FILED Dec 19 2023, 8:54 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Bryan L. Ciyou Thomas B. Roberts Ciyou & Associates, P.C. Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Maria del Carmen Casimiro December 19, 2023 Murietta, Court of Appeals Case No. Appellant-Petitioner, 23A-DC-193 Appeal from the Marion Superior v. Court The Honorable Joel A. Schneider, Guillermo Fernandez Romero, Magistrate Appellee-Respondent. Trial Court Cause No. 49D16-2112-DC-10561
Opinion by Judge Bradford Judge Vaidik concurs. Judge Brown dissents with separate opinion.
Bradford, Judge.
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 1 of 17 Case Summary [1] Maria del Carmen Casimiro Murietta (“Maria”) and Guillermo Fernandez
Romero (“Guillermo”) were married and are the parents of three children.
Maria and Guillermo separated in January of 2021, and, in December of that
year, Maria filed for divorce. Maria appeared pro se at the evidentiary hearing,
during which she referred to the parties’ prenuptial agreement (“the
Agreement”), in which the parties had agreed that all property owned by Maria
prior to the parties’ marriage shall remain Maria’s separate property in the event
of a divorce. Although Maria had referred to the Agreement, due to her limited
understanding of the proceedings and her erroneous belief that the Agreement
had been submitted to the trial court by her prior counsel and was therefore a
part of the record, she did not seek to have it admitted into evidence during her
case-in-chief. Maria did, however, seek to have the Agreement admitted into
evidence at the end of the hearing. The trial court denied Maria’s attempt to
submit the Agreement into evidence. In dividing the marital estate, the trial
court included the property that was subject to the Agreement. Maria filed a
motion to correct error, which the trial court denied. On appeal, we conclude
that the trial court abused its discretion in denying Maria’s motion to correct
error. As such, we reverse the judgment of the trial court and remand for a new
trial wherein the Agreement can be presented for consideration assuming a
proper foundation for its admission can be met.
Facts and Procedural History Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 2 of 17 [2] In January of 2016, Maria and Guillermo were married. They had had two
children together prior to their marriage and had one child together during their
marriage. Prior to their marriage, Maria and Guillermo had entered into the
Agreement, which indicated that all property owned by Maria prior to the
parties’ marriage would not be considered part of the marital estate and would
be considered Maria’s sole property in the event of divorce. On January 20,
2021, the parties separated, and on December 9, 2021, Maria filed for divorce.
[3] Maria was initially represented by counsel who was forced to withdraw her
representation after being suspended from the practice of law. Maria claims to
have provided counsel with numerous documents, including the Agreement.
Maria was then represented by subsequent counsel, who filed a motion to
withdraw from representation prior to the evidentiary hearing, citing a
breakdown of attorney-client communication.
[4] On October 3, 2022, the trial court held a virtual evidentiary hearing. Maria
appeared at the evidentiary hearing pro se. Guillermo appeared and was
represented by counsel. A translator was present given Maria’s and
Guillermo’s limited capabilities to speak English.
[5] While Maria indicated that she was ready to proceed, it is clear from her
statements to the court that she was unfamiliar with the legal process and the
terminology used by the court. She did not seem to understand basic trial
tenets, such as what evidence is or what she was expected to present to the
court. See Tr. Vol. II p. 36. She also did not appear to have understood that
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 3 of 17 presenting relevant documents, namely the Agreement, to her attorney was not
sufficient to ensure judicial review of the document. See Tr. Vol. II p. 53. Once
it became clear to Maria that submitting the Agreement to her counsel had not
been sufficient to ensure that it would be submitted for the trial court’s
consideration, Maria attempted to submit the Agreement into evidence. The
trial court did not accept the Agreement into evidence.
[6] The trial court issued a decree of dissolution on November 18, 2022, in which it
included property that had been owned by Maria prior to the parties’ marriage
and ordered an equal division of the marital estate. On December 13, 2022,
Maria filed a motion to correct error in which she alleged as follows:
3. Petitioner was previously represented by counsel and presented her prior counsel with a copy of the Premarital Agreement, attached hereto as Exhibit A, which was executed by the parties on January 14, 2016. This agreement set forth the division of assets and debts in the case of a dissolution of marriage.
4. Petitioner was unaware that counsel failed to present a copy of the premarital agreement to the Court and did not know the same was not in fact provided to the Court until such time as she sought alternate counsel to review the final Decree of Dissolution of Marriage.
5. Petitioner was pro se at the final hearing and had a translator present to assist her given that English is her second language. Nonetheless, Petitioner continued to advise the Court that there were no assets or liabilities to be divided, based on her belief that the Court had a copy of the Premarital Agreement which in fact would have required the Court to divide the assets and liabilities as Petitioner was requesting. Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 4 of 17 ****
7. Had Petitioner not mistakenly believed that her prior counsel had submitted a copy of the Premarital Agreement to the Court, she would have ensured she provided the same herself. Had the Court been provided with a copy of the parties’ Premarital Agreement in advance of the hearing, it would have been required to distribute funds in accordance with the agreement, which have resulted in Petitioner not being required to pay a cash equalization payment to Respondent.
8. Petitioner has demonstrated a meritorious defense and mistake such that the Court should set aside the property settlement provisions of the Decree of Dissolution of Marriage.
9. Petitioner is respectfully requesting this Court set aside the property division set forth in the Decree of Dissolution of Marriage and for all other relief just and proper in the premises.
Appellant’s App. Vol. II pp. 50–52 (emphasis added). The trial court denied
Maria’s motion to correct error on January 17, 2023.
Discussion and Decision1 [7] While the parties largely focus their arguments on the question of whether
Maria was entitled to relief under Trial Rule 60(B), they acknowledge, and the
record demonstrates, that Maria appeals following a denial of her motion to
1 Guillermo has filed a motion to strike certain documents, including the Agreement, from Maria’s appendix. In a separate order handed down simultaneously with this opinion, we deny Guillermo’s motion.
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 5 of 17 correct error. While there may be some overlap between a Trial Rule 60(B)
motion for relief from judgment and a Trial Rule 59 motion to correct error, the
trial rules discuss the two separately and provide two different potential avenues
for relief. Given that Maria filed a motion to correct error (and only
alternatively argued that she was entitled to relief under Trial Rule 60(B)) and
the trial court denied that motion, the question on appeal is most appropriately
framed as whether the trial court abused its discretion by denying Maria’s
motion to correct error.
[8] It is well established that
[t]he trial court is permitted to alter, amend, or modify its judgment without limitation “up to and including the ruling on a motion to correct error.” Rohrer v. Rohrer, 734 N.E.2d 1077, 1081 (Ind. Ct. App. 2000) (quoting Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998)). A trial court is vested with broad discretion to determine whether it will grant or deny a motion to correct error. Volunteers of America v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 658 (Ind. Ct. App. 2001). A trial court has abused its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable inferences therefrom. Id.
Jones v. Jones, 866 N.E.2d 812, 814 (Ind. Ct. App. 2007). In reviewing a denial
of a party’s motion to correct error, “we look at the record to determine if (a)
the trial court abused its judicial discretion; (b) a flagrant injustice has been
done to the appellant; or (c) a very strong case for relief has been made by the
appellant.” Id.
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 6 of 17 [9] While evidence must be offered during the course of a trial, the trial court has
the discretion to “permit a party to present additional evidence or testimony
once the party has rested, once both parties have rested, or after the close of all
of the evidence.” In re Paternity of Seifert, 605 N.E.2d 1202, 1207 (Ind. Ct. App.
1993), trans. denied. Moreover, “Indiana courts have long had both statutory
and inherent equitable powers to set aside or modify erroneous or inequitable
judgments.” Kelly v. Bank of Reynolds, 171 Ind. App. 515, 518, 358 N.E.2d 146,
148 (1976). In this case, the record reveals that Maria’s motion made a very
strong case that she was entitled to relief because the trial court’s judgment had
resulted in a flagrant injustice to her. As such, we conclude that the trial court
abused its discretion in denying Maria’s motion to correct error.
[10] The record demonstrates that Maria, a pro-se litigant with a language barrier to
the court, did not understand the proceedings or what the court was asking of
her. Maria only proceeded pro se after both her first and second attorneys had
been granted permission to withdraw their representation. Maria’s first
attorney, to whom she claims to have given numerous documents including the
Agreement, withdrew after being suspended from the practice of law. Her
second attorney withdrew following a breakdown of attorney-client
communication and trust. While Maria may be partially responsible for her
second counsel’s withdrawal, she bore no responsibility for the fact that her first
attorney, with whom she seemed to have some level of comfort, had to
withdraw from the case.
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 7 of 17 [11] The record is also clear that Maria was unfamiliar with the legal process and the
terminology used by the court. She did not seem to understand basic trial
tenets, such as what evidence is or what she was expected to present to the
court. See Tr. Vol. II p. 36. She also does not appear to have understood that
presenting relevant documents, namely the Agreement, to her attorney was not
sufficient to ensure judicial review. See Tr. Vol. II p. 53. While she did not
tender the Agreement as evidence during her case-in-chief, Maria made
multiple references to it. She also attempted to tender the Agreement at the end
of the hearing once she apparently came to understand that it had not
previously been submitted to the court. At this point, the trial court simply
denied her attempt to submit the Agreement with no further inquiry.
[12] We agree with Maria that “[i]gnoring such a document due to a procedural
oversight can have life-altering financial and personal implications for the
parties involved.” Appellant’s Reply Br. p. 5. Furthermore, while pro-se
litigants are generally held to the same standard as an attorney, the Indiana
Supreme Court has indicated that a trial court may, under some circumstances,
take steps necessary to prevent a good faith pro-se litigant, like Maria, from
being placed at an unfair disadvantage. See Zavodnik v. Harper, 17 N.E.3d 259,
266 (Ind. 2014) (“Even if a court may take reasonable steps to prevent a good
faith pro se litigant from being placed at an unfair disadvantage, an abusive
litigant can expect no latitude.”) The Indiana Supreme Court has further
indicated that
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 8 of 17 a court should not blindly adhere to all of its rules. “Although our procedural rules are extremely important, it must be kept in mind that they are merely a means for achieving the ultimate end of orderly and speedy justice. We must examine our technical rules closely when it appears that invoking them would defeat justice; otherwise we become slaves to the technicalities themselves and they acquire the position of being the ends instead of the means.” [Am. States Ins. Co. v. State, 258 Ind. 637, 640, 283 N.E.2d 529, 531 (1972)].
Meredith v. State, 679 N.E.2d 1309, 1311 (Ind. 1997) (internal quotation
omitted). While Maria had rested her case when she ultimately attempted to
submit the Agreement, the evidentiary hearing had not concluded, and the trial
court easily could have allowed limited questions relating to the Agreement.
Based on the particular facts and circumstances of this case, we conclude that
the trial court abused its discretion by failing to admit the Agreement into
evidence when tendered to the court by Maria. 2
[13] In reaching this conclusion, we acknowledge that prenuptial agreements “are
favored by the law as promoting domestic happiness and adjusting property
questions that otherwise would often be the source of litigation.” Boetsma v.
Boetsma, 768 N.E.2d 1016, 1020 (Ind. Ct. App. 2002), trans. denied. These
agreements “are legal contracts by which parties entering into a marriage
relationship attempt to settle the interest of each in the property of the other
2 While we are cognizant of the challenges facing trial judges with respect to pro-se litigants, we are troubled by the trial court’s apparent “move the case along approach” in this case, especially considering the fact that the evidentiary hearing was conducted remotely, causing more confusion for a pro-se litigant who already was at a disadvantage due to a language barrier with the court.
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 9 of 17 during the course of the marriage and upon its termination by death or other
means.” In re Marriage of Boren, 475 N.E.2d 690, 693 (Ind. 1985). The Indiana
Supreme Court “has consistently held that [prenuptial] agreements, so long as
they are entered into freely and without fraud, duress, or misrepresentation and
are not, under the particular circumstances of the case, unconscionable, are
valid and binding.” Id. Such agreements “will be liberally construed to effect,
so far as possible, the parties’ intentions.” Boetsma, 768 N.E.2d at 1024.
[14] It is undisputed that Maria owned all the property listed in the Agreement prior
to the parties’ marriage and that Guillermo had contributed nothing to its
acquisition. In addition, the authenticity of the Agreement is not disputed.
During her case-in-chief, Maria made repeated references to the Agreement.
Guillermo did not object to these references or allege at the close of evidence
that no such agreement existed. Given the favor granted to prenuptial
agreements combined with the facts and circumstances of this case, we
conclude that the trial court’s order will result in an unjustified windfall for
Guillermo and an inequitable and flagrant injustice to Maria because, in order
to retain her property, she would be required to compensate Guillermo for the
property in contradiction of the Agreement. As such, based on the record
before us, we conclude the trial court abused its discretion in denying Maria’s
[15] The judgment of the trial court is reversed, and the matter remanded for a new
trial wherein the Agreement can be presented for consideration assuming a
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 10 of 17 Vaidik, J., concurs. Brown, J., dissents with separate opinion.
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 11 of 17 Brown, Judge, dissents.
[16] I respectfully dissent and would affirm the trial court. To the extent the
majority considers Maria’s December 13, 2022 motion to be a motion to correct
error, in her motion she requested that the court “Correct Errors from the
Decree of Dissolution of Marriage,” did not indicate any errors committed by
the trial court, stated that “[h]ad [she] not mistakenly believed that her prior
counsel had submitted a copy of the Premarital Agreement to the Court, she
would have ensured she provided the same herself,” and stated she was
“respectfully requesting this Court set aside the property division set forth in the
Decree of Dissolution of Marriage and for all other relief just and proper in the
premises.” Appellant’s Appendix Volume II at 51-52. At the January 9, 2023
hearing on her motion, Maria’s counsel did not mention Ind. Trial Rule 59, and
discussed only Ind. Trial Rule 60(B) in arguing “the mistake is that my client
was under the impression that her attorney had filed a copy of the prenuptial
agreement with the court” and “we’re requesting the Court set aside the Court’s
final order with regard to the property division and the division of assets and
debts, and to proceed with having a hearing and issuing an order that is in
agreement with the terms of the prenuptial agreement.” Transcript Volume II
at 60-61. Maria’s counsel later clarified: “What my client’s asking is this Court
to set aside the decree based off of the fact that she was under the mistaken
belief that this Court had a copy of the prenuptial agreement. This clearly falls
under the mistake and excusable neglect provision in Trial Rule 60.” Id. at 64.
In her appellant’s brief and reply brief, the only error she asserts is that she
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 12 of 17 believed her prior attorney had submitted the marital agreement. I would find
that Maria’s motion was a motion for relief from judgment pursuant to Ind.
Trial Rule 60(B)(1), and the erroneous belief that her prior attorney had
presented the agreement did not constitute mistake or excusable neglect.
[17] Even if Maria’s motion were a motion to correct error, it did not comply with
Ind. Trial Rule 59(H)(1), which provides that a motion to correct error based on
evidence outside the record “shall be supported by affidavits showing the truth
of the grounds set out in the motion and the affidavits shall be served with the
motion.” A party may not offer by affidavit, in connection with his or her
motion to correct errors, evidence which he or she neglected to present at the
prior proceeding. Collins v. Dunifon, 323 N.E.2d 264, 268 (Ind. Ct. App. 1975).
“Rather, the provision provides the basis for disclosing on the record matters
constituting a basis for correction of error which occurred during the prior
proceedings, but were not reflected in the record.” Id. Maria did not attach any
affidavit to her motion to correct error as required, never offered the agreement
into evidence, and the agreement was never properly before the trial court.
[18] Ind. Trial Rule 60(B) affords relief in extraordinary circumstances which are not
the result of any fault or negligence on the part of the movant. Wagler v. West
Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371-372 (Ind. Ct. App. 2012), reh’g
denied, trans. denied, cert. denied, 134 S. Ct. 952 (2014). To the extent the
majority considers the trial court’s judgment a flagrant injustice, before the final
dissolution hearing on October 3, 2022, Maria did not move for the
appointment of an interpreter, the court provided an interpreter at the
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 13 of 17 dissolution hearing pursuant to Guillermo’s request, and Maria did not indicate
she could not understand the interpreter or could not communicate to present
her case. The court swore in two interpreters at the start of the hearing and had
the first introduce herself to both parties to “make sure they understand [her],”
the interpreter and parties conferred, and the interpreter stated: “We understand
each other.” Transcript Volume II at 4-5. Throughout the hearing, the
interpreter made clarifications as necessary.
[19] The court questioned Maria as to whether she was ready to proceed multiple
times, and the following exchanges occurred:
THE COURT: We are set for a half-day final hearing in this matter. Are the parties ready to proceed?
[Maria]: Yes.
[Guillermo’s counsel]: Yes, Your Honor.
*****
THE COURT: Okay. So, Ms. Del Carmen, it’s -- I guess that’s a question. The question that I have -- you’ve previously indicated that you’re ready to proceed. I was ask -- I was just asking, before we get into evidence today, if there are any stipulations, so anything that you and Mr. Roberts have agreed to prior to this hearing or if there’s any pre-trial motions. And the Court’s not hearing anything to that effect.
[Maria]: The lawyer that I had before, I told her that I didn’t want her services anymore, and that’s why I’m here today.
THE COURT: Okay. So you are -- since you -- I granted – I granted the motion for your previous attorney to withdraw. So at this point, you are representing yourself, Ms. Del Carmen, which
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 14 of 17 you’re entitled to do. And you have previously indicated that you are ready to proceed this afternoon. So I’m going to confirm that again, that you are ready to proceed.
[Maria]: I am ready, not because I want to, because things were not being done the way that I thought they should have been done, and that’s why I don’t have a lawyer today.
THE COURT: Okay. So I will indicate that the parties are ready to proceed with their final hearing then. Okay.
Id. at 5-6. The record reveals that Maria’s second attorney emailed her on
August 30, 2022, telling Maria that “you seem to want to go to court,” “[i]f you
want to do that, you will have to hire another attorney,” and “[i]f you just want
to go to court for the sake of going to court, then I will withdraw from your
case. There is no reason to waste your time and mine if you want to meet with
me just to tell me you want to go to court.” Appellant’s Appendix Volume II at
30. On September 2, 2022, her former attorney emailed her stating that her
final dissolution hearing was scheduled for October 3, 2022, attaching a copy of
her Motion for Leave to Withdraw Appearance, noting that she would file the
motion ten days from September 2nd, notifying Maria that “failure to obtain
counsel to represent [her] in this action could result in the Court entering a
judgment against [her] or dismissing [her] case,” and stating that her hearing
would “proceed as scheduled regardless of whether or not [she] hire[d] another
attorney.” Id. at 31. On September 12, 2022, the court granted the motion, and
on October 3rd, approximately twenty-one days later, the final dissolution
hearing was held. The record does not indicate that Maria sought the services
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 15 of 17 of other counsel after her second attorney withdrew, requested a continuance,
or indicated that she was not ready to proceed.
[20] It is well settled that a pro se litigant is held to the same legal standards as a
licensed attorney. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). A pro se
litigant “is afforded no inherent leniency simply by virtue of being self-
represented.” Id. Pro se litigants are required to follow procedural rules, Evans
v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied, and “must be
prepared to accept the consequences of their failure to do so.” Basic v. Amouri,
58 N.E.3d 980, 983 (Ind. Ct. App. 2016), reh’g denied. This Court will “not
become an advocate for a party . . . . Id. at 984 (internal quotation marks
omitted). Ind. Code of Judicial Conduct Canon 2.2 provides that “[a] judge
shall uphold and apply the law and shall perform all duties of judicial office
fairly and impartially.” A judge’s role as an impartial decision maker does not
permit offering legal advice to pro se litigants. See Reinoehl v. St. Joseph Cnty.
Health Dep’t, 181 N.E.3d 341, 362 (Ind. Ct. App. 2021) (holding that “[t]he
court did not err by holding the Reinoehls,” pro se, to the standard of a trained
attorney when “dismissing their Amended Complaint without first giving them
the opportunity to file a Second Amended Complaint”).
[21] Maria acknowledges that she “undoubtedly shares some fault in failing to
ensure that her former attorney had produced the Agreement in discovery and
in assuming the risk of representing herself at the dissolution hearing.”
Appellant’s Brief at 18. She did not mention the agreement throughout
questioning about child custody and support, whether she and Guillermo
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 16 of 17 owned real estate together, her business, a financial declaration form detailing
her assets, and her bank accounts, or while cross-examining Guillermo. The
court provided her with ample opportunities to present additional information.
After “about two-and-a-half hours of evidence,” and closing arguments, Maria
referenced an agreement but did not state that she had the agreement with her,
explicitly ask the court to admit the agreement, or make an offer of proof
regarding the terms of the agreement. Transcript Volume II at 52.
[22] In light of it being well-settled that we hold pro se parties to the same standard as
attorneys and we expect counsel to know and follow the trial rules, I would
affirm the trial court’s denial of Maria’s motion for relief from judgment.
Court of Appeals of Indiana | Opinion 23A-DC-193 | December 19, 2023 Page 17 of 17