Behling v. Behling

• Docket Number: 23A-DC-282
• Decision Date: 18 September 2023
• Parties: Thomas Behling, Sr., Appellant-Petitioner, v. Joyce Behling, Appellee-Respondent.
• Court: Court of Appeals of Indiana

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Thomas Behling, Sr., Appellant-Petitioner,
v.
Joyce Behling, Appellee-Respondent.

No. 23A-DC-282

Court of Appeals of Indiana

September 18, 2023

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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Morgan Circuit Court The Honorable Matthew G. Hanson, Judge Trial Court Cause No. 55C01-1812-DC-2352

ATTORNEYS FOR APPELLANT

Glen E. Koch, II

Stephen A. Oliver

Boren, Oliver & Coffey, LLP

Martinsville, Indiana

ATTORNEYS FOR APPELLEE

Kele M. Bosaw

Owens Bosaw, PC

Indianapolis, Indiana

MEMORANDUM DECISION

Brown, Judge.

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[¶1] Thomas Behling, Sr., ("Husband") appeals the trial court's orders denying his October 25, 2022 motion and his January 1, 2023 motion. We affirm.

Facts and Procedural History

[¶2] On December 12, 2019, Joyce Behling ("Wife") filed a Verified Petition for Dissolution of Marriage which alleged that the parties were married in 1996 and had one child, T.B. On September 6, 2022, the trial court entered a Final Agreement and Final Order of the Court which stated the parties appeared with counsel and "herein sign their oral agreement recited in open Court" and ordered in part that Wife receive "$110,000 of the money in the Edward Jones Account," "[t]he remaining funds in the Edward Jones Account (approximately $614,000) will go to Husband," and "Husband agrees to pay $10,000 in college expenses for the benefit of [T.B.] from the money in the Edward Jones Account." Appellant's Appendix Volume II at 19.

[¶3] On October 25, 2022, Husband's counsel filed a "Motion for Nunc Pro Tunc and Attorney's Conference" which alleged that the September 6, 2022 order contained no discussion about a division of retirement accounts at Edward Jones, and that when Husband came to counsel's office to sign quitclaim deeds he was adamant that there may be money held by Wife at Edward Jones "separate and distinct from an interest-bearing account that was opened jointly by the parties for funds to be deposited from the sale of marital property during the pendency of the divorce." Id. at 22. The motion asserted that Wife had stated there were no retirement accounts in an answer to Interrogatory 10 and Interrogatory 11, she did not adequately disclose her assets to Husband, counsel

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discovered five pages of documents submitted in discovery that "seemed to indicate the existence of 6 separate accounts with Edward Jones" which were discovered in "720 pages of loose leaf discovery that were unorganized and provided in 2 separate PDF files that in no way related back to any particular discovery request," and "these retirement accounts were not included in the marriage settlement, and therefore the Parties must either agree or the Court must make an equitable distribution of these retirement accounts." Id. at 23 (some capitalization omitted). Husband attached the Interrogatories as Exhibit A and six pages of statements for Edward Jones accounts as Exhibit B.

[¶4] On December 12, 2022, the court held a hearing. Husband's counsel argued:

I just wanted to make clear is that my . . . reliance was on a sworn statement by [Wife] in the interrogatories. In which she is asked are there retirement accounts? Answer no. Not see attached. Not, maybe. No. Under oath. So, if I had it . . . I mean it seems to me that [Wife's counsel] is saying you cannot rely on interrogatories. There were six pages within 800 pages of documents. These documents were not responded to see rfp number 1 number 2 number 3. So, did I, yes I missed six pages in . . . 800 and . . . she is correct in hundreds of pages of documents. My client, like I said, we were trying to wrap this up, started to ask me questions, and became adversarial. And, I'm going look there's not any retirement accounts. See . . . the answer to the interrogatories. When I went to . . . the mediations, I relied upon her answers based in the interrogatory. I . . . think it is difficult for [Wife's Counsel] to say that this is not a fraud. When the question is asked, which is the which is the [sic] basis upon which to set aside a marriage settlement agreement. Or but I'm I'm [sic] not necessarily arguing fraud here. Although, I think it is when you respond no in an interrogatory and clearly there is.

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Transcript Volume II at 143-144.

[¶5] On December 14, 2022, the court entered an order denying Husband's motion. The court's order stated that "it [was] clear that [Husband] had the discovery prior to coming to an agreement on the divorce," "it [was] clear that [Wife] did not hide these documents and more so that even a basic search of these documents, as was done to even create this argument, would have produced this information prior to the divorce decree being finished," and "the court [would] not find there was a purposeful hiding or any malfeasance on the part of [Wife] and therefore will deny the request to reopen this case as requested by" Husband. Appellant's Appendix Volume II at 42.

[¶6] On January 1, 2023, Husband filed a "Motion to Reconsider and Request for Hearing" which requested that the court "reconsider its ruling issued on December 14, 2022," and "order a hearing in which sworn testimony and evidence" could be presented. Id. at 44-45 (some capitalization omitted). The court denied Husband's motion.

Discussion

[¶7] Husband phrases the two issues in his brief as "[w]hether it was error for the court to refuse to grant a hearing on [his] trial rule 60(b) [] motion because fraud was properly alleged" and "[w]hether [his] failure to notice the documentation for Edward Jones accounts at issue before the agreement was reached constitutes excusable neglect pursuant to Trial Rule 60(b)(1)." Appellant's Brief at 4. He argues that his claim of fraud was sufficiently pled,

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the trial court erred by not granting a hearing on his motion, and his counsel's failure to notice the documentation for the Edward Jones accounts before the agreement was reached constituted excusable neglect in light of Wife's answers to the interrogatories. Wife argues in part that Husband's counsel "admitted that he was provided nearly 800 pages of documents that he never reviewed until 4 months after the final hearing, and more than 3 years after he first received those documents." Appellee's Brief at 6.

[¶8] Initially, we note that Husband's October 25, 2022 "Motion for Nunc Pro Tunc and Attorneys' Conference" did not cite Ind. Trial Rule 60(B) and did not specifically use the terms "fraud" or "excusable neglect."^[1] Appellant's Appendix Volume II at 22 (capitalization omitted). Husband's January 11, 2023 motion also did not cite Ind. Trial Rule 60(B) or use the terms "fraud" or "excusable neglect." Even assuming that Husband's October 25, 2022 motion constituted a motion for relief from judgment, we cannot say reversal is warranted.

[¶9] Relief from judgment under Trial Rule 60 is an equitable remedy within the trial court's discretion. In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013).

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Accordingly, we generally review a trial court's Rule 60 ruling only for abuse of discretion. Id. "But when 'the trial court rules on a paper record without conducting an evidentiary hearing,' . . . we are 'in as good a position as the trial court . . . to determine the force and effect of the evidence.'" Id. (quoting GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001) (quoting Farner v. Farner, 480 N.E.2d 251, 257 (Ind.Ct.App. 1985))). Under those circumstances, our review is de novo. Id.

[¶10] Ind. Trial Rule 60(B) provides in part:

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 the following reasons:

(1) mistake, surprise,

...