FOR PUBLICATION                                       FILED
                                                    Mar 29 2012, 9:31 am


ATTORNEY FOR APPELLANT:                                    CLERK
                                                         of the supreme court,
                                                         court of appeals and
                                                                tax court


BRYAN LEE CIYOU
Ciyou & Dixon, P.C.
Indianapolis, Indiana


                           IN THE
                 COURT OF APPEALS OF INDIANA

IN RE THE MATTER OF THE PATERNITY OF )
S.C.:                                )
                                     )
K.C.,                                )
                                     )
      Appellant - Respondent,        )
                                     )
             and                     )          No. 30A01-1107-JP-322
                                     )
C.C.,                                )
                                     )
      Appellee - Petitioner.         )
                                     )
             and                     )
                                     )
B.H.,                                )
                                     )
      Appellee – Intervenor.         )


                  APPEAL FROM THE HANCOCK CIRCUIT COURT
                       The Honorable Richard Culver, Judge
                          Cause No. 30C01-0810-JP-156


                               March 29, 2012

                        OPINION - FOR PUBLICATION

FRIEDLANDER, Judge
       K.C. (Mother) gave birth to a child, S.C., on July 28, 2008. Controversy has existed

ever since as to the identity of S.C.’s biological father. Almost from the outset, two men,

B.H. and C.C., have sought to establish legal paternity of S.C. Their battle initially was

litigated in two separate counties under two separate actions. B.H. initiated his action in

Fayette Circuit Court. Somewhat later, and with Mother’s cooperation, C.C. initiated a

separate action in Hancock Circuit Court. In this appeal, Mother challenges the Hancock

Circuit Court’s grant of B.H.’s Verified Petition for Relief from Judgment for Fraud Upon

the Court, challenging that ruling as the sole issue on appeal.

       We affirm.

       Mother and C.C. began dating in high school and became sexually active. Mother and

C.C. both knew B.H. At some point in time, Mother and B.H. had a sexual relationship. In

2007, Mother was at B.H.’s house when she learned she was pregnant. B.H. arranged for

Mother to see a doctor.

       Mother informed C.C. that she was pregnant and believed C.C. to be the father,

though she had also wondered if B.H. could be the father. Mother ceased contact with B.H.

and continued her relationship with C.C. On July 28, 2008, Mother gave birth to S.C. at the

Henry County Hospital in Henry County, Indiana, with C.C. present during the birth. On

July 29, 2008, B.H. filed a Verified Petition for Immediate Paternity Order in the Fayette

Circuit Court, alleging he was the father of S.C., requesting an order that Mother and S.C.

submit to a DNA test, and asking that it be performed before Mother’s and S.C.’s discharge

from the hospital. On July 30, 2008, the Henry County Sheriff served upon Mother a


                                              2
summons and B.H.’s Verified Petition for Immediate Paternity Order by leaving a copy with,

and mailing it to, Mother’s parents’ house. Also on July 30, Mother and C.C. executed a

paternity affidavit stating that C.C. was S.C.’s biological father.

        On July 31, 2008, before they were discharged from the hospital, Mother and S.C.

submitted to blood tests. On August 4, 2008, the DNA Diagnostic Center in Fairfield, Ohio

issued a DNA test report indicating there was a 99.9997% probability that B.H. was S.C.’s

biological father.1 On August 15, 2008, Mother’s counsel entered his appearance in the

Fayette County proceeding. On the same day, Mother filed a Verified Answer and a Motion

to Dismiss for a lack of subject matter jurisdiction, failure to state a claim, and improper

venue. On August 26, 2008, the Fayette Circuit Court scheduled a hearing on Mother’s

motion to dismiss.

        On October 15, 2008, the DNA test results were sent to Mother and B.H. On October

21, 2008, C.C., pro se, and on behalf of S.C., filed a Verified Petition to Establish Paternity

in the Hancock Circuit Court. C.C. alleged that he was S.C.’s father based upon the July 30

paternity affidavit. On the same day, i.e., October 21, both Mother and C.C. filed a Verified

Joint Stipulation Establishing Paternity and Agreed Entry (Agreed Entry), stipulating to

C.C.’s paternity and determining the parties’ support obligations and custodial arrangements

relative to S.C.

        On October 22, 2008, the Hancock Circuit Court issued an order establishing paternity

1
 See I.C. § 31–14–7–1(3) (West, Westlaw through end of 2011 1st Regular Sess.) (“[a] man is presumed to be
a child’s biological father if ... the man undergoes a genetic test that indicates with at least a ninety-nine
percent (99%) probability that the man is the child’s biological father”).


                                                      3
(the Paternity Order) in favor of C.C. On that same day, the Fayette Circuit Court held a

hearing on B.H.’s paternity action. During the hearing, Mother’s counsel served B.H. with

documents from the Hancock County proceeding and entered them into evidence without

objection from B.H. Although B.H. sought to enter the DNA test report into evidence, the

trial court refused and dismissed B.H.’s Petition, stating:

       Well that maybe [sic] all well and good that you did it but you have another
       hurdle you have got to get over um, that is that your Petition To Dismiss um,
       or that your Petition doesn’t really set out any, um any remedy for which I
       could give belief [sic] to. It doesn’t state that you are the father. It doesn’t …
       it’s not a Petition for Paternity. It was only a Petition asking that you be given
       an immediate uh, that you be, that she be ordered to do a DNA testing. Um,
       we never got to that stage, it’s and, and it doesn’t meet any of the
       requirements. Um, so in reality the Petition has to be dismissed um, subject to
       your filing an Amended Complaint within 10 days.

                                        * * * * *

       And it has to be in the proper form because if you filed it and it’s not in proper
       form, then, doesn’t set out the appropriate facts, it’s going to be dismissed and
       then other issues come about um, and then we’ll end up having a battle
       between Fayette County and Hancock County to determine if you’re [sic]
       complaint survives to determine um, which Court has jurisdiction um, and I
       guess you could then file, and if your complaint survives you can file a motion
       to consolidate in the earliest case and everything would then be consolidated
       under the earliest case number, if I remember right under Trial Rule 42-
       something. 42 or 43 said that yesterday that’s why I’m familiar. I’m up on it.

Appellant’s Appendix at 66-67. Following dismissal, on October 31, 2008, B.H. filed a

motion to correct error and a motion requesting an extension of time to file an amended

complaint. The Fayette Circuit Court did not rule on the motion to correct error, but granted

B.H.’s motion for an extension of time. B.H. did not subsequently file an Amended Petition

and Mother’s counsel withdrew from the Fayette County proceeding on February 27, 2009.


                                               4
       On June 25, 2010, B.H., by counsel, filed his Verified Petition for Relief of Judgment

for Fraud Upon the Court (the Petition for Relief) in the Hancock Circuit Court, alleging that

the Paternity Order was obtained through fraud. On July 16, 2010, B.H. sought to intervene

in the Hancock County proceeding. The trial court granted the motion on July 19, 2010. On

May 24, 2011, the trial court held a hearing on B.H.’s Petition for Relief. On July 1, 2011,

the trial court granted the petition, issuing the following findings of fact, conclusions of law,

and judgment:

       1.     The Court finds [K.C.] and [C.C.], met in high school when [K.C.] was
              a freshman [C.C.] was a senior [sic].

       2.     The Court finds were active [sic].

       3.     The Court finds that by at least 2007, [K.C.] was also sexually active
              with [B.H.].

       4.     [S.C.] was born on July 28, 2008.

       5.     [K.C.] and [C.C.] entered into a Paternity Affidavit at the hospital after
              [S.C.’s] birth.

       6.     On July 29, 2008, [B.H.] filed a Petition to Establish Paternity of minor
              child, S.C., in the Fayette Circuit Court under cause number 21C01-
              0807-JP-0432.

       7.     [K.C.], … the biological mother of [S.C.], was named as the
              Respondent.

       8.     On July 31, 2008, a DNA test was performed at the Henry County
              Memorial Hospital on [K.C.], [B.H.] and minor child [S.C.].

       9.     The DNA testing was completed on August 4, 2008 showing the
              probability of paternity as it related to [B.H.] was 99.9997%.

       10.    On August 15, 2008, attorney Bryan Ciyou … entered his appearance
              on behalf of [K.C.] in the Fayette Circuit Court proceeding.

                                               5
11.   Various motions were filed by Ciyou in the Fayette Circuit Court
      proceeding in response to [B.H.]’s Petition to Establish Paternity,
      which were:

      a.     Motion to Dismiss for Lack of Subject Matter Jurisdiction;
      b.     Failure to State a Claim; AND
      c.     Incorrect Venue.

12.   The Fayette Circuit Court then consolidated all pending motions for
      final hearing on October 22, 2008 at 10:30 a.m. for one (1) hour.

13.   On October 21, 2008, [C.C.] …, the putative father, filed a Petition to
      Establish Paternity of minor child, S.C., in the Hancock County Circuit
      Court under cause number 30C01-0810-JP-0156.

14.   [K.C.] was named as Respondent in the Hancock County Circuit Court
      case and on October 21, 2008, Ciyou entered an appearance on behalf
      of [K.C.].

15.   On October 21, 2008, [K.C.] and [C.C.] filed a Verified Joint
      Stipulation Establishing Paternity and Agreed Entry, hereinafter,
      Agreed Entry.

16.   The Court finds that [K.C.] knew that there was a reasonable possibility
      that [B.H.] was the biological father of [S.C.].

17.   The Agreed Entry was signed by Ciyou as attorney for [K.C.].

18.   At no time was notice given to the Hancock County Circuit Court that a
      paternity action had been filed and was pending in the Fayette Circuit
      Court at the time the Petition for Paternity and Agreed Entry thereon
      was filed.

19.   At no time did [C.C.], [K.C.] or Ciyou notify [B.H.] said Petition and
      Agreed Entry had been tendered to the Hancock Circuit Court.

20.   On October 22, 2008, the Fayette Circuit Court dismissed [B.H.]’s
      petition subject to [B.H.] being given ten (10) days to file an amended
      petition.

                       CONCLUSIONS OF LAW

                                     6
       21.     The Court concludes that the paternity affidavit filed July 30, 2008 is
               void as a matter of law as [K.C.] knew there was a reasonable
               possibility that [B.H.] was the actual father of the child. I.C. 31-14-2-1
               cannot be used as a fraudulent vehicle to terminate the parental rights of
               a biological father.

       22.     The Court concludes that [K.C.] engaged in an unconscionable plan or
               scheme to defraud Pinter v. Pinter, 641 N.E.2d 101, 104 [sic].

                                         * * * * *
               [K.C.]’s actions in this matter constitute a fraud upon this Court. In
               Pinter v. Pinter, 641 N.E.2d 101 (Ind. Ct. App. 1994), the Court noted
               that fraud on the Court is a deliberately planned carefully executed
               scheme to defraud[]. … Attorney Ciyou had the responsibility if not
               duty as an officer of the court to notify the Court of the pending action
               in another Court and failed to do so. Attorney Ciyou carefully executed
               the filing of the case in Hancock County on the day before a hearing
               was scheduled in the Fayette County Circuit Court in what can only be
               concluded was a deliberate plan to deceive the Hancock County Circuit
               Court. Put simply, [K.C.] committed a fraud upon the Court. Attorney
               Ciyou, as [K.C.]’s attorney, had an ethical obligation to advise the
               Court of the pendency of the Fayette County matter. Said conduct in
               [sic] an egregious example of overzealous representation to the
               detriment of an attorney’s position as an officer of the Court.

                                           ORDER

               The judgment entered by the court under the cause number 30C01-
               0810-JP—156 is now determined to be void. A fraud was perpetrated
               on this court in obtaining that judgment and this court was without
               jurisdiction when this court entered the judgment as it related to the
               paternity of the minor child, S.C.

Id. at 9-13.

       Mother contends the trial court erred in granting B.H.’s Verified Petition for Relief

from Judgment for Fraud Upon the Court. Although not so denominated, B.H.’s motion was

clearly premised upon Indiana Trial Rule 60(B). That provision states, in relevant part: “On


                                               7
motion and upon such terms as are just the court may relieve a party or his legal

representative from a judgment, including a judgment by default, for the following reasons:

… fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party[.]” T.R. 60(B)(3). Our Supreme Court has determined that

regardless of which procedural vehicle a party uses to assert a claim of fraud on the court,

“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.” Stonger v. Sorrell, 776 N.E.2d 353, 357 (Ind. 2002).

“Fraud on the court has been narrowly applied and is limited to the most egregious of

circumstances involving the courts.” Id. The party seeking to have a judgment set aside

bears the burden of proving fraud on the trial court. See Kelley v. Med-1 Solutions, LLC, 952

N.E.2d 817 (Ind. Ct. App. 2011). “To prove fraud on the court, it is not enough to show a

possibility that the trial court was misled.” Stonger v. Sorrell, 776 N.E.2d at 357. “Rather,

there must be a showing that the trial court’s decision was actually influenced.” Id. Our

standard of review in such cases is well settled:

       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. We
       will not reverse a denial of a motion for relief from judgment in the absence of
       an abuse of discretion. 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. First, we determine whether the evidence supports the
       findings, and second whether the findings support the judgment. The trial
       court’s findings and conclusions will be set aside only if they are clearly
       erroneous. In reviewing the trial court’s entry of special findings, we neither
       reweigh the evidence nor reassess the credibility of the witnesses. Rather we
       must accept the ultimate facts as stated by the trial court if there is evidence to
       sustain them.

                                               8
Id. at 358 (internal citations omitted).

       Before addressing the merits of Mother’s claim, we note that B.H. did not file an

appellee’s brief. When an appellee fails to submit a brief, we apply a less stringent standard

of review with respect to the showing necessary to establish reversible error. Zoller v. Zoller,

858 N.E.2d 124 (Ind. Ct. App. 2006). In such cases, we may reverse if the appellant

establishes prima facie error, which is an error at first sight, on first appearance, or on the

face of it. Id. Moreover, we will not undertake the burden of developing legal arguments on

the appellee’s behalf. Id.

       In attacking the trial court’s ruling, Mother essentially contends that B.H.’s claim of

paternity was never pursued correctly and that C.C.’s paternity was conclusively established

by the paternity affidavit executed by C.C. and Mother in the hospital shortly after S.C.’s

birth. Therefore, the argument goes, B.H.’s rights were not affected by the Hancock County

proceeding from which the October 22, 2008 order emanated and B.H. cannot satisfy the

T.R. 60(B) requirement that the challenged order “prevented the losing party from fully and

fairly presenting its case or defense.” See Stonger v. Sorrell, 776 N.E.2d at 357. Going to

the heart of it, Mother contends that the trial court erred in concluding that the Hancock

County proceeding implicated B.H.’s paternity rights and that he could seek to challenge it

on that basis, or any basis for that matter.

       We note that Mother is represented upon appeal by the same counsel that represented

her in the Fayette County proceeding and the Hancock County proceeding. Perhaps not

surprisingly, therefore, Mother’s argument is concentrated primarily upon the issues of how

                                               9
paternity is legally established under Indiana law, who may do so, and whether B.H.’s legal

efforts to establish his paternity of S.C. were sufficiently valid to confer upon him status to

litigate the question of S.C.’s paternity in the realm of what counsel consistently refers to as

“the Hancock County filings.” See, e.g., Appellant’s Brief at 9. Counsel concludes they are

not, and therefore that the trial court erred in granting his petition. Although we are aware

that S.C.’s paternity is the underlying issue in this case, we conclude that the correctness of

the trial court’s ruling does not hinge upon the questions of whether B.H. is, in fact, the

biological father of S.C. and whether his legal endeavors to this point comport with statutory

guidelines. Rather, we conclude that this case implicates the power of the trial court to

vacate an order that it later concludes was issued under a fraudulent pretext.

       As set out above, the paternity of S.C. was hotly disputed from the day of her birth.

B.H. and C.C. each entertained what appears to be a reasonable belief, based upon having

sexual relations with K.C. during the relevant time period, that he was the baby’s father. To

that end, on July 29, 2008, the day after S.C. was born, B.H. filed a Verified Petition for

Immediate Paternity Order in the Fayette Circuit Court, seeking thereby to establish that he

was S.C.’s biological father. In conjunction with that petition, B.H. sought and received an

order compelling K.C. and S.C. to submit to DNA testing before they left the hospital. The

day that order was served upon K.C., i.e., July 30, 2008, C.C. and K.C. executed an affidavit

of paternity identifying C.C. as S.C.’s biological father. The DNA test was performed on

July 31, 2008, and the record contains a DNA Test Report form completed by an entity

identified in the record as the DNA Diagnostics Center (the DDC), dated August 4, 2008.


                                              10
The DDC report form indicates there is a 99.9997% likelihood that B.H. was S.C.’s

biological father.2

        Attorney Ciyou entered his appearance on behalf of K.C. in the Fayette County

proceeding on August 15, 2008. Also on that day, Attorney Ciyou filed a verified answer on

K.C.’s behalf, as well as a Motion To Dismiss For Lack of Subject-Matter Jurisdiction;

Failure to State a Claim Upon Which Relief May Be Granted, and Incorrect Venue. On

August 26, the Fayette Circuit Court set Mother’s motion to dismiss for a hearing on October

22, 2008. The day before that hearing was to occur, C.C., with Mother’s apparent

cooperation, filed in Hancock County a Verified Petition to Establish Paternity. Mother’s

cooperation is apparent by virtue of the fact that, contemporaneously with the Verified

Petition to Establish Paternity, Mother and C.C. filed a Verified Joint Stipulation

Establishing Paternity and Agreed Entry. Mother and C.C. signed the joint stipulation in

their own capacity, and Attorney Ciyou signed in his representative capacity on Mother’s

behalf. The joint stipulation provided, in relevant part, as follows:

        1.       That the Parties stipulate and agree that [Mother], is the natural mother
                 of [S.C.], the Child conceived out-of-wedlock, on or about the 15th day
                 of November 2007, and born out-of-wedlock on the 28th day of July,
                 2008, at Henry County Memorial Hospital, in the County of Henry,
                 State of Indiana.

        2.       That at the time of conception of said Child, Mother and Father were
2
  We note and understand Mother’s arguments regarding the admissibility of the DNA test in question. In a
nutshell, she contends that the results were not technically admissible either in the Fayette County proceeding
or in the instant case. This would be a relevant consideration if this case focused on the substantive issue of
the S.C.’s paternity, but it does not. Whether or not the DNA report is or was deemed to be technically
admissible in a subsequent legal proceeding, the fact remains that Mother was aware, before she submitted the
October 21 Agreed Entry in the Hancock County proceeding, that the DNA test had been performed and the
results indicated an overwhelming probability that B.H. was the biological father.


                                                      11
              unmarried.

                                       * * * * *

       3.     That the Parties stipulate and agree that Petitioner, [C.C.], is the
              biological and natural father of [S.C.], and hereby admit and stipulate to
              paternity thereof.

       4.     That Petitioner, [C.C.], is a Caucasian American male currently
              residing at ***; and that he was born … in Indiana.

       5.     That Respondent, [Mother], is a Caucasian American female currently
              residing at ***; and that she was born … in Indiana.

Appellant’s Appendix at 40-41. The remainder of the joint stipulation sets out the parties’

agreement on matters of custody, support, and visitation. The Hancock County CCS

indicates that the court granted the Verified Petition to Establish Paternity on the next day,

October 22, 2008. Also on that day, the Fayette Circuit Court conducted the hearing on

Mother’s motion to dismiss. The court granted the motion and dismissed B.H.’s petition to

establish paternity, “subject to [B.H.] filing [an] Amended Petition within 10 days.” Id. at

33.

       The next relevant activity in the case appears to have occurred on June 25, 2010, when

B.H. filed his Verified Petition for Relief of Judgment for Fraud Upon the Court, which

ultimately was granted following a hearing. The granting of relief was premised primarily

upon the basis of fraud upon the court, which in turn was premised upon attorney Ciyou’s

failure to apprise the Hancock County court of the then-pending Fayette County paternity

proceeding. At that point in the Fayette County proceeding, the trial court had yet to rule

upon Mother’s motion to dismiss.


                                              12
       Mother vigorously contends that there is no record of her having perpetrated a fraud

upon the Hancock County court because the determination of S.C.’s paternity was a fait

accompli by virtue of the paternity affidavit executed in the hospital by Mother and C.C.

Mother continues that B.H.’s right to establish paternity was unaffected by the Hancock

County action. According to Mother, that proceeding “could do nothing to change, by

limitation or expansion, [B.H.]’s legal rights to seek paternity.’ Appellant’s Brief at 9.

Indeed, Mother goes so far as to state that the “filing in Hancock County did not seek to

establish paternity.” Id. According to Mother, this is so because “it was established by

operation of law on July 30, 2008, when the Hospital Paternity Affidavit was executed.” Id.

       In the final analysis, we conclude that Mother’s arguments concerning the legal

validity of B.H.’s claim of paternity and the status and viability of his legal endeavors to that

end are beside the point. The dispositive question is this: Did Mother procure the Hancock

County order by committing a fraud upon the court within the meaning of T.R. 60(B) in

failing to inform the Hancock County court about the Fayette County proceeding? As

Mother aptly notes, in order to prevail on his motion, it was incumbent upon B.H. to establish

that Mother had engaged in an unconscionable plan or scheme in order to improperly

influence the court’s decision with respect to C.C.’s Verified Petition to Establish Paternity

and that such prevented B.H. from fully and fairly presenting his case or defense. See

Stonger v. Sorrell, 776 N.E.2d 353.

       The “plan” that B.H. alleged in support of his motion is readily apparent. The Fayette

County paternity action filed by B.H., however flawed, was set for hearing on October 22.


                                               13
The day before that hearing, and a mere five days after a copy of the results of the DNA test

were mailed to Mother, C.C. and Mother collaborated in the filing of a paternity action in

Hancock County. Mother contends upon appeal that the latter action was not in the nature of

an action to establish paternity, but instead was intended merely to settle matters of support

and visitation. These protestations notwithstanding, the pleading instituting the action was

denominated a “Verified Petition to Establish Paternity”, and it was accompanied by a

Verified Joint Stipulation Establishing Paternity and Agreed Entry. Appellant’s Appendix at

36. This clearly conveys that establishing C.C. as the legal father of S.C. was a primary, if

not the primary, purpose of the action. Indeed, we note that the second of five specified

requests for relief in the petition was that “[t]he Court find the Petitioner, [C.C.], to be the

father of [S.C.].” Id. at 38. Accordingly, the conclusion that the Hancock County proceeding

was initiated at least in part to obtain an order legally establishing C.C. as S.C.’s biological

father strikes us as eminently reasonable.

       The second part of the alleged plan concerned the timing of the filing of the Hancock

County action. As noted previously, the verified petition was filed the day before the

scheduled hearing in the Fayette County proceeding. Mother would have us believe that the

timing of the filing of the Hancock County proceeding vis-à-vis the Fayette County

proceeding was purely coincidental, if not serendipitous. We do not utterly reject the

possibility that this is so, but the trial court’s conclusion that the latter influenced the former

is not unreasonable, and is in fact entirely reasonable. Especially in view of the parties’

failure to apprise the Hancock County court of the pending Fayette County proceeding, the


                                                14
filing of the verified petition the day before the scheduled hearing in the Fayette County

proceeding was unconscionable. Moreover, it was reasonable to conclude that the timing of

the filing of the Hancock County action and the failure to inform the court of the existence of

the Fayette County proceeding were motivated by a desire to influence the Hancock County

court in C.C. and Mother’s favor, as there appeared to be no reason for the Hancock County

court to inquire further into the matter of S.C.’s biological paternity.

       As for the question of influencing the court, the Hancock County court would be in

the best position to determine whether the plan in question influenced its decision to issue the

ruling from which B.H. sought relief. Based upon the language of the order granting relief

from judgment, it appears that the Hancock County court was strongly of the view that its

granting of the verified petition was significantly influenced by its lack of awareness of the

Fayette County proceeding.        We are hard-pressed to second-guess that conclusion.

Therefore, we conclude that the Hancock County court did not err in finding the existence of

an unconscionable plan intended to influence its decision, which did in fact influence the

decision.

       The final element necessary to establish grounds for granting relief from judgment

under T.R. 60(B) is that the unconscionable plan described above prevented B.H. from fully

and fairly presenting his case or defense. See Stonger v. Sorrell, 776 N.E.2d 353. Again, we

understand Mother’s argument that B.H. “still had time to assert a paternity claim” and thus

that “the Hancock County filing did not harm or impair any right [B.H.] might have.”

Appellant’s Brief at 34. This, however, miscasts the nature of the “prevention of a full and


                                              15
fair presentation of his case” that is required to set aside a judgment under T.R. 60(B) for

fraud on the court. It cannot be interpreted such that it applies only to those judgments that

lie completely beyond the bounds of direct or collateral attack via appeal or by other means.

In fact, this court has illuminated the meaning of this element in a case involving the

establishment of paternity.

       In In re Paternity of Tompkins, 518 N.E.2d 500 (Ind. Ct. App. 1988), a woman had a

child at a time when she was separated from her husband. After the couple was divorced a

short time later, the woman and her child resided for a year with a man (the prior husband) to

whom she had previously been married. After that, she and the child moved in with a third

man, whom she subsequently married. Sometime thereafter, the woman and the prior

husband executed a paternity affidavit identifying him as the biological father of her child

and a judgment of paternity was entered thereon. The woman died suddenly when the baby

was approximately three years old and a guardian appointed for her child obtained evidence

indicating that the prior husband was not, in fact, the child’s biological father. The guardian

filed suit to set aside the paternity judgment in favor of the prior husband. The trial court

denied the motion and the guardian appealed. Noting that “the facts suggest that [the prior

husband] and [the mother] knew that [the prior husband] was not the biological father of” the

child, this court reversed and set aside the paternity affidavit on grounds of fraud on the

court. Id. at 506. We reasoned:

       According to the pleadings [the prior husband] misled the court as to the
       paternity of [the child]. Furthermore, [the prior husband’s] action appeared to
       have been planned in an attempt to prevent [the child] from determining his
       true biological father. The scheme to suppress true paternity succeeded when

                                              16
       the court declared [the prior husband] as [the child’s] biological father. As in
       Hazel–Atlas and Toscano, [the child] was prevented from having an actual day
       in court, and the court was defrauded by use of the fabricated petition.

Id. at 507.

       In the instant case, Mother admitted that at the time she and C.C. executed the

paternity affidavit, she was aware there was a possibility that C.C. was not S.C.’s father, and

that B.H. was. The questions raised on appeal as to the technical admissibility of the DNA

test or the efficacy of the legal steps undertaken by B.H. to assert his claim of paternity do

not implicate the state of Mother’s knowledge as to the true identity of S.C.’s biological

father at the time she and C.C. executed the paternity affidavit. In short, there is evidence

that Mother had cause to doubt C.C.’s paternity of S.C. when she executed the paternity

affidavit attesting under oath to the fact that C.C. was the biological father. She repeated

that sworn attestation in her October 22, 2008 Verified Joint Petition Establishing Paternity

and Agreed Entry. As set out above, the execution of the paternity affidavit, combined with

the timing of the filing of the Hancock County proceeding, appear to have been part of a plan

or scheme to suppress the true identity of S.C.’s biological father, which resulted in the

issuance of a paternity order by the Hancock Circuit Court that prevented B.H. from “having

an actual day in court[.]” See id.

       As a final matter, we address the argument advanced by Mother and adopted by our

colleague in dissent in support of the case for reversal, i.e., that our affirmance of the trial

court’s order is against public policy. According to the dissent, the trial court’s order renders

S.C. “a fillius nullius, a ‘child of no one.’” Slip op. at 30. The dissent posits that such status


                                               17
carries with it “‘countless detrimental emotional and financial effects.’” Id. (quoting In re

Paternity of E.M.L.G., 863 N.E.2d 867, 870 (Ind. Ct. App. 2007)). Finally, as a result of a

perfect storm of predictable consequences, the dissent projects a grim future for Mother and

S.C. that is devoid of financial support and other involvement on the part of either C.C. or

B.H. This includes the possible abandonment of S.C. by C.C. (“[a]ll that has occurred here is

the judicially imposed removal of [C.C.’s obligation to pay support] since B.H. has not been

legally recognized as S.C.’s father”, slip op. at 30), B.H. abandoning his paternity claim, and

Mother’s predictable reluctance to pursue B.H. (“[t]]hat Mother would be reluctant to pursue

such course seems obvious given her attempts to flee from B.H. in the past”, id. at 30-31).

These hardly seem likely.

       As to the first (i.e., that C.C. will abandon S.C. and Mother), we note that C.C. was

aware from the day S.C. was born of the possibility that B.H. was the child’s biological

father. It appears from the record that C.C. nevertheless has supported S.C. and Mother as if

S.C. was his daughter. Clearly, with respect to C.C.’s motivations concerning S.C. and her

welfare, there is more at work than mere legal obligation. If the photos and testimony

concerning C.C.’s relationship to the child are any indication, he is fond of S.C. and is

impelled much more by those feelings than by the coercive force of legal obligation. As to

the prospect of B.H. abandoning his claim of paternity, we see nothing in the record that

renders it likely, much less more likely than not. The likelihood that Mother will not pursue

a support order against B.H. (which assumes both that B.H. will be proven to be the

biological father and that he will not undertake the obligation voluntarily) is similarly


                                              18
speculative and, we think, without support in the record. In short, we are not persuaded that

these possibilities are inevitable consequences of this decision.

          Moreover, we believe public policy considerations actually counsel in favor of our

decision. In a case similar in some relevant respects to the instant case, our Supreme Court

stated:

          We appreciate the Court of Appeals’ concern for a man who may be deprived
          of parental rights that he assumed for many years and wishes to retain even
          though he is not the child’s biological father. However, a countering
          important policy concern is identifying correctly parents and their offspring.
          “Proper identification of parents and child should prove to be in the best
          interests of the child for medical or psychological reasons. It also plays a role
          in the just determination of child support; we have already declared that
          public policy disfavors a support order against a man who is not the child’s
          father.” In re S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992). In the end, such
          policy choices are the province of the legislature. Also, a husband who is not
          the biological father of his wife’s child may pursue legally adopting the child,
          bringing such child within the statutory definition of “child.”

Russell v. Russell, 682 N.E.2d 513, 517 n.7 (Ind. 1997) (emphasis supplied); see also In re

Paternity of S.R.I., 602 N.E.2d 1014 (Ind. 1992). Put plainly, there is considerable value in

correctly identifying S.C.’s biological father. We reiterate that this decision does not leave

S.C. without a father and Mother without options. Even assuming that the July 31, 2008

DNA test was faulty or legally inadmissible, the parties are free to have another test

performed and do what they will depending upon those results, including the pursuit of

support proceedings against B.H. or the initiation of adoption proceedings by C.C.

          Be that as it may, Mother has failed to establish prima facie error in the Hancock

Circuit Court’s order to set aside its October 22, 2008 paternity order and therefore the

judgment is affirmed.

                                                 19
      Judgment affirmed.

MATHIAS, J., concurs.

RILEY, J., dissents with separate opinion.




                                             20
                              IN THE
                    COURT OF APPEALS OF INDIANA

IN RE THE MATTER OF THE PATERNITY                  )
OF S.C.:                                           )
                                                   )
K.C.,                                              )
                                                   )
        Appellant-Respondent,                      )
                                                   )
               AND                                 )     No. 30A01-1107-JP-322
                                                   )
C.C.,                                              )
                                                   )
        Appellee-Petitioner,                       )
                                                   )
               AND                                 )
                                                   )
B.H.,                                              )
                                                   )
        Appellee-Intervenor.                       )


RILEY, Judge, dissenting


        I respectfully dissent from the majority’s decision to affirm the trial court’s grant of

relief from judgment. I would reverse the trial court’s October 28, 2010 Order as contrary to

Indiana law establishing paternity.

        The majority makes it clear that their holding is premised upon “the power of the trial

court to vacate an order that it later concludes was issued under a fraudulent pretext.” Slip
op. p. 10. The trial court here concluded that the paternity affidavit was void as a matter of

law because it “cannot be used as a fraudulent vehicle to terminate the parental rights of a

biological father.” (Appellant’s App. p. 11). The trial court further concluded that Mother

and her counsel’s actions in procuring the October 22, 2008 Order constituted fraud on the

court. However, because the paternity affidavit at issue was not properly rescinded and

because B.H. was not deprived from fully and fairly establishing his paternity of S.C. by

virtue of either the paternity affidavit or the October 22, 2008 Order, I conclude that both of

the trial court’s conclusions are clearly erroneous.

                                        I. Paternity Affidavit

       Paternity may only be established though a paternity action commenced under I.C. ch.

31-14 or by execution of a paternity affidavit under I.C. § 16-37-2-2.1. See I.C. § 31-14-2-1;

In re Paternity of D.L., 938 N.E.2d 1221, 1225 (Ind. Ct. App. 2010), aff’d on reh’g, 943

N.E.2d 1284. An “executed paternity affidavit conclusively establishes the man as the legal

father of a child without any further proceedings by a court.” I.C. § 16-37-2-2.1(n); I.C. §

31-14-7-3.

       Statutory and case law provide two ways that a paternity affidavit may be rescinded.

First, I.C. § 16-37-2-2.1 (i) allows the man who executed a paternity affidavit to file an action

requesting a genetic test within sixty days following execution of the paternity affidavit. If

the genetic test reveals that the man who signed the paternity affidavit is not the biological

father, then the court may set aside the paternity affidavit. I.C. § 16-37-2-2.1(l). If more than

sixty days have passed, the court may set aside the paternity affidavit only if there is (1) a


                                               22
showing of “fraud, duress, or material mistake of fact existed in the execution of the paternity

affidavit” and (2) a court-ordered genetic test requested by the man who signed the paternity

affidavit reveals him not to be the biological father. I.C. § 16-37-2-2.1(j). Second, although

the Indiana Code does not provide for a direct action to disestablish paternity, establishing

paternity in another man in effect operates to disestablish paternity, even if paternity is

established through a paternity affidavit. In re Paternity of M.M., 889 N.E.2d 846, 848 (Ind.

Ct. App. 2008), reh’g denied.

       Here, C.C. did not bring an action to contest his paternity of S.C., nor did the trial

court order a genetic test. The trial court was therefore not permitted to rescind the paternity

affidavit under I.C. § 16-37-2-2.1(i) or (j). See I.C. §16-37-2-2.1(l). Further, paternity had

not yet been established in B.H. through a genetic test under a separate action, and thus there

was no action to disestablish C.C.’s paternity. Although a mother who falsely names a man

as biological father in a paternity affidavit commits a Class A misdemeanor, the statute does

not address rescission of a paternity affidavit under such circumstances. See I.C. §16-37-2-

2.1(g). Consequently, I conclude that the trial court erroneously voided the paternity

affidavit in light of the statute and relevant case law.

       Furthermore, the trial court’s conclusion that B.H.’s rights as biological father are

terminated by a fraudulent paternity affidavit is not supported by Indiana law governing the

establishment of paternity. After paternity has been established in one man through a

paternity affidavit, another man alleging to be a child’s father may assert his paternity in

three ways. The first is through a direct action, which in general must be commenced within


                                              23
two years following the birth of the child. I.C. § 31-14-5-3(b). A man alleging paternity may

also bring an indirect action as the child’s next friend. I.C. § 31-14-5-2. Such action must

generally be brought before the child’s eighteenth birthday. I.C. § 31-14-5-2(b); In re

Paternity of K.L.O., 816 N.E.2d 906, 908 (Ind. Ct. App. 2004). Finally, if requested by an

alleged father, a county prosecutor must bring a paternity action under I.C. § 31-14-4-2.

Clark v. Kenley, 646 N.E.2d 76, 78 (Ind. Ct. App. 1995), trans. denied. Such action is not

time barred even if the two-year statute of limitations applicable to a direct action to establish

paternity has expired. In re Paternity of N.D.J., 765 N.E.2d 682, 683-84 (Ind. Ct. App.

2002).

         C.C. and Mother executed the paternity affidavit on July 28, 2008. From that point

forward, no further court proceedings were required to establish C.C.’s paternity. I.C. § 16-

37-2-2.1(n). Although the trial court found the paternity affidavit void based on Mother’s

knowledge that there was a reasonable possibility that B.H. was S.C.’s biological father, the

paternity affidavit did not preclude B.H. from asserting paternity in his own right.

Consequently, the trial court’s conclusion that the paternity affidavit, even if fraudulent,

amounted to a termination of a biological father’s rights is clearly erroneous, and the trial

court abused its discretion in declaring the paternity affidavit void as a matter of law.

                                   II. Fraud upon the Court

         As the majority points out, “[f]raud upon the court is narrowly applied and is limited

to the most egregious of circumstances involving the courts.” Stonger, 776 N.E.2d at 357.

Fraud upon the court may be pursued through three ways under T.R. 60(B): (1) a T.R.


                                               24
60(B)(3) motion for extrinsic or intrinsic fraud, brought within one year of the judgment; (2)

an independent action for extrinsic fraud under T.R. 60(B)(8); and (3) an independent action

to invoke the court’s inherent power to grant relief for fraud on the court. Id. at 355-57. No

matter which of the three avenues is invoked, fraud upon the court requires a showing that (1)

the adverse party engaged in an “unconscionable plan or scheme” that improperly influenced

the trial court’s decision and (2) that the moving party was deprived from “fully and fairly

presenting his case.” Id. at 357.

       The trial court concluded that the October 22, 2008 Order was obtained through a

deliberately planned, carefully executed scheme to defraud the court. However, as noted

above, fraud upon the court requires not only a showing of a deliberate scheme, but also that

the moving party be precluded from fairly and fully presenting his case. Id. Since the

October 22, 2008 Order did not establish C.C.’s paternity, nor prevent B.H. from asserting

paternity in his own right, the trial court’s conclusion that Mother committed fraud upon the

court is clearly erroneous.

       As discussed above, the trial court’s October 22, 2008 Order did not establish C.C.’s

paternity of S.C. by way of a paternity action under I.C. ch. 31-14; rather, C.C.’s paternity

was established through the paternity affidavit. I.C. § 16-37-2-2.1(n); I.C. § 31-14-7-3.

Although the October 22, 2008 Order adopted C.C. and Mother’s joint stipulation of C.C.’s

paternity derived from the paternity affidavit, more importantly, the Order was prefaced upon

the parties’ arrangements as to S.C.’s custody, support, and parenting time. A trial court may

find without a hearing that a man is a child’s biological father based upon a joint stipulation


                                              25
and where such determination has already been made, the court must conduct a hearing to

determine “support, custody, and parenting time” issues. I.C. § 31-14-8-1; -10-1. If the

parties file a verified written stipulation resolving the foregoing issues or a joint petition to

establish paternity, the court is not required to hold a hearing, and incorporates the provisions

of the stipulation into its orders thereon. I.C. § 31-14-10-3.

       Here, C.C. filed a Verified Petition to Establish Paternity with the Hancock County

Court on October 21, 2008. Although its caption purported to establish paternity, C.C.’s

Verified Petition to Establish Paternity merely sought acknowledgement of his paternity

derived from the paternity affidavit. In addition, the trial court was requested to grant Mother

sole physical and legal custody and make arrangements for parenting and support. Thus,

C.C.’s paternity was established by the paternity affidavit, not by the trial court’s October 22,

2008 Order, which is properly viewed as merely a modification of those custodial and other

arrangements specified in the paternity affidavit. See I.C. § 16-37-2-2.1(f).

       Also as discussed above, at the time of the October 22, 2008 Order, B.H. could still

assert his paternity through a direct action, indirect action as S.C.’s next friend, or upon

request to the prosecutor. Consequently, no matter if Mother and her counsel engaged in a

deliberate scheme to defraud the trial court, B.H. was not precluded from “fully and fairly”

presenting a defense, and thus the trial court abused its discretion in granting B.H.’s motion

for relief from judgment.




                                               26
                                               III. Prior Precedent

        The majority relies on In re Paternity of Tompkins, 518 N.E.2d 500 (Ind. Ct. App.

1988), to support its premise that the “prevention of a full and fair presentation of his case”

component of fraud upon the court “cannot be interpreted such that it applies only to those

judgments that lie completely beyond the bounds of direct or collateral attack via appeal or

other means.” Slip op. p. 16. Although involving both a paternity matter and determination

of fraud upon the court, Tompkins is distinguishable on a number of grounds so as to render it

incapable of guidance here.

        First, contrary to the majority’s summary of Tompkin’s facts, no hospital paternity

affidavit was apparently involved in that case. Tompkins instead involved a joint petition to

establish paternity and mention of a “paternity affidavit” appears nowhere in the opinion.3

Legislation providing for the hospital paternity affidavit at issue in this case was not enacted

until 1989, while Tompkins was decided in 1988.4 Thus, the Tompkins court set aside a

petition establishing paternity rather than a hospital paternity affidavit doing so. Here, the

majority implicitly analogizes C.C.’s Verified Petition to Establish Paternity to the Tompkins

joint petition by asserting that C.C.’s petition, filed pro se, “was initiated at least in part to




3
 This is not to say that affidavits acknowledging paternity did not exist. See Johnson v. Ross, 405 N.E.2d
569, 572 (Ind. Ct. App. 1980) (paternity deemed admitted by father’s execution of an “Affidavit of
Legitimation” filed with a county board of health).
4
  See I.C. §§ 16-1-16-15 and 31-6-6.1-9 (1989), both amended by P.L. 185-1989, §§ 6 & 9, effective July 1,
1989, to provide for paternity affidavits. Both sections were repealed and either recodified or reconstituted as
I.C. §§ 16-37-2-2.1 and 31-14-7-1, respectively, by P.L. 46-1995, § 63 and P.L. 1-1997, § 157, effective July
1, 1997. Further, I.C. § 31-14-7-3, conclusively establishing the man signing the paternity affidavit as the
legal father, was enacted by P.L. § 138-2001, § 8, effective July 1, 2001.


                                                      27
obtain an order legally establishing C.C. as S.C.’s biological father.” Slip op. p. 14. Despite

acknowledging that C.C.’s recitation of paternity derived through the paternity affidavit was

only one of the five requests for relief contained in C.C.’s petition, the majority points to this

recitation to justify its determination that Mother and her attorney used the trial court to

fraudulently procure an order establishing C.C.’s paternity. The majority has elevated form

over substance since, as noted above, all that Indiana law requires in such case is that the trial

court, without a hearing, approve the parties’ arrangements as to support, custody, and

parenting time. See I.C. § 31-14-10-3.

       Second, the Tompkins court found that by fraudulently filing a petition for paternity,

the child “was prevented from having an actual day in court, and the court was defrauded by

use of the fabricated petition.” Id. at 507. As explained previously, however, no one has

been denied their day in court. Although the time for him to file a direct action may have

expired, B.H. may yet establish paternity as S.C.’s next friend or upon request to the county

prosecutor, which, in the latter case, may also be requested by the child, the mother, and any

other party designated under I.C. § 31-14-4-2. See In re the Paternity of B.N.C., 822 N.E.2d

616, 620 n.7 (Ind. Ct. App. 2005) (distinguishing Tompkins).

       Third, the equities involved in Tompkins actually favor upholding C.C. as the legal

father of S.C. Tompkins involved a mother who gave birth to a son while separated from her

second husband. Id. at 502. The mother moved in with her first husband, divorced her

second husband, then met and married her third husband. Id. Following her marriage to the

third husband, Mother and her first husband “filed a joint petition to establish paternity” and


                                               28
“a judgment was entered declaring” the mother’s first husband as the child’s father. Id. Both

the mother and the first husband knew that the first husband was not the child’s biological

father. Id. at 506. Mother remained married to her third husband until her death when the

child was five years old. Id. at 502. The third husband initiated guardianship proceedings

for the child and the child’s guardian sought “to set aside the paternity judgment on the basis

of fraud” after determining that mother’s first husband was not the child’s biological father.

Id. The court noted that the child’s interests and his “need for stability and psychological

support would be served best if he were allowed to remain with his half-sister and [the

mother’s third husband], rather than his father as presumed under the paternity judgment.”

Id. at 503.

       The equities here favor the opposite result. Mother and C.C. both knew B.H. and

purchased drugs from him. In 2007, Mother was at B.H.’s house when she learned she was

pregnant. By this time, Mother was addicted to methadone, which B.H. had provided to her.

Mother ceased contact with B.H. and began taking Suboxone to control her addiction to

opiates. Since S.C.’s birth, C.C. has been the only father she has known. It is thus arguable

that both Mother and S.C.’s interests would be better served without B.H.’s involvement.

       Finally, the result in Tompkins is not consistent with this court’s subsequent

resolutions of those paternity affidavits obtained expressly or impliedly by fraud. A paternity

affidavit knowingly executed falsely by both the mother and father has been upheld against

the mother’s subsequent attack. In re H.H., 879 N.E.2d 1175, 1176, 1178 (Ind. Ct. App.

2008). A paternity affidavit was set aside only upon establishing the identity of the


                                              29
biological father pursuant to I.C. § 31-14-4-1. Paternity of Davis v. Trensey, 862 N.E.2d

308, 314 (Ind. Ct. App. 2007); see also Paternity of H.J.B. ex rel. Sutton v. Boes, 829 N.E.2d

157, 160 (Ind. Ct. App. 2005) (“We likewise think that it would be appropriate for the trial

court to withhold the disestablishment of a deceased father’s paternity until paternity has

been established in another man.”). Paternity affidavits have also been upheld in the face of

medical evidence to the contrary. See In re K.M., 651 N.E.2d 271, 274-276 (Ind. Ct. App.

1995).

                                          IV. Public Policy

         The soundness of the majority’s conclusion is further belied by examination of the

effect of its decision. S.C. has now been rendered a filius nullius, a “child of no one” – a

situation carrying with it “countless detrimental emotional and financial effects.” In re

Paternity of E.M.L.G., 863 N.E.2d 867, 870 (Ind. Ct. App. 2007) (citation omitted). No

matter if S.C.’s biological father is in fact B.H., C.C. undertook the obligation to support S.C.

and B.H. has not. All that has occurred here is the judicially imposed removal of that

obligation since B.H. has not been legally recognized as S.C.’s father. This leads to an unjust

result whereby B.H. is free to abandon his claim to S.C.’s paternity leaving S.C. with no one

obliged to support her. Given B.H.’s dilatory attempts to establish his paternity of S.C.

following his initial attempt to secure a DNA test, it is plausible that he may refrain from

further proceedings. Although S.C., Mother, or the State may file an action to compel B.H.

to submit to DNA testing in accordance with Indiana paternity law, it is improper to deny

S.C. support in the interim. That Mother would be reluctant to pursue such course seems


                                               30
obvious given her attempts to flee from B.H. in the past. Accordingly, I would reverse the

trial court.




                                           31
