Jahangirizadeh v. Pazouki, No. 29A02–1408–DR–530.

• Docket Nº: No. 29A02–1408–DR–530.
• Citation: 27 N.E.3d 1178
• Case Date: March 19, 2015
• Court: Court of Appeals of Indiana

27 N.E.3d 1178

Parviz JAHANGIRIZADEH, Appellant–Respondent
v.
Fatemeh PAZOUKI, Appellee–Petitioner.

No. 29A02–1408–DR–530.

Court of Appeals of Indiana.

March 19, 2015.

27 N.E.3d 1180

Ryan M. Spahr, Spahr Law Office, LLC, Eric J. Olson, Olson Law Office, LLC, Indianapolis, IN, Attorneys for Appellant.

Richard Ranucci, Indianapolis, IN, Attorney for Appellee.

BARNES, Judge.

Case Summary

1] Parviz Jahangirizadeh appeals the trial court's dismissal of his motion to set aside the final decree dissolving his marriage to Fatemeh Pazouki. We affirm.

Issue

[2] The restated issue before us is whether the trial court properly refused to set aside the parties' dissolution decree based upon an allegation that Pazouki had failed to disclose marital assets prior to the decree's entry.

Facts

[3] In 2007, Pazouki filed a petition to dissolve her marriage to Jahangirizadeh. Shortly before the final hearing, Pazouki filed a financial declaration listing a number of assets. On May 23, 2008, the trial court entered a final dissolution decree that included orders regarding division of property, which required Jahangirizadeh to make an equalization payment of $57,513 to Pazouki.

[4] On May 7, 2014, Jahangirizadeh filed a “Motion to Set Aside” the dissolution decree under Indiana Trial Rule 60(B)(3) for fraud. App. p. 9. The motion alleged that thirty-five days after the decree was entered, Pazouki opened a business bank account with an initial deposit of $50,000. Jahangirizadeh claimed that, based on this deposit, Pazouki must have had assets that she failed to disclose during the dissolution proceedings but that should have been subject to division as marital property.

[5] Pazouki responded to this motion with a motion to dismiss, asserting that Jahangirizadeh's motion was untimely under Indiana Trial Rule 60(B)(3). The trial court subsequently dismissed Jahangirizadeh's motion with prejudice. Jahangirizadeh then filed a motion to reconsider. In this motion, Jahangirizadeh directed the trial court to an order issued on May 6, 2014, by a California trial court addressing a claim that Pazouki purportedly had loaned over $400,000 to her brother and her brother's wife.¹ The California court had rejected the claim, stating that Pazouki “was not a credible witness and lied on the witness stand about the purported loans.” Id. at 27.

[27 N.E.3d 1181

[6] The trial court denied Jahangirizadeh's motion to reconsider. Jahangirizadeh then filed a motion to correct error, which the trial court also denied. Jahangirizadeh now appeals.

Analysis

[7] Jahangirizadeh contends the trial court erred in dismissing and thus effectively denying his motion for relief from judgment under Indiana Trial Rule 60(B).² Generally, we will review the denial of a Trial Rule 60 motion for an abuse of discretion. Wisner v. Laney, 984 N.E.2d 1201, 1205 (Ind.2012). However, if a trial court's ruling is strictly based upon a paper record, we will review the ruling de novo because we are in as good a position as the trial court to determine the force and effect of the evidence. In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind.2013). The trial court here ruled solely upon a paper record, and so our review is de novo.

8] Indiana Trial Rule 60(B)(3) provides that a judgment may be set aside for “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party....” Additionally, a motion for relief from judgment under Trial Rule 60(B)(3) must be filed not more than one year after the judgment was entered. However, Trial Rule 60(B) contains a “savings clause” which provides, “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding or for fraud upon the court.”

[9] In Stonger v. Sorrell, 776 N.E.2d 353 (Ind.2002), our supreme court addressed the three ways that a motion to set aside a judgment for fraud can be raised, adopting analysis used by federal courts for Federal Rule of Civil Procedure 60(b)(3), which is nearly identical to Trial Rule 60(B)(3). First is a motion filed under subsection (3) of the Rule, which “may be based on any kind of fraud (intrinsic, extrinsic, or fraud on the court) so long as it is chargeable to an adverse party and has an adverse effect on the moving party.” Stonger, 776 N.E.2d at 356. A motion under this Rule also must be filed in the court that issued the judgment, and it must be made within one year of the judgment. Id.

[10] Second, a party may file an independent action for fraud pursuant to traditional equitable principles. Id. “Independent actions are usually reserved for situations that do not meet the requirements for a motion made under” Rule 60(B)(3). Id. Such cases include ones where

“(i) the fraud is not chargeable to an adverse party; (ii) the movant seeks relief from a court other than the rendering court; or, most often, (iii) the one-year time limit for Rule 60(b)(3) motions has expired.” Id. An independent action for

[27 N.E.3d 1182

fraud is subject to the doctrine of laches and is available only in extremely limited circumstances. Id.

[11] Third, a party may invoke the inherent power of a court to set aside its judgment if procured by fraud on the court. Id. at 356–57. Also, a court may sua sponte set aside a judgment for fraud on the court. Id. at 357. There is no time limit for a fraud on the court proceeding. Id.

[12] Regardless of which procedural avenue a party selects to assert a claim of fraud, “the party must establish that an unconscionable plan or scheme was used to improperly influence the court's decision and that such acts prevented the losing party from fully and fairly presenting its case or defense.” Id. If it is unclear which procedural avenue a party intended to use to set aside a judgment and more than one year has passed, a court may construe a motion to set aside as either an independent action for fraud or as a pleading to grant relief for fraud on the court. Id.; see also United States v. Buck, 281 F.3d 1336, 1342 (10th Cir.2002) (“The substance of the plea should control, not the label.”). To establish fraud warranting relief from judgment, a party must show more than a possibility that the trial court was misled; rather, “there must be a showing that the trial court's decision was actually influenced.” Stonger, 776 N.E.2d at 358.

[13] Here, although Jahangirizadeh labeled his motion as seeking relief from judgment under Trial Rule 60(B)(3), it is clear that relief cannot be granted under that part of the Rule because the motion was filed more than one year after the original judgment was entered. However, we will proceed to consider...