A man who fathered a child while the mother was married to another man lost his appeal Tuesday that sought relief from a court order concerning the child’s custody.
Stephanie and James Carroll were married in 2000 and divorced in 2009, during which they entered into a settlement and decree of dissolution providing joint custody of A.C., who was born in 2008. Stephanie married David Varble in 2011, who established paternity in a Jefferson County court in 2014.
Varble was denied a motion from relief of judgment from the settlement, which he moved to modify to exclude A.C. as a child of the marriage. Carroll objected and argued that A.C. had been held out by all parties as his child for the child’s entire life along with another child from the marriage and is in his custody at least 50 percent of the time. Carroll asked the court to appoint him a de facto custodian of A.C.
The Indiana Court of Appeals on Tuesday affirmed the trial court’s denial of Varble’s petition for relief from judgment.
“Stephanie and Carroll expressly agreed in the Settlement Agreement and Decree of Dissolution of Marriage that it was in the best interest of A.C. that they share joint legal and physical custody, and that A.C. spend fifty percent of his time in each of their homes,” Judge Elaine Brown wrote for the panel, citing Russell v. Russell, 682 N.E.2d 513 (Ind. 1997).
“(E)ven if the paternity action initiated by Varble four and one-half years after the dissolution decree might arguably be characterized as vigorously contesting whether A.C. was a child of the marriage under Russell, the Jefferson Circuit Court was not precluded from determining ... the issue of custody of A.C. based on A.C.’s best interest at the time of the decree.”
The case is David C. Varble v. Stephanie J. (Carroll) Varble and James T. Carroll; In Re: The Matter of the Paternity of: A.C., A Minor Child, David C. Varble v. Stephanie J. (Carroll) Varble and James T. Carroll, 39A01-1508-DR-1180.