marital privilege in Indiana

2016Our supreme court has indicated that the marital privilege prohibits “requiring a spouse to testify as to confidential marital communications, but does not bar the spouse from testifying if the spouse chooses to do so.” Glover v. State, 836 N.E.2d 414, 422 (Ind. 2005); see Ind. Code § 34-46-3-1 (providing that “the following persons shall not be required to testify regarding the following communications…(4) Husband and wife as to communications made to each 4 Although Neloff’s wife did testify briefly at trial, she asserted the marital privilege and did not testify regarding any conversations

2016It is generally accepted under Indiana law that “[b]ecause the marital privilege exists only to protect marriages, only the witness-spouse [as opposed to the party-spouse] may claim the privilege….” 12 ROBERT LOWELL MILLER, JR., INDIANA PRACTICE, INDIANA EVIDENCE § 501.558 (3d. ed 2007) (citing Glover, 836 N.E.2d at 416 ).

2005Carlyle v. State, 428 N.E.2d 10, 12 (Ind.1981).

2003However, the marital privilege is not absolute. "[Wlhere a spouse's testimony concerns disclosures by the other spouse not made in reliance upon the marital relationship but because the disclosing spouse was in need of his mate's assistance and attempted to coerce by force and fear, the testimony is not within the spousal privilege and is admissible." Id.; see also Carlyle v. State, 428 N.E.2d 10, 12 (Ind.1981).

1996Id. at 125 , 109 S.Ct. at 2344 (emphasis in original and footnotes omitted).

1996Id. at 125 , 109 S.Ct. at 2344 (emphasis in original and footnotes omitted).

2005See, eg., Russell v. State, 743 N.E.2d 269, 272 (Ind.2001).

2003Also not privileged are "[clommunications *1156 between spouses intended to be transmitted to a third person." Russell, 743 N.E.2d at 272 (citing Perkins v. State, 483 N.E.2d 1379, 1383 (Ind.1985)).

2026Id. at 127. [37] We conclude that Baker met his burden to rebut the marital presumption by “direct, clear, and convincing evidence.” Sheetz, 63 N.E.3d at 1080 (quoting Myers, 13 N.E.2d at 482).

2026Consequently, just as it is in opposite-sex marriages, the marital presumption of parentage is rebuttable when a child is born into a female- female marriage. [26] Indiana has long held that the marital presumption can only be rebutted “by direct, clear, and convincing evidence.” Myers v. Myers, 13 N.E.3d 478, 482 (Ind. Ct. App. 2014) (quoting Fairrow v. Fairrow, 559 N.E.2d 597, 600 (Ind. 1990)).

2026Id. (quoting Minton v. Weaver, 697 N.E.2d 1259, 1260 (Ind. Ct. App. 1998), trans. denied).

2026Id. (quoting Minton v. Weaver, 697 N.E.2d 1259, 1260 (Ind. Ct. App. 1998), trans. denied).

2026See Appellants’ Reply Br. at 5 (asserting the marital presumption “is rebuttable for same-sex couples just as it is for opposite-sex couples” and the “uncontroverted” evidence shows Baker rebutted the presumption). [16] The presumption that a child born during marriage is a legitimate child of the marriage “is one of the strongest known to the law[.]” H.W.K. v. M.A.G., 426 N.E.2d 129, 131 (Ind. Ct. App. 1981).

2026See Appellants’ Reply Br. at 5 (asserting the marital presumption “is rebuttable for same-sex couples just as it is for opposite-sex couples” and the “uncontroverted” evidence shows Baker rebutted the presumption). [16] The presumption that a child born during marriage is a legitimate child of the marriage “is one of the strongest known to the law[.]” H.W.K. v. M.A.G., 426 N.E.2d 129, 131 (Ind. Ct. App. 1981).

2026See Straub, 645 N.E.2d at 600 (“Any agreement purporting to contract away [a child’s right to receive support from two parents] is directly contrary to this State’s public policy of protecting the welfare of children[.]”); see also Sheetz v. Sheetz, 63 N.E.3d 1077, 1083 (Ind. Ct. App. 2016) (applying equitable estoppel to prevent nonbiological husband who had long held out child as his own from rebutting the marital presumption and noting public policy did not support leaving the child without a father). 14 In a footnote, the Gardenour panel “acknowledge[d] in both Levin and Engelking, the non

2026See Straub, 645 N.E.2d at 600 (“Any agreement purporting to contract away [a child’s right to receive support from two parents] is directly contrary to this State’s public policy of protecting the welfare of children[.]”); see also Sheetz v. Sheetz, 63 N.E.3d 1077, 1083 (Ind. Ct. App. 2016) (applying equitable estoppel to prevent nonbiological husband who had long held out child as his own from rebutting the marital presumption and noting public policy did not support leaving the child without a father). 14 In a footnote, the Gardenour panel “acknowledge[d] in both Levin and Engelking, the non

2026See ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016) (“As we interpret [a] statute, we are mindful of both ‘what it does say’ and what it ‘does not say.’” (quoting Mi.D. v. State, 57 N.E.3d 809, 812 (Ind. 2016))).

2026See ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016) (“As we interpret [a] statute, we are mindful of both ‘what it does say’ and what it ‘does not say.’” (quoting Mi.D. v. State, 57 N.E.3d 809, 812 (Ind. 2016))).

2026See Straub, 645 N.E.2d at 600 (“Any agreement purporting to contract away [a child’s right to receive support from two parents] is directly contrary to this State’s public policy of protecting the welfare of children[.]”); see also Sheetz v. Sheetz, 63 N.E.3d 1077, 1083 (Ind. Ct. App. 2016) (applying equitable estoppel to prevent nonbiological husband who had long held out child as his own from rebutting the marital presumption and noting public policy did not support leaving the child without a father). 14 In a footnote, the Gardenour panel “acknowledge[d] in both Levin and Engelking, the non

2026Id. at 127. [37] We conclude that Baker met his burden to rebut the marital presumption by “direct, clear, and convincing evidence.” Sheetz, 63 N.E.3d at 1080 (quoting Myers, 13 N.E.2d at 482).

2026Consequently, just as it is in opposite-sex marriages, the marital presumption of parentage is rebuttable when a child is born into a female- female marriage. [26] Indiana has long held that the marital presumption can only be rebutted “by direct, clear, and convincing evidence.” Myers v. Myers, 13 N.E.3d 478, 482 (Ind. Ct. App. 2014) (quoting Fairrow v. Fairrow, 559 N.E.2d 597, 600 (Ind. 1990)).

2014Temple v. Temple, 164 Ind.App. 215, 220 , 328 N.E.2d 227, 230 (1975).

2014Temple v. Temple, 164 Ind.App. 215, 220 , 328 N.E.2d 227, 230 (1975).

2003Also not privileged are "[clommunications *1156 between spouses intended to be transmitted to a third person." Russell, 743 N.E.2d at 272 (citing Perkins v. State, 483 N.E.2d 1379, 1383 (Ind.1985)).