Eric Leo Kamradt v. Theresa Ann Kamradt (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 20, 2016
• Docket: 49A02-1603-DR-597
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 20 2016, 9:41 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Jennifer Jones Auger Jonathan R. Deenik Franklin, Indiana Deenik Law, LLC Greenwood, Indiana

IN THE COURT OF APPEALS OF INDIANA

Eric Leo Kamradt, October 20, 2016 Appellant-Petitioner, Court of Appeals Case No. 49A02-1603-DR-597 v. Appeal from the Marion Superior Court Theresa Ann Kamradt, The Honorable H. Patrick Appellee-Respondent Murphy, Magistrate Trial Court Cause No. 49D10-1404-DR-11793

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-DR-597 | October 20, 2016 Page 1 of 6 [1] Eric Kamradt (Husband) appeals the trial court’s order, which modified the

asset distribution previously ordered by the trial court to give more property to

Theresa Kamradt (Wife). Husband argues that Wife’s motion to correct error

should have been deemed denied thirty days after the trial court held a hearing

on the matter. Finding that the trial court was, in substance, correcting a

clerical error, we affirm.

Facts [2] Husband and Wife’s marriage ended on August 7, 2015, with a dissolution

decree dividing their marital property. The trial court intended to divide the

estate equally, but found that Wife had made $63,758 more in marital

expenditures than Husband during the pendency of the dissolution and that

Wife was entitled to $10,000 in attorney fees. Appellant’s Supp. App. p. 32.

These sums were factored into the property division such that, out of a total net

estate of $617,466.06, Wife received $345,711.69 and Husband received

$271,754.37. Id. at 36.

[3] On September 11, 2015, Husband filed a motion to correct error, alleging that

the trial court made several factual errors. On September 28, Wife filed a

statement in opposition to Husband’s motion along with her own motion to

correct error. Wife alleged that the trial court had awarded three items of

property—two cars and a motorcycle—to Husband and that, although the

values of these properties were included on the Marital Estate Summary

spreadsheet, their values had been inadvertently excluded from Husband’s asset

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-DR-597 | October 20, 2016 Page 2 of 6 total. As a result, Husband received assets that the trial court had valued at

$40,389 without those assets being counted toward his share of the marital

estate. Accordingly, Wife requested the trial court to award her Husband’s

401(k) retirement plan, worth $27,922.99, to make up for the difference.

[4] The trial court held a hearing on the competing motions on November 19,

2015. Roughly three months later, an order from the trial court on a separate

matter contained a handwritten note stating that the trial court would issue its

order on the motions to correct error on February 12, 2016. Husband received

this information on February 18, and he filed a motion for an enlargement of

time so that he could prepare and submit a proposed order. Wife filed an

objection to Husband’s request, arguing that the trial court did not have the

authority to grant either motion because they were deemed denied thirty days

after the November hearing pursuant to Indiana Trial Rule 53.3.

[5] On February 23, 2016, the trial court issued an order granting Wife’s motion to

correct error and denying Husband’s. Husband now appeals.

Discussion and Decision [6] On appeal Husband has, somewhat ironically, adopted Wife’s position that the

motions to correct error were deemed denied thirty days after the November

2015 hearing. Wife counters that the trial court’s order was, in substance, a

correction of a clerical error pursuant to Indiana Trial Rule 60.

[7] Both parties made a motion to correct error. Indiana Trial Rule 59(C) provides

that “[t]he time at which the court is deemed to have ruled on the motion is set Court of Appeals of Indiana | Memorandum Decision 49A02-1603-DR-597 | October 20, 2016 Page 3 of 6 forth in T.R. 53.3.” That rule, in turn, explains: “In the event a court . . . fails

to rule on a Motion to Correct Error within thirty (30) days after it was heard . .

. the pending Motion to Correct Error shall be deemed denied.” Ind. Trial Rule

53.3(A).

[8] In contrast, Trial Rule 60(A) permits the trial court to correct “clerical mistakes

. . . at any time before the Notice of Completion of Clerk’s Record is filed under

Appellate Rule 8” (emphasis added). We have defined “clerical mistake” in

this context to refer to “a mistake by a clerk, counsel, judge, or printer that is

not a result of judicial function and cannot reasonably be attributed to the

exercise of judicial consideration or discretion.” KeyBank Nat’l Ass’n v. Michael,

770 N.E.2d 369, 375 (Ind. Ct. App. 2002). “Clerical errors and mechanical

matters involved in making computations are included in this area.” First Bank

of Madison v. Bank of Versailles, 451 N.E.2d 79, 81 (Ind. Ct. App. 1983). “The

reason for the rule is that in the case of clearly demonstrable mechanical errors

the interests of fairness outweigh the interests of finality which attend the prior

adjudication.” Drost v. Professional Bldg. Serv. Corp., 176 Ind. App. 172, 175, 375

N.E.2d 241, 244 (1978). Indeed, the “power to correct a clerical mistake . . . is

a necessary power in the administrative of every department” of government.

Bell v. Hearne, 60 U.S. 252, 262 (1856). On the other hand, where the mistake is

one of substance, the finality principle controls. Rooker v. Fidelity Trust Co., 202

Ind. 641, 177 N.E. 454 (1931). The trial court is permitted to correct clerical

mistakes “[o]f its own initiative,” and so the form of the parties’ request is not

dispositive. Ind. Trial Rule 60(A).

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-DR-597 | October 20, 2016 Page 4 of 6 [9] We believe that the trial court’s order corrected a mechanical error and did not

effect a change in the substance of its ruling.1 The dollar figures associated with

the two cars and the motorcycle were present on the trial court’s Marital Estate

Summary document. Appellant’s Supp. App. p. 35. Inadvertently, these values

were not added to Husband’s assets. Id. at 36. This was clearly either a

mechanical computational error or a human scrivener’s error, not a matter of

judicial consideration.

[10] Husband argues that the trial court’s order constitutes a change in substance

because it involves the transfer of assets from him to Wife. We note, first, that

the trial court actually ordered the following: “Parties may propose in pending

mediation any transfer of asset[s] that will accomplish this correction.

Otherwise, such will come from the Tom Wood 401(k) account.” Appellant’s

App. p. 16. Thus, the trial court did not order assets to be transferred, but

rather noted its error in calculation and allowed for the parties to shift assets

accordingly. But even if the trial court had ordered the transfer of the 401(k)

account, we believe that would be the inevitable result of any correction of a

miscalculation, which Trial Rule 60 permits.

1 Looking at the Marital Estate Summary spreadsheet, we cannot determine whether this was a mechanical error made by Excel or whether it was a scrivener’s error made by the trial court. The three assets are listed, along with their values, but each has an asterisk next to it. The total listed underneath then excludes their values. Either way, our conclusion remains the same, as Trial Rule 60 permits the trial court to correct either type of error.

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-DR-597 | October 20, 2016 Page 5 of 6 [11] Whether this was a computational malfunction or a scrivener’s error in omitting

to enter the data correctly, the error in this case is precisely the type of

mechanical error that Trial Rule 60 permits the trial court to fix. Moreover, we

cannot fault the trial court for the remedy it adopted.

[12] The judgment of the trial court is affirmed.

Vaidik, C.J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-DR-597 | October 20, 2016 Page 6 of 6