Graveline v. Peyovich
| Decision Date | 20 November 2012 |
| Docket Number | No. 45A04-1201-DR-28,45A04-1201-DR-28 |
| Parties | EDWARD GRAVELINE, Appellant-Respondent, v. MELINA (GRAVELINE) PEYOVICH, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
SOPHIA J. ARSHAD
BRIAN M. SMITH
Law Offices of Brian M. Smith, P.C.
Merrillville, Indiana
APPEAL FROM THE LAKE CIRCUIT COURT
The Honorable George Paras, Judge
The Honorable Michael Sarafin, Magistrate
MEMORANDUM DECISION - NOT FOR PUBLICATIONFRIEDLANDER, Judge The marriage of Edward Graveline (Husband) and Milena Peyovich f/k/a Milena Graveline (Wife) was dissolved in 2006. Approximately five years later, Husband filed an Indiana Trial Rule 60(B) motion for relief from judgment asking the trial court to set aside a judgment entered in Wife's favor as part of the dissolution decree. Husband claimed that relief was warranted because the marital residence, which had been awarded to Husband in the dissolution decree, was sold in 2008 for an amount significantly less than the dissolution court's valuation. The trial court denied the motion as untimely. On appeal, Father contends that the trial court abused its discretion in denying his T.R. 60(B) motion. Mother cross-appeals and requests appellate attorney fees pursuant to Indiana Appellate Rule 66(E). We affirm the trial court and we decline to award appellate attorney fees in this matter.
Wife filed a petition for legal separation from Husband on February 6, 2004, which she subsequently converted to a petition for dissolution of marriage. Pursuant to an agreed provisional order entered on March 8, 2004, the parties were ordered to list the marital residence for sale. On November 2, 2004, the trial court ordered the parties to enter into a listing agreement with a specific realtor and list the marital residence for sale with a price of $620,000 for 90 days. The parties were ordered to accept any offer that came within 2.5% of the listed price.
The parties did not receive any offers to purchase the property for several months. Then, on June 29, 2005, a set of prospective buyers offered to purchase the property for $529,000. Wife accepted the offer, but Husband did not. The prospective buyers made another offer on July 12, 2005, this time raising their offer to $561,750. Wife's counsel sent correspondence to Husband's counsel indicating that Wife wished to accept the offer andasking for Husband's cooperation, but Husband did not accept the offer. Approximately four months later, a second set of potential buyers offered to purchase the home for $510,000. Again, Wife accepted the offer, but Husband did not.
At the time of the three-day final hearing in the spring of 2006, the home had still not been sold. At the final hearing, the parties submitted appraisals valuing the home from $690,000 down to $560,000. The final decree of dissolution was entered on June 2, 2006, in which the trial court assigned a value of $579,900 to the marital residence, awarded all right and title in the home to Husband, and ordered that Husband would be solely responsible for the payment of the mortgage. The trial court determined that, after payment of the mortgage, liens, commissions, taxes, and other costs, there was a net equity in the residence of $228,515. The trial court awarded the full amount of equity to Husband and, in order to equalize the division of the marital estate, entered a judgment against Husband in Wife's favor in the amount of $78,104.13, to be paid from the proceeds of the sale of the marital residence.
Over a year later, the house had still not been sold. On July 23, 2007, Wife filed a petition for the appointment of a commissioner alleging that Husband had stopped making mortgage payments and that foreclosure was imminent, and that Husband had informed her that he would make no further mortgage payments and that he would not lower the property's sale price. In an order dated November 14, 2007, the trial court found that Husband had not made mortgage payments since May of 2007 and appointed a commissioner to facilitate the sale of the property.
On January 10, 2008, the commissioner filed a petition asking the trial court to authorize the sale of the property for $480,000. A hearing was held on January 22, 2008, at which Husband and Wife appeared and agreed to the sale. The trial court approved the sale, and the net proceeds were deposited with the trial court clerk after the February 5, 2008 closing.
Wife subsequently filed a motion to strike various liens against the property and to determine priority amongst lienholders. A hearing was held on October 31, 2008, at which Husband, Wife, and their respective counsel from the dissolution proceedings, who had filed liens against the marital residence, all appeared. The parties entered into an agreement as to the appropriateness, amount, and priority of the liens, and the trial court ordered the distribution of the funds from the clerk's office in accordance with the terms of the agreement. Of the $105,052.98 in net proceeds deposited with the trial court, a total of $53,349.33 was either paid to Wife or credited toward her attorney fee obligations.
On July 19, 2010, Wife filed a petition to modify child support, establish child support arrearages, and a request for offset. In the petition, Wife asked the trial court to determine her outstanding child support arrearage and to offset her arrearage by the remaining balance Husband owed on the judgment entered pursuant to the dissolution decree. Nearly a year later, on June 23, 2011, Husband filed a motion for relief from judgment asking the trial court to set aside the equalizing judgment entered in Wife's favor as part of the dissolution decree. Husband argued, in relevant part, that he was entitled to relief under T.R. 60(B)(8) because it would be "patently unfair and unjust to allow the judgment to stand as it is because it is not atrue reflection of the value of the marital home and equalization of the distribution of marital property." Appellant's Appendix at 108.
At a hearing on November 10, 2011, the trial court denied Husband's motion from the bench, finding that it had not been filed within a reasonable time under T.R. 60(B)(8). In a written order entered following the hearing, the trial court also found that "the issue of home valuation was previously contested and strenuously argued at the parties' final hearing, and that there is insufficient evidence to grant [Husband's] request for relief from judgment." Id. at 176. The trial court went on to grant Wife's request for offset, and determined that the remaining balance Husband owed to Wife was $30,190.22. Husband now appeals.
1.
Husband argues that the trial court abused its discretion in denying his T.R. 60(B) motion for relief from judgment.1 T.R. 60(B) provides a mechanism by which a party may obtain relief from the entry of a final judgment. Laflamme v. Goodwin, 911 N.E.2d 660 (Ind. Ct. App. 2009). "A motion made under T.R. 60(B) is addressed to the equitable discretion of the trial court, and we will reverse only upon an abuse of that discretion." Brimhall v. Brewster, 864 N.E.2d 1148, 1152-53 (Ind. Ct. App. 2007), trans. denied. An abuse of discretion occurs when the judgment is clearly against the logic and effect of the facts andinferences supporting the judgment. Breneman v. Slusher, 768 N.E.2d 451 (Ind. Ct. App. 2002), trans. denied. When reviewing the trial court's judgment, we will not reweigh the evidence. Gipson v. Gipson, 644 N.E.2d 876 (Ind. 1994). The movant bears the burden of establishing grounds for relief under T.R. 60(B). Brimhall v. Brewster, 864 N.E.2d 1148.
Pursuant to T.R. 60(B), a trial court may relieve a party from a judgment for the following relevant reasons:
A motion filed under subsection (2) must be filed within one year after the judgment, and a motion filed under subsection (8) must be filed "within a reasonable time[.]" Id.
Husband asserted in his motion for relief from judgment that he was seeking relief under subsections (2) and (8) of T.R. 60(B). On appeal, Husband appears to have abandoned his argument under subsection (2), and for good reason: because a motion under T.R. 60(B)(2) must be filed within one year of the entry of judgment, Husband's June 22, 2011 motion is clearly untimely under that subsection.
Thus, we are left to consider whether the trial court abused its discretion in determining that Husband's T.R. 60(B) motion was not filed within a reasonable time for the purposes of subsection (8). "Determining what is a reasonable time period depends on the circumstances of each case, as well as the potential prejudice to the party opposing the motion and the basis for the moving party's delay." Parham v. Parham, 855 N.E.2d 722,729 (Ind. Ct. App. 2006), trans. denied.2
Here, Husband's motion for relief from judgment was filed on June 22, 2011, approximately five years after the entry of the decree of dissolution, more than three years after the sale of the home, and nearly one year after Wife filed her request for offset. On appeal, Husband, who apparently proceeded pro se throughout much of the post-dissolution litigation, claims that his delay was attributable to his "mistaken assumption that the trial court would automatically reduce the value [of the home] based upon its sale price."...
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