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Wednesday, February 16, 2005

Ind. Decisions - Court of Appeals posts three today

In re the adoption of two minor children: Julie Mariga v. Lori Flint (2/16/05 IndCtApp) [Family Law]
Baker, Judge

This case requires us to examine the nature of parenthood. Whether a parent is a man or a woman, homosexual or heterosexual, or adoptive or biological, in assuming that role, a person also assumes certain responsibilities, obligations, and duties. That person may not simply choose to shed the parental mantle because it becomes inconvenient, seems ill-advised in retrospect, or becomes burdensome because of a deterioration in the relationship with the children’s other parent. To the contrary, of key importance is the relationship between parent and children, not between parent and parent. What we must focus on is the duties owed by a parent to her children, and those duties do not evaporate along with the relationship between the parents—indeed, those duties do not evaporate even if the relationship between parent and children deteriorates.

Appellant-respondent Julie Mariga appeals from two orders: the Tippecanoe County Superior Court’s (Superior Court) order granting appellee-petitioner Lori Flint’s Petition for Child Support and the Tippecanoe County Circuit Court’s (Circuit Court) order denying Julie’s Petition to Vacate Adoption.

Julie argues that the Circuit Court erred in denying her petition to vacate the adoption. Specifically, Julie raises the following arguments with respect to the Adoption Order: (1) the Circuit Court did not have the authority to grant Julie’s Petition for Adoption because the same-sex partner of a biological parent cannot be a stepparent pursuant to the stepparent adoption statute; and (2) the adoption was procured by fraud because Lori never intended for her relationship with Julie to be a lifelong commitment.

The Child Support Order requires Julie to pay child support for her adopted children, who are the biological children of Lori, Julie’s ex-significant other. Specifically, Julie raises the following arguments with respect to the Child Support Order: the Superior Court did not have subject matter jurisdiction, and Lori failed to state a claim upon which relief may be granted because (1) the Circuit Court, rather than the Superior Court, had exclusive jurisdiction over the adoption and child support determinations; (2) the Superior Court previously dismissed Lori’s petition with prejudice, preventing it from re-opening the matter; and (3) Lori’s petition was improperly captioned and not verified.

Finding that this court has previously determined that a person may validly adopt the children of her same-sex partner without divesting the partner of any parental rights, that as a result Julie is a parent to Lori’s children, and that the adoption was not procured by fraud, we affirm the judgment of the Circuit Court. Additionally, finding that the Superior Court properly exercised its jurisdiction over Lori’s petition for child support and that she did not fail to state a claim upon which relief may be granted, we affirm the judgment of the Superior Court. * * *

Conclusion. As to Julie’s petition to vacate the adoption of her children, we find that the Circuit Court had authority to grant her petition for adoption in 1997, and it was not procured by fraud. As to Lori’s petition for child support, we find that the Superior Court properly exercised its jurisdiction and that Lori did not fail to state a claim upon which relief may be granted. The judgments of the Circuit and Superior Courts are affirmed.
SHARPNACK, J., and FRIEDLANDER, J., concur.

Dallas Farmer v. Lori Spradlin & Todd Cornett (2/16/05 IndCtApp) [Family Law]
Crone, Judge
* * * At the hearing on his motion to correct error, Cornett testified that he was “certain” that he was T.M.C.’s biological father when he executed the paternity affidavit. Tr. at 22. Spradlin testified that when she executed the affidavit, she was “pretty sure” that Cornett was T.M.C.’s biological father, although she “did have a doubt.” Id. at 15. Nevertheless, Spradlin’s uncertainty falls short of knowing that Cornett was not T.M.C.’s biological father. In sum, Farmer has failed to establish that Spradlin and Cornett engaged in a “deliberately planned and carefully executed scheme” to improperly influence the trial court to issue the paternity judgment. See footnote We therefore conclude that the trial court did not abuse its discretion in granting Cornett’s motion to correct error. Affirmed.
RILEY, J., and ROBB, J., concur.
Howard & Merry Funston v. School Town of Munster, et al. (12/16/04 IndCtApp) [Torts]
[Previously NFP]
Kirsch, Chief Judge
Howard Funston (“Howard”) and his wife Merry Funston (collectively “the Funstons”) appeal the trial court’s summary judgment ruling in favor of the School Town of Munster (“the School”) upon the Funstons’ negligence claim, which ensued after Howard fell off the back of a set of portable aluminum bleachers while attending his minor son’s basketball tournament at the School. We find the following issue dispositive: whether the trial court erred when it determined that Howard was contributorily negligent as a matter of law. We reverse and remand for further proceedings. * * *

Considering this evidence in the light most favorable to the Funstons, we find that genuine issues of material fact remain as to whether Howard knew or should have known that there was not a back behind the last tier of seats, and we cannot say as a matter of law that Howard was contributorily negligent. Accordingly, we hold that that summary judgment should not have been entered in favor of the School. Reversed and remanded.
ROBB, J., concurs.

BAKER, J., dissents with separate opinion.
* * * As the majority points out, even the slightest negligence on Howard’s part bars any recovery because his claim is governed by common law contributory negligence rules rather than the Indiana Comparative Fault Act. While contributory negligence is generally a question of fact for the jury, if the facts are undisputed and only a single inference can reasonably drawn from those facts, it is appropriate to decide the issue as a matter of law.[ftn] * * *

Whether or not the defendants share the blame for Howard’s injury is irrelevant inasmuch as I believe that he is at least slightly contributorily negligent. I would therefore affirm the decision of the trial court granting the School’s motion for summary judgment.
_______
t is undisputed that the School is a governmental entity that is not covered by the Comparative Fault Act, IC 34-51-2-2, and the Funstons’ claim is governed by common law contributory negligence principles, under which even the slightest contributory negligence by a plaintiff bars recovery. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 977 (Ind. 2001).

Posted by Marcia Oddi on February 16, 2005 01:51 PM
Posted to Ind. App.Ct. Decisions