Leiter v. Scott

638 N.E.2d 1335, 1994 Ind. App. LEXIS 1100, 1994 WL 456671

• Court: Indiana Court of Appeals
• Decided: August 25, 1994
• Docket: No. 29A04-9309-CV-360
• Status: Published

Opinions

CHEZEM, Judge.

Case Summary

Appellant-petitioner, Clarence Leiter, appeals the trial court's order denying his Trial Rule 60(B) motion. We affirm.

Issue

Clarence presents several issues for review, which we consolidate and restate as: whether Clarence's T.R. 60(B) motion was properly denied where it was not filed with any externally obtained clear medical proof of his non-paternity.

Facts and Procedural History

Clarence and Carolee Leiter were married on January 27, 1990. Almost two months later, on March 26, 1990, Carolee gave birth to a son, J.L. Clarence and Carolee were divorced on June 20, 1991. In the settlement agreement incorporated into the dissolution decree, the parties acknowledge that there was "one (1) child born to the marriage, namely [J.L.]." Carolee was awarded custody of J.L. and Clarence was granted visitation and ordered to pay child support.

On July 28, 1992, Clarence filed a petition with the dissolution court entitled "Petition for Modification of Decree of Dissolution." Clarence alleged that he "has reason to believe that the minor children [sic], [J.L.], is not his biological son," and requested the court to order the parties to submit to DNA blood testing. Clarence simultaneously moved for a change of judge, which was granted. The court set a hearing on Clarence's petition. Before the hearing took place, Clarence, Carolee and J.L. had the DNA blood testing performed. The results showed that Clarence could not be J.L.'s biological father.

On April 28, 1998, a hearing was conducted on Clarence's petition. At the hearing, Clarence orally moved the court to treat his petition as a Trial Rule 60(B) motion, which the court granted. Carolee then filed a motion to dismiss or deny the T.R. 60(B) motion. The court continued the hearing to afford Clarence time to respond to the motion to dismiss.

On May 11, 1998, Clarence filed his response to Carolee's motion to dismiss, and attached the results of the DNA blood testing. Clarence also moved to amend his T.R. 60(B) motion. Carolee filed her reply to Clarence's response, and also objected to Clarence's motion to amend. On July 21, 1993, the trial court issued an order dismissing Clarence's T.R. 60(B) motion and denying his motion to amend. Clarence now appeals.

Discussion and Decision

Clarence argues the trial court erred in denying his T.R. 60(B) motion. When reviewing the denial of a TR. 60(B) motion, the issue is limited to whether or not the trial court abused its discretion. Levin v. Levin (1993), Ind.App., 626 N.E.2d 527.

Clarence contends that the trial court abused its discretion by not granting him relief from the dissolution judgment which found that J.L. was a child of the marriage. The trial court, citing our supreme court's decision in Fairrow v. Fairrow (1990), Ind., 559 N.E.2d 597, denied the TR. 60(B) motion because Clarence did not have any externally obtained clear medical proof of his non-paternity when the petition was filed with the trial court.

In Fairrow, the former husband petitioned the court under TR. 60(B)(8) for relief from a child support order after he had discovered conclusive medical evidence that he was not the child's father. Approximately eleven years after the divorcee, the child had become ill with sickle cell anemia. Upon the advice of his doctor, the former husband had himself tested for the sickle cell trait. The test results showed that he could not possibly be the child's father. In reversing the trial court's denial of the former husband's T.R. 60(B)(8) motion, the supreme court stated:

Although we grant Joe 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. In granting relief to a party who learned of his non-parenthood through the course of ordinary medical care, we do not intend to create a new tactical nuclear weapon for divorce combatants. One who comes into court to challenge a support order on the basis of non-paternity without externally obtained clear medical proof should be rejected as outside the equitable discretion of the trial court.

In sum, we strongly discourage relit-igation of support issues through T.R. 60(B)(8) motions in the absence of highly unusual evidence akin to the evidence presented in this case.

Id. at 600.

We believe that the trial court correctly applied Fairrow. Clarence's petition with the trial court did not present any externally obtained medical proof of his non-paternity. Clarence's petition only stated that "he had reason to believe" that J.L. was not his son. The petition, in fact, requested a court order to obtain such medical evidence.

Clarence argues that the enforcement of a support order against a person who is not the child's parent is against public policy, citing the following statement from Fatrrow:

[Tlhere is a substantial public policy, namely justice, which disfavors a support order against a husband who is not the child's father.

Id.

However, that statement by the court in Fatrrow was tempered by the requirement that one must come into court with externally obtained clear medical proof of non-paternity. This Clarence failed to do. Clarenee's petition was properly rejected as outside the equitable discretion of the trial court.¹

Affirmed.

RILEY, J., concurring. FRIEDLANDER, J., dissenting with opinion.

1 . Clarence also argues that the trial court erred in denying his TR. 60(B) motion on the grounds of res judicata and fraud. However, the trial court did not support its judgment on either of these grounds, but relied entirely on our supreme court's decision in Fatrrow.