Collins v. Collins

805 N.E.2d 410, 2004 Ind. App. LEXIS 448, 2004 WL 557297
CourtIndiana Court of Appeals
DecidedMarch 23, 2004
DocketNo. 10A01-0308-CV-284
StatusPublished
Cited by2 cases

This text of 805 N.E.2d 410 (Collins v. Collins) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collins v. Collins, 805 N.E.2d 410, 2004 Ind. App. LEXIS 448, 2004 WL 557297 (Ind. Ct. App. 2004).

Opinion

OPINION

MAY, Judge.

Arvel Ray Collins appeals the denial of his motion for relief from an Indiana trial court's 1990 order that awarded custody to Tara Collins Talbot ("Mother") and modified child support obligations, ordering Collins to pay $250 per month in child support. Collins raises three issues, but we find sua sponte the dispositive issue is whether the denial of his motion for relief from judgment was an abuse of discretion.

We affirm.

FACTS AND PROCEDURAL HISTORY

In 1984, Collins and Mother met in Quantico, Virginia, where Collins was sta[412]*412tioned in the Marine Corps. Mother was eight months pregnant by another man. She and Collins began dating, and they married in May of 1984. Mother's child, J.C., was born, and shortly thereafter Collins received orders to leave for Japan.

In June of 1987, Collins returned to his parents' home in Antioch, California. Mother apparently left J.C. with Colling parents in Antioch. In July 1988, Collins, while still living in California, obtained a divorce from Mother,. The California divoree decree granted Collins sole physical custody of the minor child of the parties, J.C., granted Mother the right to visitation, and reserved the matter of child support.

While Collins was posted at Camp Pen-dleton, California, J.C. lived with Collings sister and Mother visited J.C. there. In 1989, Mother appeared in Indiana with J.C. where she filed a verified petition to register an out-of-state decree assuming Jurisdiction and a petition to modify disso-Tution decree. On January 8, 1990, Collins was served with the documents and a summons at Camp Pendleton, California.

On May 15, 1990, the court issued an order and found Collins in default because he was not present at the initial hearing. The trial court's order (1) found Mother lived in Indiana for more than one year; (2) assumed jurisdiction based on the finding; (3) found a substantial change of circumstance that made the California custody order unreasonable; (4) granted Mother full care, custody, and control of J.C.; and (5) ordered Collins to pay $250 per month in child support.

On May 31, 1990, Collins, who was still in the military, sent the trial court a letter requesting that the court reconsider its judgment. Collins' letter was filed with the court and the matter lay dormant until February 21, 2002, when Collins was contacted by a collection agency. Collins then filed a motion for relief from judgment under the Soldiers' and Sailors' Relief Act. On May 21, 2002, the court denied Colling' motion because he failed to file his request that the order be set aside within 90 days of leaving the military as required by the Soldiers' and Safilors' Relief Act.

On June 19, 2002, Collins filed a motion to correct error, challenging the trial court's subject matter jurisdiction. After a hearing, Collins' motion was denied. Collins now appeals.

DISCUSSION AND DECISION

The grant or denial of a motion for relief from judgment under Ind. Trial Rule 60(B) is within the sound discretion of the trial court, and we will reverse only for abuse of that discretion. Miller v. Moore, 696 N.E.2d 888, 889 (Ind.Ct.App.1998). An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and cireum-stances before the court, or if the court has misinterpreted the law. Id.

Collins is attempting to challenge the Indiana trial court's 1990 order modifying custody and child support as void for lack of subject matter jurisdiction because:

(1) The California court that issued the original divorce decree and custody order never relinquished its exclusive continuing jurisdiction in accordance with the UCCJA; (2) J.C. is not the child of the marriage; and (8) The trial court's May 1990 order was entered in direct contravention of the Parental Kidnapping Prevention Act.

(Br. of Appellant at 7-8.) We find none of the arguments Collins presents to be dis-positive because Collins failed to timely move for relief from judgment pursuant to TR. 60.

The ground Collins alleged for relief was that under the Soldiers' and [413]*413Sailors' Relief Act, the May 1990 default judgment against Collins should not have been entered. A default judgment plays an important role in the maintenance of an orderly, efficient judicial system as a weapon for enforcing compliance with the rules of procedure and for facilitating the speedy determination of litigation. (Green v. Karol, 168 Ind.App. 467, 344 N.E.2d 106, 110 (1976). The decision whether to set aside a default judgment is given substantial deference on appeal. LaPalme v. Romero, 621 N.E.2d 1102, 1104 (Ind.1993). Upon a motion for relief from a default judgment, the burden is upon the movant to show sufficient grounds for relief under Ind. Trial Rule 60(B). Id.

T.R. 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 an entry of default, final order, or final 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|;]
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(4) entry of default or judgment by default was entered against such party who was served only by publication and who was without actual knowledge of the action and judgment, order or proceedings;
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(6) the judgment is void;
(7) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (8), 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), (8), (4), and (8) must allege a meritorious claim or defense.

The trial court may relieve a party from a default judgment on one of several grounds set forth in TR. 60(B). LaPaime, 621 N.E.2d at 1104. The court may relieve a party from an entry of default if "the judgment is void," TR. 60(B)(6), or for "any reason justifying relief from the operation of the judgment, other than those reasons set forth in subparagraphs (1), (2), (8), and (4)." TR. 60(B)(8). According to T.R. 60(B), when a party seeks relief from judgment on the ground that the judgment is void, or for a reason under T.R. 60(B)(8), the motion "shall be filed within a reasonable time." Kessen v. Graft 694 N.E.2d 317, 321 (Ind.Ct.App.1998), trans. denied. The determination of what constitutes a reasonable time varies with the cireumstances of each case. Id.

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Bluebook (online)
805 N.E.2d 410, 2004 Ind. App. LEXIS 448, 2004 WL 557297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-collins-indctapp-2004.