MEMORANDUM DECISION                                                  FILED
                                                                Sep 15 2016, 7:58 am

Pursuant to Ind. Appellate Rule 65(D),                               CLERK
this Memorandum Decision shall not be                            Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Matt Black                                               Dan J. May
Adam Clay                                                Kokomo, Indiana
Black Clay, LLC
Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

James Wright,                                            September 15, 2016
Appellant-Petitioner,                                    Court of Appeals Cause No.
                                                         34A04-1601-DR-60
        v.                                               Appeal from the Howard Superior
                                                         Court
Natasha G. Wright,                                       The Honorable George A.
Appellee-Respondent.                                     Hopkins, Judge
                                                         Trial Court Cause No.
                                                         34D04-1205-DR-467



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1601-DR-60 | September 15, 2016   Page 1 of 8
                                             Case Summary
[1]   James Wright appeals the denial of his motion to compel discovery in the

      dissolution of his marriage to Natasha Wright. We affirm.


                                                    Issues
[2]   James raises three issues, which we consolidate and restate as whether the trial

      court properly denied his motion to compel discovery regarding the paternity of

      their child. Natasha argues that she is entitled to damages and appellate

      attorney fees pursuant to Indiana Appellate Rule 66(E).


                                                     Facts
[3]   Q.W. was born to Natasha in November 1997, and the parties married in July

      1998. In May 2012, James filed a petition for dissolution of marriage. On

      November 20, 2012, the trial court dissolved the parties’ marriage. The trial

      court noted that the parties were the parents of Q.W., ordered that the parties

      have joint legal custody of Q.W., ordered that Natasha have physical custody of

      Q.W., and ordered that James have parenting time and pay $174 per week in

      child support. The trial court noted that issues pertaining to the division of the

      marital estate and delinquent child support would be considered at a later

      hearing.


[4]   In November 2013, James filed an emergency motion to set aside portions of

      the November 2012 order and terminate or stay the income-withholding order.

      James alleged that Q.W. told him she had taken a paternity test and that he was

      not her father. In an email exchange, Natasha’s attorney confirmed with
      Court of Appeals of Indiana | Memorandum Decision 34A04-1601-DR-60 | September 15, 2016   Page 2 of 8
      James’s attorney that a paternity test indicates that another man is Q.W.’s

      biological father. The trial court held a hearing, found that the email exchange

      was not dispositive of the issues in this cause, and denied James’s motion.


[5]   In February 2014, James sent an interrogatory to Natasha requesting “the date

      of any and all paternity tests scheduled, attempted, completed, and/or

      cancelled regarding the paternity of [Q.W.].” App. p. 42. Natasha objected to

      the interrogatory based on medical privilege and Fairrow v. Fairrow, 559 N.E.2d

      597 (Ind. 1990). James then filed a motion to compel, which the trial court

      denied. James sought to file an interlocutory appeal, but this court denied his

      motion. The trial court entered judgment regarding the property settlement

      issues on January 14, 2016. James now appeals.


                                                  Analysis
                                            I. Motion to Compel

[6]   James argues that the trial court abused its discretion by denying his motion to

      compel Natasha to answer the interrogatory regarding paternity tests. A trial

      court has broad discretion in ruling on discovery issues, and we will reverse

      only where it is apparent the trial court abused that discretion. WESCO

      Distribution, Inc. v. ArcelorMittal Indiana Harbor LLC, 23 N.E.3d 682, 712 (Ind.

      Ct. App. 2014), trans. dismissed. Indiana Trial Rule 26(B)(1) governs the scope

      of discovery and provides in pertinent part that: “Parties may obtain discovery

      regarding any matter, not privileged, which is relevant to the subject-matter

      involved in the pending action . . . .” Initially, the trial court must determine


      Court of Appeals of Indiana | Memorandum Decision 34A04-1601-DR-60 | September 15, 2016   Page 3 of 8
      whether the information requested is relevant to the issues being tried. Ramirez

      v. Am. Family Mut. Ins. Co., 652 N.E.2d 511, 516 (Ind. Ct. App. 1995). If the

      information is deemed relevant, then the trial court must next determine

      whether a privilege exists to protect the information from discovery. Id.


[7]   Both parties rely on our supreme court’s opinion in Fairrow v. Fairrow, 559

      N.E.2d 597 (Ind. 1990).1 There, the parties had a child who tested positive for

      the genetic trait that causes sickle cell anemia. Many years after the parties’

      dissolution was final, doctors recommended that the ex-husband be tested for

      the sickle cell trait. Testing revealed that the ex-husband did not carry the trait

      and could not be the child’s biological father. The ex-husband filed a motion to

      terminate his child support obligation under Indiana Trial Rule 60(B), which

      the trial court denied. Our supreme court held that this was a “very unusual

      case” and that the motion should have been granted. Fairrow, 559 N.E.2d at

      599. In particular, our supreme court emphasized that the ex-husband had not

      sought genetic testing because he wanted to stop paying child support. Rather,

      he “stumbled upon medical evidence” that he could not be the child’s father.

      Id. The court noted:


               Although we grant Joe relief, we stress that that [sic] the gene
               testing results which gave rise to the prima facie case for relief in
               this situation became available independently of court action. In



      1
        James makes no argument that the trial court’s November 2012 order regarding Q.W. was not final and
      that he was still entitled to challenge whether Q.W was a child of the marriage as part of the dissolution
      proceedings. James’s argument is based only on Fairrow and the Indiana Parenting Time Guidelines.
      Consequently, we will address the argument as presented.

      Court of Appeals of Indiana | Memorandum Decision 34A04-1601-DR-60 | September 15, 2016            Page 4 of 8
              granting relief to a party who learned of his non-parenthood
              through the course of ordinary medical care, we do not intend to
              create a new tactical nuclear weapon for divorce combatants.
              One who comes into court to challenge a support order on the
              basis of non-paternity without externally obtained clear medical proof
              should be rejected as outside the equitable discretion of the trial
              court.


              In sum, we strongly discourage relitigation of support issues
              through T.R. 60(B)(8) motions in the absence of highly unusual
              evidence akin to the evidence presented in this case.


      Id. at 600 (emphasis added).


[8]   Then, in Leiter v. Scott, 654 N.E.2d 742 (Ind. 1995), an ex-husband requested a

      trial court to order DNA testing to prove that he was not the biological father of

      a child identified as his child in the parties’ dissolution decree. The trial court

      dismissed his petition and, based on Fairrow, our supreme court affirmed. The

      court noted “the substantial disadvantages of allowing divorce litigants to use

      paternity as a tool in the frequently rambunctious atmosphere following the

      dissolution of a marriage.” Leiter, 654 N.E.2d at 743.


[9]   Since Fairrow and Leiter, our courts have consistently held that “the use of

      genetic testing to set aside paternity is outside the equitable discretion of the

      trial court.” In re Paternity of T.M.Y., 725 N.E.2d 997, 1005 (Ind. Ct. App.

      2000), trans. denied. The “externally obtained” clear medical proof required by

      Fairrow “means that the evidence establishing non-paternity was not actively

      sought by the putative father, but was discovered almost inadvertently in a

      manner that was unrelated to child support proceedings.” Tirey v. Tirey, 806
      Court of Appeals of Indiana | Memorandum Decision 34A04-1601-DR-60 | September 15, 2016   Page 5 of 8
       N.E.2d 360, 363 n. 2 (Ind. Ct. App. 2004), trans. denied; see also In re M.M.B.,

       877 N.E.2d 1239, 1242 (Ind. Ct. App. 2007) (holding that the father was not

       entitled to relief from the paternity judgments where he actively sought genetic

       evidence after the children told him that he might not be their father and he did

       not inadvertently obtain medical proof through ordinary medical care).


[10]   Here, James is actively seeking genetic evidence that he is not Q.W.’s biological

       father. He did not inadvertently obtain medical proof of non-paternity through

       ordinary medical care, and the very limited exception discussed in Fairrow is

       inapplicable here. Even if the trial court had wanted to grant James’s discovery

       request, it was barred from doing so.2 See T.M.Y., 725 N.E.2d at 1005 (holding

       that the trial court properly denied the father’s discovery request regarding

       paternity testing). The results of the paternity testing were not relevant, and the

       trial court properly denied James’s motion to compel.


                                           II. Appellate Attorney Fees

[11]   We next turn to Natasha’s request for damages and appellate attorney fees

       pursuant to Indiana Appellate Rule 66(E). Indiana Appellate Rule 66(E)




       2
         James also seems to argue that he was entitled to the paternity test results pursuant to Indiana Parenting
       Time Guideline I(D)(4), which provides that “both parents are entitled to direct access to their child’s
       medical records, Indiana Code § 16-39-1-7; and mental health records, Indiana Code § 16-39-2-9.” Indiana
       Code Section 16-39-1-7 provides: “[A] custodial parent and a noncustodial parent of a child have equal
       access to the parents’ child’s health records.” A “health record” or “medical record” is defined as “written or
       printed information possessed by a provider (as defined in IC 16-18-2-295) concerning any diagnosis,
       treatment, or prognosis of the patient, unless otherwise defined. Except as otherwise provided, the terms
       include mental health records and drug and alcohol abuse records.” Ind. Code § 1-1-4-5. There is no
       indication that the alleged paternity testing concerned any diagnosis, treatment, or prognosis of Q.W., and
       Parenting Time Guideline I(D)(4) does not apply here.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1601-DR-60 | September 15, 2016             Page 6 of 8
       provides in part that this court “may assess damages if an appeal, petition, or

       motion, or response, is frivolous or in bad faith. Damages shall be in the

       Court’s discretion and may include attorneys’ fees.” Our discretion to award

       attorneys’ fees under Ind. Appellate Rule 66(E) is limited to instances when “an

       appeal is permeated with meritlessness, bad faith, frivolity, harassment,

       vexatiousness, or purpose of delay.” Ballaban v. Bloomington Jewish Cmty., Inc.,

       982 N.E.2d 329, 339-40 (Ind. Ct. App. 2013). “[W]e must use extreme restraint

       when exercising this power because of the potential chilling effect upon the

       exercise of the right to appeal.” Id. at 340. “A strong showing is required to

       justify an award of appellate damages and the sanction is not imposed to punish

       mere lack of merit but something more egregious.” Id.


[12]   We have classified claims for appellate attorney fees into substantive and

       procedural bad faith claims. Id. To prevail on a substantive bad faith claim, the

       party must show that “the appellant’s contentions and arguments are utterly

       devoid of all plausibility.” Id. Procedural bad faith, on the other hand, occurs

       when a party flagrantly disregards the form and content requirements of the

       rules of appellate procedure, omits and misstates relevant facts appearing in the

       record, and files briefs written in a manner calculated to require the maximum

       expenditure of time both by the opposing party and the reviewing court. Id.


[13]   Natasha argues that James’s appeal is devoid of all plausibility and that his

       statement of the facts was inadequate. Although we find James’s arguments

       unpersuasive, we cannot say that his arguments were devoid of all plausibility

       or that he flagrantly disregarded the rules of appellate procedure. Accordingly,

       Court of Appeals of Indiana | Memorandum Decision 34A04-1601-DR-60 | September 15, 2016   Page 7 of 8
       we deny Natasha’s request for damages and appellate attorney fees pursuant to

       Indiana Appellate Rule 66(E).


                                                 Conclusion
[14]   The trial court properly denied James’s motion to compel Natasha to produce

       the results of paternity testing. We deny Natasha’s request for damages and

       appellate attorney fees pursuant to Indiana Appellate Rule 66(E). We affirm.


[15]   Affirmed.


       Riley, J., and Bailey, J., concur.




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