Paternity of Tompkins, In re

Decision Date28 January 1988
Docket NumberNo. 35A02-8702-JV-82,35A02-8702-JV-82
Citation518 N.E.2d 500
PartiesIn re The PATERNITY OF Joshua Thomas TOMPKINS. William N. MILLS, Petitioner-Appellant, v. Kevin E. BROWN, Respondent-Appellee.
CourtIndiana Appellate Court

Linda J. Peters, F. Walter Riebenack, Sowers, Larson, Riebenack & Connolly, Fort Wayne, for petitioner-appellant.

Robert S. Garrett, Palmer, Bowers & Brewer, Huntington, for respondent-appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

William N. Mills as guardian for Joshua Thomas Tompkins appeals from the Huntington Circuit Court's grant of Kevin E. Brown's motion for judgment on the pleadings and denial of Mills' motion to consolidate actions. We reverse in part, and affirm in part.

FACTS

On June 15, 1980, Joshua Thomas Tompkins was born to Debra Tompkins Booher. At the time Joshua was born, Debra was married to, but separated from, Michael Tompkins, her second husband. On October 1, 1980, the Allen Circuit Court dissolved Debra and Michael's marriage. Apparently, Debra and Joshua resided with Debra's first husband, Kevin Brown, for approximately a year. In August of 1981, Debra and Joshua moved in and lived with Gary Booher. On December 12, 1981, Debra married Gary. Subsequently, Debra and Kevin filed a joint petition to establish paternity of Joshua, and on February 5, 1982, a judgment was entered declaring Kevin as the father of Joshua.

Debra remained married to Gary and retained custody of Joshua. On August 28, 1984, a daughter, Jasmine Lee, was born to Debra and Gary. Gary and Debra raised and provided support for both Joshua and Jasmine. On September 2, 1985, Debra died from an aneurysm in her brain. Gary filed a petition to establish a guardian for Joshua. The Huntington Circuit Court appointed William N. Mills as guardian for Joshua. Thereafter, Mills, upon obtaining evidence that Kevin was not Joshua's biological father, filed suit to set aside the paternity judgment on the basis of fraud. Mills also filed a motion to consolidate the guardianship and paternity suits. Kevin challenged the suit and motion to consolidate and filed a motion for judgment on the pleadings based upon application of Rundel v. Shady (1986), Ind.App., 492 N.E.2d 694. The trial court denied Mills' motion to consolidate, granted Brown's motion for judgment on the pleadings, and dismissed Mills' complaint. Mills appeals the trial court's decisions.

ISSUES

While several interconnected issues have been raised, the following two (2) issues are dispositive:

1. Whether the trial court erred by granting Brown's motion for judgment on the pleadings based upon Rundel and by dismissing Mills' suit to set aside the paternity judgment.

2. Whether the trial court erred by denying Mills' motion to consolidate actions.

DISCUSSION AND DECISION
Issue One

Mills argues that the trial court improperly granted Brown's motion for judgment on the pleadings. Under Indiana Rules of Civil Procedure, Trial Rule 12(C), a court may grant a motion for judgment on the pleadings and dismiss the suit, if a review of the pleadings establishes that a redressable claim does not exist or that no material issue of fact exists and that the movant is entitled to judgment as a matter of law. Gregory and Appel, Inc. v. Duck (1984), Ind.App., 459 N.E.2d 46, 49-50; Mills v. American Playground Device Co. (1980), Ind.App., 405 N.E.2d 621, 626-27, reh. denied 427 N.E.2d 1130 (1981); Anderson v. Anderson (1979), Ind.App., 399 N.E.2d 391, 406. A motion for judgment on the pleadings "tests the law of the claim and not the facts that support it." Anderson, at 406. The court must view the pleadings in a light most favorable to the nonmovant, accepting all facts well pleaded as admitted and drawing all reasonable inferences in favor of the non-movant. Duck, at 49-50; Mills, at 626-27; Id. On review the appellate court applies the same test as the trial court. Duck, at 50.

In the present case, the trial court erred in granting Brown's motion for judgment on the pleadings. The trial court's decision to grant judgment on the pleadings apparently was based in part upon application of Rundel. However, Rundel is distinguishable and does not apply to the case. Furthermore, the pleadings, viewed in a light most favorable to Mills, do present a redressable claim under Indiana law and do not establish that Brown was entitled to judgment as a matter of law.

In Rundel, Rundel, the mother, and Shady, the putative father, filed a joint, verified petition to establish paternity. Subsequently, but before the trial court entered a paternity judgment, Rundel filed a request for blood testing, due to circumstances that suggested that Shady may not have been the biological father. Shady, however, requested a motion for judgment on the pleadings. At the hearing, the referee determined that Rundel's request for blood testing was not supported by the pleadings, granted Shady's motion, and found Shady to be the father. Rundel, at 695-96.

On appeal, the court of appeals affirmed. The court analyzed the appeal with regard to the child's interests in the paternity determination, and with regard to the public's interest. The court went on to find that Rundel's verified petition was binding on her as a conclusive admission, absent withdrawal, and held that she could not introduce evidence at the hearing to contradict the admissions. The court then reviewed the paternity statute's blood testing provisions and determined that blood tests were required only in adversarial settings. Thus, since the petition for paternity was joint and nonadversarial, the court of appeals held that the trial court properly denied the blood testing proceedings and properly granted Shady's motion for judgment on the pleadings. Id. at 696-97.

The present case is distinguishable from Rundel in several respects. First, the present case is procedurally and substantively different than Rundel involved an evidentiary question regarding the obtainment and admission of evidence during the paternity proceeding. The present case, however, involves an independent action attacking the paternity judgment based upon fraud. The difference between the determination of the admissibility of evidence and the determination of the existence of fraud makes Rundel inapposite to this case.

Second, in Rundel, the evidence was excluded because the petitioner sought to contradict her own conclusive admissions. In the present case, the guardian for Joshua seeks to present evidence which contradicts the admissions and paternity judgment. Although Joshua was a party to the paternity suit, neither Brown's nor Debra's admissions were binding on him. The rule stated in Rundel only applies to the party filing the pleading and making the admission. 71 C.J.S. Pleading Sec. 160(c) (1951).

Third, the facts in the present case suggest that Joshua's best interests and the public policy considerations weigh differently than in Rundel. In Rundel, the mother was unmarried. If paternity was not established, then in all probability the child would have become a ward of the State. In the present case, Debra was married at the time of the paternity proceeding and when Joshua was born. The facts suggest that Joshua would not become a ward of the State if the paternity judgment was overturned. Thus, the public policy considerations are not as predominant in this case.

Joshua's best interests are also different than in Rundel. In Rundel, the child's support and education were in question. In the present case, neither support, maintenance, nor education are lacking or appear endangered. Furthermore, the facts compel the conclusion that Joshua's need for stability and psychological support would be served best if he were allowed to remain with his half-sister and step-father, rather than his father as presumed under the paternity judgment. Accordingly, the difference between the procedural posture, substantive issues, and facts all establish that Rundel is inapposite. Therefore, the trial court erred by granting Brown's motion for judgment on the pleadings under the law found in Rundel.

The grant of Brown's motion for judgment on the pleadings was also improper under Indiana's rules for attacking a judgment based upon fraud. Although Brown correctly points out that the doctrine of res judicata prevents collateral attacks, a judgment may be challenged in a direct attack for fraud. 17 I.L.E. Judgment Sec. 273 (1959). Under Indiana's rules and the federal rules a judgment may be attacked directly on the basis of fraud in three (3) different ways. 7 Moore's Federal Practice p 60.33 (1987). The first method is found in Indiana Rules of Civil Procedure, Trial Rule 60(B)(3). Under Trial Rule 60(B)(3) a judgment may be attacked for fraud. The fraud alleged can be either intrinsic or extrinsic, and distinction is not required. Trial Rule 60(B)(3). However, a motion under Trial Rule 60(B)(3) must be made within one (1) year from the date of judgment. Trial Rule 60(B)(8); Smith v. Tisdal (1985), Ind.App., 484 N.E.2d 42, 44. In the present case, the suit challenging the paternity judgment was not brought within one (1) year. Therefore, Trial Rule 60(B)(3) cannot sustain Mills' pleadings.

The second and third methods of attacking a judgment based on fraud are through an independent action. 7 Moore's Federal Practice p 60.33 (1987). This method is referred to in a savings clause of Trial Rule 60(B)(8), which states that the rule, "does not limit the power of a court to entertain an independent action to relieve a party from judgment order or proceeding." T.R. 60(B)(8); 7 Moore's Federal Practice p 60.33. The court's power to entertain and grant relief in an independent action is based upon the court's equitable jurisdiction. 7 Moore's Federal Practice p 60.36 (1987). The court's equitable powers provide flexibility in fashioning relief. General Electric Co. v. Bootz Mfg. Co. (S.D.Ind.1968), 289 F.Supp. 504, 507. However, in...

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