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10/26/87 MATTER PATERNITY FOREST TRACY KING JAMES

Filed: October 26, 1987.

IN THE MATTER OF THE PATERNITY OF: FOREST TRACY KING; JAMES K. MILLER, PETITIONER-APPELLANT,
v.
DEBORAH TOWNSEND, RESPONDENT-APPELLEE



APPEAL FROM THE MARION SUPERIOR COURT, JUVENILE DIVISION1, The Honorable James Payne, Judge, Cause No. PT-86-120.

Ratliff, C.j., Robertson, J. and Conover, J., concur.

Author: Ratliff

RATLIFF, C.J.

STATEMENT OF THE CASE

James K. Miller appeals the trial court's grant of summary judgment which held that Miller's paternity suit was barred by the paternity statute of limitations found in Indiana Code section 31-6-6.1-6. We affirm.

FACTS

James K. Miller (James) and Deborah Townsend (Deborah) met and began living together in North Carolina in the fall of 1972. The relationship produced a child, Forest Tracy King (Forest), who was born on July 11, 1975. Subsequently, James and Deborah's relationship ended. In May of 1976, Deborah and Forest moved to Indiana. However, Deborah and James corresponded by letters. Deborah married a Mr. King who acknowledged James's relationship to Forest and allowed James to visit with Forest. In 1979, Forest lived with James in West Virginia for two months.

In 1980, Deborah's marriage to King ended, and she married a Mr. Townsend. In June of 1980, Townsend prohibited James from visiting with Forest. Although James had not seen or talked with Forest since June of 1980, he sent her gifts in 1980, 1981, and 1983. In January of 1986, James returned to Indiana to locate and visit with Forest. Although James located Deborah and Forest, he was not permitted to visit with Forest.

On July 1, 1986, James filed suit to establish the paternity of Forest. On September 25, 1987, Deborah filed a motion for summary judgment. A hearing was held on Deborah's motion on November 6, 1986. On January 20, 1987, the trial court entered an order which granted Deborah's motion for summary judgment. The court held that James's paternity suit was barred by the statute of limitations provided for in Indiana Code section 31-6-6.1-6. James appeals this grant of summary judgment.

ISSUES

James presents two (2) issues for review:

1. Whether the trial court erred in granting summary judgment and holding that the paternity suit was barred by Indiana Code section 31-6-6.1-6.

2. Whether Indiana Code section 31-6-6.1-6 violates the equal protection guarantees of the United States and Indiana Constitutions.

Discussion AND DECISION

Issue One

The standard of review for the grant or denial of summary judgment is well established. Brenneman Mechanical and Electrical, Inc. v. First National Bank of Logansport (1986), Ind. App., 495 N.E.2d 233, 240, trans. denied ; First Savings and Loan Ass'n of Central Indiana v. Treaster (1986), Ind. App., 490 N.E.2d 1149, 1151, trans. denied ; In re the Marriage of Moser (1984), Ind. App., 469 N.E.2d 762, 765. Summary judgment should be granted only when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Brenneman, at 240; Treaster, at 1151; Marriage of Moser, at 765. The movant must prove the propriety of summary judgment. Kidd v. Davis ...


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