Hugh Z. Nelson v. Renee Burtin

• Court: Indiana Court of Appeals
• Decided: December 6, 2012
• Docket: 45A03-1111-DR-576
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D),

FILED this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Dec 06 2012, 8:55 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

APPELLANT PRO SE:

HUGH Z. NELSON Gary, Indiana

IN THE COURT OF APPEALS OF INDIANA

HUGH Z. NELSON, ) ) Appellant, ) ) vs. ) No. 45A03-1111-DR-576 ) RENEE BURTIN, ) ) Appellee. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Nanette K. Raduenz, Judge Cause No. 45D03-0906-DR-655

December 6, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge Case Summary

Hugh Z. Nelson (“Nelson”), proceeding pro se, appeals the disposition of marital

assets at the conclusion of dissolution proceedings between himself and Renee Burtin

(“Burtin”). Concluding that we lack jurisdiction to decide his claims, we dismiss this appeal.

Facts and Procedural History

On June 25, 2005, Nelson and Burtin were married; the marriage produced no

children. When the two wed, Nelson already owned the marital residence in Gary, and had

personal property furnishing the home. During the course of the marriage, the couple

acquired various furnishings for the home, including a television, a love seat, a couch, and a

treadmill with funds from one of Nelson’s retirement accounts.

On May 6, 2005, Burtin purchased a 2006 Chrysler 300, using a loan to finance the

purchase; both the loan and the vehicle title were in Burtin’s name.1 During the marriage,

Nelson withdrew funds from a retirement account to pay the remaining balance on the

vehicle note, after which Burtin transferred title to the vehicle to Nelson for consideration of

$1.00.

During the marriage, Burtin encountered health problems and required medical care.

Burtin had health insurance through Nelson. Nelson informed Burtin that when he retired,

she would no longer have health insurance, but Burtin did not pursue additional medical care.

However, before he retired, Nelson terminated Burtin’s coverage under the insurance plan in

1 We note that the dissolution court’s property disposition order indicates that the car was purchased during the course of the marriage. Because we dispose of this case on grounds other than any error committed by the dissolution court, that error is harmless. See Ind. Trial Rule 61 (precluding reversal of an order upon appeal where an error has no effect upon the substantive rights of the parties).

2 order to increase the amount of his pension remittances. At the time of the dissolution of the

marriage, the outstanding bills for Burtin’s medical care totaled $9,248.00. (App. at 21.)

Also during the marriage, Nelson withdrew funds from a retirement account and used

the money to pay the balance of the loan on the marital residence. Nelson also withdrew

funds from a retirement account and purchased a tractor and trailer that were not maintained

and went largely unused. Based upon this, the dissolution court concluded that Nelson

dissipated marital assets totaling $17,775.62 associated with the purchase and maintenance of

the equipment. (App. at 20.)

On June 30, 2009, Burtin filed for dissolution of the marriage between her and

Nelson. After entering an order dissolving the marriage and conducting a final hearing, on

May 26, 2011, the dissolution court entered a decree disposing of the marital property (“the

Decree”). The Decree awarded Nelson the Chrysler 300, but required him to pay

approximately half the value of the purchase price of the vehicle to Burtin; required Nelson

to make an equalization payment of $2,896.50 to Burtin; awarded Burtin certain furnishings

from the home; and required Nelson and Burtin to share the costs of Burtin’s medical bills.

On June 13, 2011, Nelson filed a motion to correct error, which the dissolution court denied

on August 15, 2011.

On December 28, 2011, Nelson was held in contempt of court (“the contempt order”),

apparently for failing to comply with the provisions of the Decree. He filed a notice of

appeal from the contempt order on December 30, 2011, after an apparent attempt on

November 23, 2011, to file a notice of appeal encompassing both the pending contempt

3 proceeding and the Decree and subsequent denial of the motion to correct error.

Discussion and Decision

Nelson challenges numerous findings and conclusions in the dissolution court’s

Decree. We dispose of this case on a different basis, however—namely, that Nelson did not

timely seek appeal of the Decree or the denial of his subsequent motion to correct error.

We observe first that Nelson proceeds pro se. Pro se litigants are held to the same

standards as are licensed attorneys. In re Estate of Carnes, 866 N.E.2d 260, 265 (Ind. Ct.

App. 2007).

A party must file a notice of appeal from a final judgment within thirty days after the

entry of the judgment in a trial court’s Chronological Case Summary, or, where a motion to

correct error is filed, within thirty days after the entry of the trial court’s ruling on that

motion. Ind. Appellate Rule 9(A)(1). “The timely filing of a notice of appeal is a

jurisdictional prerequisite.” Walters v. Austin, 968 N.E.2d 233, 234 (Ind. Ct. App. 2012)

(citing State v. Hunter, 904 N.E.2d 371, 373 (Ind. Ct. App. 2009)), trans. denied. If a notice

of appeal is not timely filed, the right to an appeal is forfeited. App. R. 9(A)(5). “[S]ubject

matter jurisdiction cannot be waived, and courts at all levels are obligated to consider these

issues sua sponte.” Tarrance v. State, 947 N.E.2d 494, 495 (Ind. Ct. App. 2011). Thus,

though Nelson does not raise the matter of the timeliness of his appeal, and Burtin has not

filed any appellee’s brief challenging Nelson’s contentions on appeal,2 we must address the

2 Ordinarily, where no appellee’s brief has been filed, an appellant may succeed on appeal upon a showing of prima facie error, or error “‘at first sight, on first appearance, or on the face of it.’” Morgal-Henrich v. Henrich, 970 N.E.2d 207, 210 (Ind. Ct. App. 2012) (quoting Trinity Homes, LLC v. Fang, 848 N.E.2d

4 question of the timeliness of Nelson’s appeal.

To timely seek appeal from the dissolution court’s denial of the motion to correct

error, Nelson was required to file a notice of appeal within thirty days after the denial of the

motion on August 15, 2011. Nelson states that he timely filed a notice of appeal from the

dissolution court’s denial of his motion to correct error, but “[n]o response was received

regarding formatting or a tentative date, only a copy of the request for appeal with the

required postage was returned two months later.” (App. at 11.) Yet Nelson provides no

support for this assertion except for his own unsworn statements. He has not provided to this

Court a copy of the notice of appeal he claims to have filed. Nor has Nelson provided a copy

of the dissolution court’s CCS that would provide evidence of this filing.3

Moreover, our review of this Court’s docket reveals no notice of appeal from Nelson

until December 30, 2011. This constitutes timely notice of appeal from the dissolution

court’s order holding Nelson in contempt of court, which was entered on December 28, 2011,

but not from the dissolution court’s denial of Nelson’s motion to correct error. Yet the

entirety of Nelson’s brief before this court relates to the merits of the property division in the

Decree, which was the subject of the motion to correct error.

Nelson did not timely file a notice of appeal from the Decree or the dissolution court’s

denial of the motion to correct error. He has therefore forfeited his appeal of those orders.

Because his briefing in this case addresses only matters from the Decree and the motion to

1065, 1068 (Ind. 2006)). 3 The absence of the CCS is contrary to Appellate Rule 50(A)(2)(a), and a party proceeding pro se is held to the same standard as licensed attorneys in such matters.

5 correct error, over which we lack jurisdiction, we must therefore dismiss Nelson’s appeal.

Dismissed.

VAIDIK, J., and BROWN, J., concur.