Bojrab v. Bojrab

• Decision Date: 16 April 2003
• Docket Number: No. 02A03-0204-CV-127.,02A03-0204-CV-127.
• Citation: 786 N.E.2d 713
• Parties: In re the Marriage of Julie Marie BOJRAB, Appellant-Petitioner, v. George David BOJRAB, Appellee-Respondent.
• Court: Indiana Appellate Court

786 N.E.2d 713

In re the Marriage of Julie Marie BOJRAB, Appellant-Petitioner, v. George David BOJRAB, Appellee-Respondent.

No. 02A03-0204-CV-127.

Court of Appeals of Indiana.

April 16, 2003.

Nana Quay-Smith, Karl L. Mulvaney, Candace L. Sage, Denise W. Chavis, Bingham McHale LLP, Indianapolis, IN, Attorneys for Appellant.

Stephen P. Rothberg, Fort Wayne, IN, Attorney for Appellee.

OPINION

MATTINGLY-MAY, Judge.

Julie Marie Bojrab ("Wife") and George David Bojrab ("Husband") appeal the trial court's dissolution of their marriage. Wife appeals raising six issues, and Husband cross-appeals raising four additional issues. We consolidate their issues and reorder and restate them as:

1. Whether the trial court erred by declining to adjust the temporary support and maintenance paid by Husband when his income dropped during the pendency of the proceedings;

2. Whether the trial court erred when ruling on Husband's motion to correct error by granting to Husband additional money from the proceeds of the sale of the marital residence;

3. Whether the trial court's division of assets was clearly erroneous;

4. Whether the trial court erred when it conditioned Wife's custody of the parties' children on her continuing to reside in Allen County; and

5. Whether the trial court abused its discretion in determining child support. We affirm in part and reverse and remand in part.

FACTS AND PROCEDURAL HISTORY

In 1991, Wife and Husband were married in Wife's hometown, Livonia, Michigan. When the couple got married, Husband had just finished medical school, and they moved to Fort Wayne, Indiana, where Husband began a one-year internship. In 1992, the couple moved to Indianapolis, where Husband completed a three-year residency program in anesthesiology. While they lived in Indianapolis, Wife completed her baccalaureate degree, with a major in psychology and a minor in nutrition.

After obtaining her degree, Wife got a job at Jenny Craig Weight Loss Clinic, where she worked as a weight loss counselor for four months until she began having complications with her first pregnancy. The parties agreed that Wife would not be employed after they had children. In November of 1993, the parties' first child, D.G.B., was born. After Husband's residency, the family moved back to Fort Wayne, where Husband's extended family lives and where Husband began practicing medicine. In September of 1995, the parties' second child, A.E.B., was born. Then in February of 1998, the parties' third child, N.E.B., was born.

On November 3, 1999, the parties separated when Wife took the children to Livonia and stayed with her mother. Thereafter, Wife told Husband that she did not plan to return to the marital residence. Wife filed a petition for dissolution of marriage on January 10, 2000. On January 27, Wife filed a notice of intent to change residence, which advised the trial court that Wife and her children had moved to Livonia. On February 2, the trial court granted Wife possession of the marital residence and temporary custody of the parties' minor children with the condition that neither party could move the children out of Indiana or more than 100 miles from Allen County without the court's approval. Also on that date, Wife obtained a temporary restraining order to prevent Husband from coming into the marital residence.

In December of 2001, the court held hearings. Then, on March 28, 2002, the trial court entered its dissolution decree that included extensive findings of fact and conclusions of law. In part, the order gave custody of the children to Wife if she remained in Allen County, ordered that Husband pay $537.00 per week in child support, gave Husband visitation in accordance with the parenting time guidelines, denied Wife's request for rehabilitative maintenance, ordered the marital residence sold and the proceeds divided between the parties, awarded to Wife 60% of the marital assets, and ordered Husband to pay $60,000 toward Wife's attorney fees.

On April 26, 2002, Wife filed a Notice of Appeal. On April 29, Husband filed a motion to correct error. Wife filed a motion objecting to Husband's motion to correct error. On June 18, 2002, the trial court granted Husband's motion in part, providing that Husband was to receive additional proceeds from the sale of the marital residence. Both parties appeal. Additional facts will be provided where necessary.

DISCUSSION AND DECISION

1. Temporary Support and Maintenance

Husband alleges the trial court erred by declining to adjust, when Husband's income decreased substantially due to a change in employment, the temporary support and maintenance he was paying to Wife during the pendency of the proceedings. Wife responds by claiming, first, that Husband waived this argument by failing to bring an interlocutory appeal of the trial court's denial of Husband's request for modification and, second, that Husband's argument fails on the merits.

Ind. Appellate Rule 14(A) provides parties may appeal certain types of interlocutory orders made by the trial court by filing a Notice of Appeal within thirty days of the entry of the order. A party may appeal as a matter of right an order "[f]or the payment of money." Id. An order requiring one party to pay temporary support and maintenance to another party is an order for the payment of money. Burbach v. Burbach, 651 N.E.2d 1158, 1162 (Ind.Ct.App.1995). Consequently, the trial court's denial of Husband's request for modification was an appealable interlocutory order. Id. By failing to appeal that order within thirty days of its entry, Husband waived any error that occurred, and he may not now appeal the interlocutory order on appeal of the final judgment. See Crowley v. Crowley, 708 N.E.2d 42, 50 (Ind.Ct.App.1999)

.

Because Husband waived any error that occurred, we need not address whether the trial court abused its discretion when it did not adjust Husband's temporary support obligation.

2. Motion to Correct Error

Wife claims the trial court's ruling on Husband's motion to correct error was erroneous. Specifically, Wife argues the trial court erred by granting to Husband additional money from the sale of the marital residence. We review the trial court's decision to grant or deny a motion to correct error for an abuse of discretion. Stott v. Stott, 737 N.E.2d 854, 857 (Ind.Ct. App.2000). We reverse only if the trial court's decision was against the logic and effect of the facts and circumstances before the court, "without reason," or "based upon impermissible reasons or considerations." Dughaish ex rel. Dughaish v. Cobb, 729 N.E.2d 159, 167 (Ind.Ct.App. 2000), reh'g denied, trans. denied.

The facts underlying this issue are as follows. On February 2, 2000, the trial court entered a temporary order that gave possession of the marital residence to Wife and required Husband to pay mortgage, insurance, and tax obligations on the residence. Presumably, all such payments were made. Then, in its final order, the trial court ordered: 1) the house be sold; 2) pending sale, Husband was to pay the mortgage, property taxes and insurance; 3) upon sale, Husband would receive forty percent of the net proceeds while Wife would receive sixty percent of the net proceeds; and 4) determination of the net proceeds would include subtraction of "the monthly principle [sic] payments, taxes and insurance paid by [Husband] from January 10, 2000 through the date of closing" from the gross sale proceeds. (Appellant's App. at 165-66.)

Husband filed a motion to correct error in which he claimed the trial court erred in its division of the proceeds from the sale of the marital residence. The trial court granted Husband's motion in part, concluding "the failure to credit and reimburse [Husband] for the payment of the monthly principle [sic] and interest payments on the mortgaged indebtedness at the time of the sale of the marital residence was error." (Id. at 191.) (Emphasis in original.) Consequently, the trial court ordered that Husband "shall be reimbursed from the proceeds of the sale of the marital residence an amount equal to the monthly principle [sic] and interest mortgage payments paid by him from January 10, [2000]¹ to the date of closing." (Id.)

Wife claims that the trial court erred when it granted Husband's request for additional money from the sale of the marital residence because it "changed the overall division of assets and created a monetary windfall." (Appellant's Br. at 42.) To support this claim, Wife argues "granting [Husband] 100% reimbursement for interest payments places the entire responsibility for such debt upon [Wife]." (Id. at 44.) We disagree.

The marital estate is to be closed at the time of the filing of the petition for dissolution. Wilson v. Wilson, 732 N.E.2d 841, 846 (Ind.Ct.App.2000) ("We agree with Husband that the marital pot closes on the date the petition for dissolution is filed."), trans. denied. Wife filed the petition for dissolution on January 10, 2000. After that date, Husband paid all mortgage payments. After the trial court granted Husband's motion to correct error, Husband was reimbursed for all payments made after January 10, 2000. Essentially, the trial court restored the parties to their position when the petition for dissolution was filed.

Moreover, reimbursing Husband for the interest payments did not place all of the responsibility for the marital debt on Wife. Rather, the interest payments were returned to Husband from the equity in the house—40% of which was to be given to Husband under the decree. Consequently, the parties divided the cost of the interest payments after the date of the petition. To the extent Wife was responsible for more of the interest than Husband, pursuant to her entitlement to 60% of the net proceeds from the house, such difference does not amount to an abuse of the trial court's discretion in light of the fact that Wife lived in the house for over two years without making a house payment.

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