Opinion
Court of Appeals Case No. 23A-DC-282
09-18-2023
Thomas BEHLING, Sr., Appellant-Petitioner, v. Joyce BEHLING, Appellee-Respondent
Crone, Judge, dissenting.
[1] In holding that Husband is not entitled to equitable relief, the majority is apparently untroubled that both Wife and her attorney fraudulently stated in two interrogatory responses, under penalty of perjury, that Wife had no interest in any accounts as of the date of final separation. The majority also seems unconcerned that Wife's attorney violated her duty under Indiana Trial Rule 26(E)(2)(a) to seasonably amend those responses, which were incorrect when made, as well as her corresponding duty of candor toward the tribunal, which resulted in a fraud upon the court. See Ind. R. Prof. Conduct 3.3(a)(3) (providing that if lawyer or client "has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal"). To be sure, Husband's attorney was less than diligent in reviewing the 720-page document dump from Wife's attorney. But, given the fraudulent interrogatory responses, he would not have been on the lookout for evidence regarding Wife's accounts, which constituted a sizable portion of the marital estate.
Treating Husband's "Motion for Nunc Pro Tunc and Attorney's Conference" as anything other than a Trial Rule 60(B) motion for relief from judgment improperly elevates form over substance.
[2] Indiana Trial Rule 60(B) provides that a court may relieve a party from a judgment "upon such terms as are just[,]" and justice in this case requires a remand to divide and allocate the more than $215,000 in Wife's accounts, which would have been done the first time around if Wife's attorney had fulfilled her duty to apprise the trial court of their existence. See Elkhart Cnty. Dep't of Pub. Welfare v. Kehr , 124 Ind. App. 325, 333, 112 N.E.2d 451, 454 (1953) (stating that a court's "primary purpose ... is to render justice"). To do otherwise rewards Wife for her fraudulent responses to Husband's interrogatories.
The parties’ final agreement does not contain a general setoff provision in Wife's favor, so the accounts could not be said to have been divided and allocated by implication.