(dissenting):
Respectfully, I dissent. I would reverse and hold that the trial judge erred in dismissing Mr. G’s complaint.
Mr. G was denied even the opportunity to develop facts to support his fraud allegations. It is well settled that a decision to grant a Rule 12(b)(6) motion to dismiss cannot be sustained if facts alleged and inferences reasonably deducible therefrom would entitle the plaintiff to any relief on any theory of the case, even though different from that on which the plaintiff may have supposed himself entitled to recover. Evans v. Gunter, 294 S.C. 525, 366 S.E. (2d) 44 (Ct. App. 1988); Springfield v. Williams Plumbing Supply Co., 249 S.C. 130, 153 S.E. (2d) 184 (1967). The question is whether in the light most favorable to plaintiff, and with every doubt resolved in his behalf, the complaint states any valid claim for relief. I would hold the allegations of the complaint are sufficient to constitute extrinsic fraud; moreover, Mr. G also may be entitled to prevail under Rule 60(b)(5), SCRCR
*312I.
In my view, the facts alleged by Mr. G state a cause of action for relief from judgment based upon fraud. Although I believe the extrinsic-intrinsic distinction should be discarded because of its propensity for confusion and inequity, the allegations here are sufficient to constitute extrinsic fraud, particularly in view of the prior decision of this Court in Arnold v. Arnold, 285 S.C. 296, 328 S.E. (2d) 924 (Ct. App. 1985).
In Arnold, the husband admittedly was on notice prior to consenting to the order assailed that he might not be the child’s father, due to a letter he received from the child’s mother. He dismissed the letter as being motivated by his wife’s anger and filed a pleading seeking relief from the judgment based on fraud only after he discovered he was sterile. Therefore, Mr. Arnold, unlike Mr. G, clearly had the opportunity in the prior action to contest the paternity issue and made a conscious decision not to do so. Nevertheless, the majority in Arnold reversed the grant of summary judgment in favor of the wife, and allowed the husband the opportunity to prove his case. The South Carolina Supreme Court denied certiorari in Arnold on August 28, 1985.1
Surely Mr. G is even more deserving of relief than the husband in Arnold. According to his complaint, his wife misrepresented the fact of his daughter’s paternity to him, thereby preventing him from having a fair submission of the controversy. Based upon this misrepresentation, he agreed to pay $100.00 per week for the child’s support. He alleged he only learned the truth some 2 1/2 years later when his former wife admitted to him that he was not the child’s father.
“Extrinsic fraud” has been variously defined by the courts. The dissenting opinion in Arnold relies on the definition formulated by the Arizona Court that extrinsic fraud is “some intentional act or conduct by which the prevailing party has *313prevented the unsuccessful party from having a fair submission of the controversy.” Bates v. Bates, 1 Ariz. App. 165, 169, 400 P. (2d) 593, 597 (1965). Under this definition, Ms. G’s alleged conduct is sufficient to constitute extrinsic fraud.
In Bates, the wife brought an action against her former husband to recover the value of real estate which she claimed had been purchased with community funds and concealed by the husband at the time of the divorce. Like Mr. G, Ms. Bates entered into an agreement with her husband concerning property division unaware that the disputed piece of property existed. Many years later upon discovering the truth, Ms. Bates sought to set aside the decree based upon extrinsic fraud. The Arizona Court of Appeals held her allegations of concealment of a material fact at the time of the divorce was sufficient to state a valid claim for relief. Quoting from 30A Am. Jur. § 804, at 736, the court stated that “the concealment of material facts may form the basis of an action inequity for extrinsic fraud.” Bates, at 167, 400 P. (2d) at 595. Moreover, extrinsic fraud has been defined as “fraud or deception practiced upon a party by its adversary which has prevented the party from trying its case or having a real contest of the subject matter of the suit in court.” 47 Am. Jur. (2d) § 832, at 309-310. In my view, the alleged conduct of Ms. G in concealing the material fact of her child’s paternity, thereby inducing her husband to enter into an agreement on that issue, is sufficient to qualify as extrinsic fraud.
The public policy ramifications of the majority’s decision are far-reaching. The holding that the allegations of fraud contained in Mr. G’s complaint cannot serve as the basis for attacking a judgment may be interpreted by the Family Court bar to require every male litigant in a domestic proceeding to request and secure a blood test.2 Additionally, the decision may very well encourage female litigants to misrepresent the issue of paternity because the majority opinion denies any meaningful recourse to those injured by the misrepresentation.
Moreover, it may be time to reexamine the viability of the extrinsic-intrinsic distinction. Certainly, Rule 60(b) speaks only in terms of “fraud” without distinguishing between “ex*314trinsic” or “intrinsic.” The extrinsic-intrinsic distinction was created by the United States Supreme Court in 1878 in United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1978). There, the Court recognized that relief could be granted for “frauds, extrinsic or collateral, to the matter tried by the first court,” such as “where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff.” Id. at 65-66. However, the Throckmorton Court noted relief could not be given where the judgment was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment under attack. Id. at 66. The justification offered by the Throckmorton Court for denying relief on a judgment based on perjured testimony was the perceived mischief of retrying cases. United States v. Throckmorton, 98 U.S. at 68-69.
The ostensible rationale behind the Throckmorton dichotomy is that intrinsic fraud is discoverable through the ordinary processes of the trial itself but that extrinsic fraud never enters the judgment. Lockwood v. Bowles, 46 F.R.D. 625 (D.C.C. 1969). This distinction has been thoroughly criticized by courts and commentators as “difficult to understand and apply.” 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2861 (1973).3
In refusing to follow this short-sighted logic, one court has said: “We believe truth is more important than the trouble it takes to get it.” Publicker v. Shallcross, 196 F. (2d) 949, 952 (C.C.A.3 1939). The same sentiment was even more cogently expressed by Judge (later Justice) Brennan for the New Jersey Supreme Court:
Nevertheless, upon principle, we hold that relief for fraud upon the court may be allowed under our rule whether the fraud charged is denominated intrinsic or extrinsic. The notion that repeated retrials of cases may be ex*315pected to follow the setting aside of judgments rendered on false testimony will not withstand critical analysis. . . . We prefer to follow the equity of the matter and to take away an unjust judgment obtained by vital perjury when the injustice and inequity of allowing it to stand are made evident.
Shammas v. Shammas, 9 N.J. 321, 329-330, 88 A. (2d) 204, 208-209 (1952).4
With the adoption of Federal Rule 60(b)(3), the Throckmorton distinction between extrinsic and intrinsic fraud was eliminated in the Federal Courts. As stated by Wright and Miller:
Rule 60(b)(3), by its express terms, permits judgments to be set aside for fraud “whether heretofore denominated intrinsic or extrinsic.” It thus put to an end, at least when relief is sought by motion, a very troublesome and unsound distinction.
11 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2861 (1973).
Moreover, in commenting on Rule 60(b)(3), Wright and Miller note that “[t]he rule reaches all fraud, and rejects the confusing distinction between extrinsic and intrinsic fraud.” Id. at § 2860.5 There is no reason to suggest it should survive in an independent action, particularly in view of subsection (5) of Rule 60(b) which extends relief to actions brought outside the one-year period. As one commentator has noted, since there is little real basis for the distinction between extrinsic and intrinsic fraud, it would be unfortunate if the “ancient learning on this point were to be resurrected as a limitation on independent actions now that it is decently buried with regard to motions.” Note, Attacking Fraudulently Obtained Judgments in the Federal Courts, 48 Iowa L. Rev. 398, 405-409 (1963).
*316II.
Mr. G’s complaint also states a claim sufficient to withstand Rule 12(b)(6) dismissal under Rule 60(b)(5) which permits relief where “it is no longer equitable that the judgment should have prospective application.” Relying on his wife’s representation of paternity, Mr. G agreed to pay $100.00 per week in child support. Over the remaining majority of the child’s life, assuming no further increases in support, Mr. G will be required to pay in excess of $50,000.00 to satisfy a judgment which he alleges was fraudulently obtained. If he fails to make these payments, but is found by the Family Court to be able to do so, he may well be incarcerated. See S.C. Code Ann. § 20-7-1350 (Supp. 1994). It is difficult to discern the equity to Mr. G under such circumstances or to conceive of a factual situation more deserving of Rule 60(b)(5) relief.
In Evans v. Gunter, this Court noted that Rule 60(b)(5) is based on the historical power of a court of equity to modify its decree in light of subsequent conditions, citing 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2861 (1973), and Harry M. Lightsey & James F. Flanagan, South Carolina Civil Procedure, 407 (2nd Ed. 1985). There, faced with allegations similar to those raised here, this court held it would no longer be equitable for the judgment to have prospective application. The majority opinion thus represents a serious departure from both Arnold and Evans.
I would reverse the trial judge’s decision and permit Mr. G the opportunity to prove his case. I would also reverse the award of attorney’s fees. To require Mr. G to pay attorney’s fees for the person who allegedly misrepresented his paternity offends every principle of justice and equity.
The majority relies upon Eichman v. Eichman, 285 S.C. 378, 329 S.E. (2d) 764 (1985), decided by the Supreme Court some three months prior to its denial of certiorari in Arnold. There is no indication the complaint in Eichman contained allegations of fraud; therefore, the majority’s reliance upon Eichman is wholly misplaced. The timing of the Eichman decision and the Supreme Court’s denial of certiorari in Arnold is at least some indication that the Court perceived no conflict between the two decisions and that Eichman’s reasoning does not extend to actions to set aside a judgment based upon fraud.
It is hard to imagine how this procedure will further the State’s goal of reconciling marriages and preserving the parent-child relationship.
Even the Supreme Court appeared to abandon the Throckmorton standard thirteen years later in Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870 (1891), where it held:
[A]ny fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, . . . but was prevented by fraud or accident, unmixed with any fault or negligence in himself. . . will justify any application to a court of chancery. Id., at 596, 12 S.Ct. at 64.
One commentator has noted that the perpetuation of the extrinsic-intrinsic distinction has led the federal courts into “a thicket of inconsistency, because the distinction is unnecessary, often irrational, and potentially productive of injustices not outweighed by the interests of finality.” Comment, Rule 60(b): Survey and Proposal for General Reform, 60 Cal.L.Rev. 531, 542 (1972).
Indeed the Advisory Committee Note to the 1948 amendment of Rule 60(b) said in part: “Fraud, whether intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party are express grounds for relief by motion under amended subdivision (b).”