Rocca v. Rocca, No. 82A05-0104-CV-163.
| Docket Nº | No. 82A05-0104-CV-163. |
| Citation | 760 N.E.2d 677 |
| Case Date | January 10, 2002 |
| Court | Court of Appeals of Indiana |
760 N.E.2d 677
Kim A. ROCCA, Appellant-Petitioner,v.
Donna G. ROCCA, Appellee-Respondent
No. 82A05-0104-CV-163.
Court of Appeals of Indiana.
January 10, 2002.
Gary K. Price, Evansville, IN, Attorney for Appellee.
OPINION
DARDEN, Judge.
STATEMENT OF THE CASE
Kim Rocca ("Husband") appeals the trial court's order granting the petition of Donna Rocca ("Wife") to set aside its previous final order in the dissolution of the parties' marriage and ordering Husband to take certain action with respect to two parcels of real estate.
We affirm.
ISSUE
Whether the trial court abused its discretion in setting aside the property disposition provisions of the earlier order and ordering that Husband sell two parcels of real estate and provide certain proceeds therefrom to Wife.
On November 24, 1993, Husband filed a petition for dissolution of his marriage to Wife. A contested final hearing was held on June 5, 1995, at the conclusion of which the trial court entered its dissolution order. In 1998, Husband's father passed away. Husband filed an affidavit dated February 26, 1999 with the probate court concerning two parcels of real estate. According to the affidavit: in 1976 Husband had purchased certain real estate on Shelby Avenue; he had placed the property in his father's name but paid all the expenses thereon; in 1994, his father had "approached" Husband "about formally transferring title" of the Shelby real estate to Husband, but "[b]ecause" Husband "was contemplating a divorce, title to the real estate was not transferred" to Husband at that time. (Husband's App. 58). Husband further averred that "because [he] was having marital problems" at the time he had bought certain real estate on Sweetser Avenue, for which he also had paid all of the expenses, Husband had "placed the name of [his father] on the title" to that property as well. (Husband's App. 58, 59). Finally, the affidavit stated that Husband and his father "ha[d] always treated" both parcels of real estate "as the real estate of [Husband]," and Husband's "funds were the only source of purchase price, maintenance and upkeep." Id.
On July 31, 2000, Wife filed a petition to set aside the dissolution order, citing Husband's recent affidavit and his 1995 exhibit at the dissolution hearing that did not disclose any interest in the Shelby or Sweetser real estate in his listing of marital property. The trial court conducted an evidentiary hearing, at which Husband conceded his "agreement" with his father "relating to these parcels of property" that whenever Husband "wanted them, [his father] would sign them over." (Tr. 40). Husband admitted he "came up with an agreement with [his] dad" because of marital problems, "the failing marriage." (Tr. 41, 43). The trial court also received a transcript from the dissolution hearing, wherein Husband denied ownership of the Shelby property—explaining that it was in his father's name. The transcript also contained Husband's testimony that in March of 1994, he loaned his father $3,500 to buy the Sweetser property, which was in his father's name.
The trial court found that Husband had committed "a fraud on the Court," citing Matter of Paternity of K.M., 651 N.E.2d 271 (Ind.Ct.App.1995), and that Wife had pursued the matter "within a reasonable time as that term is used in Trial Rule 60(B)." (Husband's App. 10). The trial court then granted Wife's petition to set aside the final judgment "pursuant to Trial Rule 60(B)," and ordered Husband to sell both parcels of real estate and give Wife certain proceeds therefrom. Id.
DECISION
On appeal of a trial court's order based on Indiana Trial Rule 60(B), our review "is limited to whether the trial court abused its discretion." Matter of Paternity of K.M., 651 N.E.2d 271, 274 (Ind.Ct.App.1995). "An abuse of discretion occurs when the trial court's judgment is...
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Outback Steakhouse of Florida v. Markley, No. 18S04-0602-CV-66.
...a showing that the fraud or misconduct prevented the movant from fully and fairly presenting the movant's case. See Rocca v. Rocca, 760 N.E.2d 677, 680 (Ind.Ct.App. 2002), trans. denied. We conclude that Outback was not significantly prejudiced by Alexander's concealment of McLaren's guilty......
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Outback Steakhouse of Florida v. Markley, No. 18A04-0401-CV-13.
...from fully and fairly presenting its case or defense, then fraud on the court exists and Rule 60(B) relief is available. Rocca v. Rocca, 760 N.E.2d 677, 680 (Ind.Ct.App.2002), trans. denied 783 N.E.2d 697 (Ind.2002). The standard of appellate review of trial court rulings on motions to corr......
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Axelrod v. Anthem, Inc., Court of Appeals Cause No. 19A-PL-1171
...that the fraud or misconduct prevented the movant from fully and fairly presenting the movant's case." Id. at 85 (citing Rocca v. Rocca , 760 N.E.2d 677, 680 (Ind. Ct. App. 2002), trans. denied ). [42] The final requirement is the prima facie showing of a meritorious claim or defense. "This......
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Jahangirizadeh v. Pazouki, No. 29A02–1408–DR–530.
...opinion on the interplay between the statute and the rule.3 We note that a case upon which Jahangirizadeh heavily relies, Rocca v. Rocca, 760 N.E.2d 677 (Ind.Ct.App.2002), trans. denied, was decided before Stonger clarified Indiana law regarding motions to set aside a judgment for fraud and......
-
Outback Steakhouse of Florida v. Markley, No. 18S04-0602-CV-66.
...a showing that the fraud or misconduct prevented the movant from fully and fairly presenting the movant's case. See Rocca v. Rocca, 760 N.E.2d 677, 680 (Ind.Ct.App. 2002), trans. denied. We conclude that Outback was not significantly prejudiced by Alexander's concealment of McLaren's guilty......
-
Outback Steakhouse of Florida v. Markley, No. 18A04-0401-CV-13.
...from fully and fairly presenting its case or defense, then fraud on the court exists and Rule 60(B) relief is available. Rocca v. Rocca, 760 N.E.2d 677, 680 (Ind.Ct.App.2002), trans. denied 783 N.E.2d 697 (Ind.2002). The standard of appellate review of trial court rulings on motions to corr......
-
Axelrod v. Anthem, Inc., Court of Appeals Cause No. 19A-PL-1171
...that the fraud or misconduct prevented the movant from fully and fairly presenting the movant's case." Id. at 85 (citing Rocca v. Rocca , 760 N.E.2d 677, 680 (Ind. Ct. App. 2002), trans. denied ). [42] The final requirement is the prima facie showing of a meritorious claim or defense. "This......
-
Jahangirizadeh v. Pazouki, No. 29A02–1408–DR–530.
...opinion on the interplay between the statute and the rule.3 We note that a case upon which Jahangirizadeh heavily relies, Rocca v. Rocca, 760 N.E.2d 677 (Ind.Ct.App.2002), trans. denied, was decided before Stonger clarified Indiana law regarding motions to set aside a judgment for fraud and......