Paternity of K.M., Matter of, 71A05-9402-CV-69

• Docket Nº: No. 71A05-9402-CV-69
• Citation: 651 N.E.2d 271
• Case Date: May 23, 1995
• Court: Court of Appeals of Indiana

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651 N.E.2d 271 In the Matter of the PATERNITY OF K.M.
Donna Jean PORTER, Now Known as Todd, Appellant-Petitioner,
v.
Kenneth Jay MILON, Appellee-Respondent. No. 71A05-9402-CV-69. Court of Appeals of Indiana,
Fifth District. May 23, 1995.

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Lee Roy Berry, Jr., McLaughlin, Simpson, Eberhard & Hoke, Goshen, for appellant.

Robert J. Palmer, May, Oberfell & Lorber, South Bend, for appellee.

OPINION

RUCKER, Judge.

In 1977, Kenneth Jay Milon (Milon) and Donna Jean Porter, now known as Donna Jean Todd (Todd), filed a joint voluntary petition to establish paternity of K.M., a child born out of wedlock. An order establishing paternity was entered accordingly. Fifteen years later Milon filed a Rule 60(B) motion to set aside the order based on fraud and newly discovered evidence which the trial court granted. Todd now appeals raising several issues for our review which we consolidate and rephrase as whether the trial court abused its discretion in granting Milon's motion for relief from judgment. Milon cross appeals contending the trial court erred in concluding that the joint voluntary petition to establish paternity was executed without fraud.

The record shows that Todd and Milon began dating while they were college students. A child was conceived during the course of the parties' relationship, namely, K.M. who was born January 15, 1977. Thereafter in July 1977, Todd and Milon filed a joint voluntary petition to establish paternity of the child. At the August 1977 hearing on the petition both parties were represented by counsel. After Milon under oath admitted paternity, the trial court granted the petition and found that Milon was the natural father of the child. Because both parties were full-

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time college students and about to enter their senior years in school, the trial court did not enter an amount for support. Also, by agreement of the parties custody was granted to the child's paternal grandparents while Todd was attending college on a full-time basis. Thereafter she assumed full care and custody of K.M.

Sometime in 1990, K.M. was diagnosed as having a rare bone disease known as Osteopetrosis Tartar. Milon's suspicions were raised that he may not have been K.M.'s biological father because neither Milon nor any member of his family had a history of bone disease. Also, sometime thereafter Milon decided to have a Will drafted. According to Milon, his attorney suggested that he "have a blood test administered to determine exactly whether or not [K.M.] was my legitimate heir." Record at 112. In the summer of 1992, K.M. was visiting Milon at Milon's home in Chicago, Illinois. During the visit Milon encouraged K.M. to have a blood test conducted. Milon testified K.M. took the test voluntarily and without coercion. However, K.M. testified that when he told Milon that he first wanted to obtain permission from his mother before taking the test Milon became "loud and angry." Record at 102. In any event, a Human Leukocyte Antigen (HLA) blood test was performed and specifically excluded Milon as K.M.'s biological father.

On December 30, 1992, armed with the test results, Milon filed a motion to set aside the 1977 order establishing paternity. A hearing was begun March 24, 1993 before a magistrate judge. After conclusion the magistrate ordered Milon, Todd, and K.M. to submit to a Deoxyribo Nucleic Acid (DNA) blood analysis. The hearing was continued, the parties complied with the magistrate's order, and the DNA test results were filed with the trial court. As with the HLA blood test results, the DNA test results also excluded Milon as K.M.'s biological father. Thereafter, the magistrate granted Milon's motion to set aside the 1977 order of paternity. In so doing the magistrate sua sponte entered findings of fact, conclusions of law, and recommendations which were adopted by the regular sitting judge. Among other things the trial court revoked the prior determination of paternity, ordered the birth certificate of K.M. modified so as to delete any reference of Milon as the father of the child, and terminated all child support obligations. The trial court specifically determined that the parties executed the joint voluntary petition to establish paternity without fraud or duress. This appeal arose in due course.

I.

Our review of the grant or denial of an Ind.Trial Rule 60(B) motion is limited to whether the trial court abused its discretion. Fairfield v. Fairfield (1989), Ind., 538 N.E.2d 948, reh'g denied. An abuse of discretion occurs when the trial court's judgment is clearly against the logic and effect of the facts and inferences supporting the judgment for relief. Id. Because the trial court entered findings and conclusions on its own motion, we treat the judgment as a general one and we will affirm on any theory which the evidence of record supports. In re Marriage of Snemis (1991), Ind.App., 575 N.E.2d 650.

Todd contends the medical evidence upon which Milon's petition was based was not "externally obtained" or "independently derived" as set forth in the trial court's findings. Thus, according to Todd the trial court erred in granting Milon's motion for relief from judgment. Milon counters that the medical evidence, namely the HLA blood test, was obtained independently of court action and conclusively established that he was not K.M.'s biological father. Thus, according to Milon the trial court properly granted his motion.

Both parties rely upon our supreme court's ruling in Fairrow v. Fairrow (1990), Ind., 559 N.E.2d 597 to support their respective positions. In that case a divorced father's eleven-year-old son began experiencing symptoms of sickle cell anemia. On the advice of his physician, the father was tested by a medical geneticist. As a result father discovered that he could not be his son's biological father. The father filed a T.R. 60(B)(8) motion to terminate support which the trial court denied. We affirmed on appeal. On petition to transfer the supreme court vacated

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this court's opinion and remanded to the trial court with instructions to grant the father's motion for relief. In so doing the supreme court observed the "unusual way in which [the appellant] stumbled upon medical evidence demonstrating that he was not [the father]...." Fairrow, 559 N.E.2d at 599-600. The court continued "[a]lthough we grant [appellant] relief, we stress that the gene testing results which gave rise to the prima facie case for relief in this situation became available independently of court action." Fairrow, 559 N.E.2d at 600.

Milon seizes on the latter language and points out that the HLA blood test in this case also became available independently of court action. We first observe that at the hearing on Milon's petition for relief from judgment, Todd was not represented by counsel and no guardian ad litem was appointed to protect the interest of K.M. The record shows that a copy of the HLA blood test results were admitted into evidence upon the mere representation by Milon that a test was performed, that Milon received the results, and that...