ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
COURT OF APPEALS OF INDIANA
CHRISTOPHER D. CORRIGAN EARL McCOY
SEAN M. PERSIN The Law Office of Earl McCoy III
Withered Corrigan & Burns Lafayette, Indiana
JULIE MARIGA, )
vs. ) No. 79A02-0407-CV-612
LORI FLINT, )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Rex W. Kepner, Special Judge
Cause No. 79D02-0112-DR-367
IN THE MATTER OF THE ADOPTION OF )
TWO MINOR CHILDREN, )
JULIE R. MARIGA, )
Appellant-Petitioner, ) No. 79A02-0407-CV-612
LORI FLINT, )
APPEAL FROM THE TIPPECANOE CIRCUIT COURT
The Honorable Donald L. Daniel
Cause No. 79C01-9612-AD-55
February 16, 2005
OPINION FOR PUBLICATION
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 childrens 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 parentsindeed, 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 Courts
(Superior Court) order granting appellee-petitioner Lori Flints Petition for Child Support and the
Tippecanoe County Circuit Courts (Circuit Court) order denying Julies 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
Julies 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, Julies 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 Loris petition with prejudice,
preventing it from re-opening the matter; and (3) Loris petition was improperly captioned and
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 Loris 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 Loris 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.
Lori is the biological mother of a 16-year-old daughter and a 13-year-old son.
In 1992, Lori and the childrens biological father divorced, and, shortly thereafter,
Lori and Julie began a romantic relationship. During the course of their
relationship, Julie played an active role in the childrens lives, attending their sporting
events and school conferences.
In 1996, Julie sought to adopt the children pursuant to Indianas stepparent adoption
statute. Ind. Code § 31-19-15-2. Julie and Lori decided that Julie
should adopt the children for a variety of reasons, among them Julies desire
to provide financially for the children via life insurance, college assistance, and health
See footnote and a hope to solidify their family unit. Lori informed the
court that Julie was her life-time companion and that she wished to co-parent
the children with Julie. Appellants Consol. App. p. 5.See footnote The childrens
biological father agreed to terminate his parental rights to permit Julie to adopt
the children without terminating Loris parental rights. The Tippecanoe County Circuit Court
granted her petition for adoption on July 10, 1997, and the childrens last
names were officially changed to Mariga-Morris. Appellants App. p. 43-45. In
November 1998, Lori and Julie separated, and since that time both children have
remained with Lori.
In June 1999, Lori married a man, and, in January 2000, Lori had
a third child with her new husband. On February 8, 2001, Lori
filed a Petition to Establish Custody, Visitation, and Support (the First Petition) in
the Tippecanoe County Circuit Court. In June 2001, Lori moved to Georgia
with her husband and children because her husband was promoted by his employer
and transferred to Georgia. Julie did not challenge Loris relocation with the
After her relationship with Lori ended, Julie visited regularly with the children.
But, the visits became sporadic, and she began attending their school activities less
frequently. After Lori and the children moved to Georgia, they rarely, if
ever, communicated with Julie, and she did not visit them at all during
that period of time. Furthermore, while Julie initially paid child support, pursuant
to an informal agreement between the parties, she stopped making payments after Lori
filed the First Petition. She continues to carry the children on her
health insurance plan.
On November 9, 2001, Lori filed a voluntary motion to dismiss her first
petition, which the Circuit Court granted on November 13, 2001.See footnote On December
10, 2001, Lori filed a Petition to Establish Custody, Visitation, and Support (the
Second Petition) in the Tippecanoe County Superior Court. Following the courts determination
that the home state of Lori and the children was Georgia, and that,
as a result, the State of Indiana did not have jurisdiction at that
time over Loris petition, the court dismissed the Second Petition without prejudice.
Appellants App. p. 17-18.
In October 2003, Lori and her second husband divorced and she moved back
to Indiana with her three children. In December 2003, Lori filed a
Petition to Re-Open in the Superior Court in light of the fact that
Indiana had again become the home state for Lori and her children.
The Superior Court granted her petition to re-open. On June 25, 2004,
Julie filed an Amended Motion to Dismiss or Stay Proceedings. On June
28, 2004, the Superior Court denied Julies motion and granted Loris Petition to
Establish Custody, Visitation, and Support. Among other things, the order requires Julie
to pay child support in the amount of $290 per week and renders
Julie responsible for 75% of the childrens uninsured medical, optical, and dental expenses.
While Loris petition to establish custody, support, and visitation was pending in Superior
Court, Julie filed a Petition to Vacate Adoption in the Circuit Court on
April 2, 2004. On June 25, 2004, Julie filed an Amended Petition
to Vacate Adoption. After a hearing on September 1, 2004, approximately two
months after the Superior Court entered its order requiring Julie to pay child
support, the Circuit Court denied Julies petition to vacate the adoptions.
Julie now appeals the Circuit Courts order denying Julies petition to vacate the
adoptions and the Superior Courts order granting Loris petition for child custody, support
and visitation, and denying Julies motion to dismiss.
DISCUSSION AND DECISION
I. Adoption Order
Julie argues that the Circuit Court erred in denying her petition
to vacate the adoption. Specifically, Julie contends that: (1) the Circuit Court
did not have the authority to grant Julies 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 life-long commitment.
A. Circuit Courts Authority
This court has recently decided several cases that are adverse to Julies contention
that the Circuit Court did not have authority to grant her adoption of
Loris biological children. In In re Adoption of K.S.P., 804 N.E.2d 1253
(Ind. Ct. App. 2004), we held that a same-sex domestic partner may adopt
the biological children of her partner without divesting the parental rights of the
biological parent. In K.S.P., Monica Polchert sought to adopt the biological children
of her same-sex partner, Linda Lutz. Monica had been a part of
the immediate family for seven years, providing love, support, and day-to-day care for
the children, when she petitioned to adopt the children. Id. at 1260.
The childrens biological father consented to the termination of his parental rights
and to Monicas adoption of the children. Monica testified that she loved
the children, that she wished to share parental rights and responsibilities with Linda,
and that she wished to provide for the children financiallyincluding the ability to
place the children on her health insurance policy. Id.
The trial court denied Monicas petition, relying on Indiana Code section 31-19-15-1, which
provides that when a child is adopted, the rights of living biological parents
are divested. On appeal, this court reversed the trial court, emphasizing that
the primary concern in every adoption proceeding is the best interest of the
child. Id. at 1257. We examined the stepparent adoption statute, which
allows stepparents to adopt without divesting biological parents of their parental rights:
(a) If the adoptive parent of a child is married to a biological parent
of the child, the parent-child relationship of the biological parent is not affected
by the adoption.
(b) After the adoption, the adoptive father or mother, or both:
(1) occupy the same position toward the child that the adoptive father or the
adoptive mother, or both, would occupy if the adoptive father or adoptive mother,
or both, were the biological father or mother; and
(2) are jointly and severally liable for the maintenance and education of the person.
I. C. § 31-19-15-2. Although we recognized that a strictly literal reading of
these statutes might lead to the conclusion that if Monicas petition were granted
it would divest Linda of her parental rights, we determined that [i]n light
of the purpose and spirit of Indianas adoption laws, . . . the
legislature could not have intended such a destructive and absurd result. K.S.P.,
804 N.E.2d at 1257. Focusing on public policy and the need to
promote stability for children by interpreting the adoption statutes broadly, we concluded that
where the prospective adoptive parent and the biological parent are both in fact
acting as parents, Indiana law does not require a destructive choice between the
two parents. Id.
The facts of K.S.P. are remarkably similar to this case. The children
are the product of a failed marriage, and their biological father had little
involvement in their lives, ultimately agreeing to terminate his parental rights and not
objecting to the adoption. The children experienced the majority of their formative
years with their biological mothers same-sex partner living in their home, acting as
partner to their mother and parent to them. The adoptive parent was
significantly involved in the childrens day-to-day lives, and it was because of her
close relationship to them and to their mother that she chose to adopt
Julie fashions her argument by claiming that K.S.P. does not apply to this
case, but the substance of her argument is that K.S.P. should have been
decided differently and that we should decline to follow it altogether. She
claims that there is no statutory authority for the K.S.P. adoption or for
her own adoption of the children in this case, but we have already
held in K.S.P. that the adoption statutes must be interpreted broadly in light
of their purpose and spirit. See also In re Parentage of A.B.,
818 N.E.2d 126, 131-32 (Ind. Ct. App. 2004) (agreement by same-sex couple involved
in domestic relationship to conceive child through artificial insemination of one partner, resulted
in both partners becoming legal parent of child; the parent-child relationship survived termination
of domestic relationship); cf. In re Adoption of M.M.G.C., 785 N.E.2d 267, 270
(Ind. Ct. App. 2003) (in the circumstance of a same-sex domestic relationship, this
court determined that [c]onsonant with our General Assemblys policy of providing stable homes
for children through adoption, we conclude that Indianas common law permits a second
parent to adopt a child without divesting the rights of the first adoptive
Julie also argues that even if K.S.P. applies to this case, we should
not apply the decision retroactively because it announced a change in the common
See footnote Generally, pronouncements of common law made in rendering judicial opinions of
civil cases have retroactive effect unless such pronouncements impair contracts made or vested
rights acquired in reliance on an earlier decision.
Marsh v. Dixon, 707
N.E.2d 998, 1001 (Ind. Ct. App. 1999) (quoting Sink & Edwards, Inc. v.
Huber, Hunt & Nichols, Inc., 458 N.E.2d 291, 295 (Ind. Ct. App. 1984)).
Here, there is no contract that was impaired, nor did Julie acquire
vested rights in reliance on pre-K.S.P. law of which she might now be
divested. To the contrary, K.S.P. merely validated that which she had already
asked for and receivedthe right to adopt Loris children. Cf. A.B., 818
N.E.2d at 131 n.3. (explaining that paramount consideration is best interest of children
and observing that in context of void marriages, legislature enacted provisions for children
to be treated as if they are children of a valid marriage).
Thus, we will apply K.S.P. retroactively.
Julie next seems to argue that the holding of K.S.P. is improper because
it does not require the biological and adoptive parents to prove to the
court that they are in a committed relationship. According to Julie, the
only way for a court to ensure that the parents are in a
committed relationship is if they are married, which is an impossible hurdle for
same-sex partners to clear in the State of Indiana. She contends that
[i]f a person is going to adopt and share parental responsibilities with another
person, the two must be committed to each other to ensure continued love,
support, and stability for the children. Appellants Consol. Br. p. 18.
Since the consolidated causes in this appeal were fully briefed, this court determined
that Indianas Defense of Marriage Act, (DOMA), Indiana Code § 31-11-1-1, expressly limiting
marriage to opposite-sex couples, is not violative of Indianas Constitution. Morrison v.
Sadler, No. 49A02-0305-CV-447, slip op. at 4, 35 (Ind. Ct. App. Jan. 20,
2005). In Morrison, we concluded, in part:
What we decide today is that the Indiana Constitution does not require
the governmental recognition of same-sex marriage, although the legislature is certainly free to
grant such recognition or create a parallel institution under that document. Nevertheless,
Indianas DOMA, Indiana Code Section 31-11-1-1, does not violate Article 1, § 23
of the Indiana Constitution because opposite-sex marriage furthers the legitimate state interest in
encouraging opposite-sex couples to procreate responsibly and have and raise children within a
stable environment. Regardless of whether recognizing same-sex marriage would harm this interest,
neither does it further it.
Slip op. at 35-36. B. Fraud
Of particular importance to our inquiry here is the central theme in Morrisonthe
best interests of children. Slip op. at 12-36. We recognized that
same-sex couples, by necessity, most often make large emotional and financial investments to
become parents. Slip op. at 14. Because of the
inability to procreate within the intimacy of a same-sex relationship, same-sex parents often
enter into parenthood with great forethought. Slip op. at 12-16. In
Morrison, we could not say that the States goal in promoting the same
stability for children of opposite-sex relationships, by promoting opposite-sex marriage through Indianas DOMA,
was irrational. Slip op. at 24. We acknowledged that large numbers
of same-sex couples in this state are choosing to raise children together, either
by adoption or taking advantage of assisted reproduction technologies. Slip op. at
In reviewing the recent decisions on same-sex relationships, the overarching concern is the
best interests of children. We must decline Julies request to alter the
course of our recent decisions by directing the focus away from her relationship
with her children, and placing the focus upon the relationship of the parents.
Julie seeks assurance that the persons are committed to each other. Appellants
Consol. Br. p. 18. Unfortunately, as recognized in Morrison, the reality of
our society is that nothingnot even a marriage certificatecan provide a court with
total assurance that a couple is committed to each other and will remain
so forever. All that courts can do is inquire into the relationship
and trust that the parents are honest with each other and the court
as to the reality of their commitment to the new family unit.
Here, Julie and Lori had been in a committed relationship for five years
when Julie petitioned to adopt Loris children. Lori informed the Circuit Court
that Julie was her life-time companion and that the two wished to co-parent
Loris children. Appellants Consol. App. p. 5. Julie, Lori, and the
children had formed a family unit at the time that Julie petitioned to
adopt the children. That their relationship later deteriorated is of no moment.
Julie argues that the children no longer wished to see her and that
they were embarrassed when trying to explain that she is their mothers former
lesbian partner. But she is their parent. She petitioned the Circuit
Court to adopt them, and her petition was granted. As their parent,
she has a responsibility to remain in their liveseven if her only contribution
M.M.G.C., K.S.P., A.B., and Morrison apply directly to this case, and we see
no reason to reach a different result. The Circuit Court had statutory
authority to grant Julies petition to adopt Loris children, and it had sufficient
evidence to conclude that Julie and Lori were in a committed relationship and
intended to form a solid family unit. That Julie and Lori later
ended their relationship and that the children are now uncomfortable with Julies role
in their lives is irrelevant. The adoption was valid and proper.
Julie sought to be a parent, she is one, and the time has
come for her to assume those responsibilities.
Julie also contends that the adoption was invalid because it was procured by
fraud. Specifically, she contends that Lori was dishonest when she told the
Circuit Court that Julie was her life-long partner, that in fact Lori is
heterosexual, and that Lori merely desired the financial benefits she and the children
would receive if Julie became the childrens adoptive parent.
As we consider this argument, we note that the decision in this case
was the result of a bench trial, and, as such, we will set
aside the trial courts findings and conclusions only if they are clearly erroneous.
Wagner v. Spurlock, 803 N.E.2d 1174, 1179 (Ind. Ct. App. 2004).
To vacate a decree of adoption based on fraud, there must have been
a material misrepresentation of past or existing fact made with knowledge or reckless
disregard for the falsity of the statement, and the misrepresentation must have been
relied upon to the detriment of the relying party. In re Adoption
of T.B., 622 N.E.2d 921, 925 (Ind. 1993).
The only evidence to which Julie cites to support her claim of fraud
is Loris statement at the hearing on the petition to vacate adoption that
she is heterosexual. Appellants Consol. App. p. 121-22. Julie also points
to the fact that after her relationship with Lori ended, Lori began datingand
ultimately marrieda man. From these two facts, Julie deduces that [i]t seems
only logical that at the time of the adoption, [Lori] knew that she
really wanted true companionship with a man. Appellants Consol. Br. p. 23.
Our review of the record reveals that at the time that Julie sought
to adopt Loris children, Lori stated that it was her intention to co-parent
with Julie, her life-time companion. Appellants Consol. App. p. 5. Lori
also testified that Julie adopted the children to solidify the family unit that
[they] already had. Id. p. 119. That Lori and Julies relationship
later deteriorated, and that Lori may have subsequently rediscovered her heterosexuality, is of
no moment. A claim of fraud cannot be premised upon future conduct.
See T.B., 622 N.E.2d at 925.
At the time of the adoption, Lori and Julie had been in a
committed relationship for five years. By way of comparison, Loris marriage to
the childrens biological father lasted only four years, as did Loris marriage that
she entered into after her relationship with Julie ended. There is no
evidence that Lori made any knowing or reckless material misrepresentations of a past
or existing fact to Julie or to the Circuit Court at the time
that Julie petitioned to adopt Loris children. Accordingly, the Circuit Courts conclusions
of law were not clearly erroneous, and it properly denied Julies petition to
vacate the adoption.
II. Child Support Order
Julie next argues that the Superior Court improperly granted Loris petition for child
support. Specifically, Julie contends that the Superior Court did not have subject
matter jurisdiction and that Lori failed to state a claim upon which relief
could be granted because (1) the Circuit Court, rather than the Superior Court,
had exclusive jurisdiction; (2) the trial court previously dismissed Loris petition with prejudice,
preventing it from re-opening the matter; and (3) the trial court erred in granting
Loris petition because the petition was improperly captioned and not verified. Julie
does not question the components of the order, i.e., the amount of child
A. Subject Matter Jurisdiction
Initially, we note that subject matter jurisdiction refers to the power of a
court to decide a class of cases. To determine whether a court
has subject matter jurisdiction, it must inquire whether the claim falls within the
general scope of authority conferred on the court by the Indiana Constitution or
by statute. When a court lacks subject matter jurisdiction, its actions are
void and may be challenged at any time. Whether a lower court
had jurisdiction is a pure question of law, and we review the issue
de novo. Kondamuri v. Kondamuri, 799 N.E.2d 1153, 1156 (Ind. Ct. App.
2003), trans. denied.
Julie contends that the Superior Court did not have statutory authority to enter
the child support award because superior courts have jurisdiction conferred by statute to
order a mother or father to pay child support. Appellants Br. p.
5. In essence, Julie rehashes her earlier argument to urge that Indianas
statutes do not explicitly provide for child support payments for the biological children
of a former same-sex partner. Again, Julie myopically focuses on her relationship
with Lori, not her relationship with her children. As explained above,
Julie is the adoptive mother of the children.
Our common law and statutory law provided the Superior Court with subject matter
jurisdiction to award child support in this case. [P]arents have a common
law duty to support their children. Bales v. Bales, 801 N.E.2d 196,
199 (Ind. Ct. App. 2004), trans. denied. Moreover, our statutes do not
predicate the courts jurisdiction upon the status of the parents, as to each
other. As indicated above, the stepparent adoption statute, Indiana Code section 31-19-15-2(b),
provides in relevant part: After the adoption, the adoptive father or mother
. . . (1) occupy the same position toward the child that
. . . the biological father or mother [would occupy]; and (1) are
jointly and severally liable for the maintenance and education of the person.
(Emphasis added). Unquestionably, an adoptive mother is a mother and is liable
for support of the adopted children, all of which is completely unaffected by
the adoptive mothers status as the former same-sex domestic partner of the other
Further, child support is of the class of cases that Indiana superior courts
have statutory jurisdiction to determine. Indiana Code section 31-12-1-1 allows judges of
circuit and superior courts of each judicial circuit to make a yearly determination
of the necessity for a court designated as a domestic relations court.
The jurisdiction of domestic relations court is statutory:
(a) Whenever a domestic relations court is established under this chapter, the domestic relations
court has jurisdiction over all proceedings in the following causes of action:
1. Dissolution of marriage.
4. Child support.
(b) A domestic relations court has jurisdiction that other courts in Indiana have over
the causes of action listed in subsection (a). A domestic relations court
may dispose of the causes of action listed in subsection (a) in the
manner provided by statute for those causes of action. However, this chapter
grants supplemental powers to the domestic relations courts to aid the court in
determining the difference between the parties and in protecting the welfare and rights
of the child or children involved.
Ind. Code § 31-12-1-4.
Thus, statutory authority exists for the Superior
Courts subject matter jurisdiction over matters concerning child support between parents. That
authority extends to supplemental powers to aid it in determining the difference between
the parties and in protecting the welfare and rights of the children involved.
Further, our family law statutes provide additional authority for the Superior Courts action
in ordering child support. After considering the required statutory factors, a court
may order either parent or both parents to pay any amount reasonable for
support of a child. Ind. Code § 31-16-6-1(a). Moreover, the court
must enter a decree in an action for child support when it finds:
(1) that there is a duty to support by the person alleged to
have the duty; (2) that the duty to support has not been fulfilled;
and (3) that an order should be entered under IC 31-16-6-1. I.C.
We have already held that Julies adoption of Loris children is valid and
that the Circuit Court properly refused to vacate that adoption. Accordingly, Julie
has assumed all of the rights, duties, and obligations of a biological parent
and is a legally recognized parent to these children in every sense of
the word. As a parent, she is obligated pursuant to civil common
law and statutory law to help bear the cost of raising these children.
The Superior Court had subject matter jurisdiction, i.e., jurisdiction over the class
of cases, to order her to pay child support.
B. Failure to State a Claim
1. Exclusive Jurisdiction
Julie next argues that the Circuit Court, not the Superior Court, had exclusive
jurisdiction of all matters regarding the adoption. It is true that the
Tippecanoe Circuit Court, as a court of probate jurisdiction, had exclusive jurisdiction regarding
the childrens adoption. See I.C. § 33-28-1-2 (granting circuit courts general civil
and criminal jurisdiction), and I.C. § 31-19-1-2(b) (probate courts have exclusive jurisdiction in
adoption matters). However, the child support order is a matter separate and apart
from the adoption. As discussed above, the Superior Court had statutory jurisdiction
to consider the matter of child support. As to child support,
Circuit Court and Superior Court No. 2 in Tippecanoe County have concurrent or
Neither is it of concern that the Circuit Court was first to acquire
jurisdiction over the parties when it ruled on the adoption. As to
child support, the Circuit Court and Superior Court enjoy concurrent jurisdiction. In
short, the Circuit Court was not vested with exclusive jurisdiction over all matters
concerning the parties after it ruled on the adoption in 1997. Cf.
Bank One Trust No. 386 v. Zem, Inc., 809 N.E.2d 873, 876-77 (Ind.
Ct. App. 2004), trans. denied, (circuit courts issuance of tax deed did not
vest exclusive jurisdiction in circuit court; superior court had coordinate jurisdiction such that
it could issue subsequent order).
It is also true that two courts of coordinate jurisdiction cannot exercise jurisdiction
over the same subject matter at the same time. Artusi v. City
of Mishawaka, 519 N.E.2d 1246, 1249 (Ind. Ct. App. 1988), trans. denied.
As we have explained, that did not occur here. While the Superior
Court child support matter was pending, Julie filed her motion in Circuit Court
to vacate the adoption. The Superior Court could not exercise jurisdiction over
the adoption matter. Consequently, the two courts were not courts of coordinate
or concurrent jurisdiction as to the adoption, and they were not exercising jurisdiction
over the same subject matter.
Julie also argues that it is in the interests of uniformity and confidentiality
that the Circuit Court should have exclusive jurisdiction over all matters concerning this
family unit. She cites to no authority for this proposition, however, and
we can see no reason why either uniformity or confidentiality would divest the
Superior Court of jurisdiction to hear Loris action for child support. Accordingly,
Lori appropriately brought this petition before the Superior Court.
2. Previous Dismissal
Julie next contends that Loris action for child support was previously dismissed with
prejudice and, as a result, could not be properly re-opened. On December
10, 2001, Lori filed her Second Petition in the Superior Court. At
that time, she was living with her children and husband in Georgia.
The Superior Court dismissed her petition, and its order provided, in pertinent part,
The Court now FINDS that the home state [sic] is the State of
Georgia. That although the children and parties had past connections or relationships
with others in Indiana, certainly relationships have developed in Georgia since the childrens
and biological mothers move to Georgia on June 1, 2001. Presumably the
children are and have been in school in Georgia since August, 2001 through
present. Given the length of the childrens stay in Georgia, this Court
cannot find it necessarily in the childrens best interest to keep jurisdiction in
Indiana. In fact, Georgia is and became the home state of the
children prior to the Petition being filed which is now pending.
Therefore, it appears that Georgia is the home state. Georgia is also
the more convenient forum as the two children and biological mother reside in
Georgia. Any pending Petitions and future Petitions will more likely require the
presence of witnesses located in the state of Georgia.
This Court now DISMISSES this case without prejudice to the Petitioners right to
request this case be re-opened by the Special Judge and heard. Should
the Respondent resist personal jurisdiction in Georgia or should Georgia fail to hear
and determine any Petitions files [sic] concerning these two parties, the Petitioner shall
inform the Special Judge under this cause number and request the case be
Should this case be re-opened, the Court would consider the request to have
any child support retroactive to the date the Petition for Support was filed.
Appellants App. p. 17-18 (emphasis added).
From this Superior Court order that specifically states that Loris petition was dismissed
without prejudice, Julie argues that, in fact, it was dismissed with prejudice.
According to Julie, the only two ways in which Loris petition could be
properly re-opened were 1) if Julie resisted jurisdiction in Georgia, or 2) Georgia
refused to hear a petition filed there. Our review of the language
of the Superior Courts order leads us to disagree with Julie. It
is clear that Loris petition was dismissed without prejudice and that the Superior
Court was merely elucidating two possible scenarios in which the case could be
re-opened. When Lori and her children moved back to Indiana, their home
state again became Indiana, and the Superior Court once again had jurisdiction to
hear Loris petition. That she never filed a petition in Georgia is
irrelevant. Because Loris petition was dismissed without prejudice, the Superior Court properly
re-opened the petition, and Loris claim does not fail for this reason.
Finally, Julie contends that Loris petition should have been dismissed because it was
not properly captioned or verified as required by statute. Indiana Code
section 31-16-2-3 requires that an action for child support must include the caption
In Re the support of _________, and Indiana Code section 31-16-2-4 requires that
a petition for child support must be verified. Loris petition did not
comply with these statutes because it did not include the required caption and
While we do not condone the failure to comply with the procedural requirements
of the statutes, at the outset or by amendment, we are mindful of
Indiana Trial Rule 61, which provides as follows:
No error in either the admission or the exclusion of evidence and no
error or defect in any ruling or order in anything done or omitted
by the court or by any of the parties is ground for granting
relief under a motion to correct errors or for setting aside a verdict
or for vacating, modifying or otherwise disturbing a judgment or order or for
reversal on appeal, unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.
Loris failure to include a proper caption and to verify her petition simply
does not affect the substantial rights of the parties, especially when we consider
that at the heart of this case is the well-being of two minor
children. To grant Julies motion to dismiss would have the effect of
depriving her children of needed financial support, and we are loath to take
such a step based on purely procedural grounds. We conclude that Loris
errors in fashioning her petition were harmless, and we decline to reverse the
Superior Courts denial of Julies motion to dismiss on this basis.
As to Julies 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 Loris 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.
Julie timely appealed from the Superior Courts order requiring her to pay
child support, and the case was assigned Cause Number 79A02-0407-CV-612. Then, Julie
timely filed a Notice of Appeal from the Circuit Courts order denying her
petition to vacate adoption. In the interests of judicial economy, Julie filedand
we granteda Motion to Consolidate the two cases on appeal. On November
12, 2004, after all of the briefs had been filed in the original
appeal, we consolidated the two cases into Cause Number 79A02-0407-CV-612.
Footnote: Apparently, both Julie and Lori believed that the childrens biological father did
not have a consistent and steady record of employment such that the children
could count on his employment benefits.
Footnote: There are two sets of briefs and appendices in this case.
We will cite to the first set, regarding the Child Support Order, as
Appellants and Appellees Briefs, and Appellants Appendix. We will cite to the
second set, regarding the Petition to Vacate Adoption, as Appellants and Appellees Consolidated
Briefs, and Appellants Consolidated Appendix.
Footnote: The reasons for the dismissal of the First Petition are not apparent
from the record.
Footnote: We note that the precedent for same-sex couple adoption was
set prior to the decision in
K.S.P. See M.M.G.C., 785 N.E.2d at
To the extent that Julie urges that she should not
have an obligation to support her adopted children because they have repudiated their
relationship with her, her argument must fail.
See Bales v. Bales, 801
N.E.2d 196, 199 (Ind. Ct. App. 2004), trans. denied, (recognizing that childs repudiation
of parent could obviate parents obligation to pay certain expenses such as college
expenses; [h]owever, no case has extended that release of a parents financial responsibility
to the payment of child support, and under the current law, it cannot.).
As of 2004, Indiana Code section 33-33-79.2-6, provides: Superior
court No. 2 of Tippecanoe County has the same original and appellate jurisdiction
possessed by the Tippecanoe circuit court in civil and criminal cases, but not
in matters of probate or juvenile jurisdiction.
Footnote: Though not specifically mentioned in the statute, that authority would appear
to extend to custody matters.