Murfitt v. Murfitt

• Citation: 809 N.E.2d 332
• Decision Date: 15 April 2004
• Docket Number: No. 43A03-0308-CV-316.,43A03-0308-CV-316.
• Parties: Mark S. MURFITT, Appellant-Respondent, v. Vickie MURFITT, Appellee-Petitioner.
• Court: Court of Appeals of Indiana

809 N.E.2d 332

Mark S. MURFITT, Appellant-Respondent, v. Vickie MURFITT, Appellee-Petitioner.

No. 43A03-0308-CV-316.

Court of Appeals of Indiana.

April 15, 2004.

Mark S. Murfitt, Pendleton, IN, Appellant pro se.

OPINION

SULLIVAN, Judge.

Mark Murfitt appeals pro se from the trial court's order distributing the marital property following the trial court's granting of Mark's wife's petition for dissolution of marriage. He presents three issues for our review, two of which we consolidate into the sole issue addressed in this decision: whether the trial court erred in denying Mark alternative methods, including the appointment of counsel, to represent his interests at trial.

We reverse and remand.

We begin by noting that Mark's ex-wife, Vickie, failed to file an appellee's brief. When the appellee does not submit a brief, we apply a less stringent standard of review with respect to showings of reversible error. Burrell v. Lewis, 743 N.E.2d 1207, 1209 (Ind.Ct.App.2001). We may reverse if the appellant establishes prima facie error, that is, an error at first sight, on first appearance, or on the face of it. Id. When the appellant fails to sustain that burden, we will affirm. Id. We do not undertake the burden of developing arguments for the appellee. Id.

On May 29, 2001, the day that Vickie filed her petition for dissolution of marriage, Mark was incarcerated. After receiving service, Mark filed a cross-claim, requesting that the trial court enter an equitable division of their personal property. With his request, he included an itemization of their personal belongings and the purported value of each. Shortly thereafter, Mark filed a motion for change of judge. While the change of judge was pending, Mark also filed a lengthy document entitled "documentary evidence" which the trial court ordered be made part of the file for the special judge. After the special judge was appointed, it was determined on August 9, 2002, that it was in the best interests of the parties if the hearing be scheduled for a time after Mark's release from the Indiana Department of Correction. However, on June 9, 2003, Mark filed a motion to set cause for trial after July 8, 2003, along with an affidavit concerning the documentary evidence. The trial court scheduled the hearing for June 27, 2003. Mark subsequently filed a motion requesting alternative hearing methods so that he could take part in the hearing. The trial court denied that motion. Mark then filed a motion for a continuance, a motion for appointment of counsel as an indigent person, and a motion for transport order. The trial court denied the motions for transport and counsel, but did not enter an order for the motion for continuance. However, the Chronological Case Summary indicates that the trial court sent a notice to Mark on June 25 requiring that he inform the court of his release date. On June 27, the trial court conducted a hearing in which Vickie presented evidence in response to questions proffered by the trial court.

During questioning, Vickie denied that she and Mark had any real property or debts. She acknowledged that they had some household goods and furnishings and that she had some of Mark's clothes. The trial court also questioned Vickie about whether she had received a personal injury settlement in 2000. The trial court learned of the personal injury settlement through a proposed property settlement agreement submitted prior to the hearing by Mark.¹ However, Vickie never answered the trial court's questions about whether a personal injury settlement existed, apparently because she was under a mistaken understanding of what the trial court was questioning her about. This is evident through her responses because Vickie kept referring to two occasions on which Mark had allegedly hit her and the police were called. Following the conclusion of Vickie's testimony, the trial court took the matter under advisement and entered a written decree dissolving the marriage and ordering that Vickie deliver all of Mark's personal effects to his mother. The trial court did not expound upon what those personal effects included.

Upon appeal, Mark claims that the trial court should have granted the motion for alternative means for conducting a hearing so that he could take part and defend his interests. In his motion, Mark noted that the trial court could not secure Mark's attendance at or transportation to a civil action unrelated to the case resulting in the incarceration. See Brown v. State, 781 N.E.2d 773 (Ind.Ct.App.2003)

; Zimmerman v. Hanks, 766 N.E.2d 752 (Ind.Ct.App.2002); Hill v. Duckworth, 679 N.E.2d 938 (Ind.Ct.App.1997). In that same motion, Mark also noted some alternative means by which the hearing could be conducted, including: (1) a telephonic conference, (2) securing someone else to represent him, (3) postponing the hearing until he was released, or (4) submitting the case to the court by documentary evidence. See Hill, 679 N.E.2d at 940 n. 1.

Once the motion for alternative means for conducting a hearing was denied, Mark sought the appointment of counsel, which was the only available means by which he could represent his interests if he could not physically take part in the hearing. Indiana Code § 34-10-1-2 (Burns Code Ed. Supp.2003) provides that a trial court may assign an attorney under exceptional circumstances to prosecute or...