Opinion
22A-DN-185
09-02-2022
James Diamond, Appellant, v. Cassandra Schwartz, Appellee.
ATTORNEY FOR APPELLANT Alexander N. Mosely Ciyou and Dixon, P.C. ATTORNEY FOR APPELLEE Carolyn E. Powers
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.
Appeal from the Marion Superior Court The Honorable Alicia A. Gooden, Judge Trial Court Cause No. 49D14-2010-DN-37095 Bailey, Judge.
ATTORNEY FOR APPELLANT
Alexander N. Mosely
Ciyou and Dixon, P.C.
ATTORNEY FOR APPELLEE
Carolyn E. Powers
MEMORANDUM DECISION
Case Summary
[¶1] James Diamond ("Husband") appeals the trial court's denial of his Trial Rule 60(B) motion for relief from judgment following the trial court's dissolution of his marriage to Cassandra Schwartz ("Wife") and division of assets in Wife's favor. Husband raises one issue for our review, namely, whether the trial court abused its discretion when it denied his motion for relief from judgment. In addition, Wife requests appellate attorney's fees. We affirm the trial court's order, and we deny Wife's request for appellate attorney's fees.
Facts and Procedural History
[¶2] Husband and Wife were married on September 28, 2018. On October 20, 2020, Wife filed a petition to dissolve the marriage. On November 18, while represented by counsel, Husband and Wife entered into an Agreed Preliminary Order in which they made agreements regarding the temporary division of certain property. On January 18, 2021, Wife served Husband with discovery requests. Despite an enlargement of time, Husband failed to respond. Accordingly, on May 19, Wife filed a motion to compel discovery and for sanctions.
[¶3] On June 6, the court held a status conference at which it ordered Husband to comply with the discovery requests by June 11. Husband again failed to respond. Wife then filed a motion for rule to show cause. On July 23, Husband's attorney filed a motion to withdraw her appearance. In support of that motion, Husband's attorney attached a letter she had sent to Husband on June 24 indicating her intent to withdraw and informing Husband that the "Final Hearing date [on Wife's dissolution petition] is scheduled for August 9, 2021, at 10:00 a.m." Appellant's App. Vol. 2 at 30. The court granted the attorney's motion to withdraw. On July 26, the court issued an order for sanctions and precluded Husband from entering any evidence at the final hearing.
[¶4] The court held the final hearing on August 9. Husband again failed to appear. Despite Husband's absence, the court held the fact-finding hearing, and Wife testified and presented exhibits. On August 13, the court issued its decree of dissolution in which it dissolved the marriage and awarded the majority of the marital estate to Wife.
[¶5] Thereafter, on September 14, Husband filed a motion for relief from judgment pursuant to Indiana Trial Rule 60(B). Husband asserted that he "was not present at the hearing because he did not receive notice by U.S. mail until two days after the hearing." Appellant's App. Vol. 2 at 35. In addition, he asserted that, "[a]llowing a divorce decree, especially one so [one-]sided, is against not only statute but public policy[.]" Id. at 36.
[¶6] Following a hearing, the court entered findings of fact and conclusions thereon denying Husband's motion for relief from judgment. In particular, the court found that "Husband was aware of these proceedings" but nonetheless failed to appear at the final hearing. Appellant's App. Vol. 2 at 16. The court then concluded that "Husband's failure to appear was not due to mistake, surprise, or excusable neglect nor any ground for a motion to correct error." Id. at 19. The court also concluded that "Husband has not demonstrated that a different result would be reached if a new hearing were held (i.e. that the marital estate would be divided differently)." Id. Accordingly, the court denied Husband's motion for relief from judgment. This appeal ensued.
Discussion and Decision
Motion for Relief from Judgment
[¶7] Husband alleges that the trial court abused its discretion when it denied his motion for relief from judgment. Indiana Trial Rule 60(B)(1) provides that the court may relieve a party from a judgment based on a party's "mistake, surprise, or excusable neglect" if motion is timely filed and alleges "a meritorious claim or defense." "A motion under Rule 60(B)(1) does not attack the substantive, legal merits of a judgment, but rather addresses the procedural, equitable grounds justifying the relief from the finality of a judgment." KWD Industrias SA DE CV v. IPM LLC, 129 N.E.3d 276, 281 (Ind.Ct.App. 2019). We review the grant of a Trial Rule 60(B) motion for relief from judgment for an abuse of discretion. E.g., Sanders Kennels, Inc. v. Lane, 153 N.E.3d 262, 267 (Ind.Ct.App. 2020). "An abuse of discretion occurs where the trial court's judgment is clearly against the logic and effect of the facts and inferences supporting the judgment for relief." Id. (citation omitted).
[¶8] Further, where, as here, the court enters findings of fact and conclusions thereon,
our standard of review is two-tiered: we determine whether the evidence supports the trial court's findings, and whether the findings support the judgment. We will not disturb the trial court's findings or judgment unless they are clearly erroneous. Findings of fact are clearly erroneous when the record lacks any reasonable inference from the evidence to support them. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. We will neither reweigh evidence nor judge the credibility of witnesses, considering instead only the evidence favorable to the judgment and all reasonable inferences to be drawn therefrom.Fields v. Safway Grp. Holdings, LLC, 118 N.E.3d 804, 809 (Ind.Ct.App. 2019) (internal citations omitted).
[¶9] Husband first asserts that the court abused its discretion when it denied his motion because he "was in and out of the hospital multiple times" prior to the final hearing and that he was not informed of the final hearing date "until the day after the hearing had concluded." Appellant's Br. at 10. In essence, Husband contends that he established excusable neglect for failing to appear because he was unaware of the hearing date.
[¶10] But contrary to Husband's contentions, the record establishes that he was aware of the final hearing. On June 2, 2021, the court noted on its CCS: "Final Dissolution Hearing scheduled for 08/09/2021 at 10:00 AM." Appellant's App. Vol. 2 at 6 (italics removed). And it is well settled that "the trial court speaks through its CCS or docket[.]" City of Indianapolis v. Hicks, 932 N.E.2d 227, 233 (Ind.Ct.App. 2010). Further, on June 24, Husband's attorney sent Husband a letter in which she stated her intent to withdraw her appearance. In that letter, Husband's attorney explicitly stated that the "Final Hearing date is scheduled for August 9, 2021, at 10:00 a.m." Appellant's App. Vol. 2 at 30. And, at the final hearing, Wife's attorney indicated that she had contacted Husband the week prior and had left a voicemail "reminding him of the hearing[.]" Tr. at 5. Further, as the trial court found, while Husband asserted that he had been in and out of the hospital such that he did not receive notice of the hearing, he did not submit any evidence to support that assertion. Husband's argument on appeal is simply a request for us to reweigh the evidence, which we cannot do. Husband has failed to demonstrate excusable neglect.
There were multiple transcripts filed with the record on appeal. However, we only cite to "Transcript 8-921 *Amended*." For ease of reference, we cite to that document as "Tr."
[¶11] In addition, Husband has failed to make a prime facie showing of a meritorious claim or defense. In order to make such a showing, the movant is not required to prove a meritorious defense but "need only present evidence that, if credited, demonstrates that a different result would be reached if the case were retried on the merits and that it is unjust to allow the judgment to stand." Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 73-74 (Ind. 2006).
[¶12] Here, Husband baldly asserts that "his presence at the final dissolution hearing could have prevented the court from awarding nearly 100% of the marital estate to Wife, based upon the presumption for [equally] dividing the martial estate in Indiana." Appellant's Br. at 10. We cannot agree. First, the trial court held a fact-finding hearing, heard testimony and reviewed exhibits, and considered the matter on the merits before it divided the marital property as it did. Second, Husband disregards the fact that the court had previously issued an order precluding him from submitting any of his own evidence-which order Husband did not challenge-based on his failure to comply with the rules of discovery. Finally, while Husband is correct that there is a "presumption of equal division" of marital assets, he does not acknowledge that that presumption "may be rebutted[.]" In re Marriage of Marek, 47 N.E.3d 1283, 1288 (Ind.Ct.App. 2016). And Husband has not provided any argument to explain why the court was not free to deviate from that presumption based on Wife's evidence, which included her own sworn statements that she had acquired several pieces of real property using money from an inheritance. Stated differently, because he was precluded from submitting evidence, Husband has not made a prima facie showing that the result of the proceedings would have been different had he appeared.
[¶13] Husband has not shown excusable neglect or made a prima facie showing of a meritorious defense. As such, the trial court did not abuse its discretion when it denied his motion for relief from judgment.
Appellate Attorney's Fees
[¶14] Next, Wife requests appellate attorney's fees under Appellate Rule 66(E), which provides that this Court "may assess damages if an appeal . . . is frivolous or in bad faith." However, such a sanction "is limited to circumstances where the appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay." Bousum v. Bousum, 173 N.E.3d 289, 293 (Ind.Ct.App. 2021) (quotation and citation omitted). "A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious." Kroger Co. v. WC Assoc., LLC, 967 N.E.2d 29, 40 (Ind.Ct.App. 2012) (citation omitted), trans. denied. "As a general proposition, a finding of bad faith requires evidence of a state of mind reflecting dishonest purpose, moral obliquity, furtive design, or ill will." Id.
[¶15] Moreover, we must be mindful that
the imposition of punitive sanctions does have significant negative consequences. It may punish, and will deter, the proper exercise of a lawyer's professional responsibility to argue for modification or reversal of existing law. It will have a chilling effect upon the exercise of the right to appeal. It will discourage innovation and inhibit the opportunity for periodic reevaluation of controlling precedent.Orr v. Turco Mfg. Co., Inc., 512 N.E.2d 151, 152 (Ind. 1987).
[¶16] In support of her request for appellate attorney's fees, Wife contends that Husband failed "to provide this Court with any facts most favorable to the Trial Court's Judgment[.]" Appellee's Br. at 16. And Wife asserts that Husband "has failed to support his contentions with cogent argument or citations to caselaw and his arguments are utterly devoid of plausibility." Id. Be that as it may, we cannot say that Husband's appeal shows "a state of mind reflecting dishonest purpose, moral obliquity, furtive design, or ill will." Kroger, 967 N.E.2d at 40. Nor can we say that there is something more egregious than a lack of merit. Accordingly, we deny Wife's request for appellate attorney's fees.
Conclusion
[¶17] The trial court did not abuse its discretion when it denied Husband's motion for relief from judgment. And we deny Wife's request for appellate attorney's fees.
[¶18] Affirmed.
Riley, J., and Vaidik, J., concur.