MEMORANDUM DECISION Jun 04 2015, 10:09 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Adam C. Squiller Christopher D. Kehler Squiller & Harley Kehler Law Firm, PC Auburn, Indiana Warsaw, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re: The Adoption of: June 4, 2015 M.W.M. and K.R.M., Court of Appeals Cause No. 43A03-1501-AD-16 Minor Children, Appeal from the Kosciusko M.M., Superior Court Cause Nos. 43D01-1209-AD-32 Appellant, 43D01-1209-AD-33 v. The Honorable Duane G. Huffer, W.S., Judge
Appellee.
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015 Page 1 of 8 Case Summary [1] M.M. appeals the dismissal of his motion for relief from judgment. We
affirm.
Issue [2] M.M. raises one issue which we restate as whether the trial court properly
dismissed his motion for relief from judgment.
Facts [3] M.M. is the biological father of M.W.M. and K.R.M. In 2012, Father
consented to the children’s adoption by W.S. On October 31, 2012, the
trial court issued an amended decree of adoption. On September 18, 2014,
M.M. filed a motion for relief from judgment pursuant to Indiana Trial
Rule 60(B). The motion alleged in part:
4. [M.M.] was informed . . . that he would be allowed to have contact with the children following the adoption. 5. [M.M.] was informed by Petitioners that Petitioners were in a financial situation such that they would be able to support the minor child and provide the child with a comfortable lifestyle. 6. Petitioner has represented and the Court has found that he has the ability and desire to furnish support and affection necessary to serve the respective adoptee’s best interests. 7. In making said representations, Petitioners perpetrated a fraud on [M.M.] and the Court. App. p. 12.
Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015 Page 2 of 8 [4] On October 13, 2014, W.S. filed a motion to dismiss M.M.’s motion for
relief from judgment. W.S. asserted that the motion for relief for judgment
was untimely because, when a motion for relief from judgment is based on
Trial Rule 60(B)(3), it must be filed within one year.
[5] On December 8, 2014, the trial court held a hearing on M.M.’s motion.
That same day, the trial court issued an order dismissing M.M.’s motion for
relief from judgment because it was untimely. M.M. now appeals.
Analysis [6] M.M. argues that the trial court erroneously dismissed his motion for relief
from judgment without an evidentiary hearing. The propriety of relief
under Trial Rule 60(B) is a matter entrusted to the trial court’s equitable
discretion. Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 812 (Ind. 2012).
An abuse of that discretion may occur if the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before it or if the
trial court has misinterpreted the law. Id.
[7] Trial Rule 60(B) provides:
On motion and upon such terms as are just the court may relieve a party or his legal representative from a 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; *****
Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015 Page 3 of 8 The motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more than one year after the judgment, order or proceeding was entered or taken for reasons (1), (2), (3), and (4). A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation. This rule 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. . . . Our supreme court has adopted federal authority for analyzing claims of
fraud under Trial Rule 60(B). See Stonger v. Sorrell, 776 N.E.2d 353, 357
(Ind. 2002).
[8] The Stonger court recognized three ways of seeking relief from judgment on
the basis of fraud. Id. at 356. The first is a motion pursuant to Trial Rule
60(B)(3), which can be “based on any kind of fraud (intrinsic, extrinsic, or
fraud on the court) so long as it is chargeable to an adverse party and has an
adverse effect on the moving party.” Id. Such a motion must be filed not
more than one year after the judgment was entered. T.R. 60(B); Stonger,
776 N.E.2d at 356.
[9] The second method is an independent action for fraud pursuant to the
savings clause of Trial Rule 60(B), which provides, “This rule does not limit
the power of a court to entertain an independent action to relieve a party
from a judgment, order or proceeding . . . .” This provision reserves the
power trial courts had prior to the adoption of Trial Rule 60 to relieve a
party of a judgment by means of an independent action according to
traditional principles of equity. Id. This type of action is usually reserved
Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015 Page 4 of 8 for situations that do not meet the requirements for a motion made under
Trial Rule 60(B)(3) because the fraud is not chargeable to an adverse party;
the movant seeks relief from a court other than the rendering court; or the
one-year time limit for Trial Rule 60(b)(3) motions has expired. Id. “An
independent action is subject to the doctrine of laches, and its remedy is
extremely limited.” Id.
[10] The third method is also pursuant to the savings clause of Trial Rule 60(B),
which goes on to provide, “This rule does not limit the power of a court to
entertain an independent action . . . for fraud upon the court.” “This
method invokes the inherent power of a court to set aside its judgment if
procured by fraud on the court.” Id. at 357.
[11] Because M.M.’s motion for relief from judgment was filed almost two years
after the adoption decree was issued, the motion was clearly untimely under
Trial Rule 60(B)(3). M.M. does not dispute this and instead claims that the
one-year time limitation in Trial Rule 60(B) does not apply to his allegation
of fraud on the court pursuant to Stonger.
[12] “In order to properly preserve an issue on appeal, a party must, at a
minimum, ‘show that it gave the trial court a bona fide opportunity to pass
upon the merits of the claim before seeking an opinion on appeal.’” Cavens
v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006) (quoting Endres v. Ind. State
Police, 809 N.E.2d 320, 322 (Ind. 2004)). Further, “It is a cardinal rule of
appellate review that the appellant bears the burden of showing reversible
Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015 Page 5 of 8 error by the record, as all presumptions are in favor of the trial court’s
judgment.” Marion-Adams Sch. Corp.
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MEMORANDUM DECISION Jun 04 2015, 10:09 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Adam C. Squiller Christopher D. Kehler Squiller & Harley Kehler Law Firm, PC Auburn, Indiana Warsaw, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re: The Adoption of: June 4, 2015 M.W.M. and K.R.M., Court of Appeals Cause No. 43A03-1501-AD-16 Minor Children, Appeal from the Kosciusko M.M., Superior Court Cause Nos. 43D01-1209-AD-32 Appellant, 43D01-1209-AD-33 v. The Honorable Duane G. Huffer, W.S., Judge
Appellee.
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015 Page 1 of 8 Case Summary [1] M.M. appeals the dismissal of his motion for relief from judgment. We
affirm.
Issue [2] M.M. raises one issue which we restate as whether the trial court properly
dismissed his motion for relief from judgment.
Facts [3] M.M. is the biological father of M.W.M. and K.R.M. In 2012, Father
consented to the children’s adoption by W.S. On October 31, 2012, the
trial court issued an amended decree of adoption. On September 18, 2014,
M.M. filed a motion for relief from judgment pursuant to Indiana Trial
Rule 60(B). The motion alleged in part:
4. [M.M.] was informed . . . that he would be allowed to have contact with the children following the adoption. 5. [M.M.] was informed by Petitioners that Petitioners were in a financial situation such that they would be able to support the minor child and provide the child with a comfortable lifestyle. 6. Petitioner has represented and the Court has found that he has the ability and desire to furnish support and affection necessary to serve the respective adoptee’s best interests. 7. In making said representations, Petitioners perpetrated a fraud on [M.M.] and the Court. App. p. 12.
Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015 Page 2 of 8 [4] On October 13, 2014, W.S. filed a motion to dismiss M.M.’s motion for
relief from judgment. W.S. asserted that the motion for relief for judgment
was untimely because, when a motion for relief from judgment is based on
Trial Rule 60(B)(3), it must be filed within one year.
[5] On December 8, 2014, the trial court held a hearing on M.M.’s motion.
That same day, the trial court issued an order dismissing M.M.’s motion for
relief from judgment because it was untimely. M.M. now appeals.
Analysis [6] M.M. argues that the trial court erroneously dismissed his motion for relief
from judgment without an evidentiary hearing. The propriety of relief
under Trial Rule 60(B) is a matter entrusted to the trial court’s equitable
discretion. Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 812 (Ind. 2012).
An abuse of that discretion may occur if the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before it or if the
trial court has misinterpreted the law. Id.
[7] Trial Rule 60(B) provides:
On motion and upon such terms as are just the court may relieve a party or his legal representative from a 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; *****
Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015 Page 3 of 8 The motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more than one year after the judgment, order or proceeding was entered or taken for reasons (1), (2), (3), and (4). A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation. This rule 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. . . . Our supreme court has adopted federal authority for analyzing claims of
fraud under Trial Rule 60(B). See Stonger v. Sorrell, 776 N.E.2d 353, 357
(Ind. 2002).
[8] The Stonger court recognized three ways of seeking relief from judgment on
the basis of fraud. Id. at 356. The first is a motion pursuant to Trial Rule
60(B)(3), which can be “based on any kind of fraud (intrinsic, extrinsic, or
fraud on the court) so long as it is chargeable to an adverse party and has an
adverse effect on the moving party.” Id. Such a motion must be filed not
more than one year after the judgment was entered. T.R. 60(B); Stonger,
776 N.E.2d at 356.
[9] The second method is an independent action for fraud pursuant to the
savings clause of Trial Rule 60(B), which provides, “This rule does not limit
the power of a court to entertain an independent action to relieve a party
from a judgment, order or proceeding . . . .” This provision reserves the
power trial courts had prior to the adoption of Trial Rule 60 to relieve a
party of a judgment by means of an independent action according to
traditional principles of equity. Id. This type of action is usually reserved
Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015 Page 4 of 8 for situations that do not meet the requirements for a motion made under
Trial Rule 60(B)(3) because the fraud is not chargeable to an adverse party;
the movant seeks relief from a court other than the rendering court; or the
one-year time limit for Trial Rule 60(b)(3) motions has expired. Id. “An
independent action is subject to the doctrine of laches, and its remedy is
extremely limited.” Id.
[10] The third method is also pursuant to the savings clause of Trial Rule 60(B),
which goes on to provide, “This rule does not limit the power of a court to
entertain an independent action . . . for fraud upon the court.” “This
method invokes the inherent power of a court to set aside its judgment if
procured by fraud on the court.” Id. at 357.
[11] Because M.M.’s motion for relief from judgment was filed almost two years
after the adoption decree was issued, the motion was clearly untimely under
Trial Rule 60(B)(3). M.M. does not dispute this and instead claims that the
one-year time limitation in Trial Rule 60(B) does not apply to his allegation
of fraud on the court pursuant to Stonger.
[12] “In order to properly preserve an issue on appeal, a party must, at a
minimum, ‘show that it gave the trial court a bona fide opportunity to pass
upon the merits of the claim before seeking an opinion on appeal.’” Cavens
v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006) (quoting Endres v. Ind. State
Police, 809 N.E.2d 320, 322 (Ind. 2004)). Further, “It is a cardinal rule of
appellate review that the appellant bears the burden of showing reversible
Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015 Page 5 of 8 error by the record, as all presumptions are in favor of the trial court’s
judgment.” Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468 (Ind. Ct.
App. 2006); see also Willett v. Review Bd. of Indiana Dep’t of Employment &
Training Servs., 632 N.E.2d 736, 740 (Ind. Ct. App. 1994) (“The burden is
on appellant to establish a complete and accurate record.”), trans. denied.
[13] M.M. has not shown that he gave the trial court a bona fide opportunity to
address the merits of his claim that his motion for relief from judgment
constituted an independent action for fraud as described in Stonger and was
not subject to the one-year time limitation of Trial Rule 60(B). Specially,
we have no way of knowing what was argued at the December 8, 2014
hearing because, although M.M. requested that a transcript of that hearing
in his notice of appeal, the Notice of Completion of Clerk’s Record
indicates that no transcript was available. M.M. does not address the lack
of transcript, and there is no indication that M.M. attempted to have a
statement of evidence certified by the trial court pursuant to Indiana
Appellate Rule 31. See Graddick v. Graddick, 779 N.E.2d 1209, 1210 (Ind.
Ct. App. 2002) (observing that compliance with App. R. 31 “sustains the
appellant’s burden of presenting a complete record on appeal.”). Without a
transcript of the December 8, 2014 hearing or a statement of the evidence,
we have no way of knowing whether M.M. asserted an independent action
for fraud on the court as discussed in Stonger or whether M.M. is raising the
Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015 Page 6 of 8 issue for the first time on appeal. Thus, M.M. has not shown that this issue
was preserved for appellate review.1
[14] Instead, the record on appeal shows that M.M.’s motion for relief from
judgment referenced Trial Rule 60(B) generally and alleged that, in making
representations about his ability to support the children, W.S. “perpetrated
a fraud” on M.M. and the trial court. App. p. 12. According to Stonger, a
Trial Rule 60(B)(3) motion may be based on any kind of fraud, including
fraud on the court. Stonger, 776 N.E.2d at 356. W.S. then moved to
dismiss M.M.’s motion for relief from judgment on the basis that it was
untimely pursuant to the one-year limitation in Trial Rule 60(B)(3).
Following a hearing, the trial court granted the motion to dismiss on that
basis. Accordingly, M.M. has not established that that the trial court erred
in dismissing his motion for relief from judgment without conducting an
evidentiary hearing.
Conclusion [15] Based on record before us, M.M. has not established that the trial court
erred in dismissing his motion for relief from judgment. We affirm.
1 Unlike our recent decision in Jahangirizadeh v. Pazouki, 27 N.E.3d 1178 (Ind. Ct. App. 2015), trans. pending, and Stonger, it is not clear that the issue raised by M.M. on appeal was properly preserved for appellate review.
Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015 Page 7 of 8 [16] Affirmed.
Riley, and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015 Page 8 of 8