In Re: The Adoption of: M.W.M and K.R.M. (Minor Children) M.M. v. W.S. (mem. dec.)

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; *****

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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

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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

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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

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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.

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