In re S.C.

• Decision Date: 29 March 2012
• Docket Number: No. 30A01–1107–JP–322.,30A01–1107–JP–322.
• Parties: In re the Matter of the PATERNITY OF S.C. K.C., Appellant–Respondent, and C.C., Appellee–Petitioner. and B.H., Appellee–Intervenor.
• Court: Indiana Appellate Court

966 N.E.2d 143

In re the Matter of the PATERNITY OF S.C.

K.C., Appellant–Respondent,

and

C.C., Appellee–Petitioner.

and

B.H., Appellee–Intervenor.

No. 30A01–1107–JP–322.

Court of Appeals of Indiana.

March 29, 2012.

Bryan Lee Ciyou, Ciyou & Dixon, P.C., Indianapolis, IN, Attorney for Appellant.

FRIEDLANDER, Judge.

K.C. (Mother) gave birth to a child, S.C., on July 28, 2008. Controversy has existed ever since as to the identity of S.C.'s biological father. Almost from the outset, two men, B.H. and C.C., have sought to establish legal paternity of S.C. Their battle initially was litigated in two separate counties under two separate actions. B.H. initiated his action in Fayette Circuit Court. Somewhat later, and with Mother's cooperation, C.C. initiated a separate action in Hancock Circuit Court. In this appeal, Mother challenges the Hancock Circuit Court's grant of B.H.'s Verified Petition for Relief from Judgment for Fraud Upon the Court, challenging that ruling as the sole issue on appeal.

We affirm.

Mother and C.C. began dating in high school and became sexually active. Mother and C.C. both knew B.H. At some point in time, Mother and B.H. had a sexual relationship. In 2007, Mother was at B.H.'s house when she learned she was pregnant. B.H. arranged for Mother to see a doctor.

Mother informed C.C. that she was pregnant and believed C.C. to be the father, though she had also wondered if B.H. could be the father. Mother ceased contact with B.H. and continued her relationship with C.C. On July 28, 2008, Mother gave birth to S.C. at the Henry County Hospital in Henry County, Indiana, with C.C. present during the birth. On July 29, 2008, B.H. filed a Verified Petition for Immediate Paternity Order in the Fayette Circuit Court, alleging he was the father of S.C., requesting an order that Mother and S.C. submit to a DNA test, and asking that it be performed before Mother's and S.C.'s discharge from the hospital. On July 30, 2008, the Henry County Sheriff served upon Mother a summons and B.H.'s Verified Petition for Immediate Paternity Order by leaving a copy with, and mailing it to, Mother's parents' house. Also on July 30, Mother and C.C. executed a paternity affidavit stating that C.C. was S.C.'s biological father.

On July 31, 2008, before they were discharged from the hospital, Mother and S.C. submitted to blood tests. On August 4, 2008, the DNA Diagnostic Center in Fairfield, Ohio issued a DNA test report indicating there was a 99.9997% probability that B.H. was S.C.'s biological father.¹ On August 15, 2008, Mother's counsel entered his appearance in the Fayette County proceeding. On the same day, Mother filed a Verified Answer and a Motion to Dismiss for a lack of subject matter jurisdiction, failure to state a claim, and improper venue. On August 26, 2008, the Fayette Circuit Court scheduled a hearing on Mother's motion to dismiss.

On October 15, 2008, the DNA test results were sent to Mother and B.H. On October 21, 2008, C.C., pro se, and on behalf of S.C., filed a Verified Petition to Establish Paternity in the Hancock Circuit Court. C.C. alleged that he was S.C.'s father based upon the July 30 paternity affidavit. On the same day, i.e., October 21, both Mother and C.C. filed a Verified Joint Stipulation Establishing Paternity and Agreed Entry (Agreed Entry), stipulating to C.C.'s paternity and determining the parties' support obligations and custodial arrangements relative to S.C.

On October 22, 2008, the Hancock Circuit Court issued an order establishing paternity (the Paternity Order) in favor of C.C. On that same day, the Fayette Circuit Court held a hearing on B.H.'s paternity action. During the hearing, Mother's counsel served B.H. with documents from the Hancock County proceeding and entered them into evidence without objection from B.H. Although B.H. sought to enter the DNA test report into evidence, the trial court refused and dismissed B.H.'s Petition, stating:

Well that maybe [sic] all well and good that you did it but you have another hurdle you have got to get over um, that is that your Petition To Dismiss um, or that your Petition doesn't really set out any, um any remedy for which I could give belief [sic] to. It doesn't state that you are the father. It doesn't ... it's not a Petition for Paternity. It was only a Petition asking that you be given an immediate uh, that you be, that she be ordered to do a DNA testing. Um, we never got to that stage, it's and, and it doesn't meet any of the requirements. Um, so in reality the Petition has to be dismissed um, subject to your filing an Amended Complaint within 10 days.

* * * * * *

And it has to be in the proper form because if you filed it and it's not in proper form, then, doesn't set out the appropriate facts, it's going to be dismissed and then other issues come about um, and then we'll end up having a battle between Fayette County and Hancock County to determine if you're [sic] complaint survives to determine um, which Court has jurisdiction um, and I guess you could then file, and if your complaint survives you can file a motion to consolidate in the earliest case and everything would then be consolidated under the earliest case number, if I remember right under Trial Rule 42 –something. 42 or 43 said that yesterday that's why I'm familiar. I'm up on it.

Appellant's Appendix at 66–67. Following dismissal, on October 31, 2008, B.H. filed a motion to correct error and a motion requesting an extension of time to file an amended complaint. The Fayette Circuit Court did not rule on the motion to correct error, but granted B.H.'s motion for an extension of time. B.H. did not subsequently file an Amended Petition and Mother's counsel withdrew from the Fayette County proceeding on February 27, 2009.

On June 25, 2010, B.H., by counsel, filed his Verified Petition for Relief of Judgment for Fraud Upon the Court (the Petition for Relief) in the Hancock Circuit Court, alleging that the Paternity Order was obtained through fraud. On July 16, 2010, B.H. sought to intervene in the Hancock County proceeding. The trial court granted the motion on July 19, 2010. On May 24, 2011, the trial court held a hearing on B.H.'s Petition for Relief. On July 1, 2011, the trial court granted the petition, issuing the following findings of fact, conclusions of law, and judgment:

1. The Court finds [K.C.] and [C.C.], met in high school when [K.C.] was a freshman [C.C.] was a senior [sic].

2. The Court finds were active [sic].

3. The Court finds that by at least 2007, [K.C.] was also sexually active with [B.H.].

4. [S.C.] was born on July 28, 2008.

5. [K.C.] and [C.C.] entered into a Paternity Affidavit at the hospital after [S.C.'s] birth.

6. On July 29, 2008, [B.H.] filed a Petition to Establish Paternity of minor child, S.C., in the Fayette Circuit Court under cause number 21C01–0807–JP–0432.

7. [K.C.], ... the biological mother of [S.C.], was named as the Respondent.

8. On July 31, 2008, a DNA test was performed at the Henry County Memorial Hospital on [K.C.], [B.H.] and minor child [S.C.].

9. The DNA testing was completed on August 4, 2008 showing the probability of paternity as it related to [B.H.] was 99.9997%.

10. On August 15, 2008, attorney Bryan Ciyou ... entered his appearance on behalf of [K.C.] in the Fayette Circuit Court proceeding.

11. Various motions were filed by Ciyou in the Fayette Circuit Court proceeding in response to [B.H.]'s Petition to Establish Paternity, which were:

a. Motion to Dismiss for Lack of Subject Matter Jurisdiction;

b. Failure to State a Claim; AND

c. Incorrect Venue.

12. The Fayette Circuit Court then consolidated all pending motions for final hearing on October 22, 2008 at 10:30 a.m. for one (1) hour.

13. On October 21, 2008, [C.C.] ..., the putative father, filed a Petition to Establish Paternity of minor child, S.C., in the Hancock County Circuit Court under cause number 30C01–0810–JP–0156.

14. [K.C.] was named as Respondent in the Hancock County Circuit Court case and on October 21, 2008, Ciyou entered an appearance on behalf of [K.C.].

15. On October 21, 2008, [K.C.] and [C.C.] filed a Verified Joint Stipulation Establishing Paternity and Agreed Entry, hereinafter, Agreed Entry.

16. The Court finds that [K.C.] knew that there was a reasonable possibility that [B.H.] was the biological father of [S.C.].

17. The Agreed Entry was signed by Ciyou as attorney for [K.C.].

18. At no time was notice given to the Hancock County Circuit Court that a paternity action had been filed and was pending in the Fayette Circuit Court at the time the Petition for Paternity and Agreed Entry thereon was filed.

19. At no time did [C.C.], [K.C.] or Ciyou notify [B.H.] said Petition and Agreed Entry had been tendered to the Hancock Circuit Court.

20. On October 22, 2008, the Fayette Circuit Court dismissed [B.H.]'s petition subject to [B.H.] being given ten (10) days to file an amended petition.

CONCLUSIONS OF LAW

21. The Court concludes that the paternity affidavit filed July 30, 2008 is void as a matter of law as [K.C.] knew there was a reasonable possibility that [B.H.] was the actual father of the child. I.C. 31–14–2–1 cannot be used as a fraudulent vehicle to terminate the parental rights of a biological father.

22. The Court concludes that [K.C.] engaged in an unconscionable plan or scheme to defraud Pinter v. Pinter, 641 N.E.2d 101, 104 [sic].

* * * * * *

[K.C.]'s actions in this matter constitute a fraud upon this Court. In Pinter v. Pinter, 641 N.E.2d 101 (Ind.Ct.App.1994), the Court noted that fraud on the Court is a deliberately planned carefully executed scheme to defraud[ ].... Attorney Ciyou had the responsibility if not duty as an officer of the court to notify the Court of the pending action in another Court and failed to do so. Attorney Ciyou carefully executed the filing of the case in Hancock County on the day before a hearing was scheduled in the Fayette County Circuit Court in what can only be concluded was a deliberate plan to deceive the Hancock County Circuit Court.

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