Richard R. Hogshire v. Ursula Hoover (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 10, 2015
• Docket: 06A01-1312-DR-513
• Status: Published

Opinion

MEMORANDUM DECISION ON REHEARING Feb 10 2015, 10:09 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Preston T. Breunig Christopher M. Gilley Martha L. Westbrook Anderson, Indiana Buck Berry Landau & Breunig, P.A. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Richard R. Hogshire, February 10, 2015

Appellant-Petitioner, Court of Appeals Case No. 06A01-1312-DR-513 v. Appeal from the Boone Superior Court.

Ursula Hoover, The Honorable Matthew C. Kincaid, Judge. Appellee-Respondent. Cause No. 06D01-1202-DR-74

Riley, Judge.

MEMORANDUM DECISION ON REHEARING

[1] Appellant-Petitioner, Richard R. Hogshire (Husband) brought an interlocutory

appeal challenging the trial court’s Findings of Fact, Conclusions of Law and

Judgment (Judgment), in which it held Husband in contempt for failing to

Court of Appeals of Indiana | Memorandum Decision on Rehearing| 06A01-1312-DR-513 | February 10, 2015 Page 1 of 4 abide by several provisional orders concerning the dissolution of his marriage to

Appellee-Respondent, Ursula Hoover. In a memorandum decision, our court

affirmed the finding of contempt and remanded the case to the trial court with

instructions to recalculate Husband’s obligations. Hogshire v. Hoover, No.

06A01-1312-DR-513 (Ind. Ct. App. Oct. 9, 2014). Husband has petitioned for

rehearing, which we now grant for the limited purpose of clarifying our

standard of review.

[2] In claiming that the trial court erred by holding him in contempt, Husband

argued that the trial court’s findings of fact were “lacking, incomplete,

inadequate in form or content or do not cover the issues raised by the pleadings

or evidence.” Ind. Trial Rule 52(B)(2). Trial Rule 52(B) provides that the trial

court—either on its own motion prior to the deadline for filing a motion to

correct error, or at the request of a party “with or as part of a motion to correct

errors”—may “amend or make new findings of fact” if the required findings are

inadequate. T.R. 52(B)(2). Because neither the trial court moved sua sponte to

amend its findings, nor did Husband file a motion for new or modified findings,

we found Husband’s reliance on Trial Rule 52(B) to be misplaced. Instead, we

applied the customary Trial Rule 52(A) standard for reviewing a trial court’s

special findings: whether the evidence supports the findings, and whether those

findings support the judgment. T.R. 52(A). Under Trial Rule 52(A), we

uphold the trial court’s findings and judgment unless clearly erroneous.

[3] On rehearing, Husband contends that it was error for our court to apply the

clearly erroneous standard of review, instead asserting that a de novo review is

Court of Appeals of Indiana | Memorandum Decision on Rehearing| 06A01-1312-DR-513 | February 10, 2015 Page 2 of 4 appropriate. He directs our attention to the following excerpt from our

decision: “In the present case, Husband did not seek redress by raising the issue

of incomplete or inadequate findings in a motion to correct error and requesting

that the trial court amend its findings; thus, Trial Rule 52(B) is inapplicable.”

Hogshire, slip op. at 9. As Husband explains, Appellate Procedure Rule 14(A)

does not provide for the filing of a motion to correct error in an interlocutory

appeal. See Young v. Estate of Sweeney, 808 N.E.2d 1217, 1221 & n.6 (Ind. Ct.

App. 2004) (filing a motion to correct error does not extend the thirty-day

deadline to file a Notice of Appeal from an interlocutory order). Thus, he

argues that our court cannot require him to file a motion to correct error when

doing so would have resulted in waiving his right to file an interlocutory appeal.

[4] Contrary to Husband’s assertion, our opinion does not hold that he was

required to file a motion to correct error or otherwise fault him for failing to do

so. Rather, Rule 52(B) specifies that a party must move for an amendment of

findings “with or as part of a motion to correct errors.” Notwithstanding

whether Husband would have procedurally defaulted in his interlocutory appeal

by first filing a motion to correct error, Trial Rule 52(B) is inapposite. It is

apparent that Trial Rule 52(B) is intended to afford the trial court an

opportunity to amend its own findings prior to the filing of an appeal. Hubbard

v. Hubbard, 690 N.E.2d 1219, 1221-22 (Ind. Ct. App. 1998). Thus, absent sua

sponte action by trial court, Rule 52(B) only applies if a party directly requests

the trial court to modify its findings. It is not a mechanism by which an

appellate court may amend the trial court’s special findings.

Court of Appeals of Indiana | Memorandum Decision on Rehearing| 06A01-1312-DR-513 | February 10, 2015 Page 3 of 4 [5] Here, Husband did not (or procedurally could not) move for the trial court to

correct its own findings of fact. Instead, he properly challenged the propriety of

those findings via an interlocutory appeal. See T.R. 52(B) (declining to pursue

modification of findings directly with the trial court does not waive the right to

challenge those findings on appeal). It is well-established that when a trial

court’s factual findings are challenged on appeal, our court applies Trial Rule

52(A) and will reverse only if clearly erroneous. Hart v. Steel Products, Inc., 666

N.E.2d 1270, 1278 (Ind. Ct. App. 1996), trans. denied. Husband correctly posits

that a failure to find a material fact may not be resolved by presumption. T.R.

52(D). However if a trial court fails to render findings on all of the issues

requested by a party, the appropriate remedy on appeal is to remand for specific

findings. Id. In this case, no such remand is necessary as we found that the

trial court issued sufficient findings to support its determination of contempt.

Accordingly, because the trial court did not have an opportunity to amend its

own findings prior to appeal, Trial Rule 52(B) does not apply, and Trial Rule

52(A) is the appropriate standard of review.

CONCLUSION

[6] We grant Husband’s petition for rehearing for the limited purpose of clarifying

the basis for utilizing Trial Rule 52(A) as the standard of review. We affirm our

opinion in all other respects.

[7] Mathias, J. and Crone, J. concur

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