Marriage of Robbins, In re, No. 3--575A77
| Docket Nº | No. 3--575A77 |
| Citation | 358 N.E.2d 153, 171 Ind.App. 509 |
| Case Date | December 16, 1976 |
| Court | Court of Appeals of Indiana |
Page 153
and
Jean Robbins, Petitioner-Appellee.
[171 Ind.App. 510]
Page 154
John S. Gonas, South Bend, for respondent-appellant.Paul B. Kusbach, South Bend, for petitioner-appellee.
STATON, Presiding Judge.
The marriage of Edley A. Robbins and Jean Robbins was dissolved on November 4, 1974. Edley A. Robbins failed to appear for the trial on the merits. After the judgment was rendered dissolving the marriage, he filed a motion with the trial court to vacate judgment. 1 Before the trial court ruled upon this motion, Edley Robbins filed his motion to correct errors which was overruled. Two issues are presented to this Court by Edley Robbins' appeal:
1. Does this Court have appellate jurisdiction?
2. Did the trial court abuse its discretion when it refused to vacate the judgment?
In our review of these issues, we conclude that this Court does have jurisdiction and that the trial court did not abuse its discretion. We affirm.
I.
Jurisdiction
Jean Robbins contends that we are without jurisdiction to review this appeal since Edley Robbins failed to file a second [171 Ind.App. 511] motion to correct errors. Edley Robbins had filed a motion to vacate the divorce judgment. Before the trial court ruled on the motion to vacate, he filed his motion to correct errors citing the trial court's failure to vacate the judgment as an abuse of discretion. 2 Since Trial Rule 60(B) grounds
Page 155
are cited by Edley Robbins in his motion to vacate, Jean Robbins contends that the denial of the motion to correct errors constituted a denial of his TR. 60(B) motion to vacate and that a second motion to correct errors is necessary to give this Court jurisdiction to review the judgment.TR. 60(B) affords relief from circumstances which could not have been discovered during the period in which a TR. 59 motion to correct errors could have been filed with the trial court. It is not a substitute for a timely appeal. Warner v. Young American Volunteer Fire Dept. (1975), Ind.App., 326 N.E.2d 831; Moe v. Koe (1975), Ind.App., 330 N.E.2d 761; York v. Miller (1975), Ind.App., 339 N.E.2d 93; 4 W. Harvey & R. B. Townsend, Indiana Practice 222 (1971). TR. 59(A)(2), (3) and (9) permit the TR. 60(B) grounds to be used. 3
[171 Ind.App. 512] What Jean Robbins suggests as a defect in jurisdiction would amount to an unintended defect in the Indiana Rules of Procedure. Trial Rule 1 provides that the Indiana trial rules 'shall be construed to secure the just, speedy and inexpensive determination of every action.' What Jean Robbins suggests could possibly require the unnecessary filing of two motions to correct errors, one addressed to the trial court's judgment and a second to the trial court's denial of a TR. 60 motion for the same relief. Furthermore, her suggestion would cause unnecessary delay and expense in the final determination of those matters appealed. For example, where a TR. 59 motion to correct errors has been filed, and later, a TR. 60 motion is filed and denied then a second motion to correct errors is filed upon the ruling which denied the TR. 60 motion; the second motion to correct errors can not be appealed until the first motion to correct errors has completed the appellate process. (See Logal v. Cruse (1976), Ind.App., 338 N.E.2d 309 (concurring and dissenting opinions)).
The time limits for each of these motions, TR. 59 and TR. 60(B), have inherent basic purposes. One of the common, overlapping purposes is to call errors, either in equity or in law, to the attention of the trial court to avoid an injustice. To this extent, both motions overlap in their basic purpose. TR. 59(A)(7) states that its purpose shall be for the 'Correction of a judgment subject to correction, alteration, amendment or modification; or'; and this purpose is supplemented by a more inclusive purpose: '(9) For any reason allowed by these rules, statutes or other law.' This last purpose, TR. 59(A)(9), would appear to encompass the additional [171 Ind.App. 513] equitable purposes stated in TR. 60(B) during the TR. 59 sixty day time limit. Therefore, a TR. 60 purpose stated in a motion, regardless of its denomination, should be treated as a TR. 59 motion if it is filed within the sixty day period after judgment. No further motion to correct errors is required for an appeal. 4
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After the sixty days, a motion, regardless of its denomination, which states a TR. 60 purpose must be treated as a TR. 60 motion. When the trial court renders a judgment by denying or granting this motion, a motion to correct errors is required for an appeal from the judgment.In support of her jurisdictional defect, Jean Robbins cites Yerkes v. Washington Manufacturing Co. (1975), Ind.App., 326 N.E.2d 629. We disapprove of Yerkes v. Washington Manufacturing Co., supra, for the reasons cited above. 5
[171 Ind.App. 514] II.
Abuse of Discretion
Several days before the divorce...
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Vanjani v. Federal Land Bank of Louisville, No. 1-982A262
...v. Brososky, (1982) Ind.App., 436 N.E.2d 1165; Grecco v. Campbell, (1979) Ind.App., 386 N.E.2d 960; In re Marriage of Robbins, (1976) 171 Ind.App. 509, 358 N.E.2d 153; Payne v. Doss, (1976) 170 Ind.App . 652, 354 N.E.2d 346; Henline, Inc. v. Martin, (1976) 169 Ind.App. 260, 348 N.E.2d 416; ......
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Houston v. Wireman, No. 2-382A80
...J. in which Hoffman, P.J. concurs & Staton, J. concurs in result with separate opinion); In Re Marriage of Robbins (3d Dist. 1976) 171 Ind.App. 509, 358 N.E.2d 153 (opinion by Staton, J. in which Garrard & Hoffman, JJ. concur with separate opinions); Dawson v. St. Vincent Hospital & Health ......
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Kelly v. Bank of Reynolds, No. 2--1274A295
...of that judgment, the allegations may be presented via a TR. 59 motion to correct errors. See, Robbins v. Robbins (3d Dist.), Ind.App., 358 N.E.2d 153 (decided this date, December 16, Early interpretations of the present rules indicated that TR. 59 was a broad and flexible tool for seeking ......
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Hawblitzel v. Hawblitzel, No. 3-482A61
...proceeded with trial, but absence of counsel does not necessarily precipitate reversible error. See In re Marriage of Robbins (1976), 171 Ind.App. 509, 358 N.E.2d 153, 2 overruled on other grounds (1983), Ind., 446 N.E.2d 332 The wife has not demonstrated to this court that she made a reaso......
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Vanjani v. Federal Land Bank of Louisville, No. 1-982A262
...v. Brososky, (1982) Ind.App., 436 N.E.2d 1165; Grecco v. Campbell, (1979) Ind.App., 386 N.E.2d 960; In re Marriage of Robbins, (1976) 171 Ind.App. 509, 358 N.E.2d 153; Payne v. Doss, (1976) 170 Ind.App . 652, 354 N.E.2d 346; Henline, Inc. v. Martin, (1976) 169 Ind.App. 260, 348 N.E.2d 416; ......
-
Houston v. Wireman, No. 2-382A80
...J. in which Hoffman, P.J. concurs & Staton, J. concurs in result with separate opinion); In Re Marriage of Robbins (3d Dist. 1976) 171 Ind.App. 509, 358 N.E.2d 153 (opinion by Staton, J. in which Garrard & Hoffman, JJ. concur with separate opinions); Dawson v. St. Vincent Hospital & Health ......
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Kelly v. Bank of Reynolds, No. 2--1274A295
...of that judgment, the allegations may be presented via a TR. 59 motion to correct errors. See, Robbins v. Robbins (3d Dist.), Ind.App., 358 N.E.2d 153 (decided this date, December 16, Early interpretations of the present rules indicated that TR. 59 was a broad and flexible tool for seeking ......
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Hawblitzel v. Hawblitzel, No. 3-482A61
...proceeded with trial, but absence of counsel does not necessarily precipitate reversible error. See In re Marriage of Robbins (1976), 171 Ind.App. 509, 358 N.E.2d 153, 2 overruled on other grounds (1983), Ind., 446 N.E.2d 332 The wife has not demonstrated to this court that she made a reaso......