FILED
Feb 12 2018, 8:53 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Denise F. Hayden Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of B.M. and February 12, 2018
O.M., Court of Appeals Case No.
49A02-1706-JP-1383
B.S.M.,
Appeal from the
Appellant-Respondent, Marion Circuit Court
v. The Honorable
Sheryl Lynch, Judge
The Honorable
E.S.F., Jason G. Reyome, Magistrate
Appellee-Petitioner, Trial Court Cause Nos.
49C01-1303-JP-8858
and 49C01-1303-JP-8859
State of Indiana,
Appellee-Intervenor.
Kirsch, Judge.
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[1] B.S.M. (“Father”) appeals the trial court’s order denying his motion to set aside
judgment of paternity as to B.M. and O.M. pursuant to Indiana Trial Rule
60(B), contending that the trial court erred when it denied his motion.
[2] We affirm.
Facts and Procedural History
[3] E.S.F. (“Mother”) was pregnant with B.M. at the time she met Father. B.M.
was born on December 1, 2005, and Father knew he was not B.M.’s biological
father when he signed the paternity affidavit for B.M. on August 19, 2009.
O.M. was born on April 7, 2009, and Father executed a paternity affidavit on
the same day. When he signed the paternity affidavit, Father suspected that he
might not be O.M.’s father. Tr. Vol. 2 at 54. Some months after O.M.’s birth,
Mother told Father during an argument that he might not be O.M.’s biological
father. Father never denied he was O.M.’s father until Mother tried to get child
support. Id. at 15-16.
[4] On March 7, 2013, Mother filed petitions to establish support of B.M. and
O.M. based on the execution of paternity affidavits. On April 29, 2013,
following a hearing at which Father appeared and Mother did not, the trial
court entered default judgments of paternity and support, in which Father
stipulated that he had executed paternity affidavits, pursuant to Indiana Code
section 16-37-2-2.1, as to each child. At that time, as a temporary order,
support was set at $0 and reserved for final hearing until such time that one of
the parties requested a hearing on support. On August 31, 2015, Mother, with
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the aid of the Marion County Prosecutor’s Office, filed a petition to determine
reserved issues from the paternity judgment, including such issues as current
and retroactive child support.
[5] On February 23, 2016, Father filed a Trial Rule 60(B) motion to set aside the
judgment of paternity as to O.M. and a motion to request DNA testing to
establish paternity of O.M. Appellant’s App. Vol. 2 at 37, 39. The trial court
conducted a hearing on Father’s motion with respect to O.M. on July 11, 2016.
On August 25, 2016, Father filed a Trial Rule 60(B) motion to set aside the
judgment of paternity as to B.M. and a motion to request DNA testing to
establish paternity of B.M. Id. at 4-5. On September 22, 2016, the trial court
entered an order for genetic testing for both B.M. and O.M. After multiple
continuances, the trial court conducted hearings on Father’s motions on May 9,
2016, July 11, 2016, November 17, 2016, December 5, 2016, and May 15, 2017.
At these hearings, testimony was given that Father is the only father the
children have ever known. Tr. Vol. 2 at 45. Further testimony was heard that,
until about a year before the hearing, B.M. and O.M. had stayed with Father
every other weekend and he had paid an agreed-upon amount of child support,
had gotten the boys for the holidays, had taken them to see his family, had
attended parent-teacher conferences, and had helped buy school supplies. Id. at
46. The results of the DNA testing excluded Father as the biological father of
both boys. State’s Exs. A, B. However, the results of the court-ordered DNA
tests were later ordered stricken from the record because the tests were ordered
in error. Appellant’s App. Vol. 2 at 20.
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[6] On June 7, 2017, the trial court entered a final order on Father’s Trial Rule
60(B) motions to set aside judgment of paternity, denying both motions. In its
order, the trial court found that both of the children knew Father as their father.
Id. The trial court also found that Father did not seek genetic testing
independent of court action and that he voluntarily signed paternity affidavits
for both B.M. and O.M. Id. The trial court further found that, on April 29,
2013, Father sought default judgments for both children with knowledge that
B.M. was not logically his biological child and with knowledge that O.M. was
possibly not his biological child and then waited almost three years after the
paternity default judgments were entered to challenge paternity for his eleven
and eight-year-old sons. Id. Accordingly, the trial court ordered that the
default judgments establishing paternity should remain standing as valid orders
of the court. Id. at 21. Father now appeals.
Discussion and Decision1
[7] The decision of whether to grant or deny a Trial Rule 60(B) motion for relief
from judgment is within the sound, equitable discretion of the trial court. Prince
v. Marion Cnty. Auditor, 992 N.E.2d 214, 217 (Ind. Ct. App. 2013), trans. denied.
1
We note that the State argues Father’s appeal should be dismissed because this court lacks subject matter
jurisdiction as the trial court’s order was not a final judgment disposing of all claims between the parties.
Appellee’s Br. at 10. Although the trial court’s order did state that “the matter will be reset for hearing on
reserved issues,” Appellant’s App. Vol. 2 at 21, under Indiana Appellate Rule 2(H), there are five ways in which
a judgment is a final judgment, one of which is when a judgment is deemed final under Trial Rule 60(C).
Trial Rule 60(C) stated in pertinent part that “[a] ruling or order of the court denying or granting relief, in
whole or in part, by motion under subdivision (B) of this rule shall be deemed a final judgment, and an
appeal may be taken therefrom as in the case of a judgment.” Here, Father is appealing from a trial court
order denying him relief under Trial Rule 60(B), and this court has jurisdiction over this appeal.
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We will not reverse a denial of a motion for relief from judgment in the absence
of an abuse of discretion. Id. Moreover, where as here, the trial court enters
special findings and conclusions pursuant to Indiana Trial Rule 52(A), our
standard of review is two-tiered. Barton v. Barton, 47 N.E.3d 368, 373 (Ind. Ct.
App. 2015), trans. denied. First, we determine whether the evidence supports the
findings, and second whether the findings support the judgment. Id. The trial
court’s findings and conclusions will be set aside only if they are clearly
erroneous. Id. In reviewing the trial court’s entry of special findings, we
neither reweigh the evidence nor reassess the credibility of the witnesses. Id.
Rather we must accept the ultimate facts as stated by the trial court if there is
evidence to sustain them. Id.
[8] Father argues that the trial court erred in denying his motion to set aside the
judgments of paternity as to B.M. and O.M. Specifically, he contends that,
under Indiana Code section 16-37-2-2.1, the paternity affidavits should be
rescinded because the affidavits were executed under fraud, duress, or material
mistake of fact, and there was a court-ordered genetic test that proved he was
not the biological father of B.M. and O.M. Father asserts that the DNA test
results proved that he was not the biological father of either B.M. or O.M. and
that, by denying his Trial Rule 60(B) motion, the trial court condoned the fraud
that was perpetrated by Mother. We reject Father’s claim.
[9] Father is the legal father of B.M. and O.M. based on the paternity affidavits he
executed. See Ind. Code § 31-14-7-3; In re Paternity of M.M., 889 N.E.2d 846,
847 (Ind. Ct. App. 2008) (“Once a man has executed a paternity affidavit in
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accordance with Indiana Code section 16-37-2-2.1, he is the child’s legal father
unless the affidavit is rescinded pursuant to the same statute.”). Indiana Code
section 16-37-2-2.1(k) gives a man sixty days after executing a paternity
affidavit to file a court action to request genetic testing. After 60 days the
paternity affidavit may only be rescinded when a court: “(1) has determined
that fraud, duress, or material mistake of fact existed in the execution of the
paternity affidavit; and (2) at the request of a man described in subsection (k),
has ordered a genetic test, and the test indicates that the man is excluded as the
father of the child.” I.C. § 16-37-2-2.1(l)(1).
[10] “These provisions reflect the legislature’s intent to provide assistance to a man
who signed a paternity affidavit due to fraud, duress, or material mistake of
fact.” In re Paternity of T.M., 953 N.E.2d 96, 98 (Ind. Ct. App. 2011), trans.
denied. However, a man who executed a paternity affidavit may not fail to
timely request genetic testing under Indiana Code section 16-37-2-2.1 and then,
as a matter of course, request such testing as a fishing expedition. Id. A legal
father may not disestablish paternity outside the sixty-day time limitation,
absent a claim of fraud, duress, or material mistake of fact. In re Paternity of
E.M.L.G., 863 N.E.2d 867, 870 (Ind. Ct. App. 2007). Moreover, a legal father
may challenge paternity only “in extreme and rare instances,” and the challenge
must be made by “evidence that has become available independently of court
action.” Id.
[11] Here, Father executed the paternity affidavits years before moving to have the
judgment of paternity set aside, and he has failed to show fraud, duress, or
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material mistake of fact in the execution of the paternity affidavits. Father
knew he was not the biological father of B.M. when he executed the paternity
affidavit for B.M. more than three years after B.M.’s birth. Father was told he
might not be O.M.’s biological father within a few months of O.M.’s birth, and
he testified that he was aware of the possibility that he might not be O.M.’s
biological father at the time O.M. was born, which was the same date Father
signed the paternity affidavit. Tr. Vol. 2 at 54. Thus, Father signed the paternity
affidavits with the knowledge that he definitely was not the biological father of
B.M. and the knowledge that he might not be the biological father of O.M.
Further, he appeared in court on Mother’s petitions to establish support
pursuant to the execution of paternity affidavits on April 29, 2013, and he did
not contest his paternity. Instead, Father waited until Mother sought child
support, years after he executed the paternity affidavits, to challenge his
paternity. We, therefore, conclude that Father has not proven that fraud,
duress, or material mistake of fact existed at the time he executed the paternity
affidavits. See In re Paternity of H.H., 879 N.E.2d 1175, 1177 (Ind. Ct. App.
2008) (holding that paternity affidavits executed by a man and woman who
both knew that the man was not the biological father of the child cannot be set
aside under the statute).
[12] Father further argues that the paternity affidavits should be rescinded because,
pursuant to the second prong of Indiana Code section 16-37-2-2.1(l)(1), the trial
court ordered a genetic test, at his request, and the test indicated that Father
was excluded as the father of B.M. and O.M. A legal father may challenge
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paternity only “in extreme and rare instances,” and the challenge must be made
by “evidence that has become available independently of court action.” In re
Paternity of E.M.L.G., 863 N.E.2d at 870. In Fairow v. Fairow, 559 N.E.2d 597
(Ind. 1990), our Supreme Court explained such rare circumstances and how
evidence may be arrived at independently of court action, where it held that
“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.” Id. at 600. It has been
further clarified that the “externally obtained” clear medical proof as required
by Fairow “means that the evidence establishing non-paternity was not actively
sought by the putative father, but was discovered almost inadvertently in a
manner that was unrelated to child support proceedings.” Tirey v. Tirey, 806
N.E.2d 360, 362 n.2 (Ind. Ct. App. 2004), trans. denied; see also In re Paternity of
M.M.B., 877 N.E.2d 1239, 1245 (Ind. Ct. App. 2007) (concluding that trial
court erred in vacating judgments establishing man’s paternity where he
actively sought genetic evidence after children told him that he might not be
their father, and therefore did not inadvertently obtain medical proof through
ordinary medical care unrelated to paternity); In re Paternity of K.M., 651 N.E.2d
271, 276 (Ind. Ct. App. 1995) (holding that party may not challenge otherwise
valid order establishing paternity without medical proof inadvertently obtained
through ordinary medical care).
[13] Here, Father sought genetic testing solely to contest his paternity of B.M. and
O.M. Therefore, there was no evidence of non-paternity that had been
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inadvertently obtained through ordinary medical care unrelated to paternity.
The trial court properly denied Father’s motion to set aside the judgment of
paternity as to both B.M. and O.M..
[14] Affirmed.
[15] Bailey, J., and Pyle, J., concur.
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In re the Paternity of B.M. and O.M., B.S.M. v. E.S.F. and State of Indiana
Combined Opinion