                                                                      Mar 19 2015, 9:35 am




      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
                                                                Richard Ranucci
      Ryan M. Spahr                                             Indianapolis, IN
      Spahr Law Office, LLC

      Eric J. Olson
      Olson Law Office, LLC
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Parviz Jahangirizadeh,                                    March 19, 2015

      Appellant-Respondent,                                     Court of Appeals Case No.
                                                                29A02-1408-DR-530
              v.                                                Appeal from the Hamilton Superior
                                                                Court 29D02-0708-DR-900

      Fatemeh Pazouki,
                                                                Honorable Daniel Pfleging; The
      Appellee-Petitioner.                                      Honorable William P. Greenaway,
                                                                Magistrate; The Honorable Wayne
                                                                A. Sturtevant, Special Judge




      Barnes, Judge.


                                              Case Summary
[1]   Parviz Jahangirizadeh appeals the trial court’s dismissal of his motion to set

      aside the final decree dissolving his marriage to Fatemeh Pazouki. We affirm.

      Court of Appeals of Indiana | Opinion 29A02-1408-DR-530 | March 19, 2015               Page 1 of 12
                                                      Issue
[2]   The restated issue before us is whether the trial court properly refused to set

      aside the parties’ dissolution decree based upon an allegation that Pazouki had

      failed to disclose marital assets prior to the decree’s entry.


                                                      Facts
[3]   In 2007, Pazouki filed a petition to dissolve her marriage to Jahangirizadeh.

      Shortly before the final hearing, Pazouki filed a financial declaration listing a

      number of assets. On May 23, 2008, the trial court entered a final dissolution

      decree that included orders regarding division of property, which required

      Jahangirizadeh to make an equalization payment of $57,513 to Pazouki.


[4]   On May 7, 2014, Jahangirizadeh filed a “Motion to Set Aside” the dissolution

      decree under Indiana Trial Rule 60(B)(3) for fraud. App. p. 9. The motion

      alleged that thirty-five days after the decree was entered, Pazouki opened a

      business bank account with an initial deposit of $50,000. Jahangirizadeh

      claimed that, based on this deposit, Pazouki must have had assets that she

      failed to disclose during the dissolution proceedings but that should have been

      subject to division as marital property.


[5]   Pazouki responded to this motion with a motion to dismiss, asserting that

      Jahangirizadeh’s motion was untimely under Indiana Trial Rule 60(B)(3). The

      trial court subsequently dismissed Jahangirizadeh’s motion with prejudice.

      Jahangirizadeh then filed a motion to reconsider. In this motion,

      Jahangirizadeh directed the trial court to an order issued on May 6, 2014, by a

      Court of Appeals of Indiana | Opinion 29A02-1408-DR-530 | March 19, 2015   Page 2 of 12
      California trial court addressing a claim that Pazouki purportedly had loaned

      over $400,000 to her brother and her brother’s wife.1 The California court had

      rejected the claim, stating that Pazouki “was not a credible witness and lied on

      the witness stand about the purported loans.” Id. at 27.


[6]   The trial court denied Jahangirizadeh’s motion to reconsider. Jahangirizadeh

      then filed a motion to correct error, which the trial court also denied.

      Jahangirizadeh now appeals.


                                                      Analysis
[7]   Jahangirizadeh contends the trial court erred in dismissing and thus effectively

      denying his motion for relief from judgment under Indiana Trial Rule 60(B). 2

      Generally, we will review the denial of a Trial Rule 60 motion for an abuse of

      discretion. Wisner v. Laney, 984 N.E.2d 1201, 1205 (Ind. 2012). However, if a

      trial court’s ruling is strictly based upon a paper record, we will review the

      ruling de novo because we are in as good a position as the trial court to




      1
          The claim had arisen out of divorce proceedings between Pazouki’s brother and his wife.
      2
        In his brief, Jahangirizadeh also mentions Indiana Code Section 31-15-7-9.1, which provides that property
      disposition orders in a divorce “may not be revoked or modified, except in case of fraud” and that “[i]f fraud
      is alleged, the fraud must be asserted not later than six (6) years after the order is entered.” However,
      Jahangirizadeh did not cite this statute to the trial court in his motion to set aside, his motion to reconsider,
      or his motion to correct error; he relied solely upon Trial Rule 60(B). On appeal, this court generally will not
      review an issue that was not properly raised before and considered by the trial court. Plank v. Community
      Hosps. Of Indiana, Inc., 981 N.E.2d 49, 53 (Ind. 2013). Additionally, Jahangirizadeh does not make a cogent
      argument that the statute, rather than Trial Rule 60(B), governs the outcome of this case. See Wingate v. State,
      900 N.E.2d 468, 475 (Ind. Ct. App. 2009) (citing Ind. Appellate Rule 46(A)(8)). Given Jahangirizadeh’s
      failure to raise this statute to the trial court or to make a cogent argument that it trumps Trial Rule 60(B), we
      will limit our discussion solely to the Rule, and we offer no opinion on the interplay between the statute and
      the rule.

      Court of Appeals of Indiana | Opinion 29A02-1408-DR-530 | March 19, 2015                            Page 3 of 12
       determine the force and effect of the evidence. In re Adoption of C.B.M., 992

       N.E.2d 687, 691 (Ind. 2013). The trial court here ruled solely upon a paper

       record, and so our review is de novo.


[8]    Indiana Trial Rule 60(B)(3) provides that a judgment may be set aside for

       “fraud (whether heretofore denominated intrinsic or extrinsic),

       misrepresentation, or other misconduct of an adverse party . . . .” Additionally,

       a motion for relief from judgment under Trial Rule 60(B)(3) must be filed not

       more than one year after the judgment was entered. However, Trial Rule 60(B)

       contains a “savings clause” 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 or for fraud upon the court.”


[9]    In Stonger v. Sorrell, 776 N.E.2d 353 (Ind. 2002), our supreme court addressed

       the three ways that a motion to set aside a judgment for fraud can be raised,

       adopting analysis used by federal courts for Federal Rule of Civil Procedure

       60(b)(3), which is nearly identical to Trial Rule 60(B)(3). First is a motion filed

       under subsection (3) of the Rule, which “may 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.” Stonger, 776

       N.E.2d at 356. A motion under this Rule also must be filed in the court that

       issued the judgment, and it must be made within one year of the judgment. Id.


[10]   Second, a party may file an independent action for fraud pursuant to traditional

       equitable principles. Id. “Independent actions are usually reserved for


       Court of Appeals of Indiana | Opinion 29A02-1408-DR-530 | March 19, 2015    Page 4 of 12
       situations that do not meet the requirements for a motion made under” Rule

       60(B)(3). Id. Such cases include ones where “(i) the fraud is not chargeable to

       an adverse party; (ii) the movant seeks relief from a court other than the

       rendering court; or, most often, (iii) the one-year time limit for Rule 60(b)(3)

       motions has expired.” Id. An independent action for fraud is subject to the

       doctrine of laches and is available only in extremely limited circumstances. Id.


[11]   Third, a party may invoke the inherent power of a court to set aside its

       judgment if procured by fraud on the court. Id. at 356-57. Also, a court may

       sua sponte set aside a judgment for fraud on the court. Id. at 357. There is no

       time limit for a fraud on the court proceeding. Id.


[12]   Regardless of which procedural avenue a party selects to assert a claim of fraud,

       “the party must establish that an unconscionable plan or scheme was used to

       improperly influence the court’s decision and that such acts prevented the

       losing party from fully and fairly presenting its case or defense.” Id. If it is

       unclear which procedural avenue a party intended to use to set aside a

       judgment and more than one year has passed, a court may construe a motion to

       set aside as either an independent action for fraud or as a pleading to grant relief

       for fraud on the court. Id.; see also United States v. Buck, 281 F.3d 1336, 1342

       (10th Cir. 2002) (“The substance of the plea should control, not the label.”). To

       establish fraud warranting relief from judgment, a party must show more than a

       possibility that the trial court was misled; rather, “there must be a showing that

       the trial court’s decision was actually influenced.” Stonger, 776 N.E.2d at 358.



       Court of Appeals of Indiana | Opinion 29A02-1408-DR-530 | March 19, 2015    Page 5 of 12
[13]   Here, although Jahangirizadeh labeled his motion as seeking relief from

       judgment under Trial Rule 60(B)(3), it is clear that relief cannot be granted

       under that part of the Rule because the motion was filed more than one year

       after the original judgment was entered. However, we will proceed to consider

       whether the motion stated a possible independent action for fraud or invoked

       the trial court’s authority to set aside the judgment for fraud on the court. The

       Stonger opinion did not go into great detail regarding precise differences

       between “ordinary” fraud under Trial Rule 60(B)(3), an independent action for

       fraud, and fraud on the court. That is because it ultimately concluded that even

       if misleading evidence had been introduced before the trial court, there was no

       evidence that it actually influenced the trial court’s original judgment. Id. at

       358-59. Here, by contrast, Jahangirizadeh’s motion to set aside adequately

       alleges that the trial court’s property division decision was actually influenced

       by Pazouki’s alleged falsification of her assets.


[14]   We do not believe that is enough, however, to establish a possible case for an

       independent action for fraud or fraud on the court. A number of federal court

       opinions and authorities have gone into significantly greater detail than Stonger

       regarding the differences between “ordinary” fraud, an independent action for

       fraud, and fraud on the court. Given the Stonger opinion’s adoption of federal




       Court of Appeals of Indiana | Opinion 29A02-1408-DR-530 | March 19, 2015   Page 6 of 12
       authorities, we will look to those authorities as well to further delineate the

       differences among the three types of fraud.3


[15]   In the Buck opinion, heavily relied upon by Stonger, the 10th Circuit addressed a

       motion to set aside a quiet title judgment in favor of the United States filed four

       years after judgment was entered; the movant alleged that government

       attorneys had committed fraud by failing to disclose evidence that could have

       altered the original judgment. Because the motion was filed past the one-year

       deadline of Civil Procedure Rule 60(b)(3), the court addressed whether an

       independent action for fraud or fraud on the court had been proven. The court

       held that it had not.


[16]   In particular, the court explained that the type of egregious fraud required to

       prove fraud on the court or an independent fraud action “‘is fraud which is

       directed to the judicial machinery itself and is not fraud between the parties or

       fraudulent documents, false statements or perjury. . . . [A]llegations of

       nondisclosure in pretrial discovery will not support an action for fraud on the

       court.’” Buck, 281 F.3d at 1342 (quoting Bulloch v. United States, 763 F.2d 1115,

       1121 (10th Cir. 1985), cert. denied). Such fraud also may include “‘only the most

       egregious conduct, such as bribery of a judge or members of a jury, or the

       fabrication of evidence by a party in which an attorney is implicated . . . .’” Id.




       3
         We note that a case upon which Jahangirizadeh heavily relies, Rocca v. Rocca, 760 N.E.2d 677 (Ind. Ct.
       App. 2002), trans. denied, was decided before Stonger clarified Indiana law regarding motions to set aside a
       judgment for fraud and adopted federal court analysis in that regard. Thus, we do not find Rocca to be
       persuasive here.

       Court of Appeals of Indiana | Opinion 29A02-1408-DR-530 | March 19, 2015                           Page 7 of 12
       (quoting Weese v. Schukman, 98 F.3d 542, 552-53 (10th Cir. 1996)).

       “‘[N]ondisclosure of facts allegedly pertinent to the matter before [the court] . . .

       will not ordinarily rise to the level of fraud on the court.’” Id. Fraud on the

       court also requires a showing of intentional misconduct or intent to deceive or

       defraud the court. Id. (citing Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259,

       1267 (10th Cir. 1995), cert. denied).


[17]   Additionally, fraud on the court does not exist “in cases in which the wrong, if

       wrong there was, was only between the parties in the case and involved no

       direct assault on the integrity of the judicial process. Nondisclousre by a party

       or the party’s attorney has not been enough.” 11 Fed. Prac. & Proc. Civ. §

       2870, Fraud on the Court (3rd ed. 2014). The mere possibility of a witness

       testifying falsely is an ordinary risk of the judicial process and is not fraud on

       the court, unless possibly an attorney or other officer of the court has been

       involved in perjury or the falsification of evidence. Id. (citing Lockwood v.

       Bowles, 46 F.R.D. 625, 632-33 (D. D.C. 1969)).4




       4
         Indiana courts have often stated that an independent action for fraud to set aside a judgment must allege
       either “extrinsic” fraud or fraud on the court in order to be successful, as opposed to mere “intrinsic” fraud.
       See, e.g., Jo. W. v. Je. W., 952 N.E.2d 783, 786 (Ind. Ct. App. 2011). “While intrinsic fraud involves perjury or
       falsification of documents, extrinsic fraud and fraud upon the court require more than just the presentation of
       evidence that is false.” Id. Some commentators, observing that Civil Procedure Rule 60(b)(3) removed the
       distinction between “intrinsic” and “extrinsic” fraud (as has our own Trial Rule 60(B)(3)), have criticized
       continued reliance on the distinction as “most unfortunate” because it “rests on clouded and confused
       authorities, its soundness as a matter of policy is very doubtful, and it is extremely difficult to apply.” 11
       Fed. Prac. & Proc. Civ. § 2868 (citing inter alia Browning v. Navarro, 826 F.2d 335, 344 n.11 (5th Cir. 1987)).
       The Indiana case law definition of the type of fraud required to support an independent action for fraud is
       consistent with federal authorities, regardless of the label used.

       Court of Appeals of Indiana | Opinion 29A02-1408-DR-530 | March 19, 2015                            Page 8 of 12
[18]   Similarly, the United States Supreme Court has held that a party’s failure to

       furnish relevant information to an opposing party in a lawsuit does not support

       an independent action for fraud to set aside a judgment. United States v.

       Beggerly, 524 U.S. 38, 46, 118 S. Ct. 1862, 1867 (1998). Rather, the Court held

       that such conduct is of the type intended to be covered by Civil Procedure Rule

       60(b)(3), and that expanding the definition of an independent action for fraud to

       include such conduct would eviscerate the strict one-year time limit for motions

       under that Rule. Id. It also has been said that an independent action for fraud

       “is available only to prevent a grave miscarriage of justice.” 11 Fed. Prac. &

       Proc. Civ. § 2868, Independent Action for Relief (citing Beggerly, 524 U.S. at 46,

       118 S. Ct. at 1867).


[19]   Here, Jahangirizadeh’s allegations against Pazouki amount to a clear example

       of “ordinary” fraud noted in the federal authorities, involving Pazouki’s alleged

       nondisclosure of assets to Jahangirizadeh in order to not have them subject to

       division by the trial court in the dissolution decree and her alleged general

       unreliability as a witness. There are no allegations that Pazouki’s attorneys

       were involved in any intentionally fraudulent conduct. There are no allegations

       of any egregious conduct infringing upon the integrity of the judiciary. The

       only person negatively impacted by Pazouki’s allegedly fraudulent conduct is

       Jahangirizadeh; the public at large is not affected by the parties’ marital

       property division. Cf. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238,

       246, 64 S. Ct. 997, 1001 (1944) (granting relief from judgment in patent

       litigation based on evidence of fraudulent scheme discovered nine years after


       Court of Appeals of Indiana | Opinion 29A02-1408-DR-530 | March 19, 2015   Page 9 of 12
       judgment was entered and noting, “This matter does not concern only private

       parties. There are issues of great moment to the public in a patent suit.”).

       There also are no innocent third parties impacted by the property division,

       unlike paternity cases for example in which fraud has occurred and a child’s

       father has been misidentified as a result. See, e.g., In re Paternity of S.C., 966

       N.E.2d 143 (Ind. Ct. App. 2012), aff’d on r’hg, trans. denied.


[20]   To the extent Pazouki may have been less-than-forthright regarding her assets—

       assuming Jahangirizadeh’s allegations to be true—this is the type of “ordinary”

       fraud that must be subject to the one-year time limit of Trial Rule 60(B)(3).

       Otherwise, the Rule’s time limit could be rendered a nullity in a much wider

       range of cases of supposed “fraud” than was intended to be covered by the

       Rule. Jahangirizadeh’s motion to set aside, as well as his motions to reconsider

       and to correct error, fail to give support to an independent action for fraud or a

       claim for fraud on the court. As such, the motion to set aside is barred by the

       one-year time limit of Trial Rule 60(B)(3).


[21]   Jahangirizadeh also contends that because the trial court “dismissed” his

       motion to set aside rather than “denied” it, the court was required to allow him

       an opportunity to amend the motion under Indiana Trial Rule 12(B). Trial

       Rule 12(B) states in part,

               When a motion to dismiss is sustained for failure to state a claim under
               subdivision (B)(6) of this rule the pleading may be amended once as of
               right pursuant to Rule 15(A) within ten [10] days after service of notice
               of the court’s order sustaining the motion and thereafter with
               permission of the court pursuant to such rule.

       Court of Appeals of Indiana | Opinion 29A02-1408-DR-530 | March 19, 2015      Page 10 of 12
       As indicated by its plain language, Trial Rule 12(B) governs dismissal of a

       “pleading.” “Pleadings” are defined as a complaint and answer; a reply to a

       counterclaim; an answer to a cross-claim; a third-party complaint; and a third-

       party answer. Ind. Trial Rule 7(A). A “motion,” by contrast, is an “application

       to the court for an order . . . .” T.R. 7(B).


[22]   Jahangirizadeh has cited no cases holding that the automatic right to amend a

       pleading after dismissal for failure to state a claim applies to dismissal of a

       motion of any kind. He relies upon two cases in which motions to dismiss a

       motion to set aside judgment were referred to as motions for judgment on the

       pleadings under Indiana Trial Rule 12(C): In re Paternity of R.C., 587 N.E.2d

       153 (Ind. Ct. App. 1992) and In re Paternity of Tompkins, 518 N.E.2d 500 (Ind.

       Ct. App. 1988). To the extent those cases referred to Trial Rule 12(C), those

       references were dicta having no relevance to the outcome of the cases. They do

       not support the proposition that Trial Rule 12(B)’s amendment provision

       applies to anything other than dismissal of a pleading. Given the plain

       language of Trial Rule 12(B), the definition of a “pleading,” and

       Jahangirizadeh’s failure to cite any authority to the contrary, we conclude that

       the amendment provision of Trial Rule 12(B) did not apply to the trial court’s

       dismissal of the motion to set aside.5




       5
           Jahangirizadeh makes no argument that the trial court was required to hold a hearing on his motion.


       Court of Appeals of Indiana | Opinion 29A02-1408-DR-530 | March 19, 2015                         Page 11 of 12
                                                  Conclusion
[23]   The trial court properly refused to set aside the parties’ dissolution decree, and

       it was not required to give Jahangirizadeh an opportunity to amend his motion

       to set aside. We affirm.


[24]   Affirmed.

       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 29A02-1408-DR-530 | March 19, 2015   Page 12 of 12
