Gerardo Avila-Arroyo v. Tania Torres (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 12, 2020
• Docket: 19A-DR-2723
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 12 2020, 9:18 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Cindy L. Kenworthy William O. Harrington Indianapolis, Indiana Danville, Indiana

Randall L. Parr Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gerardo Avila-Arroyo, June 12, 2020 Appellant-Respondent, Court of Appeals Case No. 19A-DR-2723 v. Appeal from the Hendricks Superior Court Tania Torres, The Honorable Rhett M. Stuard, Appellee-Petitioner Judge Trial Court Cause No. 32D02-1603-DR-177

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020 Page 1 of 13 Case Summary [1] Forty-two months after Tania Torres filed a petition for dissolution of marriage

from Gerardo Avila-Arroyo, the trial court held a final hearing at Tania’s

request. Gerardo did not attend. Thereafter, the trial court entered a

dissolution decree, custody order, and property settlement based on the

information submitted by Tania. Claiming he did not have timely and

sufficient notice of the final hearing, Gerardo filed a motion to correct error and

Ind. Trial Rule 60(B) motion to set aside, both of which the trial court denied.

Gerardo now appeals, presenting two issues for our review:

1. Did the trial court abuse its discretion in denying his T.R. 60(B) motion for relief from judgment?

2. Did the trial court abuse its discretion in denying his motion to correct error?

[2] We affirm in part, reverse in part, and remand with instructions.

Facts & Procedural History [3] Tania and Gerardo were married on December 12, 2003. They have one child

together, who was born in May 2005, and Tania has an older child who lived

with them in the marital residence. Tania filed a petition for dissolution on

March 23, 2016. At the time, she was represented by Attorney Charles Engel.

During the pendency of the proceedings, the parties continued to reside in the

marital residence.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020 Page 2 of 13 [4] A preliminary hearing was scheduled for May 17, 2016, and the Hendricks

County Clerk (the Clerk) issued a summons via certified mail to Gerardo at the

marital residence. An entry in the chronological case summary (CCS) states

that the certified mail was delivered to and signed for by Gerardo. The

preliminary hearing was continued two separate times because the parties were

trying to work out an agreement, and a third scheduled hearing was

“cancelled”. Appellant’s Appendix Vol. II at 9. In March 2017, the action was

dismissed without prejudice pursuant to Ind. Trial Rule 41(E), but later

reinstated upon Tania’s motion in which she noted that the parties were

“circulating a final agreement.” Appellee’s Appendix Vol. Two at 15. The matter

was again subject to T.R. 41(E) dismissal in November 2017, but Tania

requested that the matter remain on the court’s docket. Shortly thereafter,

Attorney Engel withdrew his appearance. In May 2018, the matter was subject

to T.R. 41(E) dismissal for a third time. After Tania responded asking that the

matter not be dismissed, the trial court scheduled a final hearing for August 14,

2018, and issued notice to the parties.

[5] Tania and Gerardo, both pro se, appeared for the August 14 hearing. The

hearing was continued to October 2, 2018, to give the parties “additional time

for settlement negotiations.” Appellant’s Appendix Vol. II at 12. Tania appeared

for the October 2 hearing, but Gerardo did not. The court ordered the parties to

submit to mediation, and the CCS reflects that notice was issued to Gerardo.

In all, the trial court issued four separate orders for Tania and Gerardo to attend

mediation. Tania and Gerardo appeared for three separate mediation

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020 Page 3 of 13 sessions 1—November 19, 2018, March 25, 2019, and May 21, 2019—but were

unable to reach an agreement.

[6] On June 11, 2019, Tania filed a motion asking the trial court to set the matter

for a final hearing. The trial court granted the motion the same day and

scheduled the final hearing for August 13, 2019. The court sent notice of the

final hearing to Gerardo via certified mail on June 12, 2019. The CCS notes

that the certified mail was delivered on June 14, 2019 and that the signature

was “illegible”. Id. at 15.

[7] The final hearing was held as scheduled. Tania was present, but Gerardo failed

to appear. At the start of the hearing, Tania informed the court that Gerardo

was aware of the hearing but was unable to attend because he had to work. She

told the court that the day before, Gerardo had asked her to request a

continuance of the hearing and that she had faxed something to the court,

although there was no record thereof. Gerardo did not personally contact the

court. When asked how she wanted to proceed, Tania stated that she wanted to

go ahead with the hearing and finalize the divorce. The court moved forward

with the final hearing and permitted Tania to testify and present her evidence.

[8] Tania began by explaining that the delay in finalizing the divorce was because

she and Gerardo could not agree on how to divide the marital property, which

included two homes (their marital home in Pittsboro and a duplex in

1 A fourth mediation session was continued by agreement of the parties.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020 Page 4 of 13 Brownsburg) and two restaurants. Tania further explained that Gerardo

controlled their finances and that she had no access to information about the

businesses. The little evidence Tania did present included property tax records

for their two houses, a stock purchase agreement for one of their restaurants,

and a payroll check ledger.

[9] With regard to the marital residence, tax records showed that Gerardo

purchased the home in 2007 for $105,000. As of March 2019, the house was

valued at $168,400 for tax purposes. Tania believed the mortgage had been

paid off. The duplex was in both of their names and was purchased in 2011 for

$113,498. In 2019, the duplex was valued at $213,700 for tax purposes. Tania

testified that Gerardo’s family rented both units of the duplex and that she

believed the rent was $700 a month per unit.

[10] Tania also testified that she and Gerardo owned two restaurants—Elegance,

located in Brownsburg, and Flap Jack’s Pancake House in Indianapolis. Tania

submitted a stock purchase agreement dated August 24, 2015, by which

Gerardo had purchased all of the shares for Flap Jack’s for $115,000. 2 With

regard to Elegance, Tania testified that the seller could not locate the

documents but told her that they purchased Elegance in December 2008 for

$100,000. Tania did not have any information concerning the income from

either of the restaurants, explaining that Gerardo did not let her have access to

2 The stock purchase agreement provided that Gerardo would pay $50,000 at closing and that thereafter he would make 65 monthly payments of $1000, with the last payment due in March 2021.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020 Page 5 of 13 that information. She testified, however, that she did not think the restaurants

were profitable.

[11] As to their respective incomes, Tania testified she works at Elegance as a

hostess, scheduler, and front manager, and that for fifty hours worked over a

two-week period, she takes home about $314. She explained that Gerardo

would give her extra money to cover expenses for the children and other things.

She estimated that between her paycheck and the money Gerardo gave her, she

received about $2000 a month. Tania told the court that Gerardo works at both

restaurants in an ownership/managerial/fill-in-cook capacity and that he

receives checks from both restaurants. She submitted a check ledger for May

2019 indicating that for a two-week period, Gerardo received a check for

$952.78 from Elegance and a check for $797.08 from Flap Jack’s.

[12] Tania told the court that she wanted sole legal and primary physical custody of

their son and explained that she and Gerardo had been working together to

make sure his needs were met. She requested that they both be responsible for

the credit cards in their own names and that she receive one of the three cars

they owned. With regard to personal belongings, Tania testified that she

wanted to keep her bedroom furniture, the bedroom furniture used by the boys,

the televisions in the boys’ rooms, a television in the living room, a personal

computer, and the lawn mower, if she got to keep the house. She told the court

that Gerardo could have any other personal belongings he wanted. In the end,

she asked the court to divide the marital property 50/50. In closing, Tania told

the court that they initially hired Attorney Engel because they wanted to “get it

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020 Page 6 of 13 over with” but because they were not making any progress, they stopped using

him. Transcript Vol. II at 38. She claimed that Gerardo had agreed to pay half

of the attorney fees and she submitted a bill showing that there was an

outstanding balance of $4381 for legal services rendered. The court took the

matter under advisement.

[13] The trial court issued its Findings and Final Order of Dissolution (the

Dissolution Order) on August 28, 2019. The court noted that Gerardo

“received proper notice” of the hearing but did not attend. Appellant’s Appendix

Vol. II at 20. The court also acknowledged that Tania presented minimal

evidence thereby leaving the court “in the position of trying to value the

properties based on very little information.” Id. at 21. The court valued the

marital home at $150,000 and the duplex at $125,000 and awarded both to

Tania. The court valued the two restaurants at a combined total of $275,000

and awarded both businesses to Gerardo. The court awarded Tania sole legal

and physical custody of the couple’s son and ordered Gerardo to pay $198 per

week in child support. The court also ordered Gerardo to pay the outstanding

balance owed to Attorney Engel.

[14] On September 26, 2019, Gerardo, by counsel, filed a motion to correct error

and a T.R. 60(B) motion to set aside the Dissolution Order and attached thereto

documents concerning the valuation of the two homes and the two restaurants

as well as documents relating to his income. The trial court summarily denied

Gerardo’s motion to correct error without a hearing. The court did, however,

hold a hearing on October 29, 2019 on Gerardo’s T.R. 60(B) motion. At the

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020 Page 7 of 13 outset, the court informed Gerardo that it would be denying his request for

relief. The court explained:

[T]here’s no mistakes, surprise, excusable neglect or fraud or misrepresentation here. Your client had notice of the hearing. He had notice of the final hearing and opted not to show up, that was his choice. Uh, it was entirely his choice. He made no effort to call the court. He made no effort to, uh, discuss it with us, uh, . . . he just didn’t want to be here, uh, and, uh, that’s on him. . . . [Tania] did tell us that morning that he had asked her to ask for a continuance, uh, but that’s not her responsibility to do. That’s his responsibility to do. He has to ask for a continuance not her. He didn’t bother to call. He did not bother to file anything.

Transcript Vol. 2 at 46-47. The court based its finding of notice on the certified

mail card returned to the Clerk and the fact that Gerardo asked Tania to request

a continuance. Gerardo’s attorney was then permitted to argue to the court that

he did not have timely and/or sufficient notice of the nature of the hearing. At

the conclusion of the hearing, the trial court denied Gerardo’s request for relief.

Gerardo now appeals. Additional facts will be provided below as necessary.

Discussion & Decision Standard of Review

[15] The discretion of the trial court lies at the heart of this case. We review a trial

court’s denial of a motion for relief from judgment for an abuse of discretion.

Dillard v. Dillard, 889 N.E.2d 28, 34 (Ind. Ct. App. 2008). Likewise, we review

a trial court’s denial of a motion to correct error for an abuse of discretion.

Principal Life Ins. Co. v. Needler, 816 N.E.2d 499, 502 (Ind. Ct. App. 2004). “An

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020 Page 8 of 13 abuse of discretion occurs when the trial court’s decision is clearly against the

logic and effect of the facts and circumstances before the court, or when the trial

court has misinterpreted the law.” Pfaffenberger v. Jackson County Regional Sewer

Dist., 785 N.E.2d 1180, 1183 (Ind. Ct. App. 2003).

1. Motion for Relief from Judgment

[16] T.R. 60(B) provides, in pertinent part, as follows:

On motion and upon such terms as are just the court may relieve a party ... from an entry of default, final order, or final judgment ... for the following reasons:

(1) mistake, surprise, or excusable neglect; [or]

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party[.]

In addition, “[a] movant filing a motion for reasons (1), (2), (3), (4), and (8)

must allege a meritorious claim or defense.” T.R. 60(B) “affords relief in

extraordinary circumstances which are not the result of any fault or negligence

on the part of the movant.” Dillard, 889 N.E.2d at 34. Although Gerardo

requests relief under subsections (1) and (3), his arguments address only

whether his failure to attend the final hearing was excusable neglect.

[17] “A Trial Rule 60(B)(1) motion does not attack the substantive, legal merits of a

judgment, but rather addresses the procedural, equitable grounds justifying the

relief from the finality of a judgment.” Kmart Corp. v. Englebright, 719 N.E.2d

1249, 1254 (Ind. Ct. App. 1999) (citation omitted). Because “[t]here is no Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020 Page 9 of 13 general rule as to what constitutes excusable neglect under Trial Rule 60(B)(1),”

“[e]ach case must be determined on its particular facts.” Id. (citations omitted).

In this vein, we are guided by the words of the late Judge Michael Barnes,

subsequently adopted by our Supreme Court, stating that excusable neglect is

“not just neglect”, but rather it is “something that can be explained by an

unusual, rare, or unforeseen circumstance.” Huntington Nat. Bank v. Car-X

Assoc. Corp., 39 N.E.3d 652, 656 (Ind. 2015) (quoting Huntington Nat. Bank v.

Car-X Assoc. Corp., 22 N.E.3d 687, 694 (Ind. Ct. App. 2014) (Barnes, J.,

dissenting), trans. granted).

[18] Gerardo’s motion for relief from judgment is based on his claim that he did not

have notice of the “nature and scope” or the “gravity” of the hearing.

Appellant’s Brief at 16, 23. He maintains that had he been so apprised by the

court or Tania, he would have secured counsel and attended the final hearing

and presented his evidence. To support his claim that he did not have adequate

notice of the final hearing, Gerardo points to the entry on the CCS where it was

noted that the certified mail card attached to the notice of the hearing addressed

to him was returned and that the signature was “illegible.” Appellant’s Appendix

Vol. II at 15. He also faults Tania for failing to tell him about the nature of the

hearing and for failing to obtain a continuance.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020 Page 10 of 13 [19] The illegible signature is of no consequence here. Gerardo admits that he had

actual notice of the August 13 hearing. 3 As to the nature of the hearing,

Gerardo stated that he “did not even necessarily believe [Tania]” because he

had not received notice from the court and he “assumed the matter was a

compliance hearing following unsuccessful mediation.” Appellant’s Brief at 39,

40. Gerardo took no responsibility for his failure to appear, asserting that

because he had no reason to believe a hearing had been set, he “bore no

obligation to ask the trial court for a continuance.” Id. at 39. He also asserts

that under the circumstances, he “did all that was required of him”. Id.

[20] Gerardo was pro se throughout the entire proceedings. A pro se litigant “is

held to the same standards as a trained attorney and is afforded no inherent

leniency simply by virtue of being self-represented.” See Zavodnik v. Harper, 17

N.E.3d 259, 266 (Ind. 2014). To that end, we note our longstanding rule that

“attorneys have a general duty to regularly check court records and monitor the

progress of their pending cases.” M & J Servs., Inc. v. VMK, Inc., 561 N.E.2d

827, 830 (Ind. Ct. App. 1990). These proceedings had been pending for over

three and a half years. The final hearing had been set for two months. As a pro

se litigant, Gerardo had a duty to stay apprised of the proceedings. Indeed,

Gerardo also acknowledges on appeal that he “could have, and in hindsight,

perhaps should have contacted the court” the morning of the final hearing.

3 Gerardo claims that he became aware of the hearing the night before. Tania asserts that they discussed the hearing as many as three days prior to the scheduled date.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020 Page 11 of 13 Appellant’s Brief at 21. Instead, he improperly put the burden on Tania to

request a continuance and relied on his own assumptions that the hearing was

of no significant consequence. The trial court found that under the

circumstances, Gerardo’s failure to appear for the final hearing did not amount

to excusable neglect. His claim on appeal that had he known of the significance

of the final hearing he would have secured counsel is self-serving. Indeed,

Gerardo did not find it prudent to secure counsel prior to attending the first

scheduled final hearing or mediations. Gerardo has not shown that the trial

court abused its discretion in denying his motion for relief from judgment.

2. Motion to Correct Error

[21] Gerardo argues that the trial court erred in deciding child custody, valuing and

dividing the marital property (i.e., the parties’ homes and restaurants), and

calculating income and child support. A motion to correct error cannot be used

to present evidence to the court that could have been presented during the

proceedings giving rise to the court’s decision. See Johnson v. Rutoskey, 472

N.E.2d 620, 623 (Ind. Ct. App. 1984) (noting that “Trial Rule 59(H)(1)

affidavits cannot be used to present evidence that a party neglected to present”

during proceedings before the court). Except for the calculation of child

support, the evidence on which Gerardo predicates his claims of error could

have been presented at the final hearing had he appeared. Indeed, Gerardo

attached to his motion to correct error his own affidavit containing averments

that he could have presented through his own testimony as well as documents

that were readily available at the time of the final hearing. The trial court did

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020 Page 12 of 13 not abuse its discretion in summarily denying Gerardo’s motion to correct error

as to its custody determination, income calculation, and valuation and division

of marital assets.

[22] There is one error alleged by Gerardo that is based on evidence that was

presented to the court during the final hearing. With regard to the court’s

calculation of child support, consistent with Tania’s testimony at the final

hearing, the court found in its order that Tania’s income was $314 every two

weeks and that Gerardo’s income was $1750 every two weeks. On the child

support worksheet, however, the court used these figures for the parties’

respective weekly incomes. Clearly the figures used by the court were

established as the parties’ biweekly income. The trial court therefore erred in

calculating child support. We reverse the trial court’s child support order and

remand for recalculation based on the parties’ respective weekly incomes.

[23] Judgment affirmed in part, reversed in part, and remanded with instructions for

the trial court to recalculate child support.

Bailey, J. and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020 Page 13 of 13