MEMORANDUM DECISION
                                                                   Jun 04 2015, 10:09 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Adam C. Squiller                                       Christopher D. Kehler
Squiller & Harley                                      Kehler Law Firm, PC
Auburn, Indiana                                        Warsaw, Indiana



                                          IN THE
  COURT OF APPEALS OF INDIANA

In Re: The Adoption of:                                June 4, 2015
M.W.M. and K.R.M.,                                     Court of Appeals Cause No.
                                                       43A03-1501-AD-16
Minor Children,
                                                       Appeal from the Kosciusko
M.M.,                                                  Superior Court
                                                       Cause Nos.
                                                       43D01-1209-AD-32
Appellant,
                                                       43D01-1209-AD-33
         v.
                                                       The Honorable Duane G. Huffer,
W.S.,                                                  Judge


Appellee.




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015          Page 1 of 8
                                          Case Summary
[1]   M.M. appeals the dismissal of his motion for relief from judgment. We

      affirm.


                                                   Issue
[2]   M.M. raises one issue which we restate as whether the trial court properly

      dismissed his motion for relief from judgment.


                                                   Facts
[3]   M.M. is the biological father of M.W.M. and K.R.M. In 2012, Father

      consented to the children’s adoption by W.S. On October 31, 2012, the

      trial court issued an amended decree of adoption. On September 18, 2014,

      M.M. filed a motion for relief from judgment pursuant to Indiana Trial

      Rule 60(B). The motion alleged in part:

              4.     [M.M.] was informed . . . that he would be allowed to have
              contact with the children following the adoption.
              5.      [M.M.] was informed by Petitioners that Petitioners were
              in a financial situation such that they would be able to support the
              minor child and provide the child with a comfortable lifestyle.
              6.     Petitioner has represented and the Court has found that he
              has the ability and desire to furnish support and affection
              necessary to serve the respective adoptee’s best interests.
              7.     In making said representations, Petitioners perpetrated a
              fraud on [M.M.] and the Court.
      App. p. 12.


      Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015   Page 2 of 8
[4]   On October 13, 2014, W.S. filed a motion to dismiss M.M.’s motion for

      relief from judgment. W.S. asserted that the motion for relief for judgment

      was untimely because, when a motion for relief from judgment is based on

      Trial Rule 60(B)(3), it must be filed within one year.


[5]   On December 8, 2014, the trial court held a hearing on M.M.’s motion.

      That same day, the trial court issued an order dismissing M.M.’s motion for

      relief from judgment because it was untimely. M.M. now appeals.


                                                Analysis
[6]   M.M. argues that the trial court erroneously dismissed his motion for relief

      from judgment without an evidentiary hearing. The propriety of relief

      under Trial Rule 60(B) is a matter entrusted to the trial court’s equitable

      discretion. Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 812 (Ind. 2012).

      An abuse of that discretion may occur if the trial court’s decision is clearly

      against the logic and effect of the facts and circumstances before it or if the

      trial court has misinterpreted the law. Id.


[7]   Trial Rule 60(B) provides:

              On 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:
                                                 *****
                     (3) fraud (whether heretofore denominated intrinsic or
                     extrinsic), misrepresentation, or other misconduct of an
                     adverse party;
                                                 *****

      Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015   Page 3 of 8
              The motion shall be filed within a reasonable time for reasons (5),
              (6), (7), and (8), and not more than one year after the judgment,
              order or proceeding was entered or taken for reasons (1), (2), (3),
              and (4). A movant filing a motion for reasons (1), (2), (3), (4), and
              (8) must allege a meritorious claim or defense. A motion under
              this subdivision (B) does not affect the finality of a judgment or
              suspend its operation. This rule does not limit the power of a
              court to entertain an independent action to relieve a party from a
              judgment, order or proceeding or for fraud upon the court. . . .
      Our supreme court has adopted federal authority for analyzing claims of

      fraud under Trial Rule 60(B). See Stonger v. Sorrell, 776 N.E.2d 353, 357

      (Ind. 2002).


[8]   The Stonger court recognized three ways of seeking relief from judgment on

      the basis of fraud. Id. at 356. The first is a motion pursuant to Trial Rule

      60(B)(3), which can be “based on any kind of fraud (intrinsic, extrinsic, or

      fraud on the court) so long as it is chargeable to an adverse party and has an

      adverse effect on the moving party.” Id. Such a motion must be filed not

      more than one year after the judgment was entered. T.R. 60(B); Stonger,

      776 N.E.2d at 356.


[9]   The second method is an independent action for fraud pursuant to the

      savings clause of Trial Rule 60(B), which provides, “This rule does not limit

      the power of a court to entertain an independent action to relieve a party

      from a judgment, order or proceeding . . . .” This provision reserves the

      power trial courts had prior to the adoption of Trial Rule 60 to relieve a

      party of a judgment by means of an independent action according to

      traditional principles of equity. Id. This type of action is usually reserved


      Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015   Page 4 of 8
       for situations that do not meet the requirements for a motion made under

       Trial Rule 60(B)(3) because the fraud is not chargeable to an adverse party;

       the movant seeks relief from a court other than the rendering court; or the

       one-year time limit for Trial Rule 60(b)(3) motions has expired. Id. “An

       independent action is subject to the doctrine of laches, and its remedy is

       extremely limited.” Id.


[10]   The third method is also pursuant to the savings clause of Trial Rule 60(B),

       which goes on to provide, “This rule does not limit the power of a court to

       entertain an independent action . . . for fraud upon the court.” “This

       method invokes the inherent power of a court to set aside its judgment if

       procured by fraud on the court.” Id. at 357.


[11]   Because M.M.’s motion for relief from judgment was filed almost two years

       after the adoption decree was issued, the motion was clearly untimely under

       Trial Rule 60(B)(3). M.M. does not dispute this and instead claims that the

       one-year time limitation in Trial Rule 60(B) does not apply to his allegation

       of fraud on the court pursuant to Stonger.


[12]   “In order to properly preserve an issue on appeal, a party must, at a

       minimum, ‘show that it gave the trial court a bona fide opportunity to pass

       upon the merits of the claim before seeking an opinion on appeal.’” Cavens

       v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006) (quoting Endres v. Ind. State

       Police, 809 N.E.2d 320, 322 (Ind. 2004)). Further, “It is a cardinal rule of

       appellate review that the appellant bears the burden of showing reversible


       Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015   Page 5 of 8
       error by the record, as all presumptions are in favor of the trial court’s

       judgment.” Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468 (Ind. Ct.

       App. 2006); see also Willett v. Review Bd. of Indiana Dep’t of Employment &

       Training Servs., 632 N.E.2d 736, 740 (Ind. Ct. App. 1994) (“The burden is

       on appellant to establish a complete and accurate record.”), trans. denied.


[13]   M.M. has not shown that he gave the trial court a bona fide opportunity to

       address the merits of his claim that his motion for relief from judgment

       constituted an independent action for fraud as described in Stonger and was

       not subject to the one-year time limitation of Trial Rule 60(B). Specially,

       we have no way of knowing what was argued at the December 8, 2014

       hearing because, although M.M. requested that a transcript of that hearing

       in his notice of appeal, the Notice of Completion of Clerk’s Record

       indicates that no transcript was available. M.M. does not address the lack

       of transcript, and there is no indication that M.M. attempted to have a

       statement of evidence certified by the trial court pursuant to Indiana

       Appellate Rule 31. See Graddick v. Graddick, 779 N.E.2d 1209, 1210 (Ind.

       Ct. App. 2002) (observing that compliance with App. R. 31 “sustains the

       appellant’s burden of presenting a complete record on appeal.”). Without a

       transcript of the December 8, 2014 hearing or a statement of the evidence,

       we have no way of knowing whether M.M. asserted an independent action

       for fraud on the court as discussed in Stonger or whether M.M. is raising the




       Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015   Page 6 of 8
       issue for the first time on appeal. Thus, M.M. has not shown that this issue

       was preserved for appellate review.1


[14]   Instead, the record on appeal shows that M.M.’s motion for relief from

       judgment referenced Trial Rule 60(B) generally and alleged that, in making

       representations about his ability to support the children, W.S. “perpetrated

       a fraud” on M.M. and the trial court. App. p. 12. According to Stonger, a

       Trial Rule 60(B)(3) motion may be based on any kind of fraud, including

       fraud on the court. Stonger, 776 N.E.2d at 356. W.S. then moved to

       dismiss M.M.’s motion for relief from judgment on the basis that it was

       untimely pursuant to the one-year limitation in Trial Rule 60(B)(3).

       Following a hearing, the trial court granted the motion to dismiss on that

       basis. Accordingly, M.M. has not established that that the trial court erred

       in dismissing his motion for relief from judgment without conducting an

       evidentiary hearing.


                                                  Conclusion
[15]   Based on record before us, M.M. has not established that the trial court

       erred in dismissing his motion for relief from judgment. We affirm.




       1
         Unlike our recent decision in Jahangirizadeh v. Pazouki, 27 N.E.3d 1178 (Ind. Ct. App. 2015), trans.
       pending, and Stonger, it is not clear that the issue raised by M.M. on appeal was properly preserved for
       appellate review.



       Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015               Page 7 of 8
[16]   Affirmed.


       Riley, and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 43A03-1501-AD-16 | June 4, 2015   Page 8 of 8
