MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Aug 07 2015, 7:54 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Emerito F. Upano                                          Holly J. Wanzer
Indianapolis, Indiana                                     Wanzer Edwards, PC
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of William D.                         August 7, 2015
Anderson, III                                             Court of Appeals Case No.
                                                          29A05-1504-JP-161
Gierly Perrigo Ingco,                                     Appeal from the Hamilton Circuit
Appellant-Respondent,                                     Court
                                                          The Honorable Paul A. Felix,
        v.                                                Judge
                                                          Trial Court Cause No.
William D. Anderson, Jr.,                                 29C01-0812-JP-2124
Appellee-Petitioner



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A05-1504-JP-161 | August 7, 2015           Page 1 of 5
                                                 Case Summary
[1]   Gierly Perrigo Ingco (“Mother”) gave birth to William D. Anderson, III

      (“Child”), out of wedlock. Mother and William D. Anderson, Jr. (“Father”),

      executed a paternity affidavit stating that Father is Child’s natural father.

      Father filed a petition to establish paternity, and the trial court entered a decree

      establishing Father’s paternity of Child and awarding him legal and primary

      physical custody. Instead of filing a direct appeal, Mother filed a motion for

      relief from the decree on the basis of fraud, alleging that she and Father knew

      that he was not Child’s biological Father when they executed the paternity

      affidavit. The trial court denied the motion.


[2]   Mother now appeals, claiming that the trial court erred in denying her motion.

      Because Mother knew about the alleged fraud at its inception, participated in it

      herself, failed to challenge the decree on this basis in a direct appeal, and cites

      no relevant authority for the proposition that she may disestablish Father’s

      paternity, we find no error and therefore affirm.


                                   Facts and Procedural History 1
[3]   In December 2005, Mother gave birth to Child out of wedlock. At that time,

      Mother and Father executed a paternity affidavit stating that Father is Child’s




      1
        Indiana Appellate Rule 46(A)(5) provides that an appellant’s statement of case shall briefly describe “the
      course of the proceedings relevant to the issues for review,” and Rule 46(A)(6) provides that an appellant’s
      statement of facts “shall describe the facts relevant to the issues presented for review[.]” Mother’s brief is
      deficient in these respects. We thank Father for providing a much more detailed and helpful statement of
      case and statement of facts in his brief.

      Court of Appeals of Indiana | Memorandum Decision 29A05-1504-JP-161 | August 7, 2015                 Page 2 of 5
      natural father. Initially, Mother and Father lived together with Child. When

      the cohabitation ended, the parties agreed that Child would live with Mother.


[4]   In December 2008, Father filed a petition to establish paternity. In April 2009,

      Father filed an emergency petition for temporary custody. In June 2009, the

      trial court entered a preliminary order awarding temporary physical custody of

      Child to Father. In December 2014, after a hearing, the trial court issued a final

      judgment and decree of paternity in which it established Father’s paternity of

      Child, awarded legal and primary physical custody to Father, and denied “[a]ll

      requests by Mother to set aside the paternity affidavit and to request DNA

      testing to confirm biological paternity” as untimely. Appellant’s App. at 19.

      Mother did not file a direct appeal from the paternity decree.


[5]   In March 2015, pursuant to Indiana Trial Rule 60(B), Mother filed what is

      essentially a motion for relief from the paternity decree, asserting that she

      signed the paternity affidavit “as a matter of necessity” because she “was in dire

      financial straits,” that she and Father never had sexual relations, and that

      Father knew that he was not Child’s biological father. Id. at 10-11; see Ind.

      Trial Rule 60(B) (“On motion and upon such terms as are just the court may

      relieve a party or his legal representative from a judgment … for the following

      reasons: … (3) fraud (whether heretofore denominated intrinsic or extrinsic),

      misrepresentation, or other misconduct of an adverse party[.]”). Mother also

      requested DNA testing to prove that “Father committed fraud when he signed

      the paternity affidavit.” Id. at 13. The trial court denied Mother’s petition,



      Court of Appeals of Indiana | Memorandum Decision 29A05-1504-JP-161 | August 7, 2015   Page 3 of 5
      stating in its order that “this issue has previously been denied.” Id. at 27.

      Mother now appeals.


                                     Discussion and Decision
[6]   Mother appeals from the denial of her motion for relief from judgment, which

      we have stated “may not be used as a substitute for a direct appeal.” In re

      Paternity of M.W., 949 N.E.2d 839, 842 (Ind. Ct. App. 2011). We have also

      explained that “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.”

      Goldsmith v. Jones, 761 N.E.2d 471, 474 (Ind. Ct. App. 2002). “The burden is

      on the movant for relief from judgment to demonstrate that the relief is both

      necessary and just.” DeLage Landen Fin. Servs., Inc. v. Cmty. Mental Health Ctr.,

      Inc., 965 N.E.2d 693, 696 (Ind. Ct. App. 2012), trans. denied.


              We will not reverse a denial of a motion for relief from judgment
              in the absence of an abuse of discretion. A trial court abuses its
              discretion if its decision clearly contravenes the logic and effects
              of the facts and circumstances or if the trial court has
              misinterpreted the law.


      Prince v. Marion Cnty. Auditor, 992 N.E.2d 214, 217 (Ind. Ct. App. 2013)

      (citation omitted), trans. denied.


[7]   Here, Mother was aware of Father’s alleged fraud in signing the paternity

      affidavit when Child was born in 2005, and she herself participated in the

      alleged fraud by also signing the affidavit. Moreover, Mother remained aware

      of the alleged fraud when the trial court issued the paternity decree in 2014, yet

      Court of Appeals of Indiana | Memorandum Decision 29A05-1504-JP-161 | August 7, 2015   Page 4 of 5
      she did not file a direct appeal and challenge the decree on that basis. And

      furthermore, Mother cites no relevant authority for the proposition that she

      may compel DNA testing and disestablish Father’s paternity under these

      circumstances. 2 In sum, Mother has failed to show that she is entitled to the

      extraordinary remedy of relief from the paternity decree. See Gertz v. Estes, 922

      N.E.2d 135, 138 (Ind. Ct. App. 2010) (finding that appellants were not entitled

      to modification of trial court’s judgment where they had failed to challenge

      remedy in their direct appeal). Consequently, we find no abuse of discretion in

      the trial court’s denial of her motion.


[8]   Affirmed.


      May, J., and Bradford, J., concur.




      2
        In addition to contending that the trial court erred in denying her motion, Mother asserts that the court
      should not have awarded custody to Father over her objection, “without any proof that such custody is for
      the best interest” of Child. Appellant’s Br. at 6. Mother should have raised this issue in a direct appeal.
      Also, she cites two memorandum decisions as persuasive authority for her assertions in violation of Indiana
      Appellate Rule 65(D).

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