In re: The Paternity of J.T.F., Minor Child, M.A.J.H., Father v. D.H., Mother, State of Indiana

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before Sep 21 2012, 9:17 am any court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, collateral estoppel, or the law of the case. court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: MARK A. JOHNSON GREGORY F. ZOELLER Greencastle, Indiana Attorney General of Indiana

STEPHANIE ROTHENBERG Deputy Attorney General Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA IN RE: THE PATERNITY OF ) J.T.F., Minor Child, )

)

M.A.J.,II, Father, )

)

Appellant-Petitioner, )

) and ) No. 53A05-1203-JP-179

)

D.H., Mother, )

)

Appellee-Respondent, )

)

STATE OF INDIANA, )

)

Appellee-Intervening Party. )

APPEAL FROM THE MONROE CIRCUIT COURT The Honorable Stephen R. Galvin, Judge The Honorable Bret D. Raper, Commissioner Cause No. 53C07-1201-JP-43 September 21, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

M.J. (Father) appeals the dismissal of his petition for blood or genetic testing. Because he is estopped to challenge J.F.’s paternity, we affirm.

FACTS AND PROCEDURAL HISTORY

D.H. (Mother) gave birth to J.F. on February 23, 2000. Two days after J.F.’s birth, Father executed a paternity affidavit, naming him as J.F.’s father. Mother and Father married on September 13, 2000. Mother and Father divorced on February 20, 2003, and stipulated in those proceedings that J.F. was a child of the marriage. Based thereon, the trial court ordered Father to pay child support for J.F.

On September 2, 2003, as part of the divorce case, Father wrote a letter to the court requesting blood tests to determine if he was J.F.’s father. The trial court denied Father’s request. Father wrote another letter to the trial court requesting a DNA test on May 13, 2004, and the court denied that request as well. On January 20, 2012, Father again filed a “Verified Petition for Blood or Genetic Testing.” (App. at 10.)

On March 1, the trial court granted the State’s motion to intervene,1 and the State filed a motion to dismiss. After a hearing on March 19, the trial court denied Father’s motion for a test and granted the State’s motion to dismiss.

DISCUSSION AND DECISION

The State filed its motion to dismiss based on Ind. Trial Rule 12(B)(1) (lack of subject matter jurisdiction) and T.R. 12(B)(6) (failure to state a claim upon which relief can be granted). Despite Father’s attempts to make them so, the facts of this case are not in dispute, and thus our review is de novo. See Bellows v. Board of Com’rs of County of Elkhart, 926 N.E.2d 96 (Ind. Ct. App. 2010) (when facts undisputed, appellate court’s review of motion to dismiss for lack of subject matter jurisdiction is de novo); Lei Shi v. Cecilia Yi, 921 N.E.2d 31, 36 (Ind. Ct. App. 2010) (T.R. 12(B)(6) motion to dismiss is reviewed de novo and requires no deference to the trial court’s decision).

“Judicial estoppel prevents a party from assuming a position in a legal proceeding inconsistent with one previously asserted when the court has acted on the admissions of the estopped party.” Driskell v.Driskell, 739 N.E.2d 161, 163 (Ind. Ct. App. 2000). Father acknowledged his paternity when J.F. was born and stipulated J.F. was a child of the marriage as part of his dissolution proceedings with Mother. As part of the dissolution action, Father was ordered to pay child support. Based on Father’s prior assertions, he is estopped from now claiming he is not J.F.’s father. Accordingly, we affirm the trial court’s denial of Father’s motion for a paternity test and we affirm the trial court’s grant of the State’s motion to dismiss.2

Affirmed.

KIRSCH, J., and NAJAM, J., concur.