Stonger v. Sorrell
| Citation | 750 N.E.2d 391 |
| Decision Date | 11 June 2001 |
| Docket Number | No. 52A02-0007-CV-443.,52A02-0007-CV-443. |
| Parties | Tristan STONGER, Appellant-Respondent, v. Beth Ann (Stonger) SORRELL, Appellee-Petitioner. |
| Court | Court of Appeals of Indiana |
Ronald E. Elberger, George T. Patton, Jr., Bose, McKinney & Evans LLP, Robert E. Saint, Emswiller, Williams, Noland & Clarke, Indianapolis, IN, Attorneys for Appellant.
Rosemary Higgins Burke, Burke, Lee and Heller, Rochester, IN, Attorney for Appellee.
Appellant-Respondent, Tristan V. Stonger (hereinafter referred to as "Stonger"), appeals the trial court's denial of his Petition to Set Aside the Court's Judgment.
We remand for further proceedings consistent with this opinion.1
Stonger raises two issues on appeal, one of which we find dispositive and restate as follows: whether the trial court applied an incorrect and erroneous legal standard of "fraud upon the court" under Ind. Trial Rule 60(B).
On August 29, 1991, Stonger and Appellee-Petitioner, Beth Ann (Stonger) Sorrell (hereinafter referred to as "Sorrell"), were divorced in Montana. Stonger and Sorrell shared joint legal and physical custody of their two minor sons, T.S., born December 7, 1984, and S.S., born November 25, 1986. While the divorce was pending, on August 20, 1990, a Montana court denied Stonger's motion to set aside an order allowing Sorrell to leave Montana with the minor children. Subsequently, Sorrell moved with the children to Miami County, Indiana. Stonger also moved to Miami County.
Following the divorce, Sorrell remarried and moved to Clinton County, Indiana. On October 7, 1993, the Miami Superior Court modified physical custody of the parties' minor children, granting physical custody to Stonger. The court found that although both parents were fit and proper parents, it was in the children's best interests to remain in the Maconaquah School District, in Miami County, and thus, in the primary custody of Stonger.
On April 24, 1995, Sorrell filed a Verified Petition for Modification of Custody and Petition for Custodial Evaluation with Dr. John C. Ehrmann, Ph.D. (Ehrmann). Ehrmann submitted a detailed written report into evidence. The report incorporated home studies, interviews by Ehrmann with the parties and the minor children, reports received from The Family Counseling Center, psychological testing performed by Ehrmann, a report from Helen Gray—a social worker who saw the children in 1994, school records, a report from T.S.'s teacher, a psychiatrist's report on examination of the children and her testimony from a previous custody hearing, and numerous letters. The report concluded that physical custody of the children should be transferred to Sorrell as soon as possible.
Consequently, on August 15, 1996, the Miami Superior Court entered its Findings of Fact and Conclusions of Law. The trial court found that it would be in the best interests of the children that sole custody be granted to Sorrell, effective immediately. Stonger appealed the trial court's judgment to this court and we affirmed the trial court's judgment in a memorandum opinion, Stonger v. Sorrell, 684 N.E.2d 268 (Ind.Ct.App.1997).
Subsequently, on June 18, 1999, Stonger filed his Petition to Set Aside the Court's Judgment of August 15, 1996. Under T.R. 60(B)(8), Stonger alleged fraud upon the court. Stonger argued that the statutory process for making child custody determinations was corrupted through the use of an unconscionable scheme to influence in an illegal manner the custody evaluator's decision and in turn the trial court's decision.
The following facts relate back to the time period prior to Sorrell filing her Petition for Modification of Custody and are the bases for Stonger's Petition to Set Aside the Court's Judgment of August 15, 1996.
Prior to filing her Petition for Modification of Custody, Sorrell was referred by her attorney to Dr. Jamia J. Jacobsen (Jacobsen) and The Family Counseling Center. On November 19, 1994, Sorrell took T.S. and S.S. to see Jacobsen at The Family Counseling Center without Stonger's permission. During the session, Jacobsen spent approximately fifty minutes with Sorrell and thirty minutes with each child. On December 3, 1994, Jacobsen spent approximately ninety minutes with the children and their stepfather. According to Jacobsen's records, T.S. and S.S. filled out "Criteria for Custody" worksheets and questionnaires. (Supplemental Record (S.R.) 131-134).
On April 5, 1995, Dr. David Gover (Gover), a licensed psychologist in Jacobsen's office, purportedly wrote separate psychological reports for T.S. and S.S. The reports concerning T.S. and S.S. portrayed their relationship with Stonger in a rather poor and negative light. Both of these reports were signed by "David Gover." (R. 405 & S.R. 179).
When Ehrmann was assigned to conduct the custodial evaluation, he invited Stonger and Sorrell to provide him with any collateral data that would assist him in the evaluation process. On September 6, 1995, Sorrell signed consent forms so that Ehrmann could obtain the records of Jacobsen and Gover. Ehrmann then used these reports as part of his custody evaluation.
At some point, Stonger discovered that in Jacobsen's curriculum vitae, she portrayed herself as a mental health expert, having minors in psychology in her undergraduate degree and master's degree from Indiana University; that she had completed courses in marriage and family therapy from Butler Christian Theological Seminary in 1988; and that she had some type of degree in marriage and family therapy known as an "AAMFT" from Indiana University and Purdue University at Fort Wayne. Through the testimony of the Senior Assistant Registrar from Indiana University, the Registrar at Butler University, the Registrar at Christian Theological Seminary, and the Registrar at Indiana University and Purdue University at Fort Wayne, it was found that none of these statements in Jacobsen's curriculum vitae were true.
Although certain statements in Jacobsen's curriculum vitae were false, it should be noted that through additional evidence presented, it was revealed that Jacobsen's academic credentials include: Indiana University degree, Bachelor of Science in Education, June 4, 1962—in the education department, Jacobsen's courses included: Adolescent Behavior and Development, Psychological Measurement in the School, and Social Psychology of Physical and Mental Disabilities; Indiana University degree from Indiana University Purdue University Indianapolis, Master of Science in Education, Special Education, August 31, 1975—at the Master's level, Jacobsen had one course in the psychology department, Classroom Behavior Management; participation in a credentialing process from the American Association for Marriage and Family Therapy beginning in 1975, including both classroom instruction and extensive clinical supervision, becoming an approved supervisor in 1993; Indiana University, Doctor of Philosophy, 1983; Butler University, Fundamentals of Counseling Theory and Technique, fall semester 1989-1990; clinical member in good standing in the American Association for Marriage and Family Therapy, since 1990; Family Mediation Training, completed September 25-29, 1991; licensed Marriage & Family Therapist, State of Indiana, issued August 19, 1992; licensed Clinical Social Worker, State of Indiana, issued July 9, 1993; Newport University, Newport Beach, CA, Doctor of Psychology, December 20, 1996.
Additionally, Stonger also discovered that Gover's psychological reports of T.S. and S.S. were not prepared by him or signed by him. Jacobsen's former secretary, Pam Hamstra (Hamstra), testified that she signed Gover's signature to both reports without Gover's authorization. Hamstra further testified that Jacobsen instructed her approximately once a month to sign Gover's signature to reports. Gover did not authorize Jacobsen or Hamstra to sign his signature on T.S. or S.S.'s psychological reports or any other reports.
Finally, in a letter dated November 16, 1995, Sorrell's attorney wrote to her:
Dr. Ehrmann has also indicated that he was willing to put in his report a statement regarding the negative impact of the delay on the children in order for us to stave off what we know is coming next, which will be a request from them for a second custody evaluation.
(S.R. 99). In his custody evaluation, Ehrmann wrote:
The final recommendation offered is that this entire matter be resolved as quickly as possible. There are some emerging signs of depression in [T.S.] which are certainly of concern. Other individuals as well as this evaluator have clearly expressed concern about the lack of resolution in this case and the need for the boys to adjust to a known future. Further delays would continue to maintain the boys in an ongoing and stressful situation.
(R. 644). In its August 15, 1996 Findings of Facts and Conclusions of Law, the trial court discussed Ehrmann's custody evaluation. The court stated that "[t]his report concluded that physical custody of the parties' minor children should be transferred to Mother as soon as possible." (S.R. 196).
With all of the above mentioned facts in mind, Stonger's Petition to Set Aside the Court's Judgment of August 15, 1996 alleged that: 1) Jacobsen falsely portrayed herself as having significant academic training; 2) the Gover psychological reports of T.S. and S.S. were fabricated; and 3) Ehrmann inappropriately communicated with Sorrell's counsel, and this inappropriate communication is reflected in Ehrmann's custody evaluation and in the trial court's August 15, 1996 Findings of Facts and Conclusions of Law.
Consequently, on January 25-28 and February 16, 2000, the trial court heard evidence on Stonger's Petition. At the conclusion of Stonger's evidence, Sorrell moved for a judgment on the evidence. The trial court took this matter under advisement. On March 8,...
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Stonger v. Sorrell
...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 Alt......