Robert Hammitt v. Sarah Hammitt (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 4, 2020
• Docket: 19A-DN-2401
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 04 2020, 8:07 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT David W. Stone IV Anderson, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert Hammitt, March 4, 2020 Appellant-Petitioner, Court of Appeals Case No. 19A-DN-2401 v. Appeal from the Grant Superior Court Sarah Hammitt, The Honorable Appellee-Respondent Jeffrey D. Todd, Judge Trial Court Cause No. 27D01-1805-DN-117

Vaidik, Judge.

Case Summary Robert Hammitt (“Husband”) appeals the trial court’s decree dissolving his

marriage to Sarah Hammitt (“Wife”). We affirm.

Court of Appeals of Indiana | Memorandum Decision 19A-DN-2401 | March 4, 2020 Page 1 of 5 Facts and Procedural History [1] Husband and Wife married in 1992. They owned a house in Grant County and

a trailer in Texas. In May 2018, when Husband was seventy-nine years old and

Wife was seventy-eight, Husband filed for divorce. At the time of filing, the

parties had a mortgage on the house, a loan for Wife’s van, and credit-card

debt. Husband requested provisional orders, and the trial court scheduled a

hearing for August 23. On the day of the hearing, the parties and their

attorneys met in the hallway and reached the following agreement:

1. The parties shall file BKR [bankruptcy] as Husband & Wife & agree to split attorney fees and court costs.

2. The parties agree that as final decree, all property shall be sold unless agreed otherwise.

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4. The parties agree that atty fees for [Husband] & [Wife] shall be paid from the proceeds from the sale of the property.

5. Pending sale of residence, [Wife] shall reside in the house & [Husband] shall reside in the 5th wheel. [Husband] shall not enter the residence unless invited.

Appellant’s App. Vol. II pp. 16-17. The agreement was submitted to the court

and approved.

[2] Approximately eight months later, Husband filed a “Petition to Sell Property,”

in which he claimed that Wife was “not complying with the agreement” and Court of Appeals of Indiana | Memorandum Decision 19A-DN-2401 | March 4, 2020 Page 2 of 5 asked the trial court for an order to “sell the property.” Id. at 18. Shortly

thereafter, Wife’s attorney withdrew from the case. A hearing was held on

Husband’s Petition to Sell Property in June 2019. Husband appeared by

counsel, and Wife, who was representing herself, appeared telephonically from

Texas, where she was completing medical treatment following surgery.

Husband asked the court for an order to sell “the property.” Tr. p. 10. Wife

admitted that the agreement provides that “the property” would be sold but said

that she made that agreement “before [she] go[t] sick” and had to be

hospitalized. Id. Following the hearing, the court entered an order denying

Husband’s petition, reasoning: “In light of the fact that this divorce has not yet

been finalized, the Court denies [Husband’s] Petition to Sell Property. To grant

[Husband’s] petition would be a partial disposition of the marital estate.”

Appellant’s App. Vol. II p. 21.

[3] A final hearing was held in September. Husband appeared by counsel, and

Wife appeared pro se. Wife asked the court to let her keep the house because

she had nowhere else to go. See Tr. p. 32 (“[W]here’s an eighty year old

woman gonna go?”). Husband asked that the house and the trailer in Texas be

sold and that “they each keep the personal property that they have.” Id. at 41.

Husband did not ask the court to address bankruptcy in the divorce decree.

When the court asked Husband why he was not asking for all property to be

sold, Husband acknowledged that’s what the agreement provides but said that

he had changed his mind and only wanted the house and the trailer in Texas to

be sold. Id. at 41-42. The court took the matter under advisement and later

Court of Appeals of Indiana | Memorandum Decision 19A-DN-2401 | March 4, 2020 Page 3 of 5 issued a divorce decree. According to the decree, the parties are entitled to the

personal property in their possession, Wife is entitled to the house, and

Husband is entitled to the trailer in Texas. In addition, Wife is responsible for

the mortgage on the house, all credit-card debt, and the loan for her van.

[4] Husband now appeals.

Discussion and Decision [5] We first note that Wife has not filed an appellee’s brief. When the appellee fails

to submit a brief, we will not develop an argument on her behalf but, instead,

we may reverse the trial court’s judgment if the appellant’s brief presents a case

of prima facie error. GEICO Ins. Co. v. Graham, 14 N.E.3d 854, 857 (Ind. Ct.

App. 2014).

[6] Husband makes one argument on appeal: the trial court erred by not

incorporating the parties’ August 2018 agreement into the divorce decree. The

problem with Husband’s argument is that neither he nor Wife asked the court

to incorporate the agreement into the decree. Wife asked the court not to order

the house to be sold and to award it to her instead, and Husband only asked for

the house and the trailer in Texas to be sold. Husband acknowledged that the

agreement provides that all property would be sold but said that he had changed

his mind. In addition, Husband did not ask the court to address bankruptcy,

which the agreement also addresses. If the trial court erred by not incorporating

the whole agreement into the decree (which we don’t think it did), Husband

Court of Appeals of Indiana | Memorandum Decision 19A-DN-2401 | March 4, 2020 Page 4 of 5 invited this error. See Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019).

Husband cannot now be heard to complain that the court erred by not

incorporating the agreement into the decree.

[7] Affirmed.

Najam, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-DN-2401 | March 4, 2020 Page 5 of 5