Opinion
23A-DR-1915
08-02-2024
In re: the Marriage of: Jeffrey Sharp, Appellant-Respondent v. Shiela Sharp, Appellee-Petitioner
Attorney for Appellant Caroline B. Briggs Lafayette, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Jasper Circuit Court The Honorable Crystal Brucker Kocher, Special Judge Trial Court Cause No. 37C01-1410-DR-874
Attorney for Appellant Caroline B. Briggs Lafayette, Indiana
MEMORANDUM DECISION
MAY, JUDGE
[¶1] Jeffrey Sharp ("Husband") appeals following the trial court's denial of his petition for a rule to show cause why Shiela Sharp ("Wife") should not be held in contempt. We dismiss Husband's appeal for lack of jurisdiction.
Facts and Procedural History
[¶2] Husband and Wife married on September 8, 1994. During the marriage, Husband and Wife bought three parcels of real estate in Belize. The couple also bought over 30,000 board feet of Belizean hardwood and shipped the wood back to Indiana. The wood included thirteen different species of hardwood. Husband and Wife eventually separated, and Wife filed a petition for dissolution of marriage on October 28, 2014. At some point, Husband sold the Belizean hardwood to his friend Bradley Crum for $5,000.00.
A board foot is a unit of quantity for lumber equal to the volume of a board that is twelve inches long, twelve inches wide, and one inch thick. MERRIAM-WEBSTER, Definition of "board foot", https://www.merriam-webster.com/dictionary/board%20feet [https://perma.cc/3HYU-5THP].
[¶3] On June 24, 2015, the trial court entered a partial judgment that dissolved the marriage, and on October 28, 2015, the trial court issued the final order dividing the marital property. The final order provided that "Wife shall obtain the wood and move the same to another location or if possible sell the wood from its existing location. The Wife shall inventory the wood and document to whom the wood is sold and the sale price of the wood." (App. Vol. 2 at 40.) The order also provided that the proceeds from the sale of the wood would first be used to pay off the couple's joint tax debts and then any remainder would be divided 60% to Wife and 40% to Husband. In addition, the trial court awarded Wife two of the three parcels of real estate in Belize, and it gave the remaining parcel to Husband.
[¶4] Crum intervened in the divorce action to contest the order directing Wife to take possession of the hardwood and sell it, but Crum eventually agreed to allow Husband and Wife to retake possession of the hardwood if they reimbursed him the $5,000.00 he spent to acquire it. On October 17, 2017, the trial court issued an order directing Husband and Wife to evenly split the reimbursement cost to be paid to Crum. Husband never paid his portion of the cost, and Wife paid Crum $5,000.00 to reacquire possession of the wood. She then transported the wood to a warehouse in Rensselaer, Indiana.
[¶5] On August 19, 2019, the trial court issued an order "setting Parcel 841, also known as Lot 35 in Belize, over to the former Wife due to former Husbands [sic] sale of property [in Belize] awarded to former Wife." (Id. at 33.) Husband appealed that order, and a different panel of this Court affirmed the trial court. Sharp v. Scott, 19A-DR-2131, 2020 WL 253176 (Ind.Ct.App. Jan. 17, 2020).
[¶6] On November 23, 2022, Husband filed a petition for rule to show cause. He alleged that Wife should be held in indirect contempt because she had not yet sold the Belizean hardwood. He also alleged Wife was in contempt for selling Lot 35 in Belize. The trial court held a hearing on Husband's petition on December 2, 2022, and Wife testified at the hearing regarding her unsuccessful efforts to sell the hardwood. On February 7, 2023, the trial court issued its order denying Husband's petition for a rule to show cause. The trial court explained:
Considering the former Wife has attempted to fulfill the order of this Court to the best of her ability, and these attempts are unrefuted, while not satisfactory, to the former Husband, the Court finds the former Wife is not in contempt of the Court's order regarding the exotic wood. The Court further notes the former Wife testified the former Wife has expended a substantial amount of funds to secure, remove and transport, and store the wood.
However, the Court notes it is in the best interest of both parties for the wood to be inventoried and sold as soon as possible in order to obtain some proceeds for the asset and to satisfy any outstanding tax debt. Therefore, the Court orders each party to submit a proposed list of a minimum of 3 viable individuals/companies, with estimated expenses and credentials for review by this Court.(App. Vol. 2 at 31-32.) The trial court also found that Husband could not challenge Wife's sale of Lot #35 because that issue had already been litigated by the parties.
[¶7] On February 28, 2023, both Husband and Wife submitted their lists of individuals/companies that they believed could either inventory or purchase the hardwood. On March 8, 2023, Husband filed a motion, purportedly pursuant to Trial Rule 59, to correct alleged errors in the court's February 7 order denying Husband's show cause motion. On March 16, 2023, the trial court issued an order directing the parties to strike from a list of six individuals it believed could inventory or purchase the hardwood. Both Husband and Wife struck individuals from the trial court's list, but the parties also indicated they had trouble contacting the individuals on the trial court's list. On April 21, 2023, Husband filed a request for a hearing on this issue of selecting someone to inventory/purchase the wood, but after the trial court granted Husband's motion to set a hearing on that issue, Husband asked for the hearing to be continued and it has not yet occurred. On May 19, 2023, Husband filed notice that the parties agreed to extend the time for the trial court to rule on Husband's purported motion to correct error. The trial court never ruled on the motion, and Husband filed his notice of appeal on August 18, 2023.
The chronological case summary indicates that on April 27, 2023, the trial court set the hearing to occur on July 19, 2023. The hearing was subsequently rescheduled to occur on July 26, 2023. The court later vacated that date and reset the hearing for November 8, 2023. Husband moved to continue the November 8 hearing, and the trial court reset the hearing for January 31, 2024. Husband then moved to continue that hearing as well, and the trial court reset the matter for July 17, 2024. Husband also moved to continue the July 17 hearing, and the trial court reset the hearing to occur on September 24, 2024.
Discussion and Decision
[¶8] Initially, we note that Wife did not file an appellee's brief. "When an appellee fails to file a brief, we may reverse the trial court's decision if the appellant demonstrates a prima facie case of reversible error. Prima facie means at first sight, on first appearance, or on the face of it." Bergman v. Zempel, 807 N.E.2d 146, 149 (Ind.Ct.App. 2004) (internal citation and quotation marks omitted). We will not develop an argument on the appellee's behalf because the burden of controverting the appellant's arguments properly rests with the appellee. Id.
[¶9] Husband asserts the trial court abused its discretion by not finding Wife in indirect contempt. However, "[w]e may dismiss appeals sua sponte upon discovering that we do not have jurisdiction." Cerajewski v. Kieffner, 966 N.E.2d 173, 176 (Ind.Ct.App. 2012). Husband asserts in his notice of appeal that he is appealing from a final judgment. Indiana Appellate Rule 5 gives us jurisdiction over most appeals from final judgments. A judgment is final if it "disposes of all claims as to all parties[.]" Ind.App. R. 2(H)(1). A final judgment disposes of the issues "to the full extent of the court to dispose of the same, and puts an end to the particular case as to all of such parties and all of such issues. A final judgment reserves no further question or direction for future determination." Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind.Ct.App. 2002) (internal quotation marks and citations omitted).
[¶10] Here, the trial court's order denying Husband's petition for a rule to show cause did not dispose of all claims as to all parties because the matter of appointing an authority to inventory and/or purchase the wood remained before the trial court. The trial court ordered each party to file with the court a list of individuals/entities who could potentially inventory and/or purchase the wood, and the trial court has set a hearing on that issue multiple times with each setting being continued on Husband's motion. Thus, the trial court has not disposed of all issues as to all parties. See, e.g., Bacon v. Bacon, 877 N.E.2d 801, 804 (Ind.Ct.App. 2007) (order appointing parenting time coordinator was not a final order disposing of all claims as to all parties), reh'g denied, trans. denied.
[¶11] Indiana Appellate Rule 2(H)(4) provides that a judgment is a final judgment if "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[.]" Husband filed a purported motion to correct error after the trial court denied his motion for a rule to show cause. However, "motions to correct error are proper only after the entry of final judgment; any such motion filed prior to the entry of final judgment must be viewed as a motion to reconsider." Snyder v. Snyder, 62 N.E.3d 455, 458 (Ind.Ct.App. 2016). Thus, Husband's purported filing of a motion to correct error did not transform the trial court's nonfinal order into a final order. See, e.g., Bayless v. Bayless, 580 N.E.2d 962, 966 (Ind.Ct.App. 1991) (dismissing appeal because it was an improper appeal of an interlocutory order despite appellant's filing of a purported motion to correct error), reh'g denied, trans. denied.
Appellate Rule 2(H) also states:
A judgment is a final judgment if:
(2) the trial court writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason 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, 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);
(5) it is otherwise deemed final by law.However, the trial court did not expressly direct an entry of judgment in its order on Husband's motion for rule to show cause and neither Appellate Rule 2(H)(3) nor 2(H)(5) apply.
[¶12] Indiana Appellate Rule 14(A) provides that appeals from certain interlocutory orders may be taken as a matter of right, but an order denying a motion for rule to show cause is not one of those orders. Likewise, Husband never sought to have the order certified by the trial court for a discretionary interlocutory appeal. See Ind.App. R. 14(B) ("An appeal may be taken from other interlocutory orders if the trial court certifies its order and the Court of Appeals accepts jurisdiction over the appeal.").
[¶13] Because Husband appeals an interlocutory order without taking the steps required to properly bring the order before us, we lack jurisdiction over Husband's appeal, and we accordingly dismiss. See, e.g., Snyder, 62 N.E.3d at 459 (holding order denying husband's motion to reconsider divorce decree was not a final, appealable order and dismissing his appeal).
Conclusion
[¶14] We lack jurisdiction over Husband's appeal because it is neither an appeal from a final judgment nor a permissible interlocutory appeal. Accordingly, we dismiss.
[¶15] Dismissed.
Vaidik, J., and Kenworthy, J., concur.