Behme v. Behme

• Decision Date: 24 February 1988
• Docket Number: No. 82A01-8706-CV-00136,82A01-8706-CV-00136
• Citation: 519 N.E.2d 578
• Parties: John BEHME, Appellant (Respondent Below), v. Rebecca BEHME, Appellee (Petitioner Below).
• Court: Indiana Appellate Court

Page 578

519 N.E.2d 578

John BEHME, Appellant (Respondent Below), v. Rebecca BEHME, Appellee (Petitioner Below).

No. 82A01-8706-CV-00136.

Court of Appeals of Indiana First District.

Feb. 24, 1988.

Rehearing Denied May 19, 1988.

William C. Welborn, Welborn Law Offices, Evansville, for appellant.

Terry Noffsinger, Noffsinger, Deig & Behrens, Evansville, for appellee.

ROBERTSON, Judge.

John Behme appeals the trial court's ruling modifying his divorce decree and fixing the value of Behme's lien on real estate awarded to his former wife, Rebecca. Rebecca sought, among other things, an order increasing child support for the parties' two minor children and requiring Behme to pay the remainder of the daughter Cathy's college tuition and educational expenses. The wife also sought a determination by the court of the amount of the lien and permission to withhold from the husband's lien, as reimbursement, costs incurred by her in obtaining medical care for the three children, high school educational expenses, increased child support retroactive to the date of the petition, child support arrearages, and attorney's fees.

The trial court denied Rebecca's petition to withhold payment of the lien, which was due and payable on the date of her remarriage, but reduced the amount of the lien by various amounts owed by Behme. In addition, the trial court ordered Behme to pay future college expenses for his daughter Cathy and determined the net amount of the lien.

Behme raises at least nine errors in this appeal. We agree with Rebecca that Behme's failure to adequately present many of these errors to the trial court in his motion to correct error and to comply with the dictates of Ind.Rules of Procedure, Trial Rule 59(D) and Appellate Rule 8.3(A)(7) acts as a waiver of those issues. ¹ Restated then, we find the following issues remaining in this appeal:

(1) Whether the trial court lacked subject matter jurisdiction to determine the amount of interest owed to Behme on his lien;

(2) Whether the trial court lacked subject matter jurisdiction to render a support order requiring Behme to pay college expenses for his daughter Cathy;

(3) Whether the trial court erroneously interpreted the decree when it determined that interest accrued on the lien from March 26, 1986 through April 26, 1986; and,

(4) Whether the trial court erroneously interpreted the decree when it determined the principal amount of Behme's lien.

We will address the question of waiver before considering the other issues. Issues one and two will be treated together.

I.

The purpose of T.R. 59(D) which governs the motion to correct error is to allow the trial court the first opportunity to determine or remedy the alleged error. T.R. 59(D) provides that allegations of error be separately and specifically stated and that each alleged error be accompanied by a statement of facts and grounds. T.R. 59(D)'s requirement of specificity applies to both the statement of error and the facts and grounds in support of the claimed error; not only must the alleged error be specifically set out, but the facts and grounds in support of the claimed error must be discussed with enough particularity that the trial court may be made aware of the exact legal issue involved. Failure to comply with the specificity requirements of T.R. 59(D) subjects an alleged error to waiver on appeal. See Young v. Duckworth (1979), 271 Ind. 554, 394 N.E.2d 123, cert. denied 445 U.S. 906, 100 S.Ct. 1084, 63 L.Ed.2d 323; Guardiola v. State (1978), 268 Ind. 404, 375 N.E.2d 1105, 1106-1107; Rogers v. Rogers (1982), Ind.App., 437 N.E.2d 92, 95.

We deem these allegations of error raised in this appeal waived for the following reasons: ²

(1) the trial court abused its discretion in ordering Behme to pay his daughter Cathy's college expenses because the mother produced no evidence regarding Cathy's aptitude or ability to pursue a college education;

Behme alleges in his motion to correct error that there was no showing of the mother's need for and of the father's ability to pay increased child support and college expenses. This allegation of error does not address the daughter's abilities or aptitude. An alleged error must be first specifically presented to the trial court; claims or arguments presented for the first time in an appellant's brief are not properly before the court on appeal. Guardiola, supra; Rogers, supra.

Behme also alleges in his motion to correct error that the trial court failed to consider the factors enumerated in IND.CODE 31-1-11.5-12. Errors should not be hidden in generality to be later specifically raised on appeal. Guardiola, supra. The claimed error must be discussed with enough particularity to apprise the court of the precise legal issue involved. Ind. Dept. of Public Welfare v. Rynard (1980), Ind.App., 403 N.E.2d 1110, 1113, affirmed, 275 Ind. 212, 472 N.E.2d 888. Behme's allegation of error does not specify which factor the trial court failed to consider, in what way the evidence was insufficient or even which aspect of the support order was at issue. A statement of facts and grounds in support of the allegation as required by the rule would have notified the court of the exact question at issue.

(2) the trial court erred in deducting $1400 from Behme's lien for Cathy's 1986-87 college tuition because there was no evidence Rebecca expended any sums toward tuition for that period and because the evidence showed the actual net tuition cost to be $260 per semester, not $700;

Behme alleges in his motion to correct error that the trial court's decision provides the mother with double reimbursement for one semester of Cathy's schooling and erroneously awards the mother $700 for tuition when the undisputed evidence showed the actual amount of tuition to be $607.10.

Obviously, Behme is offering new arguments in his brief. Arguments or claims of error not presented to the trial court are deemed waived on appeal. See Rogers, supra.

(3) the trial court erred in allowing the mother a $150.00 set-off for Cathy's future book expenses because the trial court had already ordered reimbursement of book expenses incurred during the first semester of 1986-87, the evidence does not show the mother expended any more than the amount ordered for the first semester, and the $150.00 amount offered was only an estimate of a future expense.

Again, none of the allegations of error asserted by Behme indicate that Behme was taking issue with the court's ruling on book expenses or with the sufficiency of the evidence for the court's award of an offset.

(4) the evidence was insufficient to support a deduction from the lien for Angela's high school tuition and educational expenses;

Behme points to allegations of error respecting Cathy's college expenses. These allegations do not give the trial court reason to consider the support order as it applied to high school educational expenses incurred by Angela, the parties' youngest daughter.

An appellant must also comply with A.R. 8.3(A)(7) when he presents alleged errors to this court. At a minimum, A.R. 8.3(A)(7) places upon the appellant the duty to direct our attention to the standards or rules to be applied in determining the issues presented, and to substantiate his claims with facts. Two sections of Behme's brief contain arguments which do not substantially comply with this rule. Behme argues the trial court's order when considered as a whole is punitive, confiscatory and an abuse of discretion because some of the amounts awarded to the mother were not specifically requested, were not supported by the evidence and thus could be explained only by partiality toward the mother. He also claims the award of attorney's fees was improper and an abuse of discretion because "a great deal of the bill" was incurred in resisting the father's demand that the lien be paid and there was no showing by the mother that she could not afford the fees herself. Appellant has not provided us with appositive authority and cogent argument on these issues; neither has he directed us to the facts in the record which support his assertions. Again, our rules require more than broad, conclusory, unsupported assertions.

II.

Behme contends the trial court lacked jurisdiction to determine the amount of interest owed Behme on the lien because the question of when the interest began to accrue was never an issue between the parties. Rebecca asked the trial court to determine the amount of the lien in her pleadings. At trial, she offered an exhibit in which she calculated interest from the date the property was appraised. Apparently, Behme concurred in Rebecca's assessment of the amount of interest due though he did not offer to stipulate at trial or indicate his agreement with the figure in any other way. Now, Behme argues the trial court was bound by Rebecca's interpretation of the decree and any judgment based upon an interpretation contrary to that agreed upon by the parties was void because there was no controversy. Behme did not address his assertion that the trial court lacked jurisdiction in his motion to correct error but characterizes his argument as one addressing a want of subject matter jurisdiction which may be raised at any time.

Subject matter jurisdiction refers only to the power of a court to hear and decide a particular class of cases, State ex rel. Young v. Noble Circuit Court (1975), 263 Ind. 353, 332 N.E.2d 99, 101, while jurisdiction of the particular case refers to the right, authority and power to hear and determine a specific case within that class of cases over which a court has subject matter jurisdiction. City of Marion v. Antrobus (1983), Ind.App., 448 N.E.2d 325, 329, trans. denied. As Behme asserts, a judgment rendered by a court lacking subject matter jurisdiction is void and may be attacked at any time. Chemco Transport, Inc. v. Conn (1987), Ind.App., 506 N.E.2d 1111, 1114, trans. pending; In Re Chapman (1984), Ind.App., 466 N.E.2d 777, trans....