Rebecca A Elshoff v. Donald D Elshoff

• Court: Indiana Court of Appeals
• Decided: May 20, 2026
• Docket: 25A-DR-01970
• Status: Published
• Author: Judge Robb

Opinion

IN THE

Court of Appeals of Indiana FILED Rebecca A. Elshoff, May 20 2026, 9:21 am

Appellant-Petitioner, CLERK Indiana Supreme Court Court of Appeals and Tax Court

v.

Donald D. Elshoff, Appellee-Respondent.

May 20, 2026

Court of Appeals Case No. 25A-DR-1970

Appeal from the Vanderburgh Superior Court

The Honorable Leslie C. Shively, Judge

Trial Court Cause No. 82D04-0409-DR-962

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 1 of 14 Opinion by Senior Judge Robb Chief Judge Tavitas and Judge Foley concur.

Robb, Senior Judge.

Statement of the Case [1] Rebecca Elshoff appeals the trial court’s order denying her motion to reopen the

cause of action dissolving her marriage to Donald Elshoff, arguing the trial

court abused its discretion in doing so. Rebecca also asserts the trial judge

demonstrated bias against her. Concluding that the trial court’s comments did

not prejudice Rebecca’s case but that the court erred by denying the motion to

reopen, we reverse and remand.

Issues [2] Rebecca presents two issues, which we restate as:

I. Whether the trial court erred by denying her motion to reopen the dissolution action; and

II. Whether the trial court’s remarks demonstrated bias that was harmful to her case.

Facts and Procedural History [3] The parties’ marriage was dissolved in November 2005. Their dissolution

decree states, in relevant part:

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 2 of 14 1. Via Qualified Domestic Relations Orders, the Husband shall be the owner of 55% and the Wife the owner of 45% of all the Husband’s following retirement accounts, but not necessarily limited to the following, but specifically excluding the Ascension Health Pension Plan which the Husband will retain all of those benefits, with each party to be the owner of all losses or gains thereon since the September 14, 2004 filing date until the accounts can be administratively processed:

a. Ascension Health (approximate balance $240,000)

b. TSA savings with Ascension Health (if not included in subparagraph a. above)

c. Anthem 401K (approximate balance $57,000)

d. AIG (approximate balance $87,000)

e. AIG (approximate balance $77,000)

f. IRA at ONB (approximate balance $6,500)

Appellant’s App. Vol. 2, p. 11. The decree is silent as to which party was

responsible for preparing the Qualified Domestic Relation Orders (QDROs).

[4] Not until almost twenty years later when she was experiencing health problems

and contemplating retirement, did Rebecca seek a copy of the decree and legal

advice regarding its provisions. Rebecca then filed a motion in February 2025

entitled “Motion to Reopen Cause Due to Respondent’s Failure to Comply

with Mediation Agreement and Court Order.” The primary issue was that

QDROs had not been entered pursuant to paragraph 1 of the parties’ decree,

and therefore Rebecca had not received her portion of the funds from Donald’s

retirement accounts. Donald responded, claiming Rebecca is estopped from

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 3 of 14 asserting a claim to his retirement accounts based on the doctrines of laches and

waiver. In June, the trial court held a hearing on Rebecca’s motion, at which

both parties testified. In addition, Exhibits 2 and 3 were admitted at the hearing

and consisted of draft QDROs and a letter from Donald’s counsel to Rebecca’s

counsel dated February 10, 2006, as well as follow-up letters from Donald’s

counsel to Rebecca’s counsel on April 26, 2006, July 5, 2006, and May 16,

2007. The trial court subsequently denied Rebecca’s motion. Rebecca now

appeals.

Discussion and Decision I. Motion to Reopen Dissolution Action [5] Rebecca contends the trial court erred by denying her motion to reopen the

dissolution proceeding in order to enforce the property settlement agreement.

We review a trial court’s enforcement of a settlement agreement for an abuse of

discretion. Herber v. Bunting, 194 N.E.3d 1142, 1145 (Ind. Ct. App. 2022). An

abuse of discretion occurs if the court’s decision is against the logic and effect of

the facts and circumstances or if the court has misinterpreted the law. Id.

[6] The QDROs agreed to by the parties in paragraph 1 of their decree of

dissolution/property settlement agreement, see supra, were never executed or

implemented. Consequently, Rebecca never received her 45% of Donald’s

retirement accounts as agreed to by the parties and ordered by the court.

Rebecca now seeks to effectuate this property division by reopening the

dissolution proceeding.

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 4 of 14 [7] At the hearing, provisions of the parties’ decree were discussed, including

paragraph 5. Paragraph 5 concerns Donald’s Ascension Health Pension Plan

that is excluded from paragraph 1 and states that Rebecca shall remain

designated to receive the survivor benefit of that account, which is payable if she

survives Donald. See Appellant’s App. Vol. 2, p. 12 (Mediated Agreed Final

Decree of Dissolution of Marriage). On cross-examination, Rebecca testified

that based on paragraph 5, she assumed that the QDRO funds referred to in

paragraph 1 were likewise not available to her until Donald’s death. Tr. Vol. 2,

p. 24. Upon further questioning, Rebecca explained: “I was confused by the

language with -- where it said that with the retirement funds, they would not be

available to me until his demise; therefore, I assumed that was true of the other

funds.” Id. at 25.

[8] For his part, Donald invokes the equitable defenses of laches and waiver and

claims that Rebecca “is estopped from asserting her claim to a portion of his

retirement accounts.” Appellee’s Br. p. 22. We pause here to clarify that

Rebecca is not making a new claim to a portion of Donald’s retirement

accounts but rather attempting to enforce the court’s judgment by obtaining the

portion of his accounts that the court previously awarded to her. Citing this

Court’s decision of Ryan v. Janovsky, 999 N.E.2d 895, 898 (Ind. Ct. App. 2013),

trans. denied in support of its proposition, the Superior Court of Pennsylvania

noted:

A party’s request for entry of a proposed QDRO does not involve a distinct legal ‘claim.’ The right to seek a QDRO does not arise

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 5 of 14 from a wrong; instead, that right arises out of the divorce judgment itself. The procedural right to entry of the proposed QDRO is indisputably established by the judgment of divorce.

Jago v. Jago, 217 A.3d 289, 295 (Pa. Super. Ct. 2019) (cleaned up) (quoting

Dorko v. Dorko, 934 N.W.2d 644, 648-49 (Mich. 2019)).

[9] The doctrine of laches may be raised to prevent a person from asserting a claim

that she would typically be entitled to assert. Gabriel v. Gabriel, 947 N.E.2d

1001, 1006-07 (Ind. Ct. App. 2011). Laches is an unreasonable delay in

asserting a claim that causes prejudice to the party against whom the claim

would be asserted, resulting in waiver of the claim. Id. at 1007. A party raising

laches must establish: (1) an inexcusable delay in asserting a known right; (2)

an implied waiver arising from a knowing acquiescence in existing conditions;

and (3) a change in circumstances causing prejudice to the adverse party. Id.

[10] Here, Donald alleges the twenty-year delay is inexcusable because the decree

“is very clear” that Rebecca was awarded a percentage of his retirement funds

to be transferred through QDROs and that she was aware of this provision.

Appellee’s Br. p. 23. On cross-examination, Donald’s counsel established that

Rebecca has two master’s degrees, had previously gone through divorce

proceedings, and was represented by counsel in this dissolution proceeding.

Counsel pointed out that while paragraph 5 indicates the amount Rebecca

would receive if she survives Donald, paragraph 1 does not contain such

language and instead states, “until the accounts can be administratively

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 6 of 14 processed,” which counsel asserts indicates “something that might happen 1 fairly soon.” Appellant’s App. Vol. 2, p. 11; Tr. Vol. 2, pp. 25-26.

[11] Yet, being an educated individual and knowing what the decree states does not

necessarily equate to understanding the legal terminology and the procedure to

bring about the stated result. Although Rebecca was represented by counsel

and signed the mediated agreement, it is unclear what advice or counsel she

received about the QDROs and the procedure for her to obtain her portion of

Donald’s retirement accounts. Rebecca unequivocally testified that she did not

understand, was confused by the language, and assumed, based on paragraph 5

of the decree, that she would not receive any of Donald’s retirement funds until

he died. Operating under this incorrect assumption, she did not attempt to gain

further information about the QDROs, inquire about the QDRO procedure, or

pursue execution of the QDROs sooner.

[12] Moreover, Rebecca did not recall having any knowledge that Donald’s attorney

had sent drafts of QDROs and inquiries to her prior attorney. Rebecca’s

current counsel informed the court that she sought his advice in January 2025

as to the meaning of the provisions in the decree, and her motion to reopen was

filed with the court the following month.

1 In contrast, we note here for dissolution practitioners the clear wording contained in the QDRO provision of the Ryan/Janovsky property settlement: “It is understood that Wife’s benefits will be payable at such time as Husband receives his benefit.” Ryan, 999 N.E.2d at 897.

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 7 of 14 [13] Donald has not sufficiently demonstrated that Rebecca knew of a legal right

that she failed to exercise. The evidence shows that Rebecca’s delay in

pursuing the preparation and implementation of the QDROs was due to what

she now realizes was a misconception and misapprehension of the terms of the

parties’ decree. It is certainly not a novel concept that ordinary parties struggle

to understand legal terminology, legal theories, and court procedures. Rebecca

knew of her eventual right to the funds, but she misapprehended that it was

different timing than her survivor benefit in paragraph 5. And because Rebecca

did not know that her belief or understanding was flawed—in other words, the

gaps in her knowledge were unknown to her—she had no reason to seek legal

advice. Thus, we cannot say that Rebecca delayed in asserting a known right

such that the delay was inexcusable. See Gabriel, 947 N.E.2d at 1007 (finding

no demonstration that wife knew of legal right that she failed to exercise even

though she waited nearly ten years to petition to determine husband’s heirs and

assert claim to ownership of stock in business during which time locks to

husband’s business were changed).

[14] Furthermore, Donald has not established that he was prejudiced by the delay.

Donald is retired and receiving his retirement benefits. Without further

explanation, he testified generally that the fact that the QDROs had not been

put into place as set out in the parties’ decree probably factored into his

financial decisions over the years. Tr. Vol. 2, p. 50. More specifically,

however, when asked if circumstances with his money or property had changed

to his detriment, he responded, “No. I – I’ve been fortunate.” Id. at 54.

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 8 of 14 “Absent a showing of prejudice, laches cannot be established.” Ryan, 999

N.E.2d at 901.

[15] Donald also argues that Rebecca waived her right to receive the agreed-upon

portion of his retirement accounts. Waiver is the voluntary and intentional

relinquishment of a known right. Rokita v. Tully, 235 N.E.3d 189, 196 (Ind. Ct.

App. 2024), trans. denied.

[16] As set out above, Rebecca knew of her right to a portion of Donald’s retirement

funds but mistakenly thought that right did not accrue until he died. Donald

testified that Rebecca told him that “she wanted to stand on her own two feet”

and that “she was not particularly interested in my retirement funds other than

the [Ascension Health Pension Plan].” Tr. Vol. 2, p. 42. He stated that “it

appeared” to him that she did not want the funds. Id. at 49. Rebecca did not

recall stating this to Donald, and she confirmed that she did not in any way

intend to convey to Donald that she did not want her portion of the funds as set

out in paragraph 1 of their decree. Id. at 63-64. This evidence is insufficient to

establish an intentional relinquishment by Rebecca of her right to the funds.

[17] For these reasons, the evidence does not support Donald’s claim of laches or

waiver. While factually distinguishable, this Court’s rationale in Ryan, 999

N.E.2d 895 provides support for our decision here. In Ryan, the former wife

requested entry of a QDRO twenty years after the divorce. Though

inordinately delayed without explanation, the former wife’s request was not

barred by laches because there was no prejudice to the former husband as his

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 9 of 14 pension benefits were not yet payable. In addition, the former wife’s claim was

not waived because there was no evidence she had affirmatively volunteered to

relinquish her portion of the pension funds.

[18] In reversing the trial court’s denial of former wife’s effort to secure a QDRO,

we noted that former wife’s portion of the pension benefits arose from the

settlement agreement, not the QDRO; the QDRO merely effectuated former

wife’s right to be paid directly from the pension plan. Id. at 898. And allowing

former husband to retain the entirety of his pension benefits, contrary to the

parties’ agreement, lead to an inequitable result that could not stand. Id. at 898-

99.

[19] Similarly here, we conclude that the trial court erred by rejecting Rebecca’s

attempt to effectuate the property division as stated in the parties’ decree. If we

were to affirm the trial court’s order denying Rebecca relief, the result would be

a windfall to Donald who agreed and was ordered by the court in the parties’

decree of dissolution to share a portion of his retirement accounts. While a

delay of twenty years is inordinate, based on the evidence we cannot agree that

the delay was inexcusable or that it has caused the forfeiture of Rebecca’s right

to such funds. Rebecca’s right to those funds arises from the settlement

agreement such that she is entitled to those funds whether by QDRO or by

payments directly from Donald. See, e.g., id. at 901 (stating that even if statute

of limitation barred entry of QDRO such that former wife could not receive her

share of benefits directly from former husband’s pension plan, former wife

would still be entitled to payment of those amounts directly from former

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 10 of 14 husband pursuant to terms of settlement agreement). Accordingly, we conclude

the trial court abused its discretion when it denied Rebecca’s motion to reopen

the dissolution proceeding.

II. Judicial Bias or Prejudice [20] Rebecca next asserts that the cumulative effect of the judge’s comments and

questioning at the hearing on this matter demonstrated that he was biased 2 against her and resulted in fundamental error. Because Rebecca failed to

object to the trial judge’s remarks, she has waived the issue for our review. See

Husainy v. Granite Mgmt., LLC, 132 N.E.3d 486, 500 (Ind. Ct. App. 2019)

(holding tenant waived for appellate review argument that trial judge was

biased or prejudiced against him and should have disqualified himself where

tenant raised argument for first time on appeal).

[21] Waiver notwithstanding, the law presumes that a judge will be unbiased

regardless of the matter that comes before him. Chappey v. Storey, 204 N.E.3d

932, 939 (Ind. Ct. App. 2023), trans. denied. To rebut that presumption, the

party asserting bias must establish that the judge has a personal prejudice for or

against that party. Id. (quoting Harris v. Lafayette LIHTC, LP, 85 N.E.3d 871,

878 (Ind. Ct. App. 2017)). Stated another way, a party must show that the

2 We apply the fundamental error doctrine in civil cases only in limited situations not present here, such as civil commitments or terminations of parental rights, where liberty interests or parental rights are at issue. Johnson v. Wait, 947 N.E.2d 951, 959 (Ind. Ct. App. 2011), trans. denied.

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 11 of 14 judge’s action and demeanor crossed the barrier of impartiality and prejudiced

the party’s case. Id.

[22] Here, Rebecca claims the judge’s objection to a question asked of her by her

counsel on direct examination and question as to whether she was pursuing this

claim to supplement her retirement compromised his duty to remain impartial

and neutral. See Tr. Vol. 2, pp. 13, 33. “However, not all untoward remarks by

a judge constitute reversible error[;]” rather, the critical question is whether the

remarks harmed the complaining party. A.N. v. K.G., 3 N.E.3d 989, 996 (Ind.

Ct. App. 2014).

[23] Waiver notwithstanding, we are not persuaded that the judge’s comments

harmed Rebecca. The testimony the judge objected to was Rebecca’s “belief”

of what the parties’ decree stated. However, this evidence was later admitted

when, on cross-examination, Rebecca testified that she misunderstood the

language of the decree and assumed that none of the funds were available to her

until Donald’s death. Tr. Vol. 2, pp. 24, 25. Likewise, the judge’s comment

concerning Rebecca supplementing her retirement was a summary of her prior

testimony. She had testified she was unable to work as a nurse any longer due

to health issues, which caused her to become concerned about retirement and

her finances. Id. at 33. Thus, waiver aside, upon the record before us we

cannot say the judge’s remarks prejudiced Rebecca’s case. See Matheis v.

McEvilly, No. 24A-DR-2311, *6-7 (Ind. Ct. App. September 30, 2025) (mem.)

(holding that mother waived issue and deprived trial court of opportunity to

cure alleged bias by failing to object to court’s prejudicial statement before

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 12 of 14 hearing all the evidence, statement criticizing way she conducted her case, and

comments blaming her for father’s bad behavior).

[24] We do, however, take this opportunity to remind the trial judge that he must at

all times “‘maintain an impartial manner and refrain from acting as an advocate

for either party,’” J.W. v. Ind. Dep’t of Child Servs., 257 N.E.3d 1, 5 (Ind. Ct.

App. 2025) (quoting Chappey, 204 N.E.3d at 939), and that he is obligated to be

“patient, dignified, and courteous to litigants[.]” Ind. Code of Jud. Conduct,

Rule 2.8(B).

Conclusion [25] Based on the foregoing, we conclude that Rebecca’s request to obtain the

previously agreed on portion of Donald’s retirement accounts is not barred by

laches or waiver, and therefore the trial court abused its discretion in denying

her motion to reopen the dissolution proceeding. Further, Rebecca waived her

claim of bias by failing to object to the judge’s remarks. Thus, the trial court’s

order is therefore reversed, and this cause is remanded for further proceedings

consistent with this opinion.

[26] Reversed and remanded.

Tavitas, C.J., and Foley, J., concur.

ATTORNEY FOR APPELLANT Jessie D. Cobb-Dennard The Northside Law Firm

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 13 of 14 Westfield, Indiana

ATTORNEY FOR APPELLEE Laurie Baiden Bumb Bumb Law Office, LLC Evansville, Indiana

Court of Appeals of Indiana | Opinion 25A-DR-1970 | May 20, 2026 Page 14 of 14