                                                                 FILED
                                                            May 31 2016, 7:58 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Jason J. Pattison                                          R. Patrick Magrath
Jenner, Pattison, Sutter & Wynn, LLP                       Alcorn Sage Schwartz & Magrath,
Madison, Indiana                                           LLP
                                                           Madison, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David C. Varble,                                           May 31, 2016
Appellant-Intervenor,                                      Court of Appeals Case No.
                                                           39A01-1508-DR-1180
        v.                                                 Appeal from the Jefferson
                                                           Circuit Court
Stephanie J. (Carroll) Varble and                          The Honorable Jon W. Webster,
James T. Carroll,                                          Special Judge
Appellees.                                                 Trial Court Cause No.
                                                           39C01-0910-DR-631
_____________________
IN RE: THE MATTER OF THE                                   Appeal from the Jefferson
PATERNITY OF: A.C.,                                        Circuit Court
A Minor Child,                                             The Honorable Jon W. Webster,
                                                           Special Judge
David C. Varble,                                           Trial Court Cause No.
Petitioner,                                                39C01-1406-JP-29

        v.

Stephanie J. (Carroll) Varble,
Respondent,


Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016                 Page 1 of 16
      and

      James T. Carroll,
      Intervenor.




      Brown, Judge.

[1]   David C. Varble (“Varble”) appeals the trial court’s denial of his motion for

      relief from judgment. Varble raises one issue which we revise and restate as

      whether the court abused its discretion in denying his motion for relief from

      judgment. We affirm.


                                      Facts and Procedural History

[2]   On November 4, 2000, Stephanie J. (Carroll) Varble (“Stephanie”) and James

      T. Carroll (“Carroll”) were married, and the marriage was dissolved on

      December 8, 2009 under cause number 39C01-0910-DR-631 (“Cause No. 631”)

      in the Jefferson Circuit Court. The Settlement Agreement and Decree of

      Dissolution stated “There were children born of this marriage; namely,” and

      listed two children, including A.C., who was born in June of 2008. Appellant’s

      Appendix Volume 1 at 1. The parties agreed to “share joint custody of the

      children and joint physical custody,” spending “50% of time in each parent

      home,” that neither party would pay child support, and that each parent would

      be responsible for fifty percent of the uninsured medical expenses for the

      children. Id.


      Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016   Page 2 of 16
[3]   On June 16, 2014, Varble filed a Verified Petition to Establish Paternity and

      Determine Custody, Parenting Time and Support under cause number 39C01-

      1406-JP-29 (“Cause No. 29”) together with an Agreed Order of Paternity in the

      Jefferson Circuit Court. Varble’s petition alleged that he and Stephanie were

      married on January 11, 2011, and requested an order finding that he is the

      father of A.C., determining custody, parenting time and child support, and

      changing the last name of A.C. to Varble. The Agreed Order of Paternity

      provides in part that Varble and Stephanie have good cause to believe that

      Carroll underwent a vasectomy prior to the conception of A.C. and therefore

      should have been on notice that A.C. was not his biological child, that DNA

      testing was conducted in November of 2010 which revealed that Varble is the

      biological father of A.C., that no order would enter regarding custody,

      parenting time or child support at that time, and that the child’s last name

      would be changed to Varble. On June 17, 2014, the court signed the Agreed

      Order of Paternity.1


[4]   On August 12, 2014, Varble filed several motions in Cause No. 631, namely, a

      Motion to Intervene, a Motion for Immediate Termination of Parenting Time

      requesting the court to terminate Carroll’s parenting time with A.C., a Motion

      for Relief from Judgment, and a Motion for Hearing. In his Motion for Relief

      from Judgment, Varble alleged that the December 8, 2009 Settlement



      1
       The copies of Varble’s June 16, 2014 petition and the June 17, 2014 Agreed Order of Paternity in the record
      and the chronological case summary (“CCS”) for Cause No. 29 do not indicate that Carroll was served or
      given notice of Varble’s petition or the Agreed Order of Paternity.

      Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016                          Page 3 of 16
      Agreement and Decree of Dissolution of Marriage found that A.C. is a child of

      the marriage of Carroll and Stephanie, that subsequent DNA testing has

      revealed that A.C. is not a child of the marriage, and that Varble established

      paternity with regard to A.C. in Cause No. 29, and requested that the

      December 8, 2009 Settlement Agreement and Decree of Dissolution of

      Marriage be modified to exclude A.C. as a child of the marriage.2 On August

      13, 2014, the court granted Varble’s motion to intervene and motion for

      hearing, and on August 14, 2014, denied Varble’s motion for immediate

      termination of parenting time.


[5]   On August 29, 2014, Carroll filed a number of motions. Under Cause No. 631,

      he filed a Motion for Change of Venue From Judge requesting that the same

      special judge be appointed in that cause and in Cause No. 29 for the purposes of

      consolidating hearings and consistent determinations; an Objection and

      Response to Intervenor’s Motion for Relief from Judgment arguing in part that

      A.C. has known Carroll as his father for the child’s entire life, that Carroll has

      held A.C. out as his own child for the child’s entire life, and Varble’s

      substantially delayed motion for relief is not in A.C.’s best interests; an

      Objection and Response to Intervenor’s Motion for Immediate Termination of

      Parenting Time arguing in part that A.C. has been held out by all parties as the

      child of Carroll for the child’s entire life and that A.C. is in the physical custody




      2
        Varble’s motion for relief from judgment cites Trial Rule 60(B) and references subsections (1) and (8) of the
      rule.

      Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016                             Page 4 of 16
      of Carroll at least fifty percent of the time; and a Motion for De Facto Custody

      and/or Step-Parent Parenting Time alleging that A.C. was raised by Carroll

      and Stephanie as a child of the marriage alongside the other child listed in the

      dissolution decree, and that to the extent the contest to Carroll’s paternity and

      custody is successful, Carroll is a de facto custodian under Ind. Code § 31-9-2-

      35.5 and should be granted custody of A.C. if such an award is found to be in

      A.C.’s best interests.3


[6]   Under Cause No. 29, Carroll filed a Motion to Intervene; a Motion for Change

      of Venue From Judge; a Motion to Dismiss arguing in part that Carroll is a

      necessary party to any paternity action for A.C.,4 that Varble failed to join a

      necessary party and give notice of the proceedings, that paternity and custody



      3
        Ind. Code § 31-9-2-35.5 provides in part that “De facto custodian” means “a person who has been the
      primary caregiver for, and financial support of, a child who has resided with the person for at least: (1) six (6)
      months if the child is less than three (3) years of age; or (2) one (1) year if the child is at least three (3) years of
      age.” This court has stated:
               Once a court determines a “de facto custodian” exists and that individual has been made a
               party to a custody proceeding, the court shall consider the following factors in determining
               the child’s “best interests,” in addition to the usual “best interests” of the child factors
               contained in Indiana Code Sections 31-14-13-2 and 31-17-2-8:
                         (1) The wishes of the child’s de facto custodian.
                         (2) The extent to which the child has been cared for, nurtured, and supported by
                         the de facto custodian.
                         (3) The intent of the child’s parent in placing the child with the de facto custodian.
                         (4) The circumstances under which the child was allowed to remain in the custody
                         of the de facto custodian, including whether the child was placed with the de facto
                         custodian to allow the parent seeking custody to:
                                   (A) seek employment;
                                   (B) work; or
                                   (C) attend school.
               Ind. Code §§ 31-14-13-2.5(b) and 31-17-2-8.5(b).
      In re Guardianship of L.L., 745 N.E.2d 222, 229 (Ind. Ct. App. 2001), trans. denied.
      4
       Ind. Code § 31-14-5-6, related to the filing of a paternity action, provides: “The child, the child’s mother,
      and each person alleged to be the father are necessary parties to each action.”

      Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016                                    Page 5 of 16
      are under the continuing jurisdiction of the dissolution action under Cause No.

      631, and that Cause No. 29 should be dismissed; a Motion to Set Aside

      Paternity Order as Void arguing in part that the dissolution decree establishes

      A.C. as a child of the marriage and grants Carroll custody rights, that paternity

      and custody are under the continuing jurisdiction of the dissolution action

      under Cause No. 631, and that pendency in another cause is cause for dismissal

      and justifies setting aside the paternity order as void; and a Motion for De Facto

      Custody and/or Step-Parent Parenting Time.


[7]   On September 2, 2014, in Cause No. 29, the court granted Carroll’s Motion to

      Intervene and Motion for Change of Venue From Judge, and in Cause No. 631,

      the court granted Carroll’s Motion for Change of Venue From Judge.


[8]   Judge Jon W. Webster accepted the appointment as special judge in both

      causes. A letter dated February 18, 2015 was sent to the parties stating that the

      court would hold a hearing on Varble’s Motion for Relief from Judgment under

      Cause No. 631 and Carroll’s Motion to Set Aside Paternity Order as Void and

      Motion to Dismiss under Cause No. 29, and noted that Carroll’s Motions for

      De Facto Custody and/or Step-Parenting Time filed under both causes were

      pending.




      Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016   Page 6 of 16
[9]    Following a hearing,5 the trial court entered an Order on All Pending Issues

       and Appointment of Guardian Ad Litem on June 11, 2015 in both causes.6 The

       court denied Varble’s Motion for Relief from Judgment under Cause No. 631

       and Carroll’s Motion to Dismiss under Cause No. 29. 7 The court also ordered:

       “[Carroll’s] Motion to Set Aside Paternity Order As Void [under Cause No. 29]

       is granted except it is not void, only voidable and the Court determines it

       should be set aside as such.” Appellant’s Appendix Volume 1 at 109;

       Appellant’s Appendix Volume 2 at 58. Varble filed a Motion to Correct Error

       and/or 2nd Motion for Relief from Judgment under Cause No. 631, which was

       denied.


                                                       Discussion

[10]   Varble’s argument on appeal is whether the trial court abused its discretion in

       denying his motion for relief from judgment under Cause No. 631. A grant of

       equitable relief under Ind. Trial Rule 60 is within the discretion of the trial

       court. Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371 (Ind. Ct. App.

       2012), reh’g denied, trans. denied, cert. denied, 134 S. Ct. 952 (2014). An abuse of

       discretion occurs when the trial court’s judgment is clearly against the logic and




       5
         The court’s June 11, 2015 order states the hearing was held on June 4, 2015; however, the transcript in the
       record states the hearing was held on June 11, 2015.
       6
        The order includes a footnote following the title which states: “See generally In Re: The Marriage of Huss, 888
       N.E.2d 1238 (Ind. 2008).” Appellant’s Appendix Volume 1 at 109 n.1; Appellant’s Appendix Volume 2 at
       58 n.1.
       7
         The record also contains a Motion to Withdraw Motion to Dismiss Paternity Action filed by Carroll on
       June 10, 2015 in Cause No. 29 and an order dated June 15, 2015, granting the motion to withdraw.

       Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016                             Page 7 of 16
       effect of the facts and inferences supporting the judgment for relief. Id. When

       reviewing the trial court’s determination, we will not reweigh the evidence. Id.

       Ind. Trial Rule 60(B) affords relief in extraordinary circumstances which are not

       the result of any fault or negligence on the part of the movant. Id. at 371-372.


[11]   Ind. Trial Rule 60(B) provides in part that the court may relieve a party “from a

       judgment for the following reasons: (1) mistake, surprise, or excusable neglect; .

       . . (3) fraud (whether heretofore denominated intrinsic or extrinsic),

       misrepresentation, or other misconduct of an adverse party; . . . (6) the

       judgment is void; [or] (8) any reason justifying relief from the operation of the

       judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and

       (4).” The motion must be filed within a reasonable time for reasons (6) and (8)

       and not more than one year after the judgment for reasons (1) and (3), and a

       motion for reasons (1), (3), and (8) must allege a meritorious claim or defense.


[12]   Varble argues that a child who is not the biological child of both parties to a

       dissolution is not a child born of the marriage, that “a dissolution Court does

       not have subject matter jurisdiction over that child,” see Appellant’s Brief at 10

       (citing Russell v. Russell, 682 N.E.2d 513 (Ind. 1997)), and that orders issued

       without subject matter jurisdiction are void.8 He requests that we direct the trial

       court to grant his motion for relief from judgment, find that A.C. was not a

       child of the marriage of Carroll and Stephanie, and remand for further




       8
           Varble does not cite to Trial Rule 60(B) or any subsection of the rule in his appellant’s brief.


       Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016                                 Page 8 of 16
       determinations regarding Carroll’s motions for de facto custody and/or step-

       parent parenting time.


[13]   Carroll maintains that a dissolution decree in which a child is stipulated to be a

       child of the marriage has the effect of establishing legal paternity and that such

       orders are not void but are voidable and retain their legal force and effect until

       successfully challenged or reversed. He argues that he successfully challenged

       the Agreed Order of Paternity under Cause No. 29 on the grounds that Varble

       had failed to serve, join, or otherwise notify him of the paternity action. He

       further maintains that the Indiana Supreme Court in In re Marriage of Huss, 888

       N.E.2d 1238 (Ind. 2008), “expressly held that a challenge to the biological

       connection between a party to a dissolution and a child named in said

       dissolution does not deprive the trial court of subject matter jurisdiction over

       that child’s custody.” Appellee’s Brief at 2. Carroll requests this court to affirm

       the court’s denial of Varble’s motion for relief from judgment and remand for

       further proceedings on his de facto custody petition.


[14]   In Russell v. Russell, the Indiana Supreme Court stated that, “[b]efore the

       dissolution court may make a child custody or support determination, it must

       first determine whether it has jurisdiction to do so, i.e., whether the child at

       issue is a ‘child of the marriage.’” 682 N.E.2d 513, 515 (Ind. 1997). The Court

       observed that the inquiry into whether a child is a child of the marriage is a

       determination by the dissolution court of who the child’s parents are for

       purposes of custody, visitation, and support, and in paternity proceedings the

       inquiry is whether a particular man is the child’s biological father, and, if so,

       Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016     Page 9 of 16
       similar determinations as to support, custody, and visitation are made. Id. at

       517. The Court further observed that in many cases the parties to the

       dissolution will stipulate or otherwise explicitly or implicitly agree that the child

       is a child of the marriage; that in such cases, although the dissolution court does

       not identify the child’s biological father, the determination is the legal

       equivalent of a paternity determination in the sense that the parties to the

       dissolution, the divorcing husband and wife, will be precluded from later

       challenging that determination except in extraordinary circumstances; and that,

       nevertheless, a child or a putative father is not precluded by the dissolution

       court’s finding from filing a separate action to establish paternity at a later time.

       Id. at 518. The Court also noted that, in other cases, the issue of whether a

       child is a child of the marriage may be vigorously contested and that in such

       cases the dissolution court has the authority to follow appropriate procedures

       for making paternity determinations. Id.


[15]   In In re Marriage of Huss, in seeking dissolution of their marriage, the husband

       and wife declared there were four children born of their marriage and each

       requested custody of the children. 888 N.E.2d 1238, 1239 (Ind. 2008). While

       the dissolution was pending, the wife initiated a separate paternity action in the

       circuit court of another county and obtained a final order establishing that

       another man was the biological father of one of the children and granting her

       custody of that child. Id. The wife then sought to use the paternity judgment as

       a basis to dismiss the custody proceedings regarding the child in the dissolution

       case. Id. Specifically, the wife filed a motion to dismiss the child from the


       Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016       Page 10 of 16
       dissolution proceedings alleging the child was not a child of the marriage and

       attaching a copy of the paternity order. Id. at 1240. The dissolution court

       denied the wife’s motion to dismiss, dissolved the marriage, divided the marital

       property, and provided for child support and parenting time. Id. The

       dissolution court found, as to the paternity decree’s purported award of custody

       to the wife, that it was “of no binding force” due to procedural irregularities

       including the failure to make the husband a party and to notify him of the

       custody claim in the paternity case. Id. The court also concluded it would be in

       the child’s best interest that the child be placed in the custody of the husband.

       Id. On appeal the wife claimed the dissolution court erred in failing to

       recognize the paternity judgment. Id. at 1240-1241. She argued that the final

       paternity judgment and its award of custody could not be invalidated by the

       dissolution decree. Id. at 1241.


[16]   The Indiana Supreme Court stated that the issue was whether the paternity

       court was authorized to adjudicate a custody issue that was already pending

       before another court. Id. The Court found that, because the subject of child

       custody was first properly before the circuit court in the dissolution proceeding,

       the circuit court of another county in the subsequently filed paternity action was

       precluded from making a custody determination regarding the same child. Id.

       The Court noted that it is well settled that two courts of concurrent jurisdiction

       cannot deal with the same subject matter at the same time, that once

       jurisdiction over the parties and the subject matter has been secured, it is

       retained to the exclusion of other courts of equal competence until the case is

       Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016     Page 11 of 16
       resolved, and that the rule applies where the subject matter before the separate

       courts is the same but the actions are in different forms. Id. (citing In re Paternity

       of Fox, 514 N.E.2d 638 (Ind. Ct. App. 1987), trans. denied). The Court further

       noted that among the legislature’s purposes for dissolution proceedings is to

       provide for child custody, id. (citing Ind. Code § 31-15-1-2),9 that the

       determination of child custody may be sought in an action for dissolution, for

       legal separation, for child support, or by “a person other than a parent by filing

       a petition seeking a determination of custody of the child,” id. (citing Ind. Code

       § 31-17-2-3),10 or in conjunction with a paternity determination. Id. (citing Ind.

       Code § 31-14-10-1).11


[17]   After noting that the husband had asserted there were four children born of the

       marriage and that the wife had identified the same four children as born to the

       marriage in the dissolution proceeding, the Court held that “[t]he subject matter

       of child custody of all four children was unquestionably before the dissolution

       court from the inception of the action,” id. at 1242, that “[t]he wife could have,

       but did not, seek a determination in the dissolution proceeding that the husband

       was not the biological father of the child,” id. (citing Russell, 682 N.E.2d at 518),




       9
        Ind. Code § 31-15-1-2 provides in part that “[t]he purposes and policies of this article are as follows: . . . (3)
       To provide for the disposition of property, child support, and child custody. . . .”
       10
           Ind. Code § 31-17-2-3 provides in part that “[a] child custody proceeding is commenced in the court by: . .
       . (2) a person other than a parent by filing a petition seeking a determination of custody of the child.”
       11
         Ind. Code § 31-14-10-1 provides in part that, “[u]pon finding that a man is the child’s biological father, the
       court shall, in the initial determination, conduct a hearing to determine the issues of support, custody, and
       parenting time. . . .”

       Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016                                Page 12 of 16
       that “[t]he wife’s subsequent prosecution of a separate paternity action” in the

       circuit court of another county “could not, and did not, operate to interrupt or

       supersede the authority of the dissolution court to determine the custody of all

       four children, including the child who became the subject of the paternity

       action,” and that the dissolution court did not err in failing to give effect to the

       paternity judgment. Id. The Court also noted that, to the extent the wife

       argued the dissolution court lacked personal jurisdiction over the child of which

       the husband was not the biological parent, “even if the wife’s separate paternity

       action might arguably be characterized as vigorously contesting whether the

       child was a child of the marriage pursuant to Russell, such argument would not

       preclude the dissolution court’s ultimate custody determination in this case,”

       that Russell “did not involve a non-biological ‘father’s’ request for custody

       predicated on the child’s best interest,” that such a determination was the

       ultimate basis for the trial court’s decision to award the husband custody of the

       child he did not father, and that further evaluation of the applicability of Russell

       was not warranted. Id. at 1243.


[18]   In this case, at Carroll’s request, the court set aside the June 17, 2014 Agreed

       Order of Paternity in Cause No. 29. As such, there is no order in effect finding

       that Varble is the biological father of A.C., and Varble does not appeal the

       court’s ruling setting aside the Agreed Order of Paternity. The dissolution

       decree under Cause No. 631, which contained provisions pertaining to the

       custody, parenting time, and support of A.C., was entered on December 8,

       2009, and Varble filed his petition to establish paternity under Cause No. 29


       Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016     Page 13 of 16
       over four and one-half years later on June 16, 2014, and his motion for relief

       from judgment under Cause No. 631 on August 12, 2014.


[19]   With respect to Varble’s assertion that the dissolution court did not have subject

       matter jurisdiction over A.C. in Cause No. 631 and that the court should have

       granted his motion for relief from the decree on that basis, we observe that the

       dissolution action under Cause No. 631 and later the paternity action initiated

       by Varble under Cause No. 29 were before the Jefferson Circuit Court, that Ind.

       Code § 33-28-1-2 provides in part that “all circuit courts have . . . original and

       concurrent jurisdiction in all civil cases,” and that Varble does not cite to any

       statute stating that the Jefferson Circuit Court does not have the authority to

       hear dissolution cases or to make child custody, parenting time, and child

       support determinations in dissolution proceedings. See K.S. v. State, 849 N.E.2d

       538, 540 (Ind. 2006) (“Subject matter jurisdiction is the power to hear and

       determine cases of the general class to which any particular proceeding

       belongs.”); In re B.J.N., 19 N.E.3d 765, 768 (Ind. Ct. App. 2014) (noting that

       circuit courts are courts of general jurisdiction, empowered to hear all types of

       cases). Finding the Indiana Supreme Court’s opinion in Huss to be instructive,

       we conclude that the matter of the custody of A.C. and the other child

       identified in the dissolution decree was before the Jefferson Circuit Court under

       Cause No. 631 from the inception of that dissolution action, and that the court

       had the authority to determine the custody of both children. See Huss, 888

       N.E.2d at 1241-1242 (noting that the determination of child custody may be

       sought in an action for dissolution and holding that the subject matter of child


       Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016    Page 14 of 16
       custody of all four children, including the child who became the subject of the

       wife’s separate paternity action, was unquestionably before the dissolution court

       from the inception of the action) (citing Russell, 682 N.E.2d at 518).


[20]   To the extent Varble cites Russell in asserting the court in Cause No. 631 did not

       have jurisdiction over A.C. when it entered the December 8, 2009 decree, we

       observe that the parties did not dispute at the time of the dissolution that the

       court had the authority to enter the decree containing terms of custody,

       parenting time, and support related to A.C. See Harris v. Harris, 922 N.E.2d

       626, 632 (Ind. Ct. App. 2010) (observing a defendant can submit to the personal

       jurisdiction of the court by failing to raise the issue of lack of jurisdiction); see

       also Ind. Code § 31-14-7-1 (providing in part that a man is presumed to be a

       child’s biological father if the man and the child’s biological mother are or have

       been married to each other and child is born during the marriage). Indeed,

       Stephanie and Carroll expressly agreed in the Settlement Agreement and

       Decree of Dissolution of Marriage that it was in the best interest of A.C. that

       they share joint legal and physical custody, and that A.C. spend fifty percent of

       his time in each of their homes. Similar to Huss, even if the paternity action

       initiated by Varble four and one-half years after the dissolution decree might

       arguably be characterized as vigorously contesting whether A.C. was a child of

       the marriage under Russell, the Jefferson Circuit Court was not precluded from

       determining, in the dissolution action under Cause No. 631, the issue of

       custody of A.C. based on A.C.’s best interest at the time of the decree. See

       Huss, 888 N.E.2d at 1243 (noting that, even if the wife’s separate paternity

       Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016       Page 15 of 16
       action might arguably be characterized as vigorously contesting whether the

       child was a child of the marriage pursuant to Russell, such argument would not

       preclude the dissolution court’s ultimate custody determination in the case).


[21]   Based upon the record, we conclude that the trial court did not abuse its

       discretion in denying Varble’s motion for relief from judgment under Cause No.

       631.


                                                    Conclusion

[22]   For the foregoing reasons, we affirm the trial court’s denial of Varble’s motion

       for relief from judgment under Cause No. 631.


[23]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016   Page 16 of 16
