TeWalt v. TeWalt

• Decision Date: 15 June 1981
• Docket Number: No. 1-181A6,1-181A6
• Citation: 421 N.E.2d 415
• Parties: Patricia Lois TeWALT, Appellant (Respondent Below), v. George Lewis TeWALT, Appellee (Petitioner Below).
• Court: Indiana Appellate Court

Page 415

421 N.E.2d 415

Patricia Lois TeWALT, Appellant (Respondent Below), v. George Lewis TeWALT, Appellee (Petitioner Below).

No. 1-181A6.

Court of Appeals of Indiana, Fourth District.

June 15, 1981.

H. Brent Stuckey, Hart, Bell, Deem, Ewing & Stuckey, Vincennes, for appellant.

Joe D. Black, Ramsey & Black, Vincennes, for appellee.

CHIPMAN, Judge.

Patricia and George TeWalt were divorced on January 24, 1979. George was given custody of the parties' minor child. Their agreed settlement which was incorporated into the divorce decree stated:

"The parties agree that the real property situated at 1219 North Eleventh Street, Vincennes, Indiana, is owned by the two of them as tenants by the entireties and upon the entry of any dissolution of their marriage, shall then vest an undivided one-half in each. It is agreed that said property shall be listed with a real estate broker or through their own efforts sold within six (6) months from the date of any dissolution decree to the person or persons submitting the highest and best offer therefor but not less than $23,000.00. Both Husband and Wife reserve the right to submit an offer to purchase said property. The costs of sale, if any, shall be borne equally by the parties and the proceeds therefrom shall then be divided equally among them. In the event said property is not sold within six (6) months from date of the entry of any dissolution decree, then Wife shall upon receipt of $10,000.00 cash from Husband, as a property settlement, execute and deliver to Husband a good and sufficient deed conveying all interest she may own in and to said property to Husband. Husband shall have thirty (30) days to arrange financing to complete said transaction."

Shortly after the decree Patricia apparently left the state with the child. On September 17, 1979, George filed a "Petition for Authority to Pay Money into Court and For Appointment of a Commissioner" in which he alleged:

"That paragraph 3 B of said agreement specified that if the real estate owned by the parties was not sold within six (6) months after the dissolution, Petitioner had the right to pay to Respondent the sum of Ten Thousand Dollars ($10,000.00) and that upon receipt of said cash Respondent would convey to Petitioner a deed to her interest in said real estate.

That the Respondent has removed herself from the State of Indiana and Petitioner does not know her location or whereabouts other than he knows she is living somewhere in the state of Florida.

Your Petitioner respectfully submits that he wishes to deliver to the court, or in the alternative to a commissioner appointed by this court, said Ten Thousand Dollars ($10,000.00) and he further requests that this court appoint a commissioner to convey the following described real estate to him pursuant to said agreement. Said real estate is located at 1219 North 11th Street in Vincennes, Indiana."

The same date the petition was filed, the trial court entered this order:

"Comes now petitioner, George Lewis TeWalt, and files his petition for authority to pay money into court and for the appointment of a commissioner. The court now takes judicial notice from cause number J-79-22, In the matter of George Patrick TeWalt, that the respondent in this cause has voluntarily fled the jurisdiction of this court with the parties' minor child, that her whereabouts are unknown; and that the court has made numerous unsuccessful attempts to locate the respondent. Thus, the court finds the allegations of the petition to be true, any attempts to give notice to respondent of the filing of this petition would be fruitless, and such notice should be, and hereby is, waived. The court now grants the petition."

Patricia filed a T.R. 60(B)(6) motion on December 14, 1979, to vacate the court's order on the grounds that neither she nor her attorneys received notice of the petition for the appointment of the commissioner. This motion was denied on January 16, 1980. She then filed a Motion to Correct Errors on March 11, 1980, containing the issues she requests this court to review. They are:

I. Whether the trial court erred by conditioning her receipt of the funds held by the commissioner on her compliance with the custody provisions of the divorce decree; and

II. Whether the trial court erred by not requiring Patricia to be notified of the petition for appointment of a commissioner.

We affirm.

I. Condition of Compliance with Custody Agreement.

Patricia alleges the September 17, 1979, judgment is erroneous because it conditions her receipt of the funds held by the commissioner on her compliance with the custody provisions of the original divorce decree. Patricia first raised this allegation in her Trial Rule 59 Motion to Correct Errors filed on March 11, 1980. This issue has been waived for failure to timely file a Motion to Correct Errors since the filing of a Trial Rule 60 Motion to Vacate does not toll the sixty-day time limitation from the date of the judgment for perfection of appeals. Dawson v. Wright, (1955) 234 Ind. 626, 129 N.E.2d 796; Warner v. Young America Volunteer Fire Dept., (1975) 164 Ind.App. 140, 326 N.E.2d 831.

The trial court entered a final judgment appointing a commissioner on September 17, 1979. In order to attack this aspect of the judgment she should have filed a Motion to Correct Errors within sixty days of that judgment or included the issue in the Motion to Vacate under Trial Rule 60(B)(8). Her filing of the Trial Rule 60(B)(6) Motion to Vacate alleging the judgment was void did not toll the time limitation for filing a Trial Rule 59 Motion to Correct Errors on other grounds. See Roberts v. Watson, (1977) 172 Ind.App. 108, 359 N.E.2d 615; Irmiger v. Irmiger, (1977) 173 Ind.App. 519, 364 N.E.2d 778.

In addition we note Patricia's argument is meritless as it is based on an unfounded assumption. The order states:

"(S)aid commissioner shall hold said sum of money less costs and fees, for and on behalf of the respondent, Patricia Lois TeWalt, until damand (sic) for payment be made therefore by the respondent personally appearing before this court."

Patricia's argument presupposes her receipt of the funds is contingent on her returning the child to George. As one can clearly see from the quoted passage this was not ordered by the court. The court only required Patricia to appear to receive the funds. The argument based on custody is therefore inapplicable. Patricia makes no argument concerning the order for her to appear. We therefore have no issue presented to us for review.

II. Notice

George, in his petition, requested the court to enforce the January 24, 1979, judgment by conveying to him title to the property. He alleged entitlement to complete ownership by virtue of the passage of time and failure of the property to sell for more than $23,000. He was, in effect, applying for a writ of assistance.

A writ of assistance is an equitable remedy normally used to transfer real property, the title of which has been previously adjudicated, as a means of enforcing the court's own decree. Rooker v. Fidelity Trust Co., (1924) 196 Ind. 373, 145 N.E. 493, cert. denied 270 U.S. 633; 7 Corpus Juris Secundum, Assistance, Writ of, § 1 (1937). The provisions for the actual conveyance of title by a commissioner were set forth in Burns' Statutes §§ 3-1001 3-1009. ¹

This remedy has been subsumed by Indiana Rules of Procedure, Trial Rule 70(A), which states:

"Effect of judgment. If a judgment directs a party to execute a conveyance of land, or other property or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party.

On application of the party entitled to performance, the clerk shall issue a writ of attachment, writ of assistance, or sequestration against the property of the disobedient party to compel obedience to the judgment."

Historically an application for a writ of assistance was a supplemental proceeding, i. e., a continuation of the original action whose effect was only to enforce the original order. Emerick v. Miller, (1902) 159 Ind. 317, 64 N.E. 28; Brackney v. Boyd, (1919) 71 Ind.App. 592, 123 N.E. 695; reh. den. 71 Ind.App. 592, 125 N.E. 238. We can find no authority to indicate the nature of this writ was changed by T.R. 70(A). One can infer from the Civil Code Study Commission Comments that no such change was contemplated:

"Rule 70(A) effectuates little change under prior Indiana law. Previous to the adoption of the rule, the court retained inherent power to appoint a court officer to carry out the orders of the court.... Prior law recognized that possession of property under an equitable decree or order could be enforced by a writ of assistance.

....

Upon the adoption of Rule 70(A) the technical requirements of Burns' Stat., §§ 3-1001 3-1004 will be eliminated by repeal. Thus the approval by the court will not be required as a condition of the validity of the deed. Compare Burns' Stat., § 3-1006."

We therefore believe it is still the case in Indiana as in Illinois that:

"A writ of assistance is a summary proceeding and is not the institution of a new suit; rather it is auxiliary or incidental to judgment or decree, and employed to enforce or effectuate such judgment. On an inquiry with respect to whether the writ should issue, questions determined in the main proceedings cannot be raised again or relitigated. The only issues in the proceeding are the right to possession of the property involved as determined under the decree." (citations omitted)

City of Chicago v. Walker, (1978) 61 Ill.App.3d 1050, 18 Ill.Dec. 578, 377 N.E.2d 1214, 1216.

A. Jurisdiction

Patricia contends the judgment is void for lack of jurisdiction due to lack of notice. We do not agree. Since the petition for...