Preview:

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be 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.

ATTORNEY FOR APPELLANT: P. JEFFREY SCHLESINGER Merrillville, Indiana

ATTORNEY FOR APPELLEES: JOANNE K. ELDRED Terrell & Thrall, LLP Valparaiso, Indiana

IN THE COURT OF APPEALS OF INDIANA
STEPHEN SUMMERS, Appellant-Respondent, vs. KENNETH DAVIS and JENNIFER DAVIS, Appellees-Petitioners. ) ) ) ) ) ) ) ) )

No. 45A05-0701-CV-49

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Mary Beth Bonaventura, Judge Cause No. 45D06-0410-AD-151

August 31, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE

Jennifer Davis and Kenneth Davis ("the Davises") adopted their niece, K.S., and nephew, M.D. In their Adoption Petition, which the trial court granted, they identified Stephen Summers as K.S.'s father. Summers filed a Trial Rule 60 Motion to Set Aside the Adoption, which the court denied. Summers then filed a Motion to Correct Error, which the court also denied. He appeals and presents four issues, which we restate as follows: 1. 2. Whether the trial court erred by denying his motion to correct error. Whether the trial court erred when it denied Summers the opportunity to make an offer to prove. Whether the trial court erred by ordering Summers to pay the Davises' attorney's fees.

3.

We affirm in part and reverse and remand in part. FACTS AND PROCEDURAL HISTORY Jessica Fecht gave birth to K.S. on August 21, 1999, in Joliet, Illinois. Fecht gave birth to a second child, M.D., in November 2000. Fecht had a drug problem, and both children came to live with Fecht's sister and her husband, the Davises. On October 28, 2004, the Davises filed a Verified Petition for Adoption of K.S. and M.D. Fecht consented to the adoption. The Davises identified Stephen Summers as K.S.'s biological father. The Davises, however, did not have an address for Summers, and Summers had had no contact with K.S. for three years. Summers also had not paid any child support. The Davises published a Legal Notice in the Crown Point Star on

2

November 18, November 25, and December 2, naming Summers and informing him of their adoption petition. The trial court held a hearing on the adoption petition on January 28, 2005. Both Davises testified, and the court reviewed the home report, which included a recommendation that the adoption be granted. The court granted the adoptions and issued its Decree at the hearing. On January 19, 2006, Summers, by counsel, filed his T.R. 60 Motion to Set Aside Default Adoption. Summers alleged that the adoption "was fraudulently obtain[ed]" because the Davises knew where he was and did not provide notice. Appellees' App. at 27. He also claimed that he had paid child support. The Davises sought discovery from Summers and also filed a Motion to Dismiss Summers' T.R. 60 Motion. The court held a hearing on August 4, and Summers acknowledged that he had never filed with the Putative Father Registry either in Indiana or Illinois. The court issued an order dismissing Summers' T.R. 60 Motion finding that Summers was not entitled to notice of the adoption because he had never established paternity or registered as a putative father. 1 The court further found that Summers' consent to K.S.'s adoption was "irrevocably implied" by operation of statute due to his failure to register. The Davises requested that the court order Summers to pay their attorney's fees, and the court denied that request.

The Davises argue that Summers' T.R. 60 Motion was also time barred. The August 4 Order, prepared by the Davises' counsel, states, "Because the Court dismisses the putative father's motions on the foregoing basis, it does not address the merits of the adoptive parents' argument that the putative fathers' Motions to Set Aside . . . must fail [because] the motions were time-barred pursuant to I.C. 3119-14-2." Appellees' App. at 53. We likewise do not address that argument.

1

3

On September 6, Summers filed a Motion to Correct Error alleging that the court erred by: 1) determining that he was required to register as a putative father; 2) denying him due process when it applied the putative father registry statutes; and 3) permitting the Davises to "state fraudulently that they were unaware of Summers' whereabouts or that he had no contact with his daughter." Id. at 55. The court held a hearing on December 1. When Summers attempted to present testimony, the court stated: At this point, I want to hear argument with regard to the Motion to Correct Error[] and I'd like to hear argument. I do not think at this point it's necessary to hear witnesses. The question is: Whether or not when the Order was entered there, in fact, was an error committed, and that's a question of law, it's not a question of fact. Transcript at 67. Summers argued that the putative father registry statute did not apply to him because the mother had disclosed his name. Summers attempted to make an offer of proof to support his claim that the Davises committed fraud. The Davises objected, and the court stated that it did not need evidence because "this is . . . strictly a legal issue." Id. at 81. The court then overruled Summers' Motion. The Davises renewed their request for attorney's fees and presented an affidavit in support of that request. On December 11, the court issued its written order denying Summers' Motion to Correct Error and awarding attorney's fees in the amount of $907 to the Davises' attorney. This appeal ensued.

4

DISCUSSION AND DECISION Issue One: Motion to Correct Error 2 We review the denial of a motion to correct error for abuse of discretion. Benjamin v. Benjamin, 849 N.E.2d 719, 723 (Ind. Ct. App. 2006). The trial court abuses its discretion when its ruling is against the logic and effect of the facts and circumstances before it and its ruling "is without reason or is based upon impermissible reasons or considerations." Id. An abuse of discretion can also occur if the court has misinterpreted the law. French v. French, 821 N.E.2d 891, 895 (Ind. Ct. App. 2005). A. Applicability of Putative Father's Registry Summers acknowledges that he never filed with the Indiana Putative Father's Registry, but he argues that the trial court erred in applying those statutes to his case. Our legislature established the procedures in those statutes in 1994 "[i]n an effort to balance the competing interests in adoption." In re Adoption of J.D.C., 751 N.E.2d 747, 749 (Ind. Ct. App. 2001). The purpose of the registry is to determine the name and address of a father where the mother has not disclosed his "name and address" before she executes a consent to adoption. Ind. Code

Download Stephen Summers v. Kenneth Davis and Jennifer Davis.pdf

Indiana Law