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01/28/88 PATERNITY JOSHUA THOMAS TOMPKINS WILLIAM

Filed: January 28, 1988.

IN RE: THE PATERNITY OF JOSHUA THOMAS TOMPKINS; WILLIAM N. MILLS, PETITIONER-APPELLANT,
v.
KEVIN E. BROWN, RESPONDENT-APPELLEE



APPEAL FROM THE HUNTINGTON CIRCUIT COURT, Cause No. JC-82-10, The Honorable Dane Mann, Judge.

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

Author: Ratliff

RATLIFF, C.J.

STATEMENT OF THE CASE

William N. Mills as guardian for Joshua Thomas Tompkins appeals from the Huntington Circuit Court's grant of Kevin E. Brown's motion for judgment on the pleadings and denial of Mills' motion to consolidate actions. We reverse in part, and affirm in part.

FACTS

On June 15, 1980, Joshua Thomas Tompkins was born to Debra Tompkins Booher. At the time Joshua was born, Debra was married to, but separated from, Michael Tompkins, her second husband. On October 1, 1980, the Allen Circuit Court dissolved Debra and Michael's marriage. Apparently Debra and Joshua resided with Debra's first husband Kevin Brown for approximately a year. In August of 1981, Debra and Joshua moved in and lived with Gary Booher. On December 12, 1981, Debra married Gary. Subsequently, Debra and Kevin filed a joint petition to establish paternity of Joshua, and on February 5, 1982, a judgment was entered declaring Kevin as the father of Joshua.

Debra remained married to Gary and retained custody of Joshua. On August 28, 1984, a daughter, Jasmine Lee, was born to Debra and Gary. Gary and Debra raised and provided support for both Joshua and Jasmine. On September 2, 1985, Debra died from an aneurysm in her brain. Gary filed a petition to establish a guardian for Joshua. The Huntington Circuit Court appointed William N. Mills as guardian for Joshua. Thereafter, Mills, upon obtaining evidence that Kevin was not Joshua's biological father, filed suit to set aside the paternity judgment on the basis of fraud. Mills also filed a motion to consolidate the guardianship and paternity suits. Kevin challenged the suit and motion to consolidate and filed a motion for judgment on the pleadings based upon application of Rundel v. Shady (1986), Ind. App., 492 N.E.2d 694. The trial court denied Mills' motion to consolidate, granted Brown's motion for judgment on the pleadings, and dismissed Mills' complaint. Mills appeals the trial court's decisions.

ISSUES

While several interconnected issues have been raised, the following two (2) issues are dispositive:

1. Whether the trial court erred by granting Brown's motion for judgment on the pleadings based upon Rundel and by dismissing Mills' suit to set aside the paternity judgment.

2. Whether the trial court erred by denying Mills' motion to consolidate actions.

Discussion AND ...


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