Opinion
24A-AD-10
08-28-2024
S.F., Appellant-Petitioner v. R.G.S., Appellee-Respondent
ATTORNEY FOR APPELLANT Kristina J. Jacobucci Newby, Lewis, Kaminski & Jones, LLP La Porte, Indiana ATTORNEY FOR APPELLEE Patrick J. O'Connell Mishawaka, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the LaPorte Superior Court The Honorable Richard R. Stalbrink, Jr., Judge Trial Court Cause No. 46D02-1203-AD-6
ATTORNEY FOR APPELLANT
Kristina J. Jacobucci
Newby, Lewis, Kaminski & Jones, LLP
La Porte, Indiana
ATTORNEY FOR APPELLEE
Patrick J. O'Connell
Mishawaka, Indiana
MEMORANDUM DECISION
Crone, Judge.
Case Summary
[¶1] S.F. (Adoptive Father) successfully petitioned to adopt his adult stepson R.G.S. (Adoptee). Nine years later, Adoptee successfully petitioned to vacate the adoption decree as void due to lack of consent. Adoptive Father then filed a motion to set aside the order vacating the decree, which the trial court denied. On appeal, Adoptive Father argues that the trial court erred. We affirm.
Facts and Procedural History
[¶2] In 1962, Adoptee was born to J.S. (Mother). In 1988, Mother married Adoptive Father. In March 2012, Adoptive Father filed a petition to adopt Adoptee. The petition erroneously states that it was "not necessary" for Mother to give consent "since the prospective adoptee is an adult." Ex. Vol. at 4. See Ind. Code § 31-19-2-4(b) (providing that if adoption petitioner is married to the biological "father or mother of the child, joinder by the father or mother is not necessary if an acknowledged consent to adoption of the biological or adoptive parent is filed with the petition for adoption"). The petition also claims that Adoptee gave "his consent for this adoption." Ex. Vol. at 4. The petition was granted on May 7, 2012. The decree states that Adoptive Father appeared in person on that date and "show[ed] the Court an executed Consent to Adoption" by Adoptee, Appellant's App. Vol. 2 at 18, but the chronological case summary (CCS) does not indicate that a hearing was held on May 7.
By its own terms, the statute is not limited to the adoption of minors.
[¶3] Mother died in July 2020. In October 2020, Adoptee filed a petition to unseal the adoption records, in which he asserted that "[p]rior to the filing of the adoption petition, Adoptive Father approached Adoptee and broached the idea of adopting Adoptee. Adoptee, an adult whose natural father was still alive, declined the proposal." Id. at 12. Adoptee further asserted that neither he nor Mother ever consented to the adoption and that he "was not aware of the adoption until recently." Id. at 13. See Ind. Code §§ 31-19-2-1 (providing that an individual at least eighteen years of age may be adopted "(1) upon proper petition to the court having jurisdiction in probate matters in any county in Indiana; and (2) with the consent of the individual acknowledged in open court"), 31-19-2-4(b). The CCS does not indicate that Adoptee ever acknowledged his consent in open court or that an acknowledged consent from Mother was filed with the adoption petition. In November 2020, the trial court granted Adoptee's petition.
Here, and elsewhere, we have replaced the parties' names with their aforementioned designations.
[¶4] In January 2021, Adoptee filed a petition to vacate the adoption decree, in which he asserted that the decree "was void based on the absence of necessary consents" and thus was "subject to being set aside pursuant to" Indiana Trial Rule 60(B). Appellant's App. Vol. 2 at 16. In March 2021, the deputy court clerk filed an affidavit stating that the case file was lost during a courthouse renovation and that she had been unable to locate it. Id. at 20. In May 2021, after a hearing at which Adoptive Father appeared by counsel, the trial court issued an order that reads in relevant part,
3. In the above-captioned matter, the clerk has not been able to locate any part of the file, and the parties have not been able to locate any of the documents submitted to the court at the time of the adoption.
4. Adoptee adamantly denies ever having consented to the adoption, and Adoptive Father states that all consents were filed with the court.
5. After considering the arguments of the parties, the court finds that Adoptee's Motion to Vacate and Set aside the Adoption should be granted.Id. at 21.
[¶5] In February 2023, Adoptive Father filed a petition for relief from the May 2021 order pursuant to sub-paragraphs (1), (2), (3), and (8) of Trial Rule 60(B). Adoptive Father asserted that subsequent to the entry of that order,
Trial Rule 60(B) provides in pertinent part,
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:
(1) mistake, surprise, or excusable neglect;
(2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59;
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
. . . .
(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4).
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.
and after securing access to the residence where the documents were located, [he] was able to locate and produce copies of the Petition for Adoption along with the Consent to Adoption and Waiver of Notice of Hearing signed by the Adoptee in the presence of a notary public, Doris K. George, both of which were filed with the Court on or about March 9, 2012, according to the Chronological Case Summary maintained in this matter.Id. at 24. Adopted Father further asserted that he was entitled to relief from the order because "the Clerk's Office misplaced file materials to [his] detriment]," "the Court relied on the absence of the file materials in making its determination, and [he] was subsequently able to secure copies of relevant filings." Id. Adoptive Father alleged as a meritorious defense that Adoptee was time-barred from challenging the adoption decree pursuant to Indiana Code Sections 31-19-14-2 and 31-19-14-4.
See Ind. Code §§ 31-19-14-2 ("Except as provided in section 3 of this chapter, if a person whose parental rights are terminated by the entry of an adoption decree challenges the adoption decree not more than the later of: (1) six (6) months after the entry of an adoption decree; or (2) one (1) year after the adoptive parents obtain custody of the child; the court shall sustain the adoption decree unless the person challenging the adoption decree establishes, by clear and convincing evidence, that modifying or setting aside the adoption decree is in the child's best interests."), 31-19-14-4 ("After the expiration of the period described in section 2 of this chapter, neither a person whose parental rights are terminated by the entry of an adoption decree nor any other person may challenge the adoption decree even if: (1) notice of the adoption was not given; or (2) the adoption proceedings were in any other manner defective.") (emphasis added).
[¶6] In December 2023, after a hearing, the trial court issued an order that reads in pertinent part as follows:
12. Adoptive Father has attempted to frame the issues as hinging on the initial inability of the parties or the Court Clerk to locate the physical file for the adoption including what he posits is the critical absence of Adoptee's Consent. It is his position that the loss of the Consent was the basis for this Court's decision to vacate the adoption.
13. Adoptee has consistently argued that the adoption was void because the court records which do exist show that the supposed Adoptee Consent was invalid as it was not acknowledged in open court, and also, because Adoptive Father's spouse did not consent. Adoptive Father has never responded to the issue of wife's consent. It appears he misstated Indiana law by advising the court that the consent was not required. Adoptive Father has focused on the mystery of the lost Consent of Adoptee.
14. The Petition and Consent of the Adoptee have not been available from the Clerk or online.
15. Adoptive Father kept personal and work files at both his office and the marital residence and ultimately produced what purports to be an executed Consent.
16. Adoptive Father was a practicing attorney in 2012 and prepared the Consent.
17. Adoptive Father's long-time secretary, Doris George testified that she knew both Adoptee and Adoptive Father for years leading up to the adoption in 2012, and thereafter.
18. Ms. George agrees she may have notarized the Consent form (which Adoptee has denied signing) but would have had to have done so without actually witnessing Adoptee signing it. She further testified that she was sure Adoptee never signed it in her presence.
19. Ms. George testified that she was not aware that Adoptive Father had purportedly adopted Adoptee. This would have been a notable event to her.
20. Adoptee again stated that he was not aware of the adoption until the passing of Mother, when Adoptive Father opened an estate for Mother and named Adoptee as a child born of the marriage.
21. Adoptee has never utilized [Adoptive Father's surname] or otherwise held himself out as having been adopted by Adoptive Father.
22. On the second day of hearing on this matter Adoptive Father withdrew, as a basis for his request for relief, those allegations in his "Verified Motion for Relief From Judgment Or Order Pursuant to Indiana Trial Rule 60(B)" concerning "excusable neglect" or "newly discovered evidence." Adoptive Father argues that the absence of parts of the of the file from the Clerk's office
constitutes "extraordinary circumstances" and is a basis for relief under Ind. Trial Rule 60(B)(8).
23. Adoptive Father knew by May, 2021 that the adoption had been vacated but did not seek relief until approximately 19 months later.
24. Throughout most of the proceedings Adoptive Father was represented by counsel.
25. The disappearance of the physical file, and the mysterious appearance of the contested Consent form were not significant to Adoptive Father's Motion for relief, and therefore cannot constitute "extraordinary circumstances" under Ind. Trial Rule 60(B)(8).
26. Adoptive Father's motion for relief was not filed in a reasonable time nor were there extraordinary circumstances. Further, Adoptive Father has not shown a meritorious defense.
27. As a matter of law, Adoptive Father has failed to show extraordinary circumstances as contemplated by Ind. Trial Rule[] 60(B)(8).
28. As a matter of law, Adoptive Father has not demonstrated that his Ind. Trial Rule 60(B) motion was filed within a reasonable time.
29. The Adoption Decree was properly vacated.
30. The Motion for Relief of Judgment is hereby denied.
Appealed Order at 2-4. Adoptive Father now appeals.
Discussion and Decision
[¶7] Adoptive Father argues that the trial court erred in denying his motion to set aside the order vacating the adoption decree. "Relief from judgment under Trial Rule 60 is an equitable remedy within the trial court's discretion." In re Adoption of N.I.D., 156 N.E.3d 667, 671 (Ind.Ct.App. 2020). "Accordingly, we review a trial court's Rule 60 ruling only for abuse of discretion." Id. at 672. "An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before it, or if the trial court has misinterpreted the law." Coles v. McDaniel, 117 N.E.3d 573, 576 (Ind.Ct.App. 2018). "We must affirm if there is any legal ground in the record supporting the judgment[.]" Zwiebel v. Zwiebel, 689 N.E.2d 746, 748 (Ind.Ct.App. 1997), trans. denied (1998).
[¶8] Trial Rule 60(B)(8) "is an omnibus provision which gives broad equitable power to the trial court in the exercise of its discretion and imposes a time limit based only on reasonableness." Blichert v. Brososky, 436 N.E.2d 1165, 1167 (Ind.Ct.App. 1982). It "is a catchall provision reserved for those cases in which extraordinary circumstances justify extraordinary relief." McIntyre v. Baker, 703 N.E.2d 172, 175 (Ind.Ct.App. 1998). Adoptive Father has failed to establish such circumstances here, not least because he failed to establish that Mother ever consented to the adoption as required by Indiana Code Section 31-19-2-4(b), and his notary public testified that Adoptee did not sign a consent form in her presence.
[¶9] Moreover, under Trial Rule 60(B)(8), the movant must also establish a meritorious claim or defense. Chelovich v. Ruff &Silvian Agency, 551 N.E.2d 890, 892 (Ind.Ct.App. 1990); Ind. Trial Rule 60(B). "For the purposes of Rule 60(B), a meritorious claim or defense is 'one that would lead to a different result if the case were tried on the merits.'" State v. Collier, 61 N.E.3d 265, 268 (Ind. 2016) (quoting Butler v. State, 933 N.E.2d 33, 36 (Ind.Ct.App. 2010)). "To establish a meritorious defense, a party need not prove the absolute existence of an undeniable defense. Rather, a party need only make a prima facie showing of a meritorious defense." Li v. NextGear Capital, Inc., 136 N.E.3d 313, 321 (Ind.Ct.App. 2019) (italics and citation omitted).
[¶10] As mentioned above, Adoptive Father alleged as a meritorious defense that Adoptee was time-barred from challenging the adoption decree. Adoptive Father could have (and should have) raised this issue when Adoptee filed his petition to vacate the decree, but he failed to do so. Consequently, we find it barred by procedural default. See Hughes v. State, 880 N.E.2d 1186, 1187-88 (Ind. 2008) (stating that "[i]ssues presented, or available but not presented, at one stage in the proceedings are forfeited and cannot be brought in a subsequent stage" and that "if a defendant has procedurally defaulted, then an appellate court can raise the issue sua sponte"). Based on the foregoing, we conclude that the trial court did not abuse its discretion in denying Adoptive Father's Trial Rule 60(B) motion.
[¶11] Affirmed.
Vaidik, J., and Bradford, J., concur.