David D. Hughes v. Laurina S. Hughes (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 28, 2017
• Docket: 67A01-1612-DR-2753
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 28 2017, 5:36 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Scott F. Bieniek Lisa A. Anderson Bieniek Law, P.C. Mallor Grodner, LLP Greencastle, Indiana Bloomington, Indiana

IN THE COURT OF APPEALS OF INDIANA

David D. Hughes, July 28, 2017 Appellant, Court of Appeals Case No. 67A01-1612-DR-2753 v. Appeal from the Putnam Superior Court Laurina S. Hughes, The Honorable Charles D. Bridges, Appellee. Judge Trial Court Cause No. 67D01-1507-DR-127

Barnes, Judge.

Case Summary [1] In this dissolution action, the trial court issued findings of fact and conclusions

thereon that divided the parties’ marital assets upon the dissolution of their

Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017 Page 1 of 11 marriage, ordered an equal division of the parties’ assets, and ordered Laurina

Hughes (“Wife”) to pay an equalization payment of $147,947.74. David

Hughes (“Husband”) appeals the trial court’s belated grant of Wife’s motion to

correct error. Concluding that because of a procedural error the trial court

lacked the authority to rule on Wife’s motion to correct error, we dismiss this

appeal.

Issue [2] The dispositive issue is whether this appeal should be dismissed because the

trial court lacked the authority to rule on Wife’s motion to correct error.

Facts [3] Husband and Wife were married on May 7, 1988. Wife filed a petition for 1 dissolution on March 16, 2015.

[4] A final hearing was held on May 26, 2016. The trial court issued findings of

fact and conclusions thereon on July 11, 2016, rejecting Wife’s request for an

unequal distribution of the marital estate. To achieve an equal distribution, the

trial court required Husband to transfer $100,000.00 of his retirement funds to

Wife, and Wife to pay to Husband a property equalization payment of

$147,947.74.

1 Wife filed the petition for dissolution in the Monroe Circuit Court. Husband objected because the parties did not live in Monroe County. The case was transferred to the Putnam Superior Court.

Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017 Page 2 of 11 [5] Wife filed a motion to correct error on August 10, 2016. On September 29,

2016, three days after the motion was deemed denied under Indiana Trial Rule 2 53.3(A), the trial court issued an order setting the matter for an attorney-only

conference to be held on October 12, 2016. On October 12, 2016, the trial

court, on its own motion, continued the conference to November 1, 2016.

[6] On October 24, 2016, Wife timely filed a Notice of Appeal of the deemed

denial of her motion to correct error (“Wife’s Appeal”). The Notice of

Completion of Clerk’s Record for Wife’s Appeal was issued on October 25,

2016, and an amended notice was issued the same day but noted on the

chronological case summary (CCS) on October 26, 2016. This court

“acquire[d] jurisdiction” over Wife’s Appeal on October 26, 2016. See Ind.

Appellate Rule 8.

[7] Although this court had acquired jurisdiction over Wife’s Appeal, the trial

court, nevertheless, held a telephonic conference regarding Wife’s motion to

correct error on November 1, 2016. On November 17, 2016, the trial court

issued an order that belatedly granted Wife’s motion to correct error and

ordered a 53/47 split of the parties’ marital assets in favor of Wife, finding that

“[a] consideration of the required factors leads to the conclusion that an

2 Trial Rule 53.3(A) provides:

In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed denied. Any appeal shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is deemed denied.

Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017 Page 3 of 11 unequal division is just and reasonable under the circumstances based upon the

disparity of income and the economic circumstances of the parties.”

Appellant’s App. p. 25.

[8] On November 23, 2016, Wife filed with this court a motion to dismiss her

appeal of the deemed denied motion to correct error, without prejudice. This

court denied her motion because Wife failed to state a reason why the appeal

should be dismissed without prejudice. On November 30, 2016, Wife filed with

this court an amended motion to dismiss her appeal with prejudice. The

motion was granted on December 5, 2016, and Wife’s Appeal was dismissed

with prejudice.

[9] The instant appeal was initiated when Husband filed a Notice of Appeal on

December 2, 2016, seeking review of the trial court’s November 17, 2016 order

that belatedly granted Wife’s motion to correct error.

Analysis [10] Husband appeals the trial court’s belated grant of Wife’s motion to correct error

that ultimately ordered the unequal division of the parties’ marital assets in

favor of Wife. This Court reviews a trial court’s ruling on a motion to correct

error under an abuse of discretion standard. Zaremba v. Nevarez, 898 N.E.2d

459, 463 (Ind. Ct. App. 2008). An abuse of discretion occurs when the decision

is clearly against the logic and effect of the facts and circumstances before the

court, including any reasonable inferences therefrom. Id.

Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017 Page 4 of 11 [11] In their briefs, the parties present extensive argument and authority on the issue

of whether the trial court erred when, without entering additional findings and

conclusions thereon, it amended its original judgment, deviated from the

presumed equal distribution of the parties’ marital assets, and ordered an

unequal distribution in favor of Wife. However, the procedural history leading

to this appeal compels us instead to consider sua sponte: 1) whether in light of

our supreme court’s decision in Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285

(Ind. 2000), appellate review of the trial court’s belated grant of Wife’s motion

to correct error is available, and 2) whether this appeal should be dismissed

because due to a procedural error, the trial court was without authority to rule 3 on Wife’s motion to correct error. Applying the reasoning in Cavinder, we find

that the trial court’s November 17, 2016 belated grant of Wife’s motion to

correct error was not available for appellate review and that, because the trial

court issued the order after this court acquired jurisdiction over Wife’s Appeal,

this appeal must be dismissed.

[12] In Cavinder, our supreme court addressed the ability of a party, under certain

circumstances, to obtain appellate review of the merits of issues raised in a

motion to correct error which is deemed denied. Specifically, in Cavinder,

summary judgment was entered for Cavinder. Hall filed a motion to correct

error that was deemed denied. Hall timely filed a notice of appeal and raised

3 See Schumacher v. Radiomaha, Inc., 619 N.E.2d 271, 273 (Ind. 1993) (holding trial court does not have jurisdiction to continue with case concerning matter from which an appeal is taken so long as that appeal is pending; failure of appellant to object does not waive issue).

Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017 Page 5 of 11 the issues originally presented in his deemed denied motion. Thereafter, more

than thirty days after the motion was deemed denied, the trial court belatedly

granted Hall’s motion to correct error and set aside its earlier grant of summary

judgment in favor of Cavinder. Having obtained the relief sought, Hall “did not

further pursue his appeal.” Cavinder, 726 N.E.2d at 287. Cavinder, however,

appealed the belated grant of Hall’s motion. In response to Cavinder’s brief,

Hall cross-appealed seeking review on the merits of the issues presented in his

motion to correct error.

[13] On transfer, our supreme court allowed Hall’s cross-appeal, stating:

When a trial court considers and grants a motion to correct error, even if done belatedly, we perceive that such a decision will typically be correct on the merits and will result in expeditious further proceedings, without an intervening appeal. Sound judicial administration thus counsels against requiring a party whose motion to correct error is belatedly granted nevertheless to perfect an appeal from the superseded but “deemed denied” motion. These same concerns also counsel against permitting a belated grant of a motion to correct error long after its deemed denial has concluded the case as a final judgment from which an appeal was taken. Although we conclude that [Hall’s] abandonment of his timely-commenced appeal should not preclude him from asserting by cross-error under Trial Rule 59(G) the issues presented in his motion to correct error, we hold that the rule does not authorize resort to cross-error as a device to raise claims abandoned by the failure to initiate a timely appeal upon the deemed denial of a motion pursuant to Rule 53.3(A).

Id. at 288.

[14] Our supreme court held: Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017 Page 6 of 11 [T]he belated grant of the motion to correct error in this case is not necessarily a nullity but rather is voidable and subject to enforcement of the “deemed denied” provision of Trial Rule 53.3(A) in the event the party opposing the motion to correct error promptly appeals. Had the defendant failed to promptly appeal this belated grant, such failure would constitute waiver and would have precluded a subsequent appellate claim that the motion to correct error was deemed denied under Trial Rule 53.3(A).

Id.

[15] Justice Sullivan, dissenting, argued that the majority’s reasoning left “open-

ended the time a trial court has to rule on a motion to correct error.” Id. at 291.

Justice Sullivan believed the correct analysis would have found that the belated

grant was a nullity under Trial Rule 53.3(A) for the reason that the proponent

of the motion to correct error abandoned his appeal of the deemed denial. As a

nullity, our court would have lacked jurisdiction, and the appeal would

necessarily have been dismissed. Id. at 292.

[16] The Cavinder majority responded to the concerns of the dissent, stating:

[T]his application of Rule 53.3(A) does not create an open-ended time in which the trial court may rule. It applies only if, within thirty days after the motion is deemed denied, the party filing the motion timely initiates an appeal, and if the trial court belatedly grants the motion to correct error before the record of proceedings is filed,

Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017 Page 7 of 11 transferring jurisdiction to the appellate tribunal.[ ] If a belated grant 4

occurs, the opposing party may accept the ruling or may appeal to invalidate it as deemed denied pursuant to Rule 53.3(A). The party filing the motion may not thereafter assert as cross-error the issues presented in the “deemed denied” motion to correct error if the time for filing [the notice of appeal] has expired and the party failed to commence an appeal.

Id. at 288-89 (original footnotes omitted) (emphasis added). Hall’s timely

appeal of the deemed denial preserved for appeal the issues originally raised in

his motion to correct error. Absent that appeal, Hall would have been

precluded from raising as cross-error the issues first raised in his motion to

correct error.

[17] The procedural history of the case before us is almost identical to Cavinder. On

July 11, 2016, the trial court issued findings and conclusions thereon, finding

that the parties’ marital assets should be divided equally. Wife filed a motion to

correct error. After her motion was deemed denied, she timely initiated an

appeal. The Amended Notice of Completion of Clerk’s Record for Wife’s

Appeal was noted in the trial court’s CCS on October 26, 2016. On that day,

this court acquired jurisdiction over the matter. See App. R. 8. Well after this

court acquired jurisdiction, on November 17, 2016, the trial court issued its

order modifying the division of the parties’ marital assets, finding that an

4 The Rules of Appellate Procedure have been revised, and this court now acquires jurisdiction over an appeal on the date the Notice of Completion of Clerk’s Record is noted in the chronological case summary. Ind. Appellate Rule 8.

Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017 Page 8 of 11 unequal division of the marital assets was warranted. Wife dismissed her

appeal, and then Husband timely appealed the trial court’s belated grant of

Wife’s motion to correct error. The distinction between Cavinder and the

instant case, however, is that in Cavinder the trial court must have ruled on

Hall’s motion to correct error before this court acquired jurisdiction over the

appeal; in this case, the trial court did not.

[18] Cavinder says that its holding “applies only if, within thirty days after the

motion is deemed denied, the party filing the motion timely initiates an appeal,

and if the trial court belatedly grants the motion to correct error before

[jurisdiction is transferred] to the appellate tribunal.” Cavinder, 726 N.E.2d at

289 (footnotes omitted). As just noted, in the instant case, the trial court

granted Wife’s motion to correct error after this court acquired jurisdiction over

Wife’s Appeal. We are bound by our supreme court and cannot contravene its

precedent. The exception created by Cavinder does not apply.

[19] We now determine whether this appeal must be dismissed because due to a

procedural error, the trial court lacked authority to rule on Wife’s motion to

correct error. Under Indiana Appellate Rule 8, when a party initiates an appeal

from a trial court order, this court “acquires jurisdiction on the date the Notice

of Completion of Clerk’s Record is noted in the Chronological Case 5 Summary.” Orders issued by a trial court after this date generally are void. See

5 In light of the use of the word “jurisdiction” in Indiana Appellate Rule 8, and the procedural error that is presented in this appeal, we are mindful of our supreme court’s instruction regarding the “law of jurisdiction”

Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017 Page 9 of 11 Jernigan v. State, 894 N.E.2d 1044, 1046 (Ind. Ct. App. 2008). “The policy

underlying the rule is to facilitate the efficient presentation and disposition of

the appeal and to prevent the simultaneous review of a judgment by both a trial

and appellate court.” Id. There are exceptions to this rule, such as to allow a

trial court “‘to reassess costs, correct the record, enforce a judgment, continue

with a trial during an interlocutory appeal concerning venue, or preside over

matters which are independent of and do not interfere with the subject matter of

the appeal.’” Id. (quoting Clark v. State, 727 N.E.2d 18, 21 (Ind. Ct. App.

2000), trans. denied; but cf. In re Marriage of Bartley, 712 N.E.2d 537, 547 (Ind. Ct.

App. 1999) (holding trial court order, which purportedly “corrected” divorce

decree to alter marital property division, was void because it was entered after

this court obtained jurisdiction).

[20] Here, the trial court’s November 17, 2016 order did not merely correct the

record, enforce a judgment, or decide issues that were independent of the

matters presented in Wife’s Appeal. To the contrary, the November order

materially altered the trial court’s original order such that this court and the trial

court were engaged in simultaneous review of the trial court’s initial judgment.

Because the trial court materially altered its original findings and conclusions

thereon after this court acquired jurisdiction over the appeal of the matter, that

alteration was void, and it is of no effect. See Schumacher v. Radiomaha, Inc., 619

and what constitutes “[r]eal jurisdictional problems” as opposed to “procedural defects.” See In re Adoption of O.R., 16 N.E.3d 965, 970 (Ind. 2014).

Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017 Page 10 of 11 N.E.2d 271, 273 (Ind. 1993) (holding trial court does not have jurisdiction to

continue with case concerning matter from which appeal is taken, so long as

appeal is pending). As determined above, the exception set forth by our

supreme court in Cavinder does not apply. See Garrison v. Metcalf, 849 N.E.2d

1114, 1116 (Ind. 2006) (stating courts should not read Cavinder too broadly).

Accordingly, we dismiss this appeal because the order Husband seeks to appeal

is void.

Conclusion [21] After the trial court clerk issued its Amended Notice of Completion of Clerk’s

Record for Wife’s Appeal, the trial court was without authority to rule on a

motion that challenged its original findings and conclusions thereon regarding

the division of the parties’ marital assets. The trial court’s belated ruling on

Wife’s motion to correct error is void. Because Husband’s appeal is from a void

order, we hereby dismiss this appeal and order the trial court to vacate that

order and, thus, the trial court’s July 11, 2016 findings of fact and conclusions

thereon stand as the judgement in this case.

[22] Dismissed.

Baker, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017 Page 11 of 11