Richard Hoffman v. Rhonda Hoffman (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 16, 2016
• Docket: 02A03-1511-DR-1996
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 16 2016, 10:33 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

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

APPELLANT PRO SE ATTORNEY FOR APPELLEE Richard Hoffman Roberta L. Renbarger Hoagland, Indiana Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

Richard Hoffman, June 16, 2016 Appellant-Respondent, Court of Appeals Cause No. 02A03-1511-DR-1996 v. Appeal from the Allen Superior Court Rhonda Hoffman, The Honorable Charles F. Pratt, Appellee-Petitioner. Judge Trial Court Cause No. 02D08-1408-DR-1165

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1511-DR-1996 | June 16, 2016 Page 1 of 5 Case Summary [1] Richard Hoffman appeals the denial of his petition to annul his marriage to

Rhonda Hoffman. We dismiss.

Issue [2] The sole issue we need address is whether this court has jurisdiction to consider

Richard’s appeal.

Facts [3] Richard and Rhonda were married in 2009. On the parties’ marriage license

application, Rhonda stated that she had previously been married four times and

that her last marriage had ended by annulment. Rhonda had previously been

married five times. Her last marriage to Curtis Lohr was annulled in 2003 as

void because Lohr was still married to another person at the time of his

purported marriage to Rhonda.

[4] Rhonda petitioned for divorce from Richard in September 2014. On February

27, 2015, Richard filed a petition to annul his marriage to Rhonda; the petition

was filed as part of the dissolution proceedings and under the same cause

number. In the petition, Richard alleged his marriage to Rhonda was void due

to fraud. Specifically, Richard claimed Rhonda had misled him into thinking

she had previously been married four times rather than five. On October 22,

2015, after conducting a hearing on the matter, the trial court denied Richard’s

annulment petition. Richard then initiated an appeal from this ruling.

Court of Appeals of Indiana | Memorandum Decision 02A03-1511-DR-1996 | June 16, 2016 Page 2 of 5 According to the trial court’s docket, the parties’ final dissolution hearing is to

be held on September 6, 2016.

Analysis [5] Richard contends the evidence is clear that Rhonda entered misleading

information on the parties’ marriage license application regarding the number

of times she previously had been married, thus rendering their marriage void.

Rhonda responds that, because her last marriage was ended by annulment, it is

considered a legal nullity and her statement on the license application that she

previously had been married four times, not five, was accurate.

[6] We will not resolve the merits of this dispute at this time. By rule, this court

“shall have jurisdiction in all appeals from Final Judgments of Circuit,

Superior, Probate, and County Courts, notwithstanding any law, statute or rule

providing for appeal directly to the Supreme Court of Indiana.” Ind. Appellate

Rule 5(A). We also have jurisdiction to entertain interlocutory appeals in

accordance with Indiana Appellate Rule 14. Ind. App. R. 5(B). According to

Indiana Appellate Rule 2(H):

A judgment is a final judgment if:

(1) it disposes of all claims as to all parties;

(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties,

Court of Appeals of Indiana | Memorandum Decision 02A03-1511-DR-1996 | June 16, 2016 Page 3 of 5 or (ii) under Trial Rule 56(C) as to fewer than all the issues, claims or parties;

(3) it is deemed final under Trial Rule 60(C);

(4) it is a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under Trial Rule 59 or Criminal Rule 16; or

(5) it is otherwise deemed final by law.

[7] “Whether an order is a final judgment governs this court’s subject matter

jurisdiction.” In re Estate of Botkins, 970 N.E.2d 164, 166 (Ind. Ct. App. 2012)

(citing Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003)). The lack of

appellate subject matter jurisdiction may be raised at any time, and we may

consider the issue sua sponte even if not raised by the parties. Id.

[8] Here, Richard filed his petition for annulment as part and parcel of the

dissolution proceedings initiated by Rhonda. After denial of the annulment

petition, those proceedings are ongoing. Final resolution of the rights and

responsibilities between the parties remains incomplete. In other words, denial

of the annulment petition did not dispose of all the claims between the parties.

The trial court did not use the “magic language” of Trial Rule 54(B) needed for

an order to be deemed final, and thus denial of the annulment petition was

interlocutory in nature. See id. at 167. Although certain interlocutory orders

are appealable as of right, denial of the annulment petition does not fall within

Court of Appeals of Indiana | Memorandum Decision 02A03-1511-DR-1996 | June 16, 2016 Page 4 of 5 any of those categories.1 And, Richard did not follow the dictates of Indiana

Appellate Rule 14(B) to pursue a discretionary interlocutory appeal. We lack

subject matter jurisdiction to consider Richard’s appeal and must dismiss. See

id. at 168.

Conclusion [9] The denial of Richard’s annulment petition was not a final appealable order,

nor subject to interlocutory appeal as of right, and he did not seek permission to

file a discretionary interlocutory appeal. We dismiss.

[10] Dismissed.

Vaidik, C.J., and Mathias, J., concur.

1 Indiana Appellate Rule 14(A) lists the following types of interlocutory orders that are appealable as of right:

(1) For the payment of money; (2) To compel the execution of any document; (3) To compel the delivery or assignment of any securities, evidence of debt, documents or things in action; (4) For the sale or delivery of the possession of real property; (5) Granting or refusing to grant, dissolving, or refusing to dissolve a preliminary injunction; (6) Appointing or refusing to appoint a receiver, or revoking or refusing to revoke the appointment of a receiver; (7) For a writ of habeas corpus not otherwise authorized to be taken directly to the Supreme Court; (8) Transferring or refusing to transfer a case under Trial Rule 75; and (9) Issued by an Administrative Agency that by statute is expressly required to be appealed as a mandatory interlocutory appeal.

Court of Appeals of Indiana | Memorandum Decision 02A03-1511-DR-1996 | June 16, 2016 Page 5 of 5