In re the Paternity of William D. Anderson, III Gierly Perrigo Ingco v. William D. Anderson, Jr. (mem. dec.) ( 2015 )

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.
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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.
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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,
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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
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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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