Hedrick v. Gilbert

• Decision Date: 09 September 2014
• Docket Number: No. 47A01–1401–DR–1.,47A01–1401–DR–1.
• Citation: 17 N.E.3d 321
• Parties: Robert O. HEDRICK, Appellant–Respondent, v. Angela R. GILBERT, Appellee–Petitioner.
• Court: Indiana Appellate Court

17 N.E.3d 321

Robert O. HEDRICK, Appellant–Respondent

v.Angela R. GILBERT, Appellee–Petitioner.

No. 47A01–1401–DR–1.

Court of Appeals of Indiana.

Sept. 9, 2014.

Adam Mueller, Jamie Wilkins, Indiana Legal Services, Inc., Indianapolis, IN, Attorneys for Appellant.

OPINION

BAKER

, Judge.

Robert Hedrick appeals from the trial court's order, which: (1) declined to modify Hedrick's original child support agreement with his ex-wife, Angela Gilbert, which provided that they would each bear 50% of the cost of their child's postsecondary educational expenses, (2) found Hedrick in contempt and issued a sanction as a result, and (3) required Hedrick to pay a portion of Gilbert's attorney fees. Gilbert filed a motion to dismiss the appeal, arguing that it was untimely filed. Finding that the appeal was timely filed, that the trial court did not abuse its discretion in denying Hedrick's petition to modify the original child support agreement or in finding Hedrick in contempt for failing to comply with that original order, and that the trial court erroneously entered an attorney fee award against Hedrick, we affirm in part and reverse in part.

FACTS

Hedrick and Gilbert were married in the early 1990s. Their son, B.H., was born on January 19, 1994. On July 24, 2000, Gilbert filed a petition for dissolution of the marriage, and the trial court entered a dissolution decree on December 6, 2000. The decree incorporated a separate “Contract and Agreement,” the terms of which had been agreed to by the parties. Among other things, Hedrick agreed to pay child support in the amount of $71.00 per week, and Hedrick and Gilbert each agreed to pay 50% of B.H.'s future college education expenses. Appellant's App. p. 14–15. At some point in 2003, Gilbert filed a petition to modify the agreement, which was granted in part by the trial court on December 2, 2003. In relevant part, the order modified the amount of Hedrick's child support obligation to $81.00 per week.

On August 5, 2011, Hedrick filed a petition to modify his child support obligation,¹ and on August 17, 2011, Gilbert also filed a petition to modify. The basis for Hedrick's request was his position that “[t]he gross weekly income of both parents has changed substantially since 2003.” Id. at 24. Gilbert requested that either the court enter an order “regarding the payment of college expenses for” B.H., or enter an order that Hedrick's “child support obligation should continue until the minor child completes school.” Id. at 29. On October 3, 2011, Gilbert filed a request for attorney fees and a request that the trial court find Hedrick in contempt based on his failure to pay 50% of B.H.'s college expenses as ordered by the trial court in the dissolution decree.

Following an unsuccessful mediation, the trial court held hearings on the petitions to modify on December 20, 2012, February 11, 2013, and August 14, 2013. At the hearings, evidence was presented to the trial court establishing that Hedrick has worked at Burger King for the past twenty-six years as a cook. At the time of the hearings, Hedrick's rate of pay was $9.41 per hour, and his weekly work hours had recently been cut from forty to thirty-two. He lives with his parents in their three-bedroom trailer and helps to care for his elderly mother, who has had two strokes and is bedridden. Hedrick was fully up-to-date on child support at the time it was terminated by the trial court.

Following the divorce, Gilbert remarried. She is a Licensed Practical Nurse, and at the time of the hearing she worked between fifteen and seventeen hours a week, with a base pay of $20.59 per hour. In the past, she worked part-time because B.H. had health issues and her elderly parents needed assistance. At the time of the hearing, those issues had been remedied. She testified that she works part-time for “personal and family reasons.” Tr. p. 97. If Gilbert were to find full-time employment with a new employer (her current employer did not have any full-time openings at the time of the hearings), she would likely start at a base rate of pay of $14 per hour. In addition to her work as an LPN, Gilbert owns a landscape business and her husband has full-time employment.

At the time of the first hearing, B.H. had just completed his first semester at Vincennes University. By the time of the final hearing, he had transferred to Ivy Tech Community College. Before attending college, B.H. had full-time employment at General Motors at an hourly rate of $9.63. While attending college, he had applied for work study positions but was on a waiting list and had not successfully obtained employment.

Following the hearings, the trial court entered an order denying Hedrick's motion and granting Gilbert's motions on October 22, 2013. Among other things, the trial court held as follows:

4. MODIFICATION. That Father's Petition for Modification is hereby denied in that there has not been shown a substantial and continuing change in circumstances as required by Indiana Code 31–16–8–1

.

5. CONTEMPT. That Father is in contempt due to his failure to pay his portion of the college expenses for the child as previously ordered by this court.

That Father shall pay $500.00 of Mother's attorney fees due to said contempt.

6. COLLEGE EXPENSES: That the parties['] decree in this matter ... stated, “That Husband and Wife shall each assume and pay 50% of all schoolbook rental and enrollment fees and college education expenses for the minor child.” That since no modification of that term of the decree is warranted at this time, that term remains in effect....

* * *

8. ATTORNEY FEES: That Father shall pay $1,000 for Mother's attorney fees occasioned by having to litigate this lengthy action, within 180 days. Plus, the $500.00 occasioned by his contempt within an additional 180 days....

Appellant's App. p. 9–10. On November 21, 2013, Gilbert filed a “Motion for Clarification” regarding the October 22 order. The trial court issued another order in response on December 9, 2013, holding as follows:

1. At the time of the order entered the child of the parties was still in college accruing financial obligations and the court did not have a final number as to the division to be made.

* * *

3. [Gilbert] is to present [Hedrick] with an itemization of all bills she has currently paid and that are now due to her within 10 days of this order. [Hedrick] will have 30 days from that date to make payment arrangement for his share of the previous bills.

4. [Gilbert] is to present all future bills that she has paid for the child's education, to [Hedrick] in a timely fashion and he will have 60 days to pay those in full or 30 days to make payment arrangements with her that are acceptable to both parties.

5. All previous orders remain in full force and effect. This order is only meant to supplement and clarify those orders.

Id. at 11.

Hedrick filed a notice of appeal on January 3, 2014. On January 8, 2014, Gilbert filed a motion to dismiss the appeal, arguing that it had been untimely filed. This Court dismissed the appeal on January 23, 2014, but then reinstated the appeal on January 29, 2014, holding in abeyance for the writing panel the issue of the timeliness of the appeal.

DISCUSSION AND DECISION

I. Timeliness of Appeal

The Indiana Rules of Appellate Procedure require that a party must initiate an appeal by filing a Notice of Appeal with the appellate court clerk within thirty days after entry of a final judgment. Ind. Appellate Rule 9(A)

. If a party files a timely motion to correct error, a Notice of Appeal must be filed within thirty days after the court's ruling on the motion is issued or within thirty days of the motion being deemed denied, whichever occurs first. App. R. 9(A)(1). The timely filing of a notice of appeal is a jurisdictional prerequisite, and failure to conform to the applicable time limits results in forfeiture of an appeal. D.C., Jr. v. C.A., 5 N.E.3d 473, 477 (Ind.Ct.App.2014). Jurisdiction is a question of law, which we review de novo. Young v. Estate of Sweeney, 808 N.E.2d 1217, 1219 (Ind.Ct.App.2004).

In this case, the trial court issued its order on October 22, 2013. Hedrick did not file his Notice of Appeal until January 3, 2014, well after the expiration of the thirty-day time limit set forth by Appellate Rule 9

. Hedrick argues, however, that Gilbert's motion for clarification was tantamount to a motion to correct error, tolling the start of the clock until the trial court issued its order in response to her motion on December 9, 2013.²

We agree with Hedrick. The Indiana Trial Rules do not provide for a “motion for clarification.” If we were to treat it as something other than a motion to correct error or a motion to reconsider, practitioners would have no guidance on what such a motion should be, its timelines, or its possible end results. Gilbert argues that she merely asked for certain technical clarifications regarding the timeline of payments. While that is true, nothing in the rules distinguishes a request for a technical clarification from a request for a more substantive change, and nothing in the rules provides for a motion to correct a “technical error” as opposed to a motion to correct any other error.

Gilbert emphasizes that the trial court's order that was issued in response to her motion did not make any substantive changes to the original motion; as a result, she argues that her motion should not be treated as a motion to correct error. To say that a pleading cannot be appropriately defined and labeled until after the trial court issues its order, however, would inject far too much uncertainty into the practice of law in this State.

In the end, we find that it would elevate form over substance to treat a “motion to clarify” as something other than a motion to correct error. Indiana Trial Rule 59(F)

plainly states that “[a]ny modification ... following the filing of a Motion to Correct Error shall be an appealable final judgment or order.” (Emphasis added). Here, the trial court...