A "necessary party" is one who must be joined in the action for a just adjudication. J.E. v. N.W.S. by S.L.S. (1991), Ind. App., 582 N.E.2d 829, 832. A judgment entered without the presence of indispensable parties is void, but it may be appealed for the sole purpose of setting it aside. Noblitt v. Metropolitan Plan Commission of Marion County (1961), 131 Ind. App. 497, 172 N.E.2d 580, 583.
(4) the controversy adjudicated in the former action must have been between parties to the present suit or their privies.J.E. v. N.W.S., by S.L.S. (1991), Ind. App., 582 N.E.2d 829, 830-831, reh'g denied, trans. denied.
Allison asserts that this dismissal under Rule 41(E) for failure to prosecute serves as an adjudication on the merits for purposes of res judicata and claim preclusion. SeeJ.E. v. N.W.S. , 582 N.E.2d 829, 831 n.2 (Ind. Ct. App. 1991) (dismissal under Trial Rule 41(E) operates as an adjudication on the merits pursuant to Trial Rule 41(B) ). Allison asserts that this action, filed on November 16, 2018, similarly is based on the same franchise agreement that was at issue in the 2014 case, and it also asserts claims for breach of contract and deception based on alleged unpaid royalty fees discovered through an audit of its records as well as alleged false and inaccurate weekly reports of gross sales.
See Kieler v. C.A.T. by Trammel, 616 N.E.2d 34 (Ind.Ct.App. 1993), trans. denied; J.E. v. N.W.S., by S.L.S., 582 N.E.2d 829 (Ind.Ct.App. 1991), trans. denied (where child not made party to paternity action, child not barred from later relitigating its interests).
" "A `necessary party* is one who must be joined in the action for a just adjudication." J.E. v. N.W.S. by S.L.S., 582 N.E.2d 829, 832 (Ind.Ct.App. 1991), trans, denied, Mary should have been included as a party to the action. Regarding the order of support, a trial court may order either or both parents to pay reasonable child support after considering all relevant factors, including the financial resources of the custodial parent, the standard of living the child would have enjoyed had the parents been married and remained married to each other, the physical and mental condition of the child, the child's educational needs, and the financial resources and needs of the noncustodial parent.
Thus, while the parties named in the prior action are prevented by the doctrine of res judicata from litigating issues previously decided, the child is not barred from litigating her interests. Id. (citing J.E. v. N.W.S., by S.L.S., 582 N.E.2d 829 (Ind.Ct.App. 1991), reh'g denied, trans. denied).
There are several consequences which emanate from that holding, most of which are contrary to the development of common law in this area. First, because the child is not a party to the dissolution, the child cannot be joined as required by our court in J.E. v. N.W.S. by S.L.S., 582 N.E.2d 829, 832 (Ind.Ct.App. 1991), reh. denied, trans. denied, and in Matter of Paternity of H.J.F., 634 N.E.2d 551, 553 (Ind.Ct.App. 1994). Second, as demonstrated in L.D.H., the child will not be guaranteed an appointment of a guardian ad litem, which is required in all cases which determine paternity matters on their merits.
See K.S., 669 N.E.2d at 404-05 (citing Kieler v. C.A.T. by Trammel, 616 N.E.2d 34 (Ind. Ct. App. 1993), trans. denied; J.E. v. N.W.S., by S.L.S., 582 N.E.2d 829 (Ind. Ct. App. 1991), trans. denied).
"[A] petition to establish paternity must show with crystal clarity that the child[ren] [are] actually [parties] to the action and not simply the subject[s] or object[s] of the action." Id. at 553 (quoting J.E. v. N.W.S. by S.L.S., 582 N.E.2d 829, 832 (Ind.Ct.App. 1991), reh'g denied). In this appeal, the petition does not indicate with sufficient clarity that the children were actual parties to the action.
Presumably, because support of the child is not an issue when the marriage remains intact, the reason for allowing the paternity action to proceed is not as compelling. We held in J.E. v. N.W.S. by S.L.S. (1991), Ind. App., 582 N.E.2d 829, 832, reh. den., trans. den.: