K.C. (Mother) gave birth to a child, S.C., on July 28, 2008. Controversy has existed ever since as to the identity of S.C.’s biological father. Almost from the outset, two men, B.H. and C.C., have sought to establish legal paternity of S.C. Their battle initially was litigated in two separate counties under two separate actions. B.H. initiated his action in Fayette Circuit Court. Somewhat later, and with Mother’s cooperation, C.C. initiated a separate action in Hancock Circuit Court. In this appeal, Mother challenges the Hancock Circuit Court’s grant of B.H.’s Verified Petition for Relief from Judgment for Fraud Upon the Court, challenging that ruling as the sole issue on appeal.
…The dispositive question is this: Did Mother procure the Hancock County order by committing a fraud upon the court within the meaning of T.R. 60(B) in failing to inform the Hancock County court about the Fayette County proceeding? As Mother aptly notes, in order to prevail on his motion, it was incumbent upon B.H. to establish that Mother had engaged in an unconscionable plan or scheme in order to improperly influence the court’s decision with respect to C.C.’s Verified Petition to Establish Paternity and that such prevented B.H. from fully and fairly presenting his case or defense. See Stonger v. Sorrell, 776 N.E.2d 353.
….As set out above, the execution of the paternity affidavit, combined with the timing of the filing of the Hancock County proceeding, appear to have been part of a plan or scheme to suppress the true identity of S.C.’s biological father, which resulted in the issuance of a paternity order by the Hancock Circuit Court that prevented B.H. from “having an actual day in court[.]” See id.
MATHIAS, J., concurs.
RILEY, J., dissents with separate opinion.
Riley, J., dissenting
The majority makes it clear that their holding is premised upon “the power of the trial court to vacate an order that it later concludes was issued under a fraudulent pretext.” Slip op. p. 10. The trial court here concluded that the paternity affidavit was void as a matter of law because it “cannot be used as a fraudulent vehicle to terminate the parental rights of a biological father.” (Appellant’s App. p. 11). The trial court further concluded that Mother and her counsel’s actions in procuring the October 22, 2008 Order constituted fraud on the court. However, because the paternity affidavit at issue was not properly rescinded and because B.H. was not deprived from fully and fairly establishing his paternity of S.C. by virtue of either the paternity affidavit or the October 22, 2008 Order, I conclude that both of the trial court’s conclusions are clearly erroneous.