concurring.
While I agree with the resolution of this case, I am compelled to acknowledge that I do not disagree with the Second District’s holding in R.D.S. v. S.L.S., 402 N.E.2d 30 (Ind.Ct.App.1980), as does the majority. Rather, I believe the holding in R.D.S. is still good law and that it stands for the proposition that if the paternity of a child bom during the marriage is contested in a dissolution action, the court shall look at the issue of paternity in determining the husband’s affirmative obligation of child support. Id. at 31.
Furthermore, the majority’s claim that Husband in R.D.S. “held himself out as the child’s father and entered into the marriage with knowledge that he was not the child’s father,” is directly in dispute with the holding of Judge Shield’s majority opinion wherein, after a review of the evidence, she specifically declined to accept the dissenting position that the record reflected evidence of Husband’s acknowledgment of the child as his. Id. at 35. Thus, I must disagree with the majority’s conclusion that “the R.D.S. court rejected as a basis for imposing child support the husband’s acknowledgment or equitable adoption of a child he did not father.” Instead, I believe the holding indicates that because Husband did not acknowledge or equitably adopt the child, it would have been inequitable to impose upon him an award of child support.
Simply stated, the presumption that a man is the biological father of a child born during his marriage may be rebutted by direct, clear and convincing evidence. Duke v. Duke, 185 N.E.2d 478 (Ind.Ct.App.1962). Thus, mere marriage does not automatically impute biological fatherhood to a husband.