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11/23/87 FELICIA DAWN SENFF v. ESTATE STEVEN E.

Filed: November 23, 1987.

FELICIA DAWN SENFF, B/N/F TERRI R. SENFF, PLAINTIFF-APPELLANT
v.
ESTATE OF STEVEN E. LEVI, DEFENDANT-APPELLEE



APPEAL FROM THE VANDERBURGH SUPERIOR COURT, The Honorable Robert W. Lensing, Judge, Cause No. CBOW-6372.

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

Author: Neal

NEAL, J.

STATEMENT OF THE CASE

Plaintiff-appellant, Felicia Dawn Senff b/n/f Terri R. Senff (Terri), appeals a judgment of the Vanderburgh Superior Court in favor of defendant-appellee, the Estate of Steven E. Levi (the Estate), following a bench trial on Terri's suit to establish Felicia's paternity.

We reverse.

STATEMENT OF THE FACTS

Terri met Steven Levi (Steven) in mid-1984 and they began dating. At the time, Terri was 14 years old and a runaway. She was living with a friend, Linda Greenlee, but in October 1984 Terri moved in with Steven and his family, which consisted of his mother, Pearl, his brother, and his two sisters. While Terri was living there, her mother came by and attempted to persuade Pearl to become Terri's legal guardian. Pearl declined the offer and, in November 1984, Pearl asked Terri to move out for failing to abide by her household rules. From the Levi home Terri went to live with Steven's father, Jack Stanton. She stayed there one week and then moved in with another friend, Phyllis Wiley. In January 1985, Terri was taken into custody by the police for being a runaway. She then went to live with her father. On September 19, 1985, Terri gave birth to a daughter, Felicia Dawn. Steven died on December 5, 1985. When Terri applied for welfare, she was told that she could be denied public assistance unless she sought to have Felicia's paternity established. Terri cooperated and a paternity petition was filed against the Estate, alleging Steven was the father of Felicia.

A one-day bench trial was held on November 19, 1986. Terri testified and related the above facts, although she said she moved out of the Levi home because of a disagreement she had with Pearl concerning Patty Mitchell, who is the mother of a son fathered by Steven. Terri also testified that soon after Felicia was born she took her to the Fulton Bar, where Pearl was employed. Pearl held Felicia and told the bar patrons Felicia was "her granddaughter." Record at 86. Terri attempted to testify of her relationship with Steven, but the Estate successfully objected by invoking the so-called dead man's statute.[Footnote 1] The next witness, Linda Hall, testified that she knew Steven for 1-1/2 years, from seeing him two or three times a week when he would come in to the market where she works as a cashier. Hall was asked to relate a conversation that she had with Steven shortly before he died, but she was prevented from doing so by the Estate's objection on hearsay grounds. Terri's father testified that he had found Terri and Steven in bed together in September 1984, whereupon he had made Steven leave. Terri's father also stated he had never seen Terri with anyone other than Steven during the time period in question. Terri's mother testified that she had visited Terri several times at the Levi home and seen Terri and Steven in bed together on two occasions. Terri's mother expressed her disapproval to Pearl, who replied that she "would try to keep them apart." Record at 118. Two friends of Terri, Ramonda Durham and Rosie Stanton, also testified. The former related the incident at the Fulton Bar when Pearl referred to Felicia as "my granddaughter." Record at 123. The latter witness stated she never saw Terri with anyone other than Steven during the pertinent time period. Pearl, who is the personal representative of the Estate, also testified. She stated she took Terri into her home because she was trying to help Terri, but she made Terri move out for failing to follow household rules. Pearl testified she never saw Terri and Steven in bed together, she denied that Felicia is Steven's daughter, and she denied referring to Felicia as her granddaughter. The Estate called no witnesses. Instead, it moved for a judgment on the evidence, which was granted. Terri then instituted this appeal.

ISSUES

Terri presents the following issues, claiming the trial court erred in:

I. Sustaining the Estate's objection to Terri's testimony on the basis of IND. CODE 34-1-14-6, the dead man's statute; and

II. Sustaining the Estate's objection to Linda Hall's testimony ...


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