Court of Appeals of Indiana | Opinion 39A01-1508-DR-1180| May 31, 2016 Page 1 of 16

ATTORNEY FOR APPELLANT

Jason J. Pattison

Jenner, Pattison, Sutter & Wynn, LLP

Madison, Indiana 

ATTORNEY FOR APPELLEE

R. Patrick Magrath 

Alcorn Sage Schwartz & Magrath, 

LLP

Madison, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

David C. Varble,

Appellant-Intervenor,

v.

Stephanie J. (Carroll) Varble and 

James T. Carroll,

Appellees. 

_____________________

IN RE: THE MATTER OF THE

PATERNITY OF: A.C.,

A Minor Child, 

David C. Varble,

Petitioner,

v.

Stephanie J. (Carroll) Varble,

Respondent,

May 31, 2016

Court of Appeals Case No. 

39A01-1508-DR-1180

Appeal from the Jefferson

Circuit Court

The Honorable Jon W. Webster, 

Special Judge

Trial Court Cause No. 

39C01-0910-DR-631

Appeal from the Jefferson

Circuit Court

The Honorable Jon W. Webster, 

Special Judge

Trial Court Cause No. 

39C01-1406-JP-29
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and

James T. Carroll, 

Intervenor.

Brown, Judge.

[1] David C. Varble (“Varble”) appeals the trial court’s denial of his motion for 

relief from judgment. Varble raises one issue which we revise and restate as 

whether the court abused its discretion in denying his motion for relief from 

judgment. We affirm. 

Facts and Procedural History

[2] On November 4, 2000, Stephanie J. (Carroll) Varble (“Stephanie”) and James 

T. Carroll (“Carroll”) were married, and the marriage was dissolved on 

December 8, 2009 under cause number 39C01-0910-DR-631 (“Cause No. 631”) 

in the Jefferson Circuit Court. The Settlement Agreement and Decree of 

Dissolution stated “There were children born of this marriage; namely,” and 

listed two children, including A.C., who was born in June of 2008. Appellant’s 

Appendix Volume 1 at 1. The parties agreed to “share joint custody of the 

children and joint physical custody,” spending “50% of time in each parent 

home,” that neither party would pay child support, and that each parent would 

be responsible for fifty percent of the uninsured medical expenses for the 

children. Id. 
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[3] On June 16, 2014, Varble filed a Verified Petition to Establish Paternity and 

Determine Custody, Parenting Time and Support under cause number 39C01-

1406-JP-29 (“Cause No. 29”) together with an Agreed Order of Paternity in the 

Jefferson Circuit Court. Varble’s petition alleged that he and Stephanie were 

married on January 11, 2011, and requested an order finding that he is the 

father of A.C., determining custody, parenting time and child support, and 

changing the last name of A.C. to Varble. The Agreed Order of Paternity 

provides in part that Varble and Stephanie have good cause to believe that 

Carroll underwent a vasectomy prior to the conception of A.C. and therefore 

should have been on notice that A.C. was not his biological child, that DNA 

testing was conducted in November of 2010 which revealed that Varble is the 

biological father of A.C., that no order would enter regarding custody, 

parenting time or child support at that time, and that the child’s last name 

would be changed to Varble. On June 17, 2014, the court signed the Agreed 

Order of Paternity.1 

[4] On August 12, 2014, Varble filed several motions in Cause No. 631, namely, a 

Motion to Intervene, a Motion for Immediate Termination of Parenting Time 

requesting the court to terminate Carroll’s parenting time with A.C., a Motion 

for Relief from Judgment, and a Motion for Hearing. In his Motion for Relief 

from Judgment, Varble alleged that the December 8, 2009 Settlement 

 

1 The copies of Varble’s June 16, 2014 petition and the June 17, 2014 Agreed Order of Paternity in the record 

and the chronological case summary (“CCS”) for Cause No. 29 do not indicate that Carroll was served or 

given notice of Varble’s petition or the Agreed Order of Paternity. 
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Agreement and Decree of Dissolution of Marriage found that A.C. is a child of 

the marriage of Carroll and Stephanie, that subsequent DNA testing has 

revealed that A.C. is not a child of the marriage, and that Varble established 

paternity with regard to A.C. in Cause No. 29, and requested that the 

December 8, 2009 Settlement Agreement and Decree of Dissolution of 

Marriage be modified to exclude A.C. as a child of the marriage.2 On August

13, 2014, the court granted Varble’s motion to intervene and motion for 

hearing, and on August 14, 2014, denied Varble’s motion for immediate 

termination of parenting time. 

[5] On August 29, 2014, Carroll filed a number of motions. Under Cause No. 631, 

he filed a Motion for Change of Venue From Judge requesting that the same 

special judge be appointed in that cause and in Cause No. 29 for the purposes of 

consolidating hearings and consistent determinations; an Objection and 

Response to Intervenor’s Motion for Relief from Judgment arguing in part that 

A.C. has known Carroll as his father for the child’s entire life, that Carroll has 

held A.C. out as his own child for the child’s entire life, and Varble’s 

substantially delayed motion for relief is not in A.C.’s best interests; an 

Objection and Response to Intervenor’s Motion for Immediate Termination of

Parenting Time arguing in part that A.C. has been held out by all parties as the 

child of Carroll for the child’s entire life and that A.C. is in the physical custody 

 

2 Varble’s motion for relief from judgment cites Trial Rule 60(B) and references subsections (1) and (8) of the 

rule. 
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of Carroll at least fifty percent of the time; and a Motion for De Facto Custody 

and/or Step-Parent Parenting Time alleging that A.C. was raised by Carroll 

and Stephanie as a child of the marriage alongside the other child listed in the 

dissolution decree, and that to the extent the contest to Carroll’s paternity and 

custody is successful, Carroll is a de facto custodian under Ind. Code § 31-9-2-

35.5 and should be granted custody of A.C. if such an award is found to be in 

A.C.’s best interests.3 

[6] Under Cause No. 29, Carroll filed a Motion to Intervene; a Motion for Change 

of Venue From Judge; a Motion to Dismiss arguing in part that Carroll is a 

necessary party to any paternity action for A.C.,4that Varble failed to join a

necessary party and give notice of the proceedings, that paternity and custody 

 

3

Ind. Code § 31-9-2-35.5 provides in part that “De facto custodian” means “a person who has been the 

primary caregiver for, and financial support of, a child who has resided with the person for at least: (1) six (6) 

months if the child is less than three (3) years of age; or (2) one (1) year if the child is at least three (3) years of 

age.” This court has stated:

Once a court determines a “de facto custodian” exists and that individual has been made a 

party to a custody proceeding, the court shall consider the following factors in determining 

the child’s “best interests,” in addition to the usual “best interests” of the child factors 

contained in Indiana Code Sections 31-14-13-2 and 31-17-2-8: 

(1) The wishes of the child’s de facto custodian.

(2) The extent to which the child has been cared for, nurtured, and supported by 

the de facto custodian.

(3) The intent of the child’s parent in placing the child with the de facto custodian.

(4) The circumstances under which the child was allowed to remain in the custody 

of the de facto custodian, including whether the child was placed with the de facto 

custodian to allow the parent seeking custody to:

(A) seek employment;

(B) work; or

(C) attend school.

Ind. Code §§ 31-14-13-2.5(b) and 31-17-2-8.5(b). 

In re Guardianship of L.L., 745 N.E.2d 222, 229 (Ind. Ct. App. 2001), trans. denied. 

4

Ind. Code § 31-14-5-6, related to the filing of a paternity action, provides: “The child, the child’s mother, 

and each person alleged to be the father are necessary parties to each action.”
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are under the continuing jurisdiction of the dissolution action under Cause No. 

631, and that Cause No. 29 should be dismissed; a Motion to Set Aside 

Paternity Order as Void arguing in part that the dissolution decree establishes 

A.C. as a child of the marriage and grants Carroll custody rights, that paternity 

and custody are under the continuing jurisdiction of the dissolution action 

under Cause No. 631, and that pendency in another cause is cause for dismissal 

and justifies setting aside the paternity order as void; and a Motion for De Facto 

Custody and/or Step-Parent Parenting Time. 

[7] On September 2, 2014, in Cause No. 29, the court granted Carroll’s Motion to 

Intervene and Motion for Change of Venue From Judge, and in Cause No. 631, 

the court granted Carroll’s Motion for Change of Venue From Judge. 

[8] Judge Jon W. Webster accepted the appointment as special judge in both 

causes. A letter dated February 18, 2015 was sent to the parties stating that the 

court would hold a hearing on Varble’s Motion for Relief from Judgment under 

Cause No. 631 and Carroll’s Motion to Set Aside Paternity Order as Void and 

Motion to Dismiss under Cause No. 29, and noted that Carroll’s Motions for 

De Facto Custody and/or Step-Parenting Time filed under both causes were 

pending. 
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[9] Following a hearing,5the trial court entered an Order on All Pending Issues 

and Appointment of Guardian Ad Litem on June 11, 2015 in both causes.6 The 

court denied Varble’s Motion for Relief from Judgment under Cause No. 631 

and Carroll’s Motion to Dismiss under Cause No. 29.7 The court also ordered: 

“[Carroll’s] Motion to Set Aside Paternity Order As Void [under Cause No. 29] 

is granted except it is not void, only voidable and the Court determines it 

should be set aside as such.” Appellant’s Appendix Volume 1 at 109; 

Appellant’s Appendix Volume 2 at 58. Varble filed a Motion to Correct Error 

and/or 2nd Motion for Relief from Judgment under Cause No. 631, which was 

denied. 

Discussion

[10] Varble’s argument on appeal is whether the trial court abused its discretion in 

denying his motion for relief from judgment under Cause No. 631. A grant of 

equitable relief under Ind. Trial Rule 60 is within the discretion of the trial 

court. Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371 (Ind. Ct. App.

2012), reh’g denied, trans. denied, cert. denied, 134 S. Ct. 952 (2014). An abuse of 

discretion occurs when the trial court’s judgment is clearly against the logic and 

 

5 The court’s June 11, 2015 order states the hearing was held on June 4, 2015; however, the transcript in the 

record states the hearing was held on June 11, 2015. 

6 The order includes a footnote following the title which states: “See generally In Re: The Marriage of Huss, 888 

N.E.2d 1238 (Ind. 2008).” Appellant’s Appendix Volume 1 at 109 n.1; Appellant’s Appendix Volume 2 at 

58 n.1. 

7 The record also contains a Motion to Withdraw Motion to Dismiss Paternity Action filed by Carroll on 

June 10, 2015 in Cause No. 29 and an order dated June 15, 2015, granting the motion to withdraw. 
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effect of the facts and inferences supporting the judgment for relief. Id. When 

reviewing the trial court’s determination, we will not reweigh the evidence. Id.

Ind. 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. Id. at 371-372. 

[11] Ind. Trial Rule 60(B) provides in part that the court may relieve a party “from a 

judgment for the following reasons: (1) mistake, surprise, or excusable neglect; .

. . (3) fraud (whether heretofore denominated intrinsic or extrinsic), 

misrepresentation, or other misconduct of an adverse party; . . . (6) the 

judgment is void; [or] (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 must be filed within a reasonable time for reasons (6) and (8) 

and not more than one year after the judgment for reasons (1) and (3), and a 

motion for reasons (1), (3), and (8) must allege a meritorious claim or defense. 

[12] Varble argues that a child who is not the biological child of both parties to a 

dissolution is not a child born of the marriage, that “a dissolution Court does 

not have subject matter jurisdiction over that child,” see Appellant’s Brief at 10 

(citing Russell v. Russell, 682 N.E.2d 513 (Ind. 1997)), and that orders issued 

without subject matter jurisdiction are void.8 He requests that we direct the trial 

court to grant his motion for relief from judgment, find that A.C. was not a 

child of the marriage of Carroll and Stephanie, and remand for further 

 

8 Varble does not cite to Trial Rule 60(B) or any subsection of the rule in his appellant’s brief. 
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determinations regarding Carroll’s motions for de facto custody and/or stepparent parenting time. 

[13] Carroll maintains that a dissolution decree in which a child is stipulated to be a 

child of the marriage has the effect of establishing legal paternity and that such 

orders are not void but are voidable and retain their legal force and effect until 

successfully challenged or reversed. He argues that he successfully challenged 

the Agreed Order of Paternity under Cause No. 29 on the grounds that Varble

had failed to serve, join, or otherwise notify him of the paternity action. He 

further maintains that the Indiana Supreme Court in In re Marriage of Huss, 888 

N.E.2d 1238 (Ind. 2008), “expressly held that a challenge to the biological 

connection between a party to a dissolution and a child named in said 

dissolution does not deprive the trial court of subject matter jurisdiction over

that child’s custody.” Appellee’s Brief at 2. Carroll requests this court to affirm 

the court’s denial of Varble’s motion for relief from judgment and remand for 

further proceedings on his de facto custody petition. 

[14] In Russell v. Russell, the Indiana Supreme Court stated that, “[b]efore the 

dissolution court may make a child custody or support determination, it must 

first determine whether it has jurisdiction to do so, i.e., whether the child at 

issue is a ‘child of the marriage.’” 682 N.E.2d 513, 515 (Ind. 1997). The Court 

observed that the inquiry into whether a child is a child of the marriage is a 

determination by the dissolution court of who the child’s parents are for 

purposes of custody, visitation, and support, and in paternity proceedings the

inquiry is whether a particular man is the child’s biological father, and, if so, 
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similar determinations as to support, custody, and visitation are made. Id. at 

517. The Court further observed that in many cases the parties to the 

dissolution will stipulate or otherwise explicitly or implicitly agree that the child 

is a child of the marriage; that in such cases, although the dissolution court does 

not identify the child’s biological father, the determination is the legal 

equivalent of a paternity determination in the sense that the parties to the 

dissolution, the divorcing husband and wife, will be precluded from later 

challenging that determination except in extraordinary circumstances; and that, 

nevertheless, a child or a putative father is not precluded by the dissolution 

court’s finding from filing a separate action to establish paternity at a later time. 

Id. at 518. The Court also noted that, in other cases, the issue of whether a 

child is a child of the marriage may be vigorously contested and that in such 

cases the dissolution court has the authority to follow appropriate procedures 

for making paternity determinations. Id. 

[15] In In re Marriage of Huss, in seeking dissolution of their marriage, the husband 

and wife declared there were four children born of their marriage and each 

requested custody of the children. 888 N.E.2d 1238, 1239 (Ind. 2008). While 

the dissolution was pending, the wife initiated a separate paternity action in the 

circuit court of another county and obtained a final order establishing that 

another man was the biological father of one of the children and granting her 

custody of that child. Id. The wife then sought to use the paternity judgment as 

a basis to dismiss the custody proceedings regarding the child in the dissolution 

case. Id. Specifically, the wife filed a motion to dismiss the child from the 
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dissolution proceedings alleging the child was not a child of the marriage and 

attaching a copy of the paternity order. Id. at 1240. The dissolution court 

denied the wife’s motion to dismiss, dissolved the marriage, divided the marital 

property, and provided for child support and parenting time. Id. The 

dissolution court found, as to the paternity decree’s purported award of custody 

to the wife, that it was “of no binding force” due to procedural irregularities 

including the failure to make the husband a party and to notify him of the 

custody claim in the paternity case. Id. The court also concluded it would be in 

the child’s best interest that the child be placed in the custody of the husband. 

Id. On appeal the wife claimed the dissolution court erred in failing to 

recognize the paternity judgment. Id. at 1240-1241. She argued that the final 

paternity judgment and its award of custody could not be invalidated by the 

dissolution decree. Id. at 1241. 

[16] The Indiana Supreme Court stated that the issue was whether the paternity 

court was authorized to adjudicate a custody issue that was already pending 

before another court. Id. The Court found that, because the subject of child 

custody was first properly before the circuit court in the dissolution proceeding, 

the circuit court of another county in the subsequently filed paternity action was 

precluded from making a custody determination regarding the same child. Id. 

The Court noted that it is well settled that two courts of concurrent jurisdiction 

cannot deal with the same subject matter at the same time, that once 

jurisdiction over the parties and the subject matter has been secured, it is 

retained to the exclusion of other courts of equal competence until the case is 
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resolved, and that the rule applies where the subject matter before the separate 

courts is the same but the actions are in different forms. Id. (citing In re Paternity 

of Fox, 514 N.E.2d 638 (Ind. Ct. App. 1987), trans. denied). The Court further 

noted that among the legislature’s purposes for dissolution proceedings is to 

provide for child custody, id. (citing Ind. Code § 31-15-1-2),9that the 

determination of child custody may be sought in an action for dissolution, for 

legal separation, for child support, or by “a person other than a parent by filing 

a petition seeking a determination of custody of the child,” id. (citing Ind. Code 

§ 31-17-2-3),10 or in conjunction with a paternity determination. Id. (citing Ind. 

Code § 31-14-10-1).11 

[17] After noting that the husband had asserted there were four children born of the 

marriage and that the wife had identified the same four children as born to the 

marriage in the dissolution proceeding, the Court held that “[t]he subject matter 

of child custody of all four children was unquestionably before the dissolution 

court from the inception of the action,” id. at 1242, that “[t]he wife could have,

but did not, seek a determination in the dissolution proceeding that the husband 

was not the biological father of the child,” id. (citing Russell, 682 N.E.2d at 518), 

 

9

Ind. Code § 31-15-1-2 provides in part that “[t]he purposes and policies of this article are as follows: . . . (3) 

To provide for the disposition of property, child support, and child custody. . . .” 

10 Ind. Code § 31-17-2-3 provides in part that “[a] child custody proceeding is commenced in the court by: . . 

. (2) a person other than a parent by filing a petition seeking a determination of custody of the child.” 

11 Ind. Code § 31-14-10-1 provides in part that, “[u]pon finding that a man is the child’s biological father, the 

court shall, in the initial determination, conduct a hearing to determine the issues of support, custody, and 

parenting time. . . .” 
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that “[t]he wife’s subsequent prosecution of a separate paternity action” in the 

circuit court of another county “could not, and did not, operate to interrupt or 

supersede the authority of the dissolution court to determine the custody of all 

four children, including the child who became the subject of the paternity 

action,” and that the dissolution court did not err in failing to give effect to the 

paternity judgment. Id. The Court also noted that, to the extent the wife 

argued the dissolution court lacked personal jurisdiction over the child of which 

the husband was not the biological parent, “even if the wife’s separate paternity 

action might arguably be characterized as vigorously contesting whether the 

child was a child of the marriage pursuant to Russell, such argument would not 

preclude the dissolution court’s ultimate custody determination in this case,”

that Russell “did not involve a non-biological ‘father’s’ request for custody 

predicated on the child’s best interest,” that such a determination was the 

ultimate basis for the trial court’s decision to award the husband custody of the 

child he did not father, and that further evaluation of the applicability of Russell

was not warranted. Id. at 1243. 

[18] In this case, at Carroll’s request, the court set aside the June 17, 2014 Agreed 

Order of Paternity in Cause No. 29. As such, there is no order in effect finding 

that Varble is the biological father of A.C., and Varble does not appeal the 

court’s ruling setting aside the Agreed Order of Paternity. The dissolution 

decree under Cause No. 631, which contained provisions pertaining to the 

custody, parenting time, and support of A.C., was entered on December 8, 

2009, and Varble filed his petition to establish paternity under Cause No. 29 
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over four and one-half years later on June 16, 2014, and his motion for relief 

from judgment under Cause No. 631 on August 12, 2014. 

[19] With respect to Varble’s assertion that the dissolution court did not have subject 

matter jurisdiction over A.C. in Cause No. 631 and that the court should have 

granted his motion for relief from the decree on that basis, we observe that the 

dissolution action under Cause No. 631 and later the paternity action initiated

by Varble under Cause No. 29 were before the Jefferson Circuit Court, that Ind. 

Code § 33-28-1-2 provides in part that “all circuit courts have . . . original and 

concurrent jurisdiction in all civil cases,” and that Varble does not cite to any 

statute stating that the Jefferson Circuit Court does not have the authority to 

hear dissolution cases or to make child custody, parenting time, and child 

support determinations in dissolution proceedings. See K.S. v. State, 849 N.E.2d 

538, 540 (Ind. 2006) (“Subject matter jurisdiction is the power to hear and 

determine cases of the general class to which any particular proceeding 

belongs.”); In re B.J.N., 19 N.E.3d 765, 768 (Ind. Ct. App. 2014) (noting that 

circuit courts are courts of general jurisdiction, empowered to hear all types of 

cases). Finding the Indiana Supreme Court’s opinion in Huss to be instructive, 

we conclude that the matter of the custody of A.C. and the other child 

identified in the dissolution decree was before the Jefferson Circuit Court under 

Cause No. 631 from the inception of that dissolution action, and that the court 

had the authority to determine the custody of both children. See Huss, 888 

N.E.2d at 1241-1242 (noting that the determination of child custody may be 

sought in an action for dissolution and holding that the subject matter of child 
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custody of all four children, including the child who became the subject of the 

wife’s separate paternity action, was unquestionably before the dissolution court

from the inception of the action) (citing Russell, 682 N.E.2d at 518). 

[20] To the extent Varble cites Russell in asserting the court in Cause No. 631 did not 

have jurisdiction over A.C. when it entered the December 8, 2009 decree, we 

observe that the parties did not dispute at the time of the dissolution that the 

court had the authority to enter the decree containing terms of custody, 

parenting time, and support related to A.C. See Harris v. Harris, 922 N.E.2d 

626, 632 (Ind. Ct. App. 2010) (observing a defendant can submit to the personal 

jurisdiction of the court by failing to raise the issue of lack of jurisdiction); see 

also Ind. Code § 31-14-7-1 (providing in part that a man is presumed to be a 

child’s biological father if the man and the child’s biological mother are or have 

been married to each other and child is born during the marriage). Indeed, 

Stephanie and Carroll expressly agreed in the Settlement Agreement and

Decree of Dissolution of Marriage that it was in the best interest of A.C. that 

they share joint legal and physical custody, and that A.C. spend fifty percent of 

his time in each of their homes. Similar to Huss, even if the paternity action 

initiated by Varble four and one-half years after the dissolution decree might 

arguably be characterized as vigorously contesting whether A.C. was a child of 

the marriage under Russell, the Jefferson Circuit Court was not precluded from 

determining, in the dissolution action under Cause No. 631, the issue of 

custody of A.C. based on A.C.’s best interest at the time of the decree. See

Huss, 888 N.E.2d at 1243 (noting that, even if the wife’s separate paternity 
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action might arguably be characterized as vigorously contesting whether the 

child was a child of the marriage pursuant to Russell, such argument would not 

preclude the dissolution court’s ultimate custody determination in the case). 

[21] Based upon the record, we conclude that the trial court did not abuse its 

discretion in denying Varble’s motion for relief from judgment under Cause No. 

631. 

Conclusion

[22] For the foregoing reasons, we affirm the trial court’s denial of Varble’s motion 

for relief from judgment under Cause No. 631. 

[23] Affirmed. 

Baker, J., and May, J., concur.