holding that the failure of both parents to offer a signed child support worksheet and the trial court's failure to "enter findings or complete its own child support worksheet to justify its order and permit [appellate] review” was a fatal deficiency
How later courts described this case
- holding that the failure of both parents to offer a signed child support worksheet and the trial court's failure to "enter findings or complete its own child support worksheet to justify its order and permit [appellate] review” was a fatal deficiency
- holding that a trial court did not err in imputing income to a father based on his reported expenses, especially in light of “Father’s history of under representing his income and the large discrepancy between his reported income and his expenses”
- finding that once the issue is raised, “the party opposing the evidence must object or the issue supported by the evidence will impliedly be consented to having been tried by that party”
- affirming award of attorney’s fee under marital dissolution statute in mother’s action to set aside three-year-old custody modification order on grounds of fraud
Written by the judges who cited it.
The opinion
BAILEY, Judge,
dissenting
While I agree with the balance of the majority’s opinion, I respectfully dissent from that portion of the holding which reverses the trial court’s decision to set aside its 1994 child support modification.
A. Child Support — General Considerations
At the onset I note that the well-established public policy, advanced by all three branches of Indiana government, is the protection of the welfare of children. See Straub v. B.M.T. by Todd, 645 N.E.2d 597, 599 (Ind.1994). The paramount concern of the Indiana Court of Appeals in any case involving child support must be focused on the best interests of the child. Whitman v. Whitman, 405 N.E.2d 608, 613 (Ind.Ct.App.1980); Beehler v. Beehler, 693 N.E.2d 638, 640 (Ind.Ct.App.1998). As the trial court is obligated to ensure that the best interests of children be advanced, the trial court is afforded broad discretion in fashioning orders designed to ensure that child support be paid. Porter v. Porter, 526 N.E.2d 219, 227-28 (Ind.Ct.App.1988).
A parent has the common law duty to support his minor child — even without any court decree or order having been entered. Crowe v. Crowe, 247 Ind. 51 , 211 N.E.2d 164, 166 (1965) (noting that the first duty of a divorced parent is to support his child). The matter of child support should not be looked upon as a game between divorced parents who are in disagreement. Id; see also Hunt v. Hunt, 465 N.E.2d 203, 207 (Ind.Ct.App.1984). The duty of support is continuous and neither a statute of limitation nor bankruptcy proceeding will relieve a parent from his obligation to pay support. Hunt, 465 N.E.2d at 207 . Finally, the right to child support lies exclusively with the child, and a parent merely holds child support payments in trust for the benefit of the child. Straub, 645 N.E.2d at 599 ; Hamiter v. Torrence, 717 N.E.2d 1249, 1255 (Ind.Ct.App.1999).
B. Relief from Judgment— Standard of Review
The trial court has broad equitable discretion to grant relief from its own judgment in order to effect the interests of justice. Giles v. Giles, 652 N.E.2d 115, 117 (Ind.Ct.App.1995). In deciding whether to grant equitable relief from judgment, the trial court must balance the alleged injustice suffered by the party moving for relief against the interest of the winning party and society in general in the finality of litigation. Id. at 116 . Moreover, a court has inherent equitable jurisdiction to grant relief from a judgment obtained by fraud. See In re Marriage of M.E., 622 N.E.2d 578, 581 (Ind.Ct.App.1993); 49 *940 C.J.S. § 466 at 629-30. Such equitable jurisdiction provides the trial court with flexibility in fashioning relief. See id. The review of the trial court’s grant of relief from judgment is limited to a determination of whether the trial court abused its equitable discretion. See id.
C. An Exception — Intrinsic Fraud Constituting a Breach of a Fiduciary Duty
While I generally agree with the majority’s three enumerated methods of attacking a judgment on the basis of fraud (see Majority opinion at 9), I believe the majority’s analysis fails to account for an applicable exception, namely intrinsic fraud that constitutes a breach of a fiduciary duty.
Some courts have held that, where the fraud involves the breach of a fiduciary duty or violation of a confidential relationship, even an intrinsic fraud will constitute a sufficient basis to warrant relief from judgment. Beirne v. Barone, 529 A.2d 154, 157-58 (R.I.1987) (noting that the existence of a fiduciary relationship obliterates the distinction between extrinsic and intrinsic fraud); In re Enger’s Will, 225 Minn. 229 , 30 N.W.2d 694, 701-02 (1948) (noting that the rule is different in cases involving a fiduciary relationship than in ordinary litigation where the parties are adversarial); In re Sullivan’s Estate, 51 Ariz. 483 , 78 P.2d 132, 137 (1938) (holding that if the fiduciary personally profits by his own fraudulent conduct, such conduct will justify a court of equity intervening whether the fraud be considered extrinsic or intrinsic); 47 Am.Jur.2d at 396. Additionally, some commentators and courts have criticized the intrinsic-extrinsic distinction because the label to be applied to a particular fraud often turns on rather formal or artificial factors, regardless of the basic fairness of the adjudication and the worthiness of the motion for relief from judgment. See Pepper v. Zions First Nat. Bank, N.A., 801 P.2d 144, 148 (Utah 1990); Harvey, at 181; 47 Am.Jur.2d § 929 at 396.
D.Breach of a Fiduciary Duty— Constructive Fraud
Where a relationship of trust and confidence exists, equity will act to protect the relationship by preventing the party owing the duty from profiting by its breach of the confidential relationship. Peoples Trust Bank v. Braun, 443 N.E.2d 875, 879 (Ind.Ct.App.1983). Equity will not permit a person to retain the benefits of a fraud. Moore v. Fletcher, 136 Ind.App. 478 , 197 N.E.2d 183, 184 (1964). The law will declare a breach of an equitable or legal duty to be fraudulent where it violates the public interest or a public or private confidence. Blaising v. Mills, 176 Ind.App. 141 , 374 N.E.2d 1166, 1169 (1978). A constructive fraud will be found upon the breach of a fiduciary duty coupled with an unjust enrichment which shocks the conscience. Voelkel v. Tohulka, 236 Ind. 588 , 141 N.E.2d 344, 349 (1957). Moreover, Indiana case law has long recognized the relation between parent and child as akin to that of a fiduciary relationship. See Indiana Trust Co. v. Byram, 36 Ind.App. 6 , 73 N.E. 1094 (1905); Taylor v. Calvert, 138 Ind. 67 , 37 N.E. 531 (1894); Goodbar v. Lidikay, 136 Ind. 1 , 35 N.E. 691 (1893) (each holding that parent and child, guardian and ward, principal and agent, are equally fiduciary relations, and equally require the application of the doctrine).
E.Analysis and Conclusion
The paramount concern in this controversy, involving child support, is the best interests of the child. See Straub, 645 N.E.2d at 599 ; Whitman, 405 N.E.2d at 613 ; Beehler, 693 N.E.2d at 640 . Every parent has a continuous, common law duty to support his minor child. See Crowe, 211 N.E.2d at 166 ; Hunt, 465 N.E.2d at 207 . Moreover, our court has recognized that the litigation of child support should not be looked upon as a game or an adversarial contest between divorced parents (id.), and that the right to child support lies exclusively with the child. See Straub, 645 *941 N.E.2d at 599 . Here, Father’s control over the monies received by his child, and the requisite protection of children’s welfare committed to by all three branches of our state government dictate that I not overlook equity to protect finality.
I conclude that Father’s duty to provide support to his child is comparable to the duty owed by a fiduciary to his principal. Thus, Father’s false verification of his income during proceedings to set his child support constituted a breach of duty akin to the gravity of those breaches committed by fiduciaries in the above cited cases of Beirne v. Barone, 529 A.2d at 157-58 , In re Enger’s Will, 30 N.W.2d at 701-02 , and In re Sullivan’s Estate, 51 Ariz. 483 , 78 P.2d 132 (1938). Consequently, I conclude that the trial court did not abuse its equitable discretion by affording relief from the 1994 judgment outside the one year limit imposed by T.R. 60(B)(3).
For all of the foregoing reasons I must respectfully dissent.