Betty Thurman and Carolyn Duncan v. Kimberly L. Skinner , 53 N.E.3d 1220 ( 2016 )

FILED
Apr 27 2016, 8:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
R. Robert Yeager Robert T. Thopy
Yeager Good & Baldwin, P.A. Eric M. Glasco
Shelbyville, Indiana McNeely Stephenson
Shelbyville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Betty Thurman and April 27, 2016
Carolyn Duncan, Court of Appeals Case No.
Appellants-Petitioners, 73A04-1510-ES-1678
Appeal from the Shelby Circuit
v. Court
The Honorable Charles D.
Kimberly L. Skinner, O’Connor, Judge
Appellee-Respondent Trial Court Cause No.
73C01-1407-ES-10
Baker, Judge.
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[1] Betty Thurman and Carolyn Duncan (the Sisters) appeal the trial court’s order
on their petition to determine the heirship of their brother, Lloyd Dyer (Lloyd),
who died intestate. The trial court found that Kimberly Skinner (Kimberly) is
Lloyd’s daughter and is entitled to inherit as his sole heir. The Sisters argue
that there is insufficient evidence supporting this conclusion. They also argue
that the trial court erred by denying their motion for Kimberly to undergo a
DNA test to establish (or refute) her claim that Lloyd was her father. Finding
sufficient evidence and finding no other error, we affirm.
Facts
[2] Kimberly was born on January 7, 1968, to Linda Adams, who was unmarried
at the time. Kimberly’s birth certificate listed Linda as her mother and did not
list a father.
[3] Linda and Lloyd were married on December 25, 1974. For the next eight
years, Linda, Lloyd, Kimberly, and Linda’s son, Greg,1 lived together as a
family. They lived in the same household and participated in family activities
such as picnics, softball games, movies, and vacations. They celebrated
holidays as a family and visited with various extended family members. At one
point when Kimberly was a child, she broke her arm. Lloyd took her to the
hospital and provided his health insurance plan information to cover the costs
1
The trial court found that Greg has waived any right to claim that he is an heir of Lloyd. Greg is not a
party to this appeal.
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of her medical care. Lloyd explicitly acknowledged Kimberly as his daughter in
the presence of at least one family friend. Lloyd told Kimberly that he was her
father.
[4] On July 5, 1983, Lloyd executed two affidavits: an Affidavit of Legitimation,
in which he attested that he was Kimberly’s natural father; and an Affidavit
Requesting Amendment, in which Lloyd requested that his name be placed on
Kimberly’s birth certificate as her father. Subsequently, Kimberly received a
new birth certificate showing that her last name became Dyer and that Lloyd
was her father.
[5] Lloyd and Linda divorced on May 13, 1985. Kimberly was seventeen years old
at that time. Linda was not represented by counsel in the dissolution action and
did not participate in the proceeding other than to sign a document stating, in
part, that there were no children born of the marriage. The issue of Kimberly’s
paternity was not investigated, litigated, or determined in the dissolution
proceeding.
[6] Lloyd died intestate on July 10, 2014. On July 28, 2014, Kimberly and the
Sisters filed competing petitions for issuance of letters of administration of
Lloyd’s estate. On August 13, 2014, the Sisters filed a petition to determine
heirship, and in November 2014, they filed a petition for genetic testing.
Following a hearing, the trial court denied the petition for genetic testing on
January 27, 2015. Following an August 17, 2015, bench trial on heirship, the
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trial court entered judgment in favor of Kimberly, finding, in relevant part, as
follows:
5. . . . The evidence clearly, unambiguously, directly, and
convincingly establishes that decedent acknowledged
Kimberly as his own; decedent executed, under oath, two
affidavits wherein he stated that he was the father of
Kimberly. . . .
6. Decedent provided shelter and support from the time
shortly before his . . . marriage to Linda . . . until
sometime in the year 1983. Furthermore decedent orally
acknowledged Kimberly as his daughter. . . .
7. The Affidavit of legitimation signed by both decedent and
Linda is entitled to significant weight. Although
Petitioners have presented numerous witnesses who
testified they were in close contact with decedent over a
long period of time but never heard decedent mention a
child or daughter[,] that evidence does not overcome
decedent’s affidavit stating that he was Kimberly’s natural
father.
8. Decedent caused his name to be placed as Kimberly’s
father on her birth certificate and requested her name to be
changed on her birth record from Kimberly L. Adams to
Kimberly L. Dyer. Decedent acknowledged Kim as his
own in writing, and no evidence was presented that
decedent was unduly influenced in making such
acknowledgement.
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[7] Appellant’s App. p. 19 (internal citations omitted). The trial court held that
Kimberly is Lloyd’s sole heir and denied the Sisters’ petition. The Sisters now
appeal.
Discussion and Decision
I. Sufficiency of the Evidence
[8] First, the Sisters argue that there is insufficient evidence supporting the trial
court’s conclusion that Kimberly is Lloyd’s heir. When reviewing challenges to
the sufficiency of the evidence, our standard of review is well settled. We will
neither reweigh the evidence nor assess witness credibility, and will examine
only the evidence and reasonable inferences favorable to the judgment. Green v.
Estate of Green, 724 N.E.2d 260, 264 (Ind. Ct. App. 2000). We will affirm if
there is substantial evidence of probative value to sustain the judgment. Id.
[9] Indiana Code section 29-1-2-7 provides that, for the purpose of inheritance on
the paternal side by a child born out of wedlock, “the child shall be treated as if
the child’s father were married to the child’s mother at the time of the child’s
birth, if” one of a series of possible conditions is met. At issue in this case is the
condition that “[t]he putative father marries the mother of the child and
acknowledges the child to be his own.” I.C. § 29-1-2-7(b)(4). The burden of
proof rests on the child seeking to inherit from a putative father. Regalado v.
Estate of Regalado, 933 N.E.2d 512, 519 (Ind. Ct. App. 2010). This inquiry is a
factually sensitive one that is evaluated on a case-by-case basis. See id., 933
N.E.2d at 520 (finding that oral statements of acknowledgement of a child born
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out of wedlock were sufficient to meet the “acknowledgement” burden); Green,
724 N.E.2d at 265 (finding that evidence including affidavit, life insurance
application, dissolution petition, and medical expense plan enrollment listing
out-of-wedlock child as decedent’s child was sufficient to meet
“acknowledgement” burden).
[10] The instant case is replete with evidence supporting the trial court’s conclusion
that Lloyd acknowledged Kimberly as his own daughter:
 Lloyd, Linda, Kimberly, and Greg lived together as a family, in the same
residence, for approximately eight years. They participated in activities,
celebrated holidays, and took vacations as a family.
 When Kimberly broke her arm as a child, Lloyd took her to the hospital
and listed his own insurance policy to cover her medical expenses.
 Lloyd explicitly introduced Kimberly as his daughter to family and
friends on at least one occasion.2
Most convincingly of all, Lloyd executed not one, but two, affidavits attesting
that he was the natural father of Kimberly. He asked that her last name be
changed to his. He executed these affidavits under oath. Whether the affidavits
strictly complied with relevant statutes, as the Sisters contend, is beside the
point. The clear import of these affidavits was Lloyd acknowledging Kimberly
as his daughter.
2
The Sisters ask that we discount this evidence because it was introduced by allegedly leading questions. We
address this argument only to note that even if this evidence had been improperly admitted—which we do
not find—it would not affect the result of this appeal.
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[11] The sum of the Sisters’ attempts to discount the above evidence amounts to a
request that we reweigh evidence and assess witness credibility. As noted
above, we will not do so. While we decline to address many of their specific
arguments for this reason, we will consider their argument regarding the
dissolution proceeding. In the dissolution proceeding, Lloyd and Linda
represented to the court that no children had been born of the marriage. Under
certain circumstances, Kimberly could be bound to that finding. See In re
Paternity of J.W.L., 682 N.E.2d 519, 520-21 (Ind. 1997) (if paternity is “fully
litigated” in a divorce proceeding, then result may be binding on child); Russell
v. Russell, 682 N.E.2d 513, 518 (Ind. 1997) (if a dissolution court determines a
child is or is not a child of the marriage and that finding is based on the results
of blood or genetic testing and the issue was fully litigated, the child is bound by
the determination). In this case, it is apparent that the issue of paternity was
not “fully litigated.” Indeed, it appears as though it was not litigated at all.
And there certainly was not a blood or genetic test completed as part of that
proceeding. Under these circumstances, we find that Kimberly is not estopped
by anything that transpired in her parents’ divorce proceedings. 3
[12] We find that the evidence in the record readily supports the trial court’s
conclusion that Lloyd acknowledged Kimberly as his child. We decline the
Sisters’ requests to reweigh the evidence and assess witness credibility. We
3
To the extent that the Sisters argue that Lloyd’s failure to name Kimberly as a child in the dissolution
proceeding constitutes evidence that he did not acknowledge her as his child, we note that this is yet another
request that we reweigh the evidence. We decline to do so.
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affirm the trial court’s conclusion that Kimberly is entitled to inherit from Lloyd
as though he and Linda were married at the time of Kimberly’s birth.
II. Genetic Testing
[13] Finally, the Sisters contend that the trial court should have granted their motion
for genetic testing. The precise legal basis for their motion is unclear. As part
of a paternity action, a trial court must order genetic testing upon the motion of
any party to the action. Ind. Code § 31-14-6-1. But the Sisters are not seeking
to establish paternity, nor could they have filed a paternity action had they
desired to. Ind. Code § 31-14-4-1 (only mother, putative father, child, or certain
governmental entities may file a paternity action).
[14] Instead, the Sisters are seeking to contest Kimberly’s claim of heirship. As
noted above, the relevant statutory provision states that if Lloyd married Linda
and acknowledged Kimberly as his own, then heirship is established. I.C. § 29-
1-2-7(b). Thus, the results of any blood or genetic testing would be irrelevant to
the trial court’s heirship determination.
[15] This Court has had occasion to address similar issues on at least two occasions.
In Estate of Lamey v. Lamey, the brother of the decedent petitioned the court to
determine heirship; he challenged the right of the decedent’s sole child to
inherit. 689 N.E.2d 1265 (Ind. Ct. App. 1997). The brother asked the court to
order a genetic test to determine whether decedent was, in fact, the biological
father of the child. The Court cautioned that the brother was “wrong in
assuming that, by virtue of petitioning the court to determine heirship, he has
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automatic standing to petition the court to order paternity blood testing for a
child for whom he is not also asserting his own paternity.” Id. at 1268. The
brother argued that he was attempting to determine heirship rather than
paternity, so his petition should not be constrained by the paternity statute. The
Lamey Court did not find this argument compelling, holding as follows:
In the present case there is no practical difference between
[paternity and heirship] actions. Moreover, the laws of this state
do not expressly authorize a third party, who is not asserting
paternity in the child, to petition the court for a mandatory
determination of a child’s paternity, under the guise of an
“heirship” challenge . . . . We decline [the] invitation to
judicially create such a law.
Id. at 1269 (emphasis original).
[16] Furthermore, in Schmitter v. Fawley, this Court held that the purpose of
compelled genetic testing in the context of determining a child’s biological
father is to “establish[] legal paternity.” 929 N.E.2d 859, 863 (Ind. Ct. App.
2010). Therefore, if establishing legal paternity is not the purpose of the
requested blood test, the motion is properly denied. Id.
[17] In this case, the Sisters are not seeking to establish paternity. The purpose for
which they seek genetic testing—to determine heirship—is not a valid reason to
request genetic testing. Moreover, the results of any genetic or blood test would
be irrelevant to the trial court’s ultimate determination under Indiana Code
section 29-1-2-7(b). Consequently, we find no error in the trial court’s denial of
the motion for genetic testing.
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[18] The judgment of the trial court is affirmed.
May, J., and Brown, J., concur.
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