COA: Husband’s motion to set aside divorce decree time-barred

March 19, 2015

Because the type of fraud a man alleged his ex-wife committed is considered “ordinary,” it was subject to the one-year time limit of Indiana Trial Rule 60(B)(3), the Court of Appeals ruled Thursday. The judges affirmed the refusal of the trial court to set aside a 2008 dissolution decree.

The Hamilton Superior Court entered the final dissolution decree for Parviz Jahangirizadeh and Fateman Pazouki in May 2008, ordering Jahangirizadeh to make an equalization payment of more than $57,000 to Pazouki. In May 2014, Jahangirizadeh filed a motion to set aside the decree under T.R. 60(B)(3) for fraud, alleging that his ex-wife had assets that she failed to disclose during the dissolution proceedings that should have been subject to division as marital property.

The trial court dismissed his motion with prejudice and denied his motions to reconsider and correct error.

Because Jahangirizadeh labeled his motion as seeking relief from judgment under T.R. 60(B)(3), it is clear that relief cannot be granted under that part of the rule because the motion was filed more than one year after the original judgment was entered, Judge Michael Barnes wrote. The judges then considered whether the motion stated a possible independent action for fraud or invoked the trial court’s authority to set aside the judgment for fraud on the court, but still affirmed the lower court.

The judges did not believe Jahangirizadeh’s motion, which alleged that the trial court’s property division was actually influenced by Pazouki’s alleged falsification of her assets, is enough to establish a possible case for an independent action for fraud or fraud on the court, Barnes continued, citing several federal cases in support of the COA’s decision.

“To the extent Pazouki may have been less-than-forthright regarding her assets — assuming Jahangirizadeh’s allegations to be true — this is the type of ‘ordinary’ fraud that must be subject to the one-year time limit of Trial Rule 60(B)(3). Otherwise, the Rule’s time limit could be rendered a nullity in a much wider range of cases of supposed ‘fraud’ than was intended to be covered by the Rule. Jahangirizadeh’s motion to set aside, as well as his motions to reconsider and to correct error, fail to give support to an independent action for fraud or a claim for fraud on the court. As such, the motion to set aside is barred by the one-year time limit of Trial Rule 60(B)(3),” Barnes wrote.

The judges also held that the court was not required to give Jahangirizadeh an opportunity to amend his motion to set aside after it was dismissed. The case is Parviz Jahangirizadeh v. Fatemeh Pazouki, 29A02-1408-DR-530.


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