Baker v. Baker

50 N.E.3d 401

Carrie BAKER, Appellant

v.Michael BAKER, Appellee.

No. 64A05–1509–DR–1381.

Court of Appeals of Indiana.

April 6, 2016.

Colby A. Barkes, Duane W. Hartman, Blachly, Tabor, Bozik & Hartman LLC, Valparaiso, IN, Attorneys for Appellant.

Robert A. Plantz, Robert A. Plantz & Associates, LLC, Merillville, IN, Attorney for Appellee.

BROWN, Judge.

[1] Carrie Baker (“Wife”) appeals an order granting a motion to strike and dismiss, as well as denying motions to reconsider and to correct errors, in favor of Michael Baker (“Husband”). Wife raises one issue which we revise and restate as whether the court erred in granting Husband's motion and denying her motion to reconsider and to correct errors without a hearing. We reverse and remand.

Facts and Procedural History ¹

[2] On April 21, 2009, Husband and Wife executed a Mutual Waiver of Final Hearing and Marital Settlement Agreement (“Property Settlement Agreement”), which was finalized on June 25, 2009, when they were granted a Decree of Dissolution of Marriage. During the divorce proceedings, Wife was not represented by counsel, and she relied on Husband, Husband's counsel, and the Dissolution Decree regarding the truthfulness of the parties' marital assets. Wife was aware of Husband's deferred income that is listed in the Property Settlement Agreement, but she was not aware of any additional deferred income, i.e., assets of the marriage that Husband was to receive at a later time after the dissolution, that had not been listed in that agreement. Also, the Property Settlement Agreement contained the following provisions, among others:

1. Equal Division of Property

The Husband and the Wife intend to settle forever and completely their interests and obligations in all property, both real and personal, between themselves and on behalf of their heirs and assigns, and regardless of whether the property was acquired by either or both of them, before or during their marriage, or whether it was acquired by way of gift or inheritance. The parties intend to effect a division in a fair, just and equal manner.

2. Itemization of Property Division

* * * * *

The parties shall each maintain or receive title to and interest as indicated in the following financial accounts or financial interests. Title to and interest in these accounts/interests shall be exclusive as to the party indicated, and the party with or receiving ownership will hold the other party harmless as to liabilities of the owned account/interest. The parties acknowledge that they have not appraised each other's assets or financial accounts and waive any right to do so and acknowledge that one party may receive a larger share than the other. The parties have also agreed to waive the requirement of exchanging financial declaration forms.

* * * * *

5. Mutual Releases

Both parties expressly and mutually release and forever discharge the other from any and all claims, demands, obligations, debts, and cause of action, at law or in equity or otherwise, which either of them ever had or now has or hereafter may have against the other up to the date of the execution of this Agreement.

6. Representation by Counsel

Husband acknowledges that this agreement has been fully explained to him by his attorney. Wife acknowledges that she has the right to and has had the opportunity to obtain legal counsel pertaining to this action and to explain the consequences of this agreement. Wife has been informed that Husband's attorney in no way represents Wife's interests in this matter and has been advised of her right to seek independent counsel to represent her or review this agreement and is completely aware, not only of its contents, but also its legal effects. The parties acknowledge that each is satisfied with the preparation and contents of this agreement.

7. Entire Agreement

Each party acknowledges that no representations of any kind have been made to him or her as an inducement to enter into this Agreement, other than the representations set forth herein, and that this Agreement constitutes all of the terms of the contract between them.

Appellant's Appendix at 28, 35–36, 42–43.

[3] In November 2014, Wife discovered that there were additional assets of the marital estate in excess of $1,000,000, and on April 22, 2015, she filed a Verified Motion to Open the Property Settlement Proceedings because of Non–Disclosed Assets (the “Verified Motion”), in which she alleged fraud by Husband by not disclosing the deferred income despite the fact that he had an affirmative duty to disclose and that the Property Settlement Agreement stated that she “shall receive an ‘equal division of property’.” Id. at 46. The Verified Motion did not cite to a specific rule to open the proceedings. On July 7, 2015, Husband filed a Motion to Strike and Dismiss Respondent's Motion to Open the Property Settlement Proceedings Because of Non–Disclosed Assets (“Motion to Strike”). That same day, without giving Wife an opportunity to respond and without a hearing, the court granted Husband's motion (the “July 7th Order”). The court's July 7th Order stated:

1. The Divorce Decree was entered 6/25/2009. An agreed Modification Order was entered on 8/24/2010, while [Wife] was represented by counsel.

2. The Court is prohibited from revoking or modifying a written settlement agreement or agreed or [sic], except in the case of fraud. I.C. § 31–15–2–17(c).

3. [Wife's] Motion to Open Property Settlement Agreement alleges “fraud,” but Trial Rule 60(B)(3) allows for relief from the judgment or order on the grounds of fraud, but the motion shall be filed ... not more than one (1) year after the judgment or order.

4. The Motion filed by [Wife] was well after the one (1) year deadlines and, moreover, the Court is prohibited by I.C. § 31–15–2–17(c) from modifying the order. For these reasons, [Husband's] Motion to Strike is GRANTED and [Wife's² ] Verified Motion to Open the Property Settlement Proceedings Because of Non–Disclosed Assets is hereby ordered Stricken from the Record and Dismissed.

Id. at 47.

[4] On August 5, 2015, Wife filed a motion to correct errors and to reconsider, and the court denied her motion the same day without a hearing.

Discussion

[5] The issue is whether the court erred in granting Husband's Motion to Strike and Dismiss. Generally, a grant or denial of equitable relief under Ind. Trial Rule 60 is within the discretion of the trial court and is reviewed for an abuse of that discretion. Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371 (Ind.Ct.App.2012), reh'g denied, trans. denied, cert. denied, ––– U.S. ––––, 134 S.Ct. 952, 187 L.Ed.2d 786 (2014). “However, if a trial court's ruling is strictly based upon a paper record, we will review the ruling de novo because we are in as good a position as the trial court to determine the force and effect of the evidence.” Jahangirizadeh v. Pazouki, 27 N.E.3d 1178, 1181 (Ind.Ct.App.2015) (citing In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind.2013) ). The trial court here ruled solely upon a paper record, and so our review is de novo.

[6] Ind. Trial Rule 60(B)(3) “provides that a judgment may be set aside for ‘fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party....’ ” Id. (quoting Ind. Trial Rule 60(B)(3) ). Additionally, a motion for relief from judgment under Trial Rule 60(B)(3) must be filed not more than one year after the judgment was entered. Id. However, Trial Rule 60(B) contains a “savings clause” which provides: “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding or for fraud upon the court.” Id. (quoting Ind. Trial Rule 60(B) )

[7] Wife argues that Ind.Code § 31–15–7–9.1, which governs the revocation or modification of property disposition orders in the case of fraud, provides that orders concerning property disposition may not be revoked or modified except in the case of fraud and that if fraud is alleged it must be asserted within six years of the order. She argues that Husband's assertion in his Motion to Strike is incorrect that Ind. Trial Rule 60 precludes her motion because that rule “explicitly states ‘this rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding or for fraud upon the court.’ ” Appellant's Brief at 7. She asserts that the type of fraud alleged is the central issue and that she has alleged either an independent action for fraud or fraud upon the court, either of which is reviewable at this stage. She notes that Porter County Family Law Rule 2100.1 requires financial disclosure unless waived in writing and where “ ‘all financial issues' are settled,” and argues that here, under Porter County Family Law Rule 2100.2, all financial issues were not settled and Husband violated a mandatory obligation indicative of a scheme or fraud sufficient to bring an action for fraud upon the court and/or an independent action for fraud. Id. at 10.

[8] She also argues in her reply brief that the Motion to Strike and Dismiss was granted the same day it was filed, that accordingly there was no opportunity for her to request oral argument, and that there is no requirement for a responding party to request a hearing under these circumstances pursuant to Porter County Civil Rule 3300.60. She asserts that instead Porter County Civil Rule 3300.20 “requires ... ‘all motions are to be set for hearing at the time of their filing’ ” and that “[i]t shall be the responsibility of movant or the movant's attorney to secure the date of such hearing from the Court personnel.... It shall also be the responsibility of the movant to coordinate the hearing date with all opposing counsel.” Appellant's Reply Brief at 3. She maintains that, contrary to Husband's claims, the local rules require a hearing on the Motion to Strike.

[9] Husband argues that Wife is incorrect in asserting that she is entitled to...