Baker v. Baker
Decision Date | 06 April 2016 |
Docket Number | No. 64A05–1509–DR–1381.,64A05–1509–DR–1381. |
Citation | 50 N.E.3d 401 |
Parties | Carrie BAKER, Appellant, v. Michael BAKER, Appellee. |
Court | Indiana Appellate Court |
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.
[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.
[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:
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:
[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.
[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 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...
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