
Notice of Appeal.” Appellant’s Br. at 21. However, we hold that Mother and
Husband have failed to meet their burden on appeal to demonstrate that the
court abused its discretion.
[9] It is well settled that the Indiana Appellate Rules require appellants to include
in their brief an argument section that “contain[s] the contentions of the
appellant[s] on the issues presented, supported by cogent reasoning. Each
contention must be supported by citation to the authorities, statutes, and the
Appendix or parts of the Record on appeal relied on[.]” Ind. Appellate Rule
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46(A)(8)(a). Here, Mother and Husband have not provided any argument to
explain why the court was required to wait until the thirty-day period in which
they could file a notice of appeal had elapsed before it could rule on Putative
Father’s motion to dismiss Husband as a party to the proceeding. Further,
Mother and Husband have not provided a single citation to legal authorities to
support their assertion. As a result, Mother and Husband have not met their
burden on appeal to demonstrate that the court abused its discretion when it
dismissed Husband as a party. 3
Issue Two: Opportunity to Present Materials
[10] Mother next contends that the trial court did not provide her with a reasonable
opportunity to present relevant materials after converting her motion to dismiss
to a motion for summary judgment. 4 Indiana Trial Rule 12(B) provides that,
where a court treats a motion to dismiss as a motion for summary judgment,
“all parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.”
3
Further, we note that Husband disclaimed Child in his petition to dissolve his marriage to Mother. Indeed,
Husband specifically stated that, while Child was born during his marriage to Mother, Child “is not a child of
the marriage[.]” Appellee’s App. Vol. II at 12. Thus, it appears that Husband is now attempting to maintain
a different position than he took in the dissolution proceeding. However, judicial estoppel may prevent a
party from asserting a position in a legal proceeding inconsistent with one previously asserted. Turner v.
Stuck, 778 N.E.2d 429, 431 (Ind. Ct. App. 2002). Here, Mother and Husband have not provided any
argument or explanation why Husband is not judicially estopped from claiming to the trial court that he is
Child’s father.
4
The parties do not contend that the trial court erred when it treated Mother’s motion as a motion for
summary judgment.
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[11] On appeal, Mother asserts that the court “did not provide either party with any
notice, prior to the issuance of its decision[,]” that it intended to treat her
motion to dismiss as a motion for summary judgment. Appellant’s Br. at 20.
Accordingly, Mother maintains that the court did not provide her with “a
reasonable opportunity to present” relevant materials. Id.
[12] We acknowledge that the trial court did not inform the parties in advance that it
intended to treat Mother’s motion to dismiss as a motion for summary
judgment. But it is well settled that a trial court’s “failure to give explicit notice
of its intended conversion of a motion to dismiss to one for summary judgment
is reversible error only if a reasonable opportunity to respond is not afforded a
party and the party is thereby prejudiced.” Azhar v. Town of Fishers, 744 N.E.2d
947, 950 (Ind. Ct. App. 2001).
[13] Here, Mother simply asserts that, had the court given the parties notice of its
intent to treat Mother’s petition as one for summary judgment, she could have
submitted “additional documents” to support her position or to refute the
allegations or documents submitted by Putative Father. Appellants’ Br. at 20.
However, at the review hearing in January, the court notified the parties that it
would hold an evidentiary hearing in May, and the court directed the parties to
file their witness and exhibits lists. The court then held an evidentiary hearing
on both the State’s petition and Mother’s motion at which Mother appeared.
At that hearing, Mother had the opportunity to present any evidence that was
relevant to either filing, but she did not offer any. Accordingly, Mother had
several months’ notice that the court would hear evidence and, as such, she has
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not shown that she was prejudiced by the trial court’s failure to provide her with
explicit notice of its intent to treat her motion as one for summary judgment.
We therefore cannot say that the court committed reversible error on this issue.
Issue Three: Denial of Motion for Summary Judgment
[14] Finally, Mother contends that the trial court erred when it denied her motion
for summary judgment. Our standard of review for summary judgment appeals
is well settled. The Indiana Supreme Court has explained that
[w]e review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to
“demonstrate [ ] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an
issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). And “[a]lthough the non-moving
party has the burden on appeal of persuading us that the grant of
summary judgment was erroneous, we carefully assess the trial
court’s decision to ensure that he was not improperly denied his
day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
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916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some
alterations original to Hughley).
[15] Further, this appeal requires us to interpret statutes. As this Court has stated,
“[t]he primary purpose of statutory interpretation is to ascertain and give effect
to the intent of our legislature. The best evidence of legislative intent is the
statutory language itself, and we strive to give the words in a statute their plain
and ordinary meaning.” 21st Amendment, Inc. v. Ind. Alcohol & Tobacco Comm’n,
84 N.E.3d 691, 696 (Ind. Ct. App. 2017) (citations and quotation marks
omitted).
[16] On appeal, Mother maintains that the court erred when it denied her motion for
summary judgment because the State’s petition was untimely and because
Father had not registered with the putative father registry at the time the State
filed its petition.5 We address each argument in turn.
5
Throughout her argument on this issue, Mother refers to the petition as “Putative Father’s paternity
petition.” Appellants’ Br. at 13. However, the State, not Putative Father, filed the paternity petition on
behalf of Child. See Appellants’ App. Vol. II at 17.
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Timeliness of Petition
[17] Mother first contends that the trial court erred when it denied her motion for
summary judgment because the State had not timely filed its paternity petition. 6
Specifically, Mother asserts that a paternity petition must be filed not later than
two years after a child is born. And because the State did not file its petition
until Child was almost five years old, Mother maintains that the State filed its
petition outside the two-year statute of limitations.
[18] To support her assertion, Mother relies on Indiana Code Section 31-14-5-3(b)
(2019), which provides that a “mother, a man alleging to be the child’s father,
or the [Indiana Department of Child Services] or its agents must file a paternity
action not later than two (2) years after the child is born[.]” However, there are
exceptions to that requirement. Indeed, Indiana Code Section 31-14-5-3(b)(3)
provides that a paternity petition must be filed within two years of a child’s
birth unless “the mother, the department, or a prosecuting attorney operating
under an agreement or contract described in I[ndiana] C[ode Section] 31-25-4-
13.1 files a petition after the alleged father has acknowledged in writing that he
is the child’s biological father.”
[19] Here, the prosecuting attorney filed the paternity petition. And there is no
dispute that the prosecuting attorney was operating under an agreement
6
Mother asserts that the trial court did not have jurisdiction to hear the petition because it was untimely.
However, this Court has previously held that the “statute of limitations for paternity actions is not
jurisdictional.” Nash v. Howell (In re Paternity of K.H.), 709 N.E.2d 1033, 1035 (Ind. Ct. App. 1999).
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described in Indiana Code Section 31-25-4-13.1. 7 Accordingly, the State was
not required to file its petition within two years of Child’s birth and, as such, the
State’s petition was timely filed.
[20] Mother acknowledges that that exception allows a prosecuting attorney to file a
paternity petition more than two years after a child’s birth. However, Mother
directs us to Indiana Code Section 31-14-4-1(7), which provides that a
prosecuting attorney can only file a paternity petition “[i]f the paternity of a
child has not been established[.]” Based on that statute, Mother asserts that,
here, paternity was established for Child when Child was born during her
marriage to Husband.
[21] In support of her position, Mother relies on Indiana Code Section 31-14-7-1(1).
But that statute states that a man is “presumed to be” a child’s father if the child
is born while the man is married to the child’s mother. That is, Mother has
equated the term “presumed” as used in Indiana Code Section 31-14-7-1(1)
with the term “established” as used in Indiana Code Section 31-14-4-1(7). But
we “presume the legislature deliberately used a different term because it
intended to communicate a different meaning.” In re Adoption of B.C.H., 22
N.E.3d 580, 585 (Ind. 2014). Had the legislature intended for paternity of a
7
For the first time in her reply brief, Mother asserts that the State’s paternity petition “did not comply” with
Indiana Code Section 31-14-5-3(b)(3) because the petition did not state that Putative Father had
acknowledged in writing that he is Child’s biological father. Reply Br. at 9. While the statute requires a man
to acknowledge in writing that he is a child’s biological father before the prosecuting attorney can file a
paternity petition, we see no requirement in that statute that the petition itself must include a statement that
the alleged father had acknowledged in writing that he is the father. See I.C. § 31-14-5-3(b)(3).
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child to be “established” simply because of a husband’s marriage to the child’s
mother, it could have said so. But it did not. Rather, it explicitly provided that
a husband’s marriage only creates a rebuttable presumption of paternity. See
I.C. § 31-14-7-1(1).
[22] Indeed, it is well settled that the fact that a child was born while his mother was
married “does not establish that the child was born during wedlock.” K.S. v.
R.S., 669 N.E.2d 399, 402 (Ind. 1996) (emphasis added). And our Supreme
Court has observed that the presumption of fatherhood created by Indiana
Code Section 31-14-7-1(1) “is not conclusive[.]” Fairrow v. Fairrow, 559 N.E.2d
597, 600 (Ind. 1990). On the contrary, that presumption of paternity “can be
rebutted[.]” T.M. v. L.D. (In re I.J.), 39 N.E.3d 1184, 1188 (Ind. Ct. App. 2015).
[23] Because the presumption of paternity that arises when a man is married to a
child’s mother is not conclusive and can be overcome, we hold that the
paternity of a child has not been established simply by virtue of the marriage.
Here, even though Husband was presumed to be Child’s father, his paternity
had not been established. And because the paternity of Child had not been
established, the prosecuting attorney was authorized to file the paternity
petition. See I.C. § 31-14-4-1(7)(B).
[24] In any event, while not discussed by Mother or Putative Father, we note that
Indiana Code Section 31-14-5-2(a) provides that a person less than eighteen
years of age “may file a petition if the person is competent except for the
person’s age. A person who is otherwise incompetent can file a petition
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through the person’s . . . next friend.” And a child may file a paternity petition
“at any time before the child reaches twenty (20) years of age.” I.C. § 31-14-5-
2(b). Here, the prosecuting attorney filed the petition on behalf of Child as
Child’s next friend.8 Because the prosecuting attorney was filing on behalf of
Child, he was authorized to file the petition at any time before Child turned
twenty years old. As Child was less than five years old at the time the State
filed its petition, the petition was timely. The trial court did not err when it
denied Mother’s motion for summary judgment on the ground that the State’s
petition was untimely.
Registration with Putative Father Registry
[25] Mother also asserts that the trial court erred when it denied her motion for
summary judgment because Putative Father had not registered with the
putative father registry at the time the State filed its paternity petition, which
she maintains Putative Father was required to do before the State could file the
petition. To support her assertion, Mother relies on Indiana Code Section 31-
14-5-7, which provides that a “man who files or is a party to a paternity action
shall register with the putative father registry” under Indiana Code Chapter 31-
19-5.
[26] Indiana Code Section 31-19-5-12 provides that, in order to be entitled to a
notice of an adoption, a putative father must register with the putative father
8
It is well settled that “prosecutors may bring paternity actions as next friends of children.” J.R.W. ex rel.
Jemerson v. Watterson, 877 N.E.2d 487, 491 (Ind. Ct. App. 2007).
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registry not later than thirty days after the child’s birth or the earlier of the date
of the filing of a petition for the child’s adoption or the termination of the
parent-child relationship between the child and the child’s mother. And
Indiana Code Section 31-14-5-9 states that “[a] man who is barred under
[Indiana Code Article] 31-19 from establishing paternity may not establish
paternity by . . . requesting a prosecuting attorney to file a paternity action.”
Based on those statutes, Mother maintains that Putative Father was required to
register with the putative father registry.
[27] To further support her assertion, Mother relies on J.W. v. R.M. (In re G.W.), 983
N.E.2d 1193 (Ind. Ct. App. 2013). In that case, the child was subject to an
adoption proceeding, and the putative father had not registered with the
putative father registry. Rather, four days after the adoption petition was filed,
the putative father asked the State to file a paternity petition. On appeal, this
Court stated that
the requirement that the putative father registers within a certain
time limit[] is not solely mandated in adoption proceedings but
carries its mirror consequences into the paternity proceedings. In
particular, “[a] man who files or is a party to a paternity action
shall register with the putative father registry under [Indiana
Code Chapter] 31-19-5.” I.C. § 31-14-5-7. Likewise, “a man
who is barred under [Indiana Code Article] 31-19 from
establishing paternity may not establish paternity by: (1) filing a
paternity action as next friend of child; or (2) requesting a
prosecuting attorney to file a paternity action.” I.C. § 31-14-5-9.
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Id. at 1197 (some alterations in original). As the putative father had not
registered with the putative father registry, this Court held that he had impliedly
consented to the child’s adoption and that he was barred from establishing
paternity. Id. at 1198.
[28] However, we agree with Putative Father and the State that Mother’s reliance on
that case and the putative father registry statutes is misplaced. The putative
father registry statutes simply require a man who wishes to contest a child’s
adoption to timely register with the putative father registry. And the term
“mirror consequences” as used in In re G.W. means only that, if a putative
father fails to timely register, he cannot circumvent that registration
requirement by filing a petition to establish paternity.
[29] Neither this Court’s holding in In re G.W. nor the statutes cited by Mother
require every putative father to register with the putative father registry before
he can file a petition to establish paternity or ask a prosecutor to file as a child’s
next friend. Indeed, this Court specifically noted that the “statute governing the
putative father’s registry imposes registration requirements on putative fathers
who wish to contest their child’s adoption or those who petition for paternity
while an adoption proceeding is pending.” Id. at 1196-97. Thus, contrary to
Mother’s assertions, the requirement for a man to register with the putative
father registry only applies when the child is subject to an adoption proceeding.
[30] Here, as Child was not subject to an adoption proceeding, Putative Father was
not required to register with the putative father registry before the State could
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file the paternity petition. As such, the court did not err when it denied
Mother’s motion for summary judgment on the ground that Putative Father
had not registered with the putative father registry. We therefore affirm the trial
court’s denial of Mother’s motion for summary judgment. 9
Conclusion
[31] In sum, we hold that Mother and Husband have failed to meet their burden on
appeal to demonstrate that the court abused its discretion when it dismissed
Husband as a party to the action. We further hold that Mother has failed to
demonstrate that she was prejudiced by the trial court’s failure to provide her
with explicit notice of its intent to treat her motion to dismiss as a motion for
summary judgment. And we hold that the State timely filed its paternity
petition and that Putative Father was not required to register with the putative
father registry before the State could file its petition. As such, the trial court did
not err when it denied Mother’s motion for summary judgment. We therefore
affirm the trial court.
[32] Affirmed.
Kirsch, J., and Brown, J., concur.
9
In her reply brief, Mother asserts that the court erred when it entered summary judgment in favor of
Putative Father because there are disputed issues of material fact. See Reply Br. at 12. However, our review
of the record indicates that the court did not enter summary judgment for Putative Father. Rather, following
an evidentiary hearing, the court found by “clear and convincing evidence” that Putative Father is Child’s
father. Appellants’ App. Vol. II at 11.
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