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ATTORNEY FOR APPELLANT David C. Kolbe Warsaw, Indiana

ATTORNEYS FOR APPELLEES Gregory F. Zoeller Attorney General of Indiana Frances H. Barrow Deputy Attorney General Indianapolis, Indiana

In the

Indiana Supreme Court
_________________________________ No. 20S04-1012-CV-676 J.M.,

Jun 23 2011, 11:12 am

FILED
of the supreme court, court of appeals and tax court

CLERK

Appellant (Petitioner below), v. M.A., et al., Appellees (Respondents below). _________________________________ Appeal from the Elkhart Superior Court, No. 20D06-0904-DR-187 The Honorable Mona E. Biddlecome, Commissioner _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 20A04-0911-CV-640 _________________________________ June 23, 2011 Shepard, Chief Justice. About a decade after J.M. signed a paternity affidavit, the State sought a support order on behalf of the child's mother. In the course of this proceeding, the trial court denied J.M.'s motion to set aside the paternity affidavit, holding his absence at a previous child support hearing ratified his signing of the affidavit. We reverse the trial court's decision as to paternity and remand this case to give J.M. the opportunity, as agreed to by the parties at oral argument, to challenge the paternity affidavit in the manner outlined in our Code.

Facts and Procedural History

J.M. and T.H. began a relationship sometime in 1998 when T.H. was already four months pregnant. J.M., then seventeen, signed an Affidavit of Paternity on the day T.H. gave birth to W.H. acknowledging he was the father. M.A. is W.H.'s guardian and receives benefits from the Elkhart County Title IV-D office.1

Elkhart County prosecutors filed a Petition for Entry of Support and Health Insurance Coverage on April 7, 2009, and the court set it for hearing on May 22, 2009. J.M. sent an e-mail on May 21, 2009, requesting a continuance to his girlfriend (saying he was traveling out of state and attempts to find counsel had been unsuccessful). The girlfriend recorded this message on a court "minute sheet" and tendered it on the day of the hearing. The trial court denied the continuance and conducted the hearing, concluding that J.M. had had over a month to find counsel. The court then entered a default judgment and a temporary support order and ordered J.M. to appear for a compliance hearing.

On August 11, 2009, J.M., now with counsel, filed a motion to set aside the paternity affidavit. The trial court heard this motion at the same time set for the compliance hearing, September 15, 2009. The trial court declared that J.M.'s "lack of appearance at [the support hearing] ratified the previously signed affidavit of paternity." (App. at 23.) The court stated: It is this Court's practice, when timely filed or requested, that DNA tests be ordered for children who sign paternity affidavits prior to the eighteenth (18th) birthdays, unless some type of ratification of that order appears

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