Marriage of M.E., In re

• Decision Date: 28 October 1993
• Docket Number: No. 61A04-9304-CV-153,61A04-9304-CV-153
• Parties: In re the Marriage of M.E., and D.E.
• Court: Indiana Appellate Court

Page 578

622 N.E.2d 578

In re the Marriage of M.E.,

and

D.E.

No. 61A04-9304-CV-153.

Court of Appeals of Indiana,

Fourth District.

Oct. 28, 1993.

James O. Hanner, Hanner, Hanner and Hanner, Rockville, for appellant.

Bruce V. Stengel, Beardsley and Stengel, Clinton, for appellee.

CONOVER, Judge.

Petitioners-Appellants M.E. and D.E. appeal the trial court's denial of their joint petition to set aside finding of paternity.

We reverse.

The sole issue M.E. and D.E. present for our review is whether the trial court erred in denying their joint petition to set aside the finding of paternity of T.E., as stated in their 1989 dissolution decree, following medical proof D.E. is not T.E.'s biological father.

M.E. and D.E. married in September, 1984 and divorced in November, 1989. During their marriage, they separated several times and were separated at the time of T.E.'s conception in September, 1987. They reconciled and lived together again prior to their divorce. However, M.E. told D.E. the child was his to avoid hurting D.E.'s feelings and to avoid "destroy[ing] the real father." (R. 56). D.E. did not contest paternity at the time of the dissolution and now states at the time he learned M.E.'s pregnancy, he did not believe it was his child but, "had no proof or no way of proving that it wasn't mine." (R. 71). D.E. was not represented by counsel during the divorce.

The record before us is sparse regarding the divorce proceedings, containing only the initial petitions and the order book entry of the final hearing which provides "custody of the three minor children born to the marriage shall be placed with the mother with rights of reasonable visitation at reasonable times and places in the father." The court also ordered D.E. to pay child support and reasonable uninsured medical, dental and optical expenses. (R. 11).

After the divorce, D.E. paid child support and exercised his visitation rights, however he visited more with the older children than with T.E. (R. 65). M.E. later decided it would be unfair to T.E. to grow up without knowing the identity of his biological father and, as a result, sometime prior to September 1991, M.E. told D.E. she felt he might not be T.E.'s father. In September of 1991, D.E., M.E., and T.E. underwent a paternity evaluation which concluded, "The genetic data listed above indicates that [D.E.] CAN BE EXCLUDED as a possible father of [T.E.]." (R. 61).

On September 22, 1992, the M.E. and D.E. filed their joint petition to modify and to set aside finding of paternity, with attached paternity evaluation. (R. 13-14). T.E., through his court-appointed guardian ad litem, opposed the petition.

Following a hearing, the trial court denied the joint petition and stated in its order:

... The earlier ruling of this court finding [D.E.] to be the father of [T.E.] and requiring [D.E.] to support [T.E.] remains in full force and effect.

(R. 31).

M.E. and D.E. contend a paternity action may not be raised against T.E.'s biological father given the paternity finding of the dissolution court. M.E. and D.E. maintain the trial court erred and abused its discretion in denying their petition in light of conclusive evidence D.E. is not T.E.'s biological father. They additionally maintain the dissolution finding regarding paternity was procured through extrinsic fraud or fraud on the court. Therefore, they contend the trial court's judgment must be reversed.

In opposition, T.E. essentially makes a public policy argument and maintains, "It is in [T.E.]'s best interest to have someone certain to be responsible for the support and medical bills of [T.E.] than the mere possibility of finding of biological father." (Brief of Appellee at 7). In addition, T.E. intimates the joint motion to set aside judgment was not timely. M.E. and D.E. contend one year from the date of conclusive proof is not unreasonable given the "complex legal and psychological intricacies of this case." (Brief of Appellant at 11).

We first note a dissolution decree finding one a child of the marriage, in and of itself, is not res judicata on the issue of paternity. In re Paternity of S.R.I. (1992), Ind., 602 N.E.2d 1014, 1016. Such a finding "amounts to no more than a finding that he was born to the wife during the marriage...." Id., at 1017, quoting A.B. v. C.D. (1971), 150 Ind.App. 535, 277 N.E.2d 599, 616. Even if a judgment has been rendered against the mother in a previous paternity action in which the child was not a party, res judicata does not bar a paternity action by the child. Kieler v. C.A.T. and C.S.T. by Trammel (1993), Ind.App., 616 N.E.2d 34. Therefore, mindful of the statutory requirements for paternity actions an action can be pursued against T.E.'s biological father notwithstanding the dissolution decree.

Be that as it may, a child born during a marriage is presumed legitimate. Cooper v. Cooper (1993), Ind.App., 608 N.E.2d 1386, 1387. In a divorce proceeding, this presumption and silence will establish paternity. Id. However, justice disfavors a support order against a husband who is not the child's biological father. Fairrow v. Fairrow (1990), Ind., 559 N.E.2d 597, 600. If the clear, direct and convincing evidence is present, entering a support order against a husband who is not the child's father is generally improper. Id. One who comes into court to challenge a support order on the basis of non-paternity without externally obtained clear medical proof should be rejected as outside the equitable discretion of the trial court. Id.

In Fairrow, supra, at the time of dissolution, Mr. Fairrow did not contest paternity of a child born during the marriage. Eleven years later, medical testing, gained independent of court action and pursuant to a doctor's suggestion following the child's sickle-cell anemia diagnosis, concluded Mr. Fairrow was not the child's father. On transfer, our supreme court found Mr. Fairrow should be relieved from the divorce decree's paternity finding because he "... affirmatively demonstrated that the relief he sought was necessary and just." Id., at 599.

Here, the record reveals D.E. had his suspicions originally, but M.E. told him the child was his. Further, in the joint motion to set aside judgment, under penalty of perjury, M.E. indicated she misled the court as to the paternity of T.E. Blood tests, which concluded D.E. was not T.E.'s father, were obtained pursuant to M.E.'s request. The court admitted the paternity evaluation into evidence over the objection of T.E.'s guardian ad litem, ruling it would be admitted subject to further checking its admissibility. ¹ Further, D.E. testified he understood the amount of his support obligation would not change even if T.E. was determined not to be his child. (R. 73). Based upon instruction of Fairrow, supra, the trial court erred in denying the joint motion to set aside.

We next turn to the issue of fraud. Opening of a paternity case sought by a party who has previously acknowledged himself to be the father should only be allowed in extreme and rare instances. Matter of Paternity of R.C. (1992), Ind.App., 587 N.E.2d 153, 157. Under Indiana's rules, a judgment may be attacked directly on the basis of fraud in three different ways. In re Paternity of Tompkins (1988), Ind.App., 518 N.E.2d 500, 504, appeal after remand (1989), Ind.App., 542 N.E.2d 1009. Those methods are: (1) pursuant to Ind. Trial Rule 60(B)(3) for extrinsic or intrinsic fraud; (2) an independent action for extrinsic fraud; or (3) an independent action for fraud on the court. We will examine each method in turn.

The first method of attack is pursuant to T.R. 60(B)(3). A judgment may be attacked through fraud, either extrinsic or intrinsic. Paternity of R.C., supra, at 156. However, pursuant to T.R. 60(B)(3), the attack must be made within one (1) year from the date of judgment. T.R. 60(B). Here, the attack was not brought within the one year period and therefore, T.R. 60(B)(3) cannot sustain the appellants' request.

The second and third methods of attack, independent actions alleging extrinsic fraud or fraud on the court, are encompassed within the savings clause of T.R. 60(B) which provides:

... does not limit the power of a court to entertain an independent action to to relieve a party from judgment order or proceeding or for fraud on the court.

The court's power to entertain and fashion relief is based on the court's equitable jurisdiction and the court's equitable powers provide flexibility to grant relief. Paternity of R.C., supra, at 156. A review of the grant or denial of a T.R. 60(B) motion is limited to whether the trial court abused its discretion. Freels v. Winston (1991), Ind.App., 579 N.E.2d 132, 135, reh. denied, trans. denied.

In deciding whether to grant relief pursuant to either of the above mentioned independent actions based on fraud, the court should determine if the aggrieved litigant has established the following elements:

1. a judgment which ought not, in equity and good conscience, to be enforced;

2. a good defense to the alleged cause of action on which the judgment is founded;

3. fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense;

4. the absence of fault or negligence on the part of the defendant; and

5. the absence of any adequate remedy at law.

Paternity of Tompkins, supra, at 504. (Citation omitted).

An independent action based on fraud is governed by the extrinsic-intrinsic fraud distinction. Paternity of R.C., supra, at 156. Only extrinsic fraud will support setting a judgment aside. Fraud has been defined as extrinsic if the fraudulent matter prevents a trial of the issue in the case or improperly procures the court's jurisdiction. Id. Extrinsic fraud has been found where a party has been prevented from exhibiting his case fully by fraud or deception practiced on him by his opponent. An action for relief is not barred by the one year period of limitations but is subject to...