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FOR PUBLICATION
ATTORNEY FOR APPELLANT: ARIC J. RUTKOWSKI Zappia Zappia & Stipp South Bend, Indiana ATTORNEY FOR APPELLEE: ROBERT J. PALMER May Oberfell Lorber South Bend, Indiana

FILED
Aug 21 2008, 9:32 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
IN RE: THE PATERNITY OF: BRENNAN MCGUIRE-BYERS, A Child Born Out of Wedlock, RAYMOND S. BYERS, Appellant-Respondent, vs. BRENNAN MCGUIRE-BYERS, A Child Born Out of Wedlock, MARY S. MCGUIRE, (Mother) Appellees-Petitioners, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 71A03-0803-JV-132

APPEAL FROM THE ST. JOSEPH PROBATE COURT The Honorable Peter J. Nemeth, Judge The Honorable Barbara Johnston, Magistrate Cause No. 71J01-0604-JP-516

August 21, 2008 OPINION - FOR PUBLICATION BARNES, Judge

Case Summary Raymond Byers appeals the trial court's award of retroactive child support and attorney fees for his adult son Brennan McGuire-Byers. We affirm in part, reverse in part, and remand. Issues Raymond raises three issues, which we consolidate and restate as: I. whether the trial court properly ordered him to pay retroactive child support; and whether the trial court properly awarded attorney fees.

II.

Brennan and his mother, Mary McGuire, (collectively "the Appellees") request appellate attorney fees and cross-appeal the trial court's order requiring Raymond to make the child support payments directly to Brennan. Facts The facts most favorable to the judgment show that on June 13, 1987, Brennan was born. At the time Mary and Raymond were living together in Illinois. Raymond acknowledged that he was Brennan's father. Although Raymond moved to Colorado in November of 1987, he and Mary continued their relationship. Raymond returned to Illinois for Brennan's first birthday. Soon thereafter, the couple's relationship

deteriorated. In May of 1989, Raymond moved from Colorado to Indiana. Mary hired an attorney and tried to contact Raymond regarding paternity proceedings. Raymond could not be found, and Mary did not establish paternity. Raymond's parents refused to disclose his location to Mary. Raymond discontinued contact with Brennan except for an 2

occasional card post-marked from Raymond's parents' address or a bank-issued check from Ohio. In 2005, Brennan, while still in high school, tracked down Raymond and lived with him and his family until early 2006. Brennan finished high school and at some point began living on his own and attending college. On April 26, 2006, Brennan initiated a paternity proceeding against Raymond. Brennan also moved to include Mary, as his next best friend, as a petitioner. The trial court granted Brennan's motion to include Mary as a petitioner, and Raymond was determined to be Brennan's father. On August 15, 2007, after a hearing, the trial court ordered child support in the amount of $161.00 per week. The child support order was retroactive from the date of Brennan's birth, and an arrearage of $118,560.00 was entered. Raymond was ordered to pay $75.00 per week toward the arrearage. The trial court also ordered Raymond to pay one-third of Brennan's college expenses. Brennan's child support payments were

scheduled to terminate on June 13, 2008, at which point Raymond would be required to pay $150.00 per week toward the arrearage. In its order, the trial court supported its decision to impose retroactive child support by finding: 3. The Court determines that Father was aware of the child's birth on June 13, 1987, that he held himself out as the child's father for a period of time, and then purposefully disappeared and made himself impossible for mother to locate. Indiana common law and public policy demands that parents be responsible for the financial support of their children. Mother has born the entire burden of that support. Father sent cards signed, "Love, Dad;" illustrating his knowledge of paternity. Father also sent the correspondences from his parents' address. When mother contacted father's parents in an attempt to locate father, father's parents told mother they did 3

not know father's whereabouts. The Court did not find Father's testimony that he could not recall where he lived and when he lived in various paces [sic] credible. . . . Appellant's App. p. 10. On September 7, 2007, Mary filed a motion to correct error and requested attorney fees. 1 On September 12, 2007, Raymond filed a motion to correct error. On October 31, 2007, following a hearing, the trial court modified the amount of the arrearage to $125,008.00, and awarded attorney fees to the attorney who represented the Appellees. On November 28, 2007, Mary filed a rule to show cause, and Raymond filed another motion to correct error. In its February 19, 2008 order on the motion to correct error, the trial court clarified that Raymond was required to pay attorney fees based on the attorney's representation of the Appellees. That same day, the trial court addressed Mary's rule to show cause and noted that the motion was amended to substitute Brennan for Mary, that all other pleadings shall be made in Brennan's name, and that Raymond shall make all checks payable to Brennan. Both parties now appeal. Analysis I. Retroactivity Raymond argues that the retroactive child support order is improper because the paternity action was brought by Brennan, an adult, in his own name. To address

Raymond's retroactivity claim, we first determine who may file a paternity petition and who the proper parties to the litigation are.

1

We can only glean the contents of these motions from the transcripts of the hearings and the trial court's orders because neither party included them in the appendices.

4

A parent may file a paternity action within two years after the child is born unless one of the limited exceptions applies. Ind. Code

Download The Paternity of Brennan McGuire-Byers; Raymond S. Byers v. Brennan McGuire-Byer

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