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FOR PUBLICATION
ATTORNEYS FOR APPELLANT: GREGORY F. ZOELLER Attorney General of Indiana ATTORNEYS FOR APPELLEE: C. JACK CLARKSON Clarkson & Gulde, P.C. Rushville, Indiana SEAN LEMIEUX Lemieux Law Offices Bloomington, Indiana

FRANCES BARROW Deputy Attorney General Indianapolis, Indiana

FILED
Dec 27 2010, 9:55 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF PATERNITY OF M.F. and C.F., J.F. Appellant-Petitioner, vs. W.M., Appellee-Respondent. ) ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 21A04-1002-JP-84

APPEAL FROM THE FAYETTE CIRCUIT COURT The Honorable Daniel L. Pflum, Judge Cause No. 21C01-0903-JP-145

December 27, 2010 OPINION - FOR PUBLICATION

FRIEDLANDER, Judge

J.F. (Mother), on behalf of her minor children, M.F. and C.F., appeals the denial of a petition to establish paternity of M.F. and C.F. in W.M. (Father). Mother presents the following restated issues for review: 1. Did the trial court err in denying Mother's petition to establish paternity? Did the trial court err in indicating it would consider awarding costs and attorney fees against the State?

2.

We affirm in part, reverse in part, and remand. The relevant facts are that in 1996, Mother was cohabiting and in a committed, longterm relationship with a woman we shall refer to henceforth as Life Partner. They wanted a child, so Mother and Father, who was a friend of Mother's, agreed that he would provide sperm with which to impregnate Mother. After a child (M.F.) was conceived but a few weeks before M.F. was born, the parties signed an agreement (the Donor Agreement) prepared by counsel for Mother in which the parties agreed that Father had donated sperm to Mother and a child was thereby conceived. The Donor Agreement contained the following provisions: 6. Waiver and Release by Mother. Mother hereby waives all rights to child support and financial assistance from Donor, including assistance with medical and hospital expenses incurred as a result of her pregnancy and delivery, and releases Donor from any and all claims of support for the child. It is expressly agreed that Mother will be solely responsible for the financial support of the child. Waiver and Release by Donor. Donor hereby waives all rights to custody of or visitation with such child and releases Mother from any and all claims for visitation and covenants that he will not demand, request or compel any guardianship, custody or visitation rights with any such child. The parties expressly agree that Mother will act with
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7.

sole discretion as to all legal, financial, child-rearing and medical needs of such child without any involvement by or demands of authority from Donor, and Donor expressly agrees that Mother shall have sole physical and legal custody of such child and that Mother's custody of such child is in the child's best interest. 8. Mutual Covenant Not to Sue. Mother and Donor mutually agree to forever refrain from initiating, pressing, or in any way aiding or proceeding upon an action to establish legal paternity of the child due to be born on or about September 19, 1996.

Appellant's Appendix at 14. C.F. was born to mother seven years later, in 2003. Mother and Life Partner were still together at the time. Mother and Life Partner's relationship ended sometime around 2008, when the children were approximately twelve and five years old, respectively. Mother filed for financial assistance in Fayette County. That ultimately led to the IV-D Prosecutor of Fayette County filing, on Mother's behalf, a Verified Petition for the Establishment of Paternity. The petition was filed on March 9, 2009. Father responded to the petition alleging multiple defenses, all which essentially cited the Donor Agreement as their basis. DNA testing established that Father was indeed the biological father of both of Mother's children. A hearing was conducted on November 13, 2009. The discussion centered primarily on the validity of the contract. In a nutshell, at the hearing, Father stressed that the parties had a valid donor contract that precluded a paternity action against Father. Mother's argument at the hearing focused on her claim that the contract was invalid as against public policy. This argument, in turn, was based upon her contention that this contract runs afoul of the principle that the law will not enforce a contract that divests a child of support from either parent. Although it was arguably relevant to the issues before the trial
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court, the parties did not address the manner of the older child's conception. Following the hearing, the trial court denied the petition to establish paternity as to both children on the aforementioned contract grounds. Essentially, the court held that the contract is valid and does not contravene sound public policy. Therefore, the court held that Mother was prohibited by contract from seeking to establish paternity in Father. Mother appeals that determination. The trial court entered findings of fact and conclusions of law sua sponte. In such cases, we apply a two-tiered standard of review. We first determine whether the evidence supports the findings; next, we determine whether the findings support the judgment. See Butler Univ. v. Estate of Verdak, 815 N.E.2d 185 (Ind. Ct. App. 2004). Findings of fact and conclusions of law will be set aside only if they are clearly erroneous. Id. Findings and conclusions are clearly erroneous when the record contains no facts or inferences supporting them. Id. "`A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made.'" Id. at 190 (quoting Learman v. Auto Owners Ins. Co., 769 N.E.2d 1171, 1174 (Ind. Ct. App. 2002), trans. denied). We consider only the evidence favorable to the judgment and all reasonable inferences drawn therefrom, and we will neither reweigh the evidence nor assess witness credibility. Butler Univ. v. Estate of Verdak, 815 N.E.2d 185. Findings entered sua sponte control only the issues they cover, and a general judgment standard of review controls issues upon which there are no findings. Id. "A general judgment will be affirmed if it can be sustained on any legal theory supported by the evidence." Id. at 190-91.

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A valid contract requires the following elements: An offer, an acceptance, consideration, and a manifestation of mutual assent. Indiana Bureau of Motor Vehicles v. Ash, Inc., 895 N.E.2d 359 (Ind. Ct. App. 2008). The parties concede that all of these elements are present here. We are confronted in this case, however, with a specific kind of contract, i.e., one between sperm donor and recipient regarding the conception of a child. Contracts of this nature present a different question with respect to contractual viability. Our Supreme Court discussed contracts of this particular variety at some length in Straub v. B.M.T. by Todd, 645 N.E.2d 597 (Ind. 1994). The Court noted that other jurisdictions that have addressed support issues arising from situations involving artificial fertilization have done so via the adoption of statutes based on the Uniform Parentage Act (UPA) and the Uniform Status of Children of Assisted Conception Act (USCACA). Citing Jhordan v. Mary K., 224 Cal. Rptr. 530 (Cal. Ct. App. 1986), the Court also noted, "[t]he majority of states adopting [similar] legislation ... hold that the donor of semen ... provided to a licensed physician for use in the artificial fertilization of a woman, is treated under the law as if he ... were not the natural parent of the child thereby conceived." Straub v. B.M.T. by Todd, 645 N.E.2d at 600. On the critical question of the enforceability of assisted conception contracts in Indiana, the Court evaluated the agreement in that case "within the parameters of common law as influenced by the emerging contract principles surrounding reproductive technology." Id. The Court held that the agreement failed on several counts, including: (1) insemination was achieved via intercourse ("`there is no such thing as `artificial insemination by

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intercourse'", id. at 601); (2) the agreement appeared "for all the world as a rather traditional attempt to forego this child's right to support from [the donor]", id.; and (3) the agreement contained "none of the formalities and protections which the legislatures and courts of other jurisdictions have thought necessary to address when enabling childless individuals to bear children." Id. Notably, however, the Court in Straub appears to have signaled that assisted conception contracts might be enforceable in Indiana in certain circumstances. Recalling the above reference to Jhordan, and noting the Supreme Court's description of the UPA and the USCACA as "excellent tools for ensuring that contracts for these services do not violate our public policy of protecting the welfare of children", we conclude that Straub may be fairly read as endorsing the view that such contracts may be valid if they comport with the requirements of those uniform acts. Id. at 600. What are those requirements? In Jhordan, the California court set out the requirements of the California legislation, which was modeled after the UPA. The relevant statute provided that a "donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived." Cal. Civ. Code

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