Saturday, January 22, 2011

When it's time to Appeal, Appeal!

When a court issues an order there is usually someone who doesn't like it. This is because the charge of the court is generally to decide on conflicts and declare a winner and loser. The losing party often feels that he or she was unjustly sanctioned or denied the requested relief. This shouldn't be surprising though, it is those very feelings that often led to court action in the beginning.

I recently came across the unpublished opinion in Ables v Ables [In Ct App 2011] which clearly proscribes the process one must take when seeking to correct an order he or she believes was in error. It also provides another glowing example of why having a qualified attorney is essential.

In Ables the father was ordered to pay $190 per week in child support retroactive to one week prior to the mother's petition to modify. Father did not timely file a Notice of Appeal although it is clearly established in case law that an order to pay child support cannot be modified retroactively preceding the date of a petition to modify. It was clear error for the court to do so and Father should have filed a Motion to Correct Error pursuant to Indiana Trial Rule 59.

Instead Father filed a Motion for Relief from Judgment pursuant to Indiana Trial Rule 60(B). Father argued that a relief from judgment under Trial Rule 60(B) should be granted because the trial court had improperly imputed to him a higher wage than he earned, and “there are things that were never brought up at the hearing that if they had been, that the outcome might have been different.”

Father has completely missed the point of having a hearing which is an opportunity to be heard and present evidence. If he didn't do so then his argument is waived. There is a savings clause in Rule 60(B) though. The relevant parts of Rule 60(B) are;

(1) mistake, surprise, or excusable neglect;
(2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59;
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
On motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for those reasons: The motion must be filed within one year.

The Indiana Court of Appeals has held;
Any matter which was known to or discoverable by a party within the period when a timely motion to correct errors could have been filed must be raised in a motion to correct errors under T.R. 59 and made the subject of a proper and timely appeal if appellate review is to be had. Any such issue[,] which was raised by, or could have been raised by a timely motion to correct errors and a timely direct appeal may not be the subject of a motion for relief from judgment under T.R. 60.
Mathis v. Morehouse, 433 N.E.2d 814, 816 (Ind. Ct. App. 1982), overruled on other grounds by Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332 (Ind. 1983).

In Ables the matters about which Father complained—the amount of the support ordered, the evidentiary basis for such order and its retroactive application were all known to him at the time he filed his T.R.60(B) Motion. They could and should have been raised in a motion to correct error. He did not do so, and the issues are waived. The trial court did not abuse its discretion in denying his request for relief from judgment.

To get around this Father tried to argue that the Trial Rule 60(B) motion was actually an incorrectly labeled Trial Rule 59 motion. The panel was not impressed. To the contrary, Father's counsel never referenced Indiana Trial Rule 59, never moved to amend the motion for relief from judgment to invoke Trial Rule 59, and specifically argued that the Support Order should be set aside “due to (B)(1) mistake, surprise, or excusable neglect.”

We note that generally a trial court has wide discretion to correct errors and we will reverse only for an abuse of that discretion. Paulsen v. Malone, 880 N.E.2d 312, 313 (Ind. Ct. App. 2008). An abuse of discretion occurs when the trial court‟s action is against the logic and effect of the facts and circumstances before it and the inferences that may be drawn therefrom, or is based on impermissible reasons or considerations. Id.
Trial Rule 53.3(A) provides:
In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed denied. Any appeal shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is deemed denied.
This rule is self-activating upon the passage of the thirty days. Demmond v. Demmond, 706 N.E.2d 566 (Ind. Ct. App. 1999), trans. denied. Once the motion to correct error is deemed denied, the trial court‟s power to rule on the motion is extinguished. Id. (citing Rose v. Denman, 676 N.E.2d 777, 781 (Ind. Ct. App. 1997)). Any subsequent ruling is therefore a nullity. Id.

Ables was represented by an attorney at both the trial court level and during the appeal.

I will explain concisely here what I have said so often.
1) Get competent legal counsel or do it yourself.
2) Present evidence at trial. If you do not then you may not later argue a denial of due process because you chose not to present the evidence.
3) If the court makes a final ruling that is in error then make a Motion to Correct Error pursuant to Indiana Trial Rule 59. For interlocutory orders you must ask the court does to certify the order for appeal. This is a requirement before seeking appellate review.
4) If new evidence, proof of a mistake, or that the judgment was procured through fraud is discovered, then file a Motion to Set Aside Judgment pursuant to Indiana Trial Rule 60(B).
5) If you have a final judgment that you feel you have a substantial belief is the result of an abuse of discretion or is an error of law then file your Notice of Appeal within 30 days of receiving the order.

Law is about process. Regardless of how correct your position may be if you do not follow the process then don't expect to get the relief you deserve. When it is time to get an attorney, get a competent one. When it is time to present evidence, present evidence. When it is time to have an error corrected, file a Motion to Correct Error. When it is time to have a judgment set aside, file a Motion to Set Aside Judgment. Finally, when it is time to appeal, appeal!!!

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