FOR PUBLICATION
ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
MAURICE E. DOLL JOHN D. CLOUSE
Doll Webster & Carnahan JOHN P. BRINSON
Vincennes, Indiana Evansville, Indiana
IN THE COURT OF APPEALS OF INDIANA
JAMES ROBERT ROHRER, D.O., )
)
Appellant-Respondent, )
)
vs. ) No. 42A05-9812-CV-610
)
LINDA CLARK ROHRER, )
)
Appellee-Petitioner. )
APPEAL FROM THE KNOX SUPERIOR COURT
The Honorable Murphey C. Land, Judge
Cause No. 42D01-9604-DR-18
September 5, 2000
FRIEDLANDER, Judge
On cross-appeal, as restated, Linda poses two issues:
Did the trial court err by hearing additional evidence regarding Jamess post-separation expenses
subsequent to its judgment on the first motion to correct error?
Did the trial court err by awarding James $62,263.43 for his post-separation expenses?
We affirm in part, and reverse and remand in part.
The facts disclose that the parties marriage was dissolved after a four-day trial
in October 1997. Linda presented evidence, largely based upon a letter written
by James, that James intentionally incurred expenses, while the dissolution proceedings were pending,
in an effort to deplete Lindas portion of the marital estate. The
trial court entered its dissolution decree on November 6, 1997. The trial
court incorporated its trial notes and rough findings into the order. Record
at 24; Supplemental Record at 239. The trial court valued the property
and ordered an equal distribution of assets. The final distribution of some
assets was contingent upon their sale at auction. The trial court appointed
a trustee to supervise the auction and administer the proceeds. The court
ordered an equal distribution of the proceeds from the auction. The trial
court rejected Jamess contention that he incurred significant expenses in order to maintain
some marital assets while the dissolution proceedings were pending.
On November 28, 1997, Linda filed her motion to correct error directed, in
part, to the valuation of accounts that increased after the date of separation.
The trial court set the matter for a hearing. Other post-dissolution
motions were filed by the parties and by the trustee. The hearings
were consolidated and continued. Evidentiary hearings were held on January 8, 1998,
March 13, 1998, and June 29, 1998. At the hearing on June
29, 1998, the trial court took under advisement all pending matters. At
the conclusion of the hearing on June 29, 1998, counsel again noted that
James had incurred expenses associated with maintaining the assets pending the final dissolution.
The trial court indicated that if a portion of the final decree
was altered, based upon Lindas motion to correct error, it would be equitable
to consider evidence regarding Jamess expenses incurred pending the final decree. Thus,
according to the trial court, another hearing would be required to hear the
evidence that had not been presented at the four-day trial. The trial
court stated:
Now, as I stated earlier, this will probably bring about another hearing where
the doctor can come in with what hes spent out of pocket on
taxes and so forth, but Ill make that appear a, specified in my
Order, you know. One more days (sic) hearing doesnt matter . .
. .
Supplemental Record at 2319.
On July 27, 1998, without the benefit of another hearing, the trial court
entered findings of fact and conclusions of law as to, inter alia, the
pending motion to correct error. In pertinent part the order states:
a. The court took judicial notice of the Dow Jones Industrial
averages both in the decree and at the hearing of
motion to correct errors. Because time has shown that the court was
in error at the date of decree in anticipating a possible sharp decline
in stock values, the court grants the motion to correct errors and values
the Merrill Lynch account in paragraph 5 of the decree at $310,500.00 and
orders division made on that evaluation.
b. Due to change in valuation, the court finds that to do equity, the
husband should be allowed to prove additional set-offs such as the cost of
the pool cover mentioned in paragraph 11 of decree, Interest paid on mortgages,
taxes paid on residence farm and office and reasonable expense of the keeping
and maintaining of the quarter horses during the approximately 18 months of separation.
This will entail another hearing upon the above set-offs only, the court
is not inviting a relitigation of the dissolution.
c. In accordance with paragraph 5b above, the court on its own motion strikes
paragraph 11 from the decree until such time as the pool cover issue
is explored with more complete evidence.
6. As to wifes paragraph 15 of motion, the valuation of Ford vehicle, the
court conforms to the evidence presented and amends paragraph 14 of decree to
value same at $21,500.00
* * *
Attorneys for parties are to approach the court for hearing date for only
the matters relating to paragraph 5b, above.
Record at 69.
On August 12, 1998, James filed a motion to correct error. James
complained, inter alia, that in the original decree, Linda was awarded the Ford
Explorer and that it was not properly a marital asset because it was
leased and then later owned by the Clinic. James apparently filed a
second motion to correct error on August 27, 1998 questioning a portion of
the trial courts July 27, 1998 order that granted Linda a permanent protective
order. The parties contend that the trial court denied Jamess motion to
correct error filed on August 27, 1998.
See footnote
On November 12, 1998, the trial court conducted a hearing. When the
hearing commenced, the following colloquy occurred:
THE COURT:
Its my understanding this is a continuation hearing today on a question of
set-offs occurring approximately from the time of filing to the time of trial
of the dissolution by the husband on the real estate taxes, insurance, etc.
MR. DOLL:
It is Your Honor. I also filed . . [. .]
THE COURT:
I might, before I get on in my . . its my recollection
in my earlier findings I told the parties I was not inviting a
re-trial of this thing from the start just on this limited issue.
So I want that understood before we get into the middle of it.
ARGUMENTS OF MR. DOLL:
Your Honor, we also had filed two motions to correct error. The
Court [. . .] I had received an order on denying one of
the motions to correct error. Wed asked for a consolidation of that
other or second motion to correct error as to the fourth . .
[. .]
THE COURT:
I dont recall what the second was?
MR. DOLL:
Ford Explorer, whether it was truly an asset of the marital estate capable
of being divided or set-off to the spouse.
THE COURT:
I dont recall ever seeing that.
MR. DOLL:
It was filed, Your Honor, on August 12th.
THE COURT:
I saw the one on the protective order. I ruled on that,
dont recall ever seeing it. Thats based on what?
Record at 2329-31. Counsel urged that neither the Ford Explorer nor the
value of the Explorer should be awarded to Linda. The focus of
the evidentiary portion of the hearing consisted of evidence the trial court had
rejected at the time of the four-day trial concerning expenses James incurred in
maintaining marital assets while the dissolution proceedings were pending.
In an order dated November 20, 1998, with an effective date of November
13, 1998, Record at 100, the court stated in part:
The Court finds a Motion to Correct Errors was heretofore filed on or
about August 12, 1998, and not ruled upon by the Court due to
inadvertence. The Court now considers same and finds that the Motion to
Correct Errors is well taken; that the property was that of the Rohrer
Medical Clinic with very little actual equity value at the time of issuance
of the decree. Court further finds that the valuation has been corrected
by Motion to Correct Errors to be $21,500.00, said valuation being that placed
upon it by the wife herein based upon testimony at the trial.
The Court now considers same, grants the Motion to Correct Errors and Orders
that the wife herein execute over a title to the subject Ford Explorer
to the husband upon him furnishing to her a certified check for $21,500.00
as payment for same.
Record at 99.
On December 8, 1998, the trial court issued an order denominated FINDINGS OF
FACT-CONCLUSIONS OF LAW DECREE. Supplemental Record at 450. The order was
directed solely to the expenses James incurred to maintain marital assets while the
dissolution action was pending. The court incorporated its calculation of the allowable
expenses and awarded James $62,263.43 as a set off against marital property.
Supplemental Record at 452.
We turn first to the question of the propriety of holding an evidentiary
hearing, on matters addressed in the original decree, subsequent to the ruling on
the first motion to correct error. Ind. Trial Rule 52(B) provides:
Upon its own motion at any time before a motion to correct errors
(Rule 59) is required to be made, or with or as part of
a motion to correct errors by any party, the court, in the case
of a claim tried without a jury or with an advisory jury, may
open the judgment, if one has been entered, take additional testimony, amend or
make new findings of fact and enter a new judgment or any combination
thereof if:
(1) the judgment or findings are either against the weight of the evidence, or
are not supported by or contrary to the evidence;
(2) special findings of fact required by this rule are lacking, incomplete, inadequate in
form or content or do not cover the issues raised by the pleadings
or evidence;
(3) special findings of fact required by this rule are inconsistent with each other;
or
(4) the judgment is inconsistent with the special findings of fact required by this
rule.
Failure of a party to move to modify the findings or judgment under
this subdivision and failure to object to proposed findings or judgment or such
findings or judgment which has been entered of record shall not constitute a
waiver of the right to raise the question in or with a motion
to correct errors, or on appeal.
In Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998), this
court observed:
Trial Rule 52(B) provides that in a case tried without a jury, the
court may, at any time before a motion to correct error is required
to be made, or with or as part of a motion to correct
error by any party, take additional testimony, amend or make new findings of
fact and enter a new judgment, or any combination thereof. Thus, at
least up to and including the ruling on a motion to correct error
the trial court is permitted to alter, amend or modify its judgment without
limitation.
(Citations omitted). Pursuant to T.R. 52(B), without limitation, the trial court could
revisit the issues presented and determined in the final decree and take additional
evidence thereon through the time of the ruling on the first motion to
correct error.
We perceive finality as an important limitation on the trial courts ability to
take additional evidence and further modify its final decree of November 6, 1997,
once it had ruled on the pending motion to correct error.
A strong policy favors the finality of marital property divisions, whether the court
approves the terms of a settlement agreement reached by the parties . .
. or the court divides the property . . . . One
purpose of this policy is to eliminate vexatious litigation which often accompanies the
dissolution of a marriage. When marital property is divided, both assets and
liabilities must be considered. Thus, a partial modification of a property settlement
agreement will likely upset the division of property equation in the Decree.
The adjustment of one asset or liability may require the adjustment of another
to avoid an inequitable result or may require the reconsideration of the entire
division of property.
Dusenberry v. Dusenberry, 625 N.E.2d 458, 461 (Ind. Ct. App. 1993) (citations omitted).
The traditional notions of finality, including the axiom that parties are not entitled
to a second bite at the apple, can be abridged by T.R. 52(B).
Pursuant to T.R. 52(B), finality is abridged only until the ruling on
the motion to correct error.
We also are mindful that, in dissolution proceedings, a trial court must finally
dispose of all marital assets in one final judgment. See Harris v.
Harris, 690 N.E.2d 742 (Ind. Ct. App. 1998). No part of the
distribution may be conditioned upon a subsequent change in circumstances. Id. at
744. The trial court has no authority to exclude or set aside
marital property but rather must divide all property. Moore v. Moore, 695
N.E.2d 1004, 1010 (Ind. Ct. App. 1998).
The trial courts July 27, 1998 ruling on the first motion to correct
error struck a portion of the November 1997 final decree and conditioned the
final division of assets upon a determination after an evidentiary hearing to be
held at a later date. The trial courts July 27, 1998 ruling
attempted to replace, in part, a final order that disposed of all marital
property with an order that did not finally dispose of all of the
parties marital property in one decision.
James contends that the trial court could alter its decision and take additional
evidence after the July 27, 1998 ruling because: 1) the ruling was
not final, inasmuch as the ruling did not finally dispose of all marital
property, and 2) pursuant to T.R. 52(B), the court could modify its judgment
while the cause was in fieri. See Haskell v. Peterson Pontiac GMC,
609 N.E.2d 1160, 1163 (Ind. Ct. App. 1993) (a trial court has inherent
power to reconsider, vacate, or modify any previous order so long as the
case has not proceeded to final judgment). Jamess arguments ignore the fact
that the July 27, 1998 ruling was rendered pursuant to a motion to
correct error. A final judgment had been entered in the matter on
November 6, 1997. As previously noted, T.R. 52(B) confers authority to alter
rulings and hear additional evidence only until the ruling on the motion to
correct error. See Hubbard v. Hubbard, 690 N.E.2d 1219.
T.R. 52(B) does not allow a trial court indefinite discretion to alter or
amend the final judgment. The trial courts authority to hold additional evidentiary
hearings, as to the disposition of the marital assets, was lost with the
July 27, 1998 ruling on the first motion to correct error.
We turn to the result. In Harris, this court determined that the
courts final decree did not finally dispose of all marital assets. Harris
v. Harris, 690 N.E.2d 742. We remanded the cause for a final
disposition of all assets in one judgment. Id. In Moore
this court affirmed the trial court as to the matters finally determined and
remanded for a final order regarding matters the trial court attempted to reserve
from the final decree. Moore v. Moore, 695 N.E.2d 1004.
Pursuant to the dictates of T.R. 52(B) and the finality concerns attendant to
dissolution proceedings, we remand the cause for entry of a final disposition as
to the matters the trial court attempted to exclude from the July 27,
1998 ruling on the first motion to correct error. Inasmuch as the
$62,263.43 award to James for post-separation expenses was based upon the improper November
1998 hearings, it is reversed. Because the trial court did not have
authority to hold the November 1998 evidentiary hearings, the disposition of the excluded
assets must be based upon the evidence presented at the four-day trial in
October 1997.
Our inquiry does not end there. James filed a motion to correct
error on August 12, 1998. Because the trial courts July 27, 1998
ruling on the first motion to correct error altered its final decree, James
could properly file a second motion to correct error. This court has
stated:
Once a ruling is made upon a motion to correct error it may
not be reconsidered by the trial court. . . . However if the
trial court had altered, amended, or supplemented its findings and/or judgment in its
ruling on the first motion to correct error, the parties would have had
the discretion to file another motion to correct error directed to the changed
findings and/or judgment.
Jackson v. Pempleton, 559 N.E.2d 1193, 1193 (Ind. Ct. App. 1990) (quoting 4
W. Harvey & R. Townsend, INDIANA PRACTICE § 59(g) at 118 (1971)).
See footnote
The trial courts July 27, 1998 ruling on the first motion to
correct error altered its November 6, 1997 final decree as to the distribution
of the Ford Explorer. James timely filed a motion to correct error
after the trial courts ruling on the first motion to correct error.
After continuing the hearings as to the motion to correct error, and the
matters purportedly reserved for a later decision after evidentiary hearings, the trial court
once again altered its decision as to the Ford Explorer in the order
dated November 20, 1998 and effective as of November 13, 1998. The
CCS entries indicate that the hearing on the motion to correct error was
continued to November 12, 1998, the court entered its judgment before thirty days
expired, and James timely filed his praecipe. The appeal, with regard to
the Ford Explorer, is not dependent upon the matters the trial court attempted
to reserve for a later evidentiary hearing and determination. Accordingly, the matter
is properly presented for review.
In its final decree, the trial court awarded the Ford Explorer to Linda.
In its ruling on the first motion to correct error, the trial
court altered the value of the Explorer to conform with the evidence and
awarded the Explorer to Linda. In the ruling on Jamess motion to
correct error, the trial court recognized Jamess contention that the Explorer was leased
and later owned by the Clinic and was not a marital asset.
In its last ruling on the matter, the court removed the Explorer from
the marital pot and ordered Linda to return the Explorer to James upon
his payment to her of the value of the Explorer. The courts
order maintained the equal distribution of assets. Ignoring the equal distribution of
assets, James steadfastly urges that Linda is not entitled to the Explorer or
its value because it was not an asset of the marriage.
When reviewing a claim that the trial court improperly divided marital property, we
must decide whether the trial courts decision constitutes an abuse of discretion.
We consider only the evidence most favorable to the trial courts disposition of
the property. We will reverse only if the result is clearly against
the logic and effect of the facts and the reasonable inferences to be
drawn therefrom.
Capehart v. Capehart, 705 N.E.2d 533, 536 (Ind. Ct. App. 1999) (citations omitted),
trans. denied. Ind. Code Ann. § 31-15-7-5 (West 1998) provides for a
presumption in favor of an equal distribution of assets. The trial court
employed the equal distribution presumption and concluded that Linda was entitled to $21,500
to maintain the equal division. Once the trial court determined that James
was correct in his assertion that the Ford Explorer was not properly included
in the marital pot, the trial court ordered James to pay $21,500 to
maintain equality. The result is not clearly against the logic and effect
of the evidence. We affirm the trial courts decision with regard to
the value of the Ford Explorer.
In summary, the trial courts ruling that Linda is entitled to the $21,500
value of the Ford Explorer in order to maintain an equal distribution of
assets is affirmed. The $62,263.43 award to James for post-separation expenses is
reversed. The cause is remanded for entry of a final judgment, based
upon the evidence presented at the four-day trial in October 1997, as to
the matters the trial court attempted to exclude from the July 27, 1998
ruling on the first motion to correct error.
Judgment affirmed in part, and reversed and remanded in part.
VAIDIK, J., and DARDEN, J., concur.