Carter-McMahon v. McMahon

• Decision Date: 22 September 2004
• Docket Number: No. 29A05-0401-CV-28.,29A05-0401-CV-28.
• Citation: 815 N.E.2d 170
• Parties: In re The Marriage of Dawn R. CARTER-McMAHON, Appellant/Respondent/Cross-Appellee, v. Danny W. McMAHON, Appellee/Petitioner/Cross-Appellant.
• Court: Indiana Appellate Court

815 N.E.2d 170

In re The Marriage of Dawn R. CARTER-McMAHON, Appellant/Respondent/Cross-Appellee, v. Danny W. McMAHON, Appellee/Petitioner/Cross-Appellant.

No. 29A05-0401-CV-28.

Court of Appeals of Indiana.

September 22, 2004.

Antolin J. Reiber, Indianapolis, IN, Attorney for Appellant.

Steve Michael Lutz, J. David Hollingsworth, Hollingsworth & Associates, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Appellant/respondent/cross-appellee Dawn R. Carter-McMahon ("Wife") appeals the trial court's order dismissing her motion to correct error. Appellee/petitioner/cross-appellant Danny W. McMahon ("Husband") appeals the denial of certain attorney's fees. We affirm.

Issues

Wife raises one issue:

I. Whether the trial court erred in dismissing her motion to correct error, which was filed thirty-three days after entry of an order awarding attorney's fees to Husband.

Husband challenges Wife's issue and raises the following additional, related issues¹:

II. Whether the trial court erred by not granting Husband's request for attorney's fees incurred "in the defense of an untimely filed" motion to correct error; and

III. Whether Wife's "continuing violations of the Indiana Rules of Appellate Procedure" coupled with her "frivolous" arguments warrant the imposition of damages pursuant to Indiana Appellate Rule 66(E).

See Appellee's Br. at 1, 16.

Facts and Procedural History

The present appeal stems from a dissolution petition originally filed in 1999. The trial court entered its findings of fact, conclusions of law, and decree of dissolution on November 30, 2001. See Appellant's App., "Order on Remand for Award of Attorney Fees."² Wife appealed. A panel of this court issued an unpublished memorandum decision affirming the trial court. See McMahon v. Carter-McMahon, 787 N.E.2d 1028, No. 29A02-0206-CV-445 (Ind.Ct.App. Apr. 30, 2003). Husband petitioned for rehearing. The same panel issued an opinion on rehearing, which stated:

Given our standard of review, [Husband] has established that the trial court improperly ordered the parties to pay their own attorney fees when the agreement[³] expressly called for the breaching party to pay the successful party's attorney fees. Thus, we reverse as to the award of attorney fees only and remand for the trial court to enter a new order accordingly.

See Appellant's App., McMahon v. Carter-McMahon, 792 N.E.2d 100, No. 29A02-0206-CV-445, slip op. at 4 (Ind.Ct.App. July 7, 2003)(opinion on rehearing).

On July 10, 2003, Husband's counsel filed an "Affidavit in Support of Indiana Court of Appeals Order to Award [Husband] Attorney Fees." Wife neither challenged the affidavit nor filed any response. In its "Order on Remand for Award of Attorney Fees," entered September 3, 2003, the trial court found that Husband had incurred attorney fees as follows:

a. Total attorney fees incurred by [Husband] through November 30, 2001: $8,883.00.

b. Additional attorney fees incurred by [Husband] defending and enforcing the parties' Post-Nuptial Agreement in the Court of Appeals: $11,000.00, making a total amount of attorney fees incurred by [Husband] in the amount of $19,883.00.

6. [Wife] should pay [Husband's attorney] the sum of $19,883.00 and counsel shall reimburse to [Husband] those sums advanced by [Husband] in the amount of $5,293.75 upon payment.

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by the court that [Wife] is hereby ordered to pay [Husband's] attorney fees in the amount of $19,883.00, through the Clerk of this court, such being the total amount of attorney fees incurred by [Husband] leading up to the Decree of Dissolution entered in this cause and the sums incurred by [Husband] on appeal, within thirty (30) days of this Order.

See Appellee's Br. Addendum A.

Wife's attorney filed a motion to correct error on October 6, 2003, thirty-three days after the trial court's entry of its order on remand. Husband filed a motion to strike Wife's "Untimely Filed Motion to Correct Errors and Request for Fees" on October 14, 2003. On November 17, 2003, the trial court heard argument on the motion to strike. On December 1, 2003, the trial court filed its order dismissing wife's motion to correct error and denying Husband's request for additional attorney fees.

Discussion and Decision

Standard of Review

"A trial court is vested with broad discretion to determine whether it will grant or deny a motion to correct errors." Volunteers of America v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 658, (Ind.Ct.App.2001). "A trial court has abused its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable inferences therefrom." Id.

I. Propriety of Dismissal of Motion to Correct Error

Wife acknowledges the above standard of review, but also notes the "marked judicial preference for deciding disputes on their merits and for giving parties their day in court, especially in cases involving material issues of fact, substantial amounts of money, or weighty policy determinations." Appellant's Br. at 3. Wife asserts that Trial Rule 6(E) applies to extend by three days the time-period during which she could file her motion to correct error. For support, she cites both Baker v. Sihsmann, 161 Ind.App. 260, 315 N.E.2d 386 (1974) and Coleman v. Charles Court, 797 N.E.2d 775 (Ind.Ct.App.2003). In addition, she notes, "Trial Rule 59 does not state that Trial Rule 6(E) does not apply." Appellant's Br. at 5. In the alternative, Wife cites Trial Rule 72(D) and (E), contends that there was no record of mailing of the order of attorney fees in the Chronological Case Summary, and argues that the trial court "has discretion to grant an extension of time which would clearly encompass October 6, 2003[.]" Id. at 6.

In challenging Wife's proposed application of Trial Rule 6(E), Husband cites numerous cases holding that a trial court was without jurisdiction to address issues because a motion to correct error was filed more than thirty days after entry of judgment. See, e.g., Kratkoczki v. Regan, 178 Ind.App. 184, 187, 381 N.E.2d 1077, 1079 (1978)

(33 days); Brunner v. Terman, 150 Ind.App. 139, 148, 275 N.E.2d 553, 558-59 (1971) (31 days); Gillian v. Brozovic, 166 Ind.App. 682, 683, 337 N.E.2d 152, 153-54 (1975) (32 days). Each case cited by Husband exemplifies a rigid application of the thirty-day period. However, none of the parties in the cases cited by Husband (or Wife for that matter) specifically raised the issue of whether Trial Rule 6(E) applies to extend Trial Rule 59(C)'s thirty-day deadline in which to file a motion to correct error.

In addressing this issue of first impression, we are mindful of the rules of statutory construction, which are applicable to the interpretation of trial rules. Noble County v. Rogers, 745 N.E.2d 194, 197 n. 3 (Ind.2001). Thus, as with statutes, our objective when construing the meaning of a rule is to ascertain and give effect to the intent underlying the rule. See Turner v. Bd. of Aviation Comm'rs, 743 N.E.2d 1153, 1161 (Ind.Ct.App.2001),

trans. denied. We are also mindful that "the Rules of Trial Procedure are to be construed together and harmoniously if possible." Rumfelt v. Himes, 438 N.E.2d 980, 983 (Ind.1982). Where a rule has not previously been construed, the express language of the rule controls the interpretation. Dreyer & Reinbold, Inc. v. AutoXchange.com., Inc., 771 N.E.2d 764, 767 (Ind.Ct.App.2002),

trans. denied. If the language of a rule is clear and unambiguous, it is not subject to judicial interpretation. Spears v. Brennan, 745 N.E.2d 862, 869 (Ind.Ct.App.2001). Moreover, in construing a rule, it is just as important to recognize what it does not say as it is to recognize what it does say. City of Evansville v. Zirkelbach, 662 N.E.2d 651, 654, (Ind.Ct.App.1996),

trans. denied.

Trial Rule 59(C) states:

Time for filing: Service on judge. The motion to correct error, if any, shall be filed not later than thirty (30) days after the entry of a final judgment or an appealable final order....

(Emphases added). Trial Rule 6(E) reads:

Additional time after service by mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three [3] days shall be added to the prescribed period.

(Emphasis added). A plain reading of Rule 59(C) provides that the thirty-day deadline for filing a motion to correct error is triggered by "the entry of a final judgment or an appealable final order," whereas under Rule 6(E), the expanded period is activated by "service of a notice."⁴ That is, Rule 59(C)'s deadline is not triggered by the same event that sets Rule 6(E) in motion. Further, neither rule cites the other. As such, we are unconvinced that Rule 6(E) is related to Rule 59(C), let alone applies to extend the thirty-day period that begins upon entry of judgment.

While we have located no Indiana cases directly on point, numerous federal cases bolster our conclusion that Rule 6(E)⁵ is inapplicable to the deadline computation under Rule 59(C). See Jackson v. Crosby, 375 F.3d 1291, 1293 n. 5 (11th Cir.2004)

("Because Rule 6(e) only applies when a party `has the right or is required to do some act or take some proceedings within a prescribed period after the service' (emphasis added), while Rule 59(b) and (e) require action to be taken within '10 days after entry of the judgment,' (emphasis added) Rule 6(e) can never extend the time for filing a Rule 59(b) or (e) motion.")⁶; Cavaliere v. Allstate Ins., 996 F.2d 1111, 1113 (11th Cir.1993) ("there is no interplay between Rules 6(e) and 59"); Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 468 (5th Cir.1998) ("Rule 6(e) does not apply to the 10-day period that runs from entry of judgment ...") (quoting 1 JAMES W. MOORE ET AL., MOORE'S FEDERAL...