Stonger v. Sorrell, No. 52S02-0202-CV-130.

Docket NºNo. 52S02-0202-CV-130.
Citation776 N.E.2d 353
Case DateOctober 07, 2002
CourtSupreme Court of Indiana

776 N.E.2d 353

Tristan V. STONGER, Appellant (Respondent),
v.
Beth Ann (Stonger) SORRELL, Appellee (Petitioner)

No. 52S02-0202-CV-130.

Supreme Court of Indiana.

October 7, 2002.


776 N.E.2d 354
Ronald E. Elberger, George T. Patton, Jr., Bose, McKinney & Evans LLP, Robert E. Saint, Emswiller, Williams, Noland & Clarke, Indianapolis, IN, Attorneys for Appellant

Matthew R. Gutwein, Baker & Daniels, Indianapolis, IN, Rosemary Higgins Burke, Burke, Lee and Heller, Rochester, IN, Attorneys for Appellee.

Robert W. York, Arthur R. Baxter, Jr., York Schrager Baxter James & Rose, Indianapolis, IN, Attorneys for Amicus Curiae Jamia Jasper Jacobsen.

Stephen R. Carter, Attorney General of Indiana, Gary Damon Secrest, Deputy Attorney General, Indianapolis, IN, Attorneys for Amicus Curiae State of Indiana.

CIVIL TRANSFER

RUCKER, Justice.

Three years after the trial court awarded custody of the parties' minor children to the mother, the father filed a Trial Rule 60(B) motion to set aside the judgment on grounds of fraud on the court. The trial court denied the motion, and the Court of Appeals reversed. Having previously granted the mother's petition to transfer, we now affirm the trial court.

Facts and Procedural History

After eight years of marriage, Tristan Stonger ("Father") and Beth Ann (Stonger) Sorrell ("Mother") divorced in August 1991. Initially both parties shared joint legal and physical custody of their two minor children. When Mother remarried and moved to a different county in 1993, Father was awarded physical custody of the children so that they would not have to change schools. On April 24, 1995, Mother filed a petition to modify custody. Shortly thereafter, the trial court appointed Dr. John Ehrmann to perform a custody evaluation. As part of his custody evaluation, Dr. Ehrmann interviewed Mother, Father, and the children; performed psychological tests on Mother and Father; reviewed transcripts from prior custody proceedings; had a licensed social worker visit the residences of Mother and Father; and considered reports and letters from a variety of sources including relatives, friends, and teachers. Dr. Ehrmann also invited the parties to provide any additional information that would assist him in the evaluation. Mother submitted materials from The Family Counseling Center from which she and the children had received counseling services. The materials included notes from Dr. Jamia Jacobsen, who had interviewed the children on a couple of occasions,

776 N.E.2d 355
and a psychological report on the children from Dr. David Gover, which was unfavorable to Father

After assimilating this information, Dr. Ehrmann submitted a nineteen-page report to the trial court recommending that physical custody be transferred to Mother. On August 15, 1996, after conducting a five-day trial that included testimony from twenty-one witnesses, the trial court entered extensive findings of fact and conclusions of law awarding sole custody to Mother. Father appealed, and the Court of Appeals affirmed the trial court in a memorandum decision. Stonger v. Sorrell, No. 52A04-9612-CV-532, 684 N.E.2d 268 (Ind.Ct.App. Sept. 5, 1997).

On June 18, 1999, nearly three years after the trial court awarded custody to Mother, Father filed a Trial Rule 60(B) motion to set aside the judgment on grounds of fraud on the court. The motion focused on The Family Counseling Center materials. On March 15, 2000, after conducting a hearing, the trial court denied Father's motion. Father appealed, and the Court of Appeals reversed. Stonger v. Sorrell, 750 N.E.2d 391 (Ind.Ct.App.2001). Having previously granted Mother's petition to transfer, we now affirm the trial court.

Discussion

I. Procedural Issues

Although the substantive law of fraud on the court is settled, there is some amount of inconsistency regarding the procedural aspects of fraud on the court. Compare Global Travel Agency, Inc. v. Metal Recovery Techs., Inc., 727 N.E.2d 1101, 1104 (Ind.Ct.App.2000) (stating that independent action for fraud on the court must be brought within "reasonable" time) with In re Paternity of Tompkins, 518 N.E.2d 500, 506 (Ind.Ct.App.1988) (stating that independent action for fraud on the court "may be brought at anytime"). Therefore, before addressing the merits of Father's claim, we clarify the procedural aspects of fraud on the court.

Our starting point is Indiana Trial Rule 60(B), which provides:

On motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following reasons:
...
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.

Ind. Trial Rule 60(B)(3). The rule continues that it "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." T.R. 60(B). Citing Federal Rule of Civil Procedure 60(b) and its accompanying commentary, Indiana courts have stated that there are three ways of attacking a judgment on the basis of fraud: (1) a Trial Rule 60(B)(3) motion for intrinsic or extrinsic fraud; (2) an independent action for extrinsic fraud pursuant to Trial Rule 60(B); and (3) an independent action for fraud on the court pursuant to Trial Rule 60(B). Tompkins, 518 N.E.2d at 504, 506. In practice it would appear that under existing law there is really only one way to attack a judgment on grounds of fraud on the court; namely, an independent action pursuant to Trial Rule 60(B). See, e.g., Global Travel Agency, 727 N.E.2d at 1103-04; Glover v. Torrence, 723 N.E.2d 924, 932 (Ind.Ct.App.2000); In re Marriage of M.E., 622 N.E.2d 578, 581 (Ind.Ct.App. 1993); Tompkins, 518 N.E.2d at 504. However, federal authority, upon which Indiana courts have relied, provides otherwise. Although we are not bound by federal

776 N.E.2d 356
authority, we look to it for guidance in this case in order to clarify the inconsistencies that currently exist under Indiana law. See Hefty v. All Other Members of the Certified Settlement Class, 680 N.E.2d 843, 848 (Ind.1997) (noting "[I]t is appropriate for courts to look at federal court interpretations of the federal rule when applying the Indiana rule.")

Similar to Indiana Trial Rule 60(B), Federal Rule of Civil Procedure 60(b) provides:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
...
(3) fraud (whether heretofore denominated intrinsic
...

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79 practice notes
  • Outback Steakhouse of Florida v. Markley, No. 18S04-0602-CV-66.
    • United States
    • Indiana Supreme Court of Indiana
    • November 8, 2006
    ...for Misconduct A grant of equitable relief under Indiana Trial Rule 60 is within the discretion of the trial court. Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind.2002) (citing Wolvos v. Meyer, 668 N.E.2d 671, 678 (Ind. 1996)). Accordingly, we review a trial court's ruling on Rule 60 motions ......
  • Tibbs v. State, No. 46A03–1501–CR–19.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 8, 2016
    ...the trial court entered findings of fact and conclusions thereon, we will employ a two-tiered standard of review. Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind.2002). First, we determine whether the evidence supports the findings and then whether the findings support the judgment. Id. We wil......
  • Coca-Cola Co. v. Babyback's Intern., Inc., No. 49A02-0308-CV-703.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 8, 2004
    ...we may be guided by decisions federal courts or other panels of this court, we are not required to follow them. See Stonger v. Sorrell, 776 N.E.2d 353, 355-56 (Ind.2002) ("Although we are not bound by federal authority, we look to it for guidance in this case in order to clarify the inconsi......
  • Taylor v. Federal Nat. Mortg. Ass'n, No. 03-3320.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 2, 2004
    ...allows independent actions for fraud on the court to be brought at any time after judgment has been entered. See Stonger v. Sorrell, 776 N.E.2d 353, 357 (Ind.2002) (adopting federal authority in analyzing claims of fraud on the court under Indiana Trial Rule 60(B), which holds that there is......
  • Request a trial to view additional results
79 cases
  • Outback Steakhouse of Florida v. Markley, No. 18S04-0602-CV-66.
    • United States
    • Indiana Supreme Court of Indiana
    • November 8, 2006
    ...for Misconduct A grant of equitable relief under Indiana Trial Rule 60 is within the discretion of the trial court. Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind.2002) (citing Wolvos v. Meyer, 668 N.E.2d 671, 678 (Ind. 1996)). Accordingly, we review a trial court's ruling on Rule 60 motions ......
  • Tibbs v. State, No. 46A03–1501–CR–19.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 8, 2016
    ...the trial court entered findings of fact and conclusions thereon, we will employ a two-tiered standard of review. Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind.2002). First, we determine whether the evidence supports the findings and then whether the findings support the judgment. Id. We wil......
  • Coca-Cola Co. v. Babyback's Intern., Inc., No. 49A02-0308-CV-703.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 8, 2004
    ...we may be guided by decisions federal courts or other panels of this court, we are not required to follow them. See Stonger v. Sorrell, 776 N.E.2d 353, 355-56 (Ind.2002) ("Although we are not bound by federal authority, we look to it for guidance in this case in order to clarify the inconsi......
  • Taylor v. Federal Nat. Mortg. Ass'n, No. 03-3320.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 2, 2004
    ...allows independent actions for fraud on the court to be brought at any time after judgment has been entered. See Stonger v. Sorrell, 776 N.E.2d 353, 357 (Ind.2002) (adopting federal authority in analyzing claims of fraud on the court under Indiana Trial Rule 60(B), which holds that there is......
  • Request a trial to view additional results

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