                                                                                   FILED
                                                                               Feb 12 2018, 8:53 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Denise F. Hayden                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Frances Barrow
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA


In re the Paternity of B.M. and                            February 12, 2018
O.M.,                                                      Court of Appeals Case No.
                                                           49A02-1706-JP-1383
B.S.M.,
                                                           Appeal from the
Appellant-Respondent,                                      Marion Circuit Court
        v.                                                 The Honorable
                                                           Sheryl Lynch, Judge
                                                           The Honorable
E.S.F.,                                                    Jason G. Reyome, Magistrate
Appellee-Petitioner,                                       Trial Court Cause Nos.
                                                           49C01-1303-JP-8858
and                                                        49C01-1303-JP-8859
State of Indiana,
Appellee-Intervenor.



Kirsch, Judge.


Court of Appeals of Indiana | Opinion 49A02-1706-JP-1383 | February 12, 2018                     Page 1 of 9
[1]   B.S.M. (“Father”) appeals the trial court’s order denying his motion to set aside

      judgment of paternity as to B.M. and O.M. pursuant to Indiana Trial Rule

      60(B), contending that the trial court erred when it denied his motion.


[2]   We affirm.


                                  Facts and Procedural History
[3]   E.S.F. (“Mother”) was pregnant with B.M. at the time she met Father. B.M.

      was born on December 1, 2005, and Father knew he was not B.M.’s biological

      father when he signed the paternity affidavit for B.M. on August 19, 2009.

      O.M. was born on April 7, 2009, and Father executed a paternity affidavit on

      the same day. When he signed the paternity affidavit, Father suspected that he

      might not be O.M.’s father. Tr. Vol. 2 at 54. Some months after O.M.’s birth,

      Mother told Father during an argument that he might not be O.M.’s biological

      father. Father never denied he was O.M.’s father until Mother tried to get child

      support. Id. at 15-16.


[4]   On March 7, 2013, Mother filed petitions to establish support of B.M. and

      O.M. based on the execution of paternity affidavits. On April 29, 2013,

      following a hearing at which Father appeared and Mother did not, the trial

      court entered default judgments of paternity and support, in which Father

      stipulated that he had executed paternity affidavits, pursuant to Indiana Code

      section 16-37-2-2.1, as to each child. At that time, as a temporary order,

      support was set at $0 and reserved for final hearing until such time that one of

      the parties requested a hearing on support. On August 31, 2015, Mother, with

      Court of Appeals of Indiana | Opinion 49A02-1706-JP-1383 | February 12, 2018   Page 2 of 9
      the aid of the Marion County Prosecutor’s Office, filed a petition to determine

      reserved issues from the paternity judgment, including such issues as current

      and retroactive child support.


[5]   On February 23, 2016, Father filed a Trial Rule 60(B) motion to set aside the

      judgment of paternity as to O.M. and a motion to request DNA testing to

      establish paternity of O.M. Appellant’s App. Vol. 2 at 37, 39. The trial court

      conducted a hearing on Father’s motion with respect to O.M. on July 11, 2016.

      On August 25, 2016, Father filed a Trial Rule 60(B) motion to set aside the

      judgment of paternity as to B.M. and a motion to request DNA testing to

      establish paternity of B.M. Id. at 4-5. On September 22, 2016, the trial court

      entered an order for genetic testing for both B.M. and O.M. After multiple

      continuances, the trial court conducted hearings on Father’s motions on May 9,

      2016, July 11, 2016, November 17, 2016, December 5, 2016, and May 15, 2017.

      At these hearings, testimony was given that Father is the only father the

      children have ever known. Tr. Vol. 2 at 45. Further testimony was heard that,

      until about a year before the hearing, B.M. and O.M. had stayed with Father

      every other weekend and he had paid an agreed-upon amount of child support,

      had gotten the boys for the holidays, had taken them to see his family, had

      attended parent-teacher conferences, and had helped buy school supplies. Id. at

      46. The results of the DNA testing excluded Father as the biological father of

      both boys. State’s Exs. A, B. However, the results of the court-ordered DNA

      tests were later ordered stricken from the record because the tests were ordered

      in error. Appellant’s App. Vol. 2 at 20.


      Court of Appeals of Indiana | Opinion 49A02-1706-JP-1383 | February 12, 2018   Page 3 of 9
[6]   On June 7, 2017, the trial court entered a final order on Father’s Trial Rule

      60(B) motions to set aside judgment of paternity, denying both motions. In its

      order, the trial court found that both of the children knew Father as their father.

      Id. The trial court also found that Father did not seek genetic testing

      independent of court action and that he voluntarily signed paternity affidavits

      for both B.M. and O.M. Id. The trial court further found that, on April 29,

      2013, Father sought default judgments for both children with knowledge that

      B.M. was not logically his biological child and with knowledge that O.M. was

      possibly not his biological child and then waited almost three years after the

      paternity default judgments were entered to challenge paternity for his eleven

      and eight-year-old sons. Id. Accordingly, the trial court ordered that the

      default judgments establishing paternity should remain standing as valid orders

      of the court. Id. at 21. Father now appeals.


                                       Discussion and Decision1
[7]   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. Prince

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




      1
        We note that the State argues Father’s appeal should be dismissed because this court lacks subject matter
      jurisdiction as the trial court’s order was not a final judgment disposing of all claims between the parties.
      Appellee’s Br. at 10. Although the trial court’s order did state that “the matter will be reset for hearing on
      reserved issues,” Appellant’s App. Vol. 2 at 21, under Indiana Appellate Rule 2(H), there are five ways in which
      a judgment is a final judgment, one of which is when a judgment is deemed final under Trial Rule 60(C).
      Trial Rule 60(C) stated in pertinent part that “[a] ruling or order of the court denying or granting relief, in
      whole or in part, by motion under subdivision (B) of this rule shall be deemed a final judgment, and an
      appeal may be taken therefrom as in the case of a judgment.” Here, Father is appealing from a trial court
      order denying him relief under Trial Rule 60(B), and this court has jurisdiction over this appeal.

      Court of Appeals of Indiana | Opinion 49A02-1706-JP-1383 | February 12, 2018                        Page 4 of 9
      We will not reverse a denial of a motion for relief from judgment in the absence

      of an abuse of discretion. Id. 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. Barton v. Barton, 47 N.E.3d 368, 373 (Ind. Ct.

      App. 2015), trans. denied. First, we determine whether the evidence supports the

      findings, and second whether the findings support the judgment. Id. The trial

      court’s findings and conclusions will be set aside only if they are clearly

      erroneous. Id. In reviewing the trial court’s entry of special findings, we

      neither reweigh the evidence nor reassess the credibility of the witnesses. Id.

      Rather we must accept the ultimate facts as stated by the trial court if there is

      evidence to sustain them. Id.


[8]   Father argues that the trial court erred in denying his motion to set aside the

      judgments of paternity as to B.M. and O.M. Specifically, he contends that,

      under Indiana Code section 16-37-2-2.1, the paternity affidavits should be

      rescinded because the affidavits were executed under fraud, duress, or material

      mistake of fact, and there was a court-ordered genetic test that proved he was

      not the biological father of B.M. and O.M. Father asserts that the DNA test

      results proved that he was not the biological father of either B.M. or O.M. and

      that, by denying his Trial Rule 60(B) motion, the trial court condoned the fraud

      that was perpetrated by Mother. We reject Father’s claim.


[9]   Father is the legal father of B.M. and O.M. based on the paternity affidavits he

      executed. See Ind. Code § 31-14-7-3; In re Paternity of M.M., 889 N.E.2d 846,

      847 (Ind. Ct. App. 2008) (“Once a man has executed a paternity affidavit in

      Court of Appeals of Indiana | Opinion 49A02-1706-JP-1383 | February 12, 2018   Page 5 of 9
       accordance with Indiana Code section 16-37-2-2.1, he is the child’s legal father

       unless the affidavit is rescinded pursuant to the same statute.”). Indiana Code

       section 16-37-2-2.1(k) gives a man sixty days after executing a paternity

       affidavit to file a court action to request genetic testing. After 60 days the

       paternity affidavit may only be rescinded when a court: “(1) has determined

       that fraud, duress, or material mistake of fact existed in the execution of the

       paternity affidavit; and (2) at the request of a man described in subsection (k),

       has ordered a genetic test, and the test indicates that the man is excluded as the

       father of the child.” I.C. § 16-37-2-2.1(l)(1).


[10]   “These provisions reflect the legislature’s intent to provide assistance to a man

       who signed a paternity affidavit due to fraud, duress, or material mistake of

       fact.” In re Paternity of T.M., 953 N.E.2d 96, 98 (Ind. Ct. App. 2011), trans.

       denied. However, a man who executed a paternity affidavit may not fail to

       timely request genetic testing under Indiana Code section 16-37-2-2.1 and then,

       as a matter of course, request such testing as a fishing expedition. Id. A legal

       father may not disestablish paternity outside the sixty-day time limitation,

       absent a claim of fraud, duress, or material mistake of fact. In re Paternity of

       E.M.L.G., 863 N.E.2d 867, 870 (Ind. Ct. App. 2007). Moreover, a legal father

       may challenge paternity only “in extreme and rare instances,” and the challenge

       must be made by “evidence that has become available independently of court

       action.” Id.


[11]   Here, Father executed the paternity affidavits years before moving to have the

       judgment of paternity set aside, and he has failed to show fraud, duress, or

       Court of Appeals of Indiana | Opinion 49A02-1706-JP-1383 | February 12, 2018   Page 6 of 9
       material mistake of fact in the execution of the paternity affidavits. Father

       knew he was not the biological father of B.M. when he executed the paternity

       affidavit for B.M. more than three years after B.M.’s birth. Father was told he

       might not be O.M.’s biological father within a few months of O.M.’s birth, and

       he testified that he was aware of the possibility that he might not be O.M.’s

       biological father at the time O.M. was born, which was the same date Father

       signed the paternity affidavit. Tr. Vol. 2 at 54. Thus, Father signed the paternity

       affidavits with the knowledge that he definitely was not the biological father of

       B.M. and the knowledge that he might not be the biological father of O.M.

       Further, he appeared in court on Mother’s petitions to establish support

       pursuant to the execution of paternity affidavits on April 29, 2013, and he did

       not contest his paternity. Instead, Father waited until Mother sought child

       support, years after he executed the paternity affidavits, to challenge his

       paternity. We, therefore, conclude that Father has not proven that fraud,

       duress, or material mistake of fact existed at the time he executed the paternity

       affidavits. See In re Paternity of H.H., 879 N.E.2d 1175, 1177 (Ind. Ct. App.

       2008) (holding that paternity affidavits executed by a man and woman who

       both knew that the man was not the biological father of the child cannot be set

       aside under the statute).


[12]   Father further argues that the paternity affidavits should be rescinded because,

       pursuant to the second prong of Indiana Code section 16-37-2-2.1(l)(1), the trial

       court ordered a genetic test, at his request, and the test indicated that Father

       was excluded as the father of B.M. and O.M. A legal father may challenge


       Court of Appeals of Indiana | Opinion 49A02-1706-JP-1383 | February 12, 2018   Page 7 of 9
       paternity only “in extreme and rare instances,” and the challenge must be made

       by “evidence that has become available independently of court action.” In re

       Paternity of E.M.L.G., 863 N.E.2d at 870. In Fairow v. Fairow, 559 N.E.2d 597

       (Ind. 1990), our Supreme Court explained such rare circumstances and how

       evidence may be arrived at independently of court action, where it held that

       “one who comes into court to challenge a support order on the basis of non-

       paternity without externally obtained clear medical proof should be rejected as

       outside the equitable discretion of the trial court.” Id. at 600. It has been

       further clarified that the “externally obtained” clear medical proof as required

       by Fairow “means that the evidence establishing non-paternity was not actively

       sought by the putative father, but was discovered almost inadvertently in a

       manner that was unrelated to child support proceedings.” Tirey v. Tirey, 806

       N.E.2d 360, 362 n.2 (Ind. Ct. App. 2004), trans. denied; see also In re Paternity of

       M.M.B., 877 N.E.2d 1239, 1245 (Ind. Ct. App. 2007) (concluding that trial

       court erred in vacating judgments establishing man’s paternity where he

       actively sought genetic evidence after children told him that he might not be

       their father, and therefore did not inadvertently obtain medical proof through

       ordinary medical care unrelated to paternity); In re Paternity of K.M., 651 N.E.2d

       271, 276 (Ind. Ct. App. 1995) (holding that party may not challenge otherwise

       valid order establishing paternity without medical proof inadvertently obtained

       through ordinary medical care).


[13]   Here, Father sought genetic testing solely to contest his paternity of B.M. and

       O.M. Therefore, there was no evidence of non-paternity that had been

       Court of Appeals of Indiana | Opinion 49A02-1706-JP-1383 | February 12, 2018   Page 8 of 9
       inadvertently obtained through ordinary medical care unrelated to paternity.

       The trial court properly denied Father’s motion to set aside the judgment of

       paternity as to both B.M. and O.M..


[14]   Affirmed.


[15]   Bailey, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1706-JP-1383 | February 12, 2018   Page 9 of 9
