Davis v. Davis

• Citation: 306 N.E.2d 377,159 Ind.App. 290
• Decision Date: 31 January 1974
• Docket Number: No. 2--1172--A--115,2--1172--A--115
• Parties: James H. DAVIS, Appellant (Plaintiff below), v. Gladys M. DAVIS, Appellee (Defendant below).
• Court: Indiana Appellate Court

Page 377

306 N.E.2d 377

159 Ind.App. 290

James H. DAVIS, Appellant (Plaintiff below), v. Gladys M. DAVIS, Appellee (Defendant below).

No. 2--1172--A--115.

Court of Appeals of Indiana, Second District.

Jan. 31, 1974.

Rehearing Denied March 7, 1974.

John P. Price, Bingham, Summers, Welsh & Spilman, Thomas J. Carroll, George A. Cottrell, Carroll & Carroll, Indianapolis, for appellant.

Kothe, Shotwell, Claycombe, Hendrickson & Kortepeter, Robert A. Claycombe, Steven G. Cracraft, Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Plaintiff-Appellant James Davis (James) attempts to appeal from an amended judgment in a divorce action adjusting the previously decreed property rights of the parties favorably to Defendant-Appellee Gladys Davis (Gladys) without having first filed a motion to correct errors to the amended judgment.

We dismiss the appeal.

CASE HISTORY

On March 23, 1973, Gladys filed in this court a Motion to Dismiss or Affirm this appeal on the ground that James had failed to file a motion to correct errors following entry of final judgment by the trial court (being the court's Second Amended Judgment). By a Per Curiam opinion handed down May 10, 1973, we improvidently overruled Gladys's Motion. Davis v. Davis, (1973) Ind.Ct.App., 295 N.E.2d 837.

FACTS

The facts and evidence most favorable to the judgment of the trial court are:

On April 20, 1971, James filed a Complaint for Divorce against Gladys and she responded with an Answer and Counter-claim for Separation from Bed and Board, later amended to seek absolute divorce.

The court tried the matter on December 22, 1971. On January 21, 1972, a Decree was entered granting a divorce to Gladys and ordering distribution of certain property and sale of the family residence (real estate) owned by the parties as tenants by the entireties, with the net proceeds of the sale to be divided equally between them.

On March 13, 1972, Gladys filed a Motion to Correct Errors alleging that the trial court in determining the distribution of property had neglected to consider certain pension rights belonging to James having an approximate value of $100,000.

The trial court granted Gladys's Motion to Correct Errors and entered an amended judgment recognizing that the pension rights had not been taken into consideration and awarding her sole ownership of the real estate, which increased the property received by her by approximately $5,500.

James at no time filed a motion to correct errors on his own behalf, but instead directly filed this appeal questioning the propriety of the amended judgment.

ISSUE

James raises issues as to evidence improperly considered by the trial court and abuse of discretion in awarding the real estate to Gladys in the amended judgment. However, for reasons which will hereinafer appear, this appeal must be disposed of by reconsideration of our action in overruling Gladys's Motion to Dismiss or Affirm. The issue, then, is:

Must an appeal be dismissed if the Appellant (James) fails to file a timely motion to correct errors following entry of an amended judgment from which the appeal is taken?

In her Motion to Dismiss or Affirm, Gladys contended that the amended judgment entered by the trial court in response to her Motion to Correct Errors constituted a new final judgment requiring James, under Rule TR. 59(G), IC 1971, 34--5--1--1, to file his own motion to correct errors with the trial court as a condition precedent to taking this appeal.

In response, James argued that under Appellate Rule 4(A) he was free to appeal from the granting of Gladys's Motion without filing a subsequent motion of his own following entry of the amended judgment.

DECISION

CONCLUSION--It is our opinion that this appeal must be dismissed because James failed to file a motion to correct errors following entry of the amended judgment (a final judgment) as required by Rule AP. 4(A). To the extent that our prior Per Curiam decision in Davis v. Davis, (1973) Ind.Ct.App., 295 N.E.2d 837, conflicts herewith, it is overruled.

The perplexing issue presented by this appeal is rooted in an apparent conflict between Rule TR. 59, which requires as a condition precedent to appeal the filing of a motion to correct errors which 'shall separately specify' the errors and issues raised on appeal, and Rule AP. 4(A), which arguably dispenses with this requirement as to a party aggrieved by the granting of his opponent's motion to correct errors. This latter argument under Rule AP. 4(A) is founded upon one sentence in the Rule which reads:

'A ruling or order by the trial court granting or denying a motion to correct errors shall be deemed to be a final judgment, and an appeal may be taken therefrom.'

In our previous Per Curiam decision, we mistakenly fixed our attention solely upon the simple granting or denying of a motion to correct errors as a final judgment without regard to the existence of an amended judgment following the granting of Gladys's Motion to Correct Errors. Emphasizing the need for speedy determination of appeals, we said:

'One of the primary goals of the system of justice is a speedy determination of the litigants' rights. We think the Supreme Court intended that a trial court should be given an opportunity to correct its errors, if any. However, once the court has been given that opportunity, the party aggrieved by the court's ruling should have the immediate right to appeal the court's ruling. We believe the intent of the Supreme Court as expressed in Rule AP. 4(A) is just what the rule plainly says, and that the logical extension of that construction is that a subsequent motion to correct errors is not required to appeal from the granting of the opposing party's motion to correct errors.' (Emphasis supplied.) Davis v. Davis, supra at 839.

Eleven days after we uttered those fateful words, a unanimous Supreme Court decided State v. Deprez, (1973) Ind., 296 N.E.2d 120 (handed down May 21, 1973; rehearing denied August 20, 1973), which under similar circumstances focused its attention on the crucial fact that an amended judgment became a final judgment and therefore required a motion to correct errors to be filed addressed to the errors in such new final judgment.

The facts in Deprez were that the State as Appellant filed a Motion to Correct Errors following the trial court's dismissal of its condemnation action by simple judgment entry. In response to the State's Motion, the trial court thereafter denied the Motion to Correct Errors and, in addition, amended its judgment of dismissal by making and filing certain Special Findings of Fact and Conclusions of Law in accordance with Rule TR. 52(B) and TR. 59(E). The State then appealed to the Supreme Court without having first filed a second motion to correct errors directed to the amended judgment entry. Because of this fatal omission the appeal was dismissed. Chief Justice Arterburn analyzed the problem:

'First, there is question in this instance of what constituted the final judgment referred to in Rule AP. 4. The net effect of the . . . (first) entry was dismissal with prejudice, and would have been final, had it not been for the Motion to Correct Errors filed . . .. If the trial court had simply either granted or denied that Motion to Correct Errors such step would have constituted the final judgment from which this appeal could have been taken without further ado. Rule AP. 4.

'However, . . . the trial court entered a completely new entry . . . constituting new findings of fact and a new judgment as authorized further by Rule TR. 59(E). This new entry for the first time set forth the reasons in fact and in law upon which the trial court's dismissal was based. If they were in error, then a Motion to Correct Errors was clearly necessary. Thus, the . . . (new) entry became the final judgment, to which a Motion to Correct Errors, referred to in Rule AP. 4, should have been filed.

'Second, there having been no Motion to Correct Errors directed to the . . . (new) entry, that entry has become the entry from which no appeal has been taken. Indiana State Personnel Board v. Wilson, 256 Ind. 674, 271 N.E.2d 448 (Ind.1971).' (Emphasis supplied.) State v. Deprez, supra at 124.

Thus, the Supreme Court has interpreted Rule AP. 4(A) to mean that if a trial court grants or denies a motion to correct errors which is accompanied by a new entry or judgment consisting of additional findings, amendments, or other alterations of the prior judgment, the party aggrieved thereby must file a motion to correct errors addressed to the new entry which has become the final judgment from which appeal is taken. ¹ With this interpretation we agree, not only because we are bound to do so, but because it logically stresses the need for specificity of alleged errors in the appeal process. The first sentence of Rule AP. 4(A) referring to appeals 'from all final judgments,' as well as the second sentence denominating a ruling on a motion to correct errors as a final judgment, is thus given force and effect.

Comparing Deprez with this case, it is plain that the initial decree was followed by more than a simple granting or denial of a motion to correct errors. In granting Gladys's Motion, the trial court entered additional findings and amended its judgment resulting in...