Preview:

FOR PUBLICATION

ATTORNEY FOR APPELLANT: LESLIE D. MERKLEY Merkley Law Office Jeffersonville, Indiana

ATTORNEY FOR APPELLEE: JONATHAN A. LEACHMAN Fifer Law Office New Albany, Indiana

IN THE COURT OF APPEALS OF INDIANA
CONNIE PIERCE GARDNER, Appellant-Plaintiff, vs. ERNIE LEE PIERCE, Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 10A01-0504-CV-145

APPEAL FROM THE CLARK SUPERIOR COURT The Honorable Jerome F. Jacobi, Judge Cause No. 10D01-0404-CT-90

December 8, 2005 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary Connie Pierce Gardner appeals the trial court's dismissal of her Complaint to Vacate Judgment Procured by Fraud in favor of her ex-husband, Ernie Pierce. Finding that the issue presented by Gardner was conclusively litigated in an action properly before the Texas state court system with both sides fully participating, we affirm the trial court. Facts and Procedural History Gardner and Pierce were divorced in 1979 in the Circuit Court for Wabash County, Illinois. Under an order of that court (the "Illinois Order"), Gardner was

awarded physical and legal custody of the parties' three minor children subject to Pierce's visitation rights. Gardner. In January 1981, Pierce filed a Joint Petition to Modify Custody in the Clark Superior Court in Indiana (the "Indiana Court"). Though Gardner argues that the Additionally, Pierce was ordered to pay child support to

document was fraudulent, signatures reading "Connie Kay Pierce" are ascribed to both the joint petition and to a summons served in Hollywood, Florida, where Gardner was living at the time. 1 The joint petition represented to the Indiana Court that there had been a substantial and continuing change of circumstances, namely that Pierce had actual custody and control of the parties' children the majority of the time since the entry of the Illinois Order. According to the petition, the parties agreed that it was in the best

The Joint Petition to Modify Custody was signed and sworn to before a notary public by Pierce and by a woman who either was, or who claimed to be, Gardner. In arguing that Pierce committed fraud in his execution of the joint petition, Gardner suggests that Pierce's sister, who is also named Connie, may have been Pierce's accomplice.

1

2

interests of the children for Pierce to have custody subject to visitation for Gardner. The petition further reports that Gardner agreed to waive any claim for child support under the terms of the Illinois Order. The Indiana Court approved the Joint Petition to Modify Custody and entered an Order (the "Indiana Order") awarding custody to Pierce and terminating his child support obligation. Subsequent to this action, the parties each claim to have had physical custody of the children and each alleges that the other party's contact with the children was sporadic at best. In 2002, Gardner filed a Petition to Enforce Foreign Judgment (the "Petition to Enforce") under the Texas version of the Uniform Interstate Family Support Act ("UIFSA") 2 in the District Court for Harris County, Texas (the "Texas Court"), where Pierce was residing. Gardner attached a copy of the Illinois Order to this petition, but she did not attach a copy of the Indiana Order, claiming later that she was unaware of its existence at that time. Pierce's answer to the petition included a general denial and Pierce's assertion of the affirmative defenses of statute of limitation, laches, and res judicata. In March 2003, Pierce filed a Counterpetition to Enforce Foreign Judgment and for Declaratory Judgment (the "Counterpetition to Enforce"), including the Indiana Order as an attachment. Pierce restated his general denial and affirmative defenses and

additionally requested a declaratory order that no back child support was owed based upon the Indiana Order. Gardner responded that she never consented to or signed the Indiana Order and that, until the Texas proceedings, she was without knowledge of its existence. She filed
2

Both Texas and Indiana have UIFSA statutes that are substantially similar to and in compliance with the federal UIFSA. See Tex. Family Code Ann.

Download Connie Pierce Gardner v. Ernie Lee Pierce.pdf

Indiana Law