Wireman v. Wireman, 2--1073A220

CourtCourt of Appeals of Indiana
Citation343 N.E.2d 292,168 Ind.App. 295
Docket NumberNo. 2--1073A220,2--1073A220
PartiesLewis T. WIREMAN, Appellant, v. Dianne M. WIREMAN, Appellee.
Decision Date04 March 1976

C. Michael Cord, Bayliff, Harrigan, Cord & Maugans, Kokomo, for appellant.

Thomas H. Sterns, Chicago, III., Gerald A. Kamm, Daniel A. Manion, Doran, Manion, Boynton & Kamm, South Bend, for appellee.


Appellant Lewis Wireman (Lewis) in this divorce action appeals the amending of the original judgment pursuant to appellee Dianne M. Wireman's (Dianne) Motion To Correct Errors, the granting of attorney's fees on appeal to Dianne, and the refusal of the trial court to accept a real property bond as a supersedeas bond to stay the judgment pending appeal. Dianne in a cross-appeal challenges the amount of alimony awarded.

Dianne was granted a divorce from Lewis on April 12, 1973. The decree granted custody of the two children to Dianne with visitation rights by Lewis, and ordered Lewis to pay child support, arrearages in pendente lite child support which had accrued, and alimony in the form of a property settlement to Dianne. The court ordered Lewis to pay a lump sum of $2000.00 (presumably the support arrearages, although it was not specifically designated as such) within thirty days of the order, $2500.00 within a year of the order, and the remainder of the $15,041.00 property settlement in $50.00 weekly installments until the full amount was paid. The court also decreed that '(t)he failure of the plaintiff to so comply with the order of visitation shall operate as a waiver of her right to payment of alimony during the period of such non-compliance.'

Dianne then filed a Motion to Correct Errors and filed a supplemental Motion To Correct Errors and for a new trial. She alleged various errors in the determination of the value of the total assets, and in attaching the contingency to alimony and support.

While Dianne's motions were pending, both parties came back to the court alleging various forms of misconduct by the other, including a charge by Lewis that Dianne had not allowed him visitation. The court overruled most of Dianne's specifications of error but ordered Lewis to pay the support arrearage instanter, and the alimony in one lump sum payment, with the amount constituting a lien upon his property and assets.

Lewis then filed a Motion to Correct Errors objecting to the change in the method of payment of alimony and the removal of the contingency. Ruling on the motion was considerably delayed because of confusion regarding the necessity of a second Motion to Correct Errors when a new judgment is made. See Davis v. Davis (2d Dist.1973), Ind.App., 295 N.E.2d 837, holding that a second motion was not required. That holding was vacated on rehearing to conform with the Supreme Court's holding in another case that a second motion is required. Davis v. Davis (2d Dist.1974), Ind.App., 306 N.E.2d 377. Lewis' Motion to Correct Errors was eventually overruled, and this appeal taken.

Following the filing of the appeal, the trial court required Lewis to pay $1500.00 in fees to Dianne's attorneys for the appeal. Lewis filed a Motion to Correct Errors directed to this order which was overruled, and from which Lewis also now appeals. Lewis then sought a stay of the amended judgment pending appeal, but was unable to secure the surety supersedeas bond required by the trial court. The court refused to accept his tender of a real property bond, and hence no stay issued. Lewis now asks this court to reconsider his application for supersedeas bond pursuant to Indiana Rules of Procedure, TR. 62(D).


Lewis mounts a two-pronged attack on the action by the trial court in amending its judgment, arguing that the amendment constituted both a denial of due process and an abuse of discretion.

A. The Amendment of a Judgment Pursuant to a Motion to Correct Errors Does Not Constitute a Denial of Due Process.

Lewis' first argument, that the initial failure of the trial court to rule on his Motion to Correct Errors was a denial of due process, has been mooted by that court's ruling pursuant to an order of this court following the filing of Lewis' initial brief.

Lewis also argues that the amended judgment deprived him of substantial property interests without a hearing. He alleges that in the period between the original decree and the modification, Dianne violated the initial judgment's visitation order, thus relieving him of the obligation to pay alimony which became due during that time (including the $2000.00 payment which he was to make within 30 days of the original judgment), and vesting in him the right to be free of those payments.

We are not convinced that the words of the original decree freed Lewis entirely of his obligation to pay alimony if Dianne were in non-compliance. The judgment said only that she would waive 'her right to payment of alimony during the period of such non-compliance.' That does not necessarily mean that she would forfeit her right to ultimate payment of the full amount awarded. The words could be construed to mean only that payments were to be suspended during non-compliance.

Even if we read the decree to mean that alimony installments were to be irrevocably lost during non-compliance, there was no denial of due process in the amendment of the decree pursuant to Dianne's Motion to Correct Errors. To support his position that such a 'divestiture' violated due process, Lewis cites only Aldridge v. Aldridge (1968), 142 Ind.App. 289, 233 N.E.2d 781, in which this court initially dismissed an appeal on procedural grounds, but subsequently decided it on the merits after being ordered to do so by the Supreme Court. Aldridge v. Aldridge (1968), 143 Ind.App. 529, 241 N.E.2d 874. The procedural question in the Aldridge cases was whether the time within which an appeal had to be filed ran from the granting of summary judgment or from the overruling of the motion for a new trial. We are at a loss to understand Lewis' analogy to these decisions. There is no due process issue in them at all. They merely clarify the Indiana Rules of Procedure. In not providing us with more substantial support for his argument, Lewis comes perilously close to waiving his argument by failure to comply with AP. 8.3(A)(7). We prefer, however, to dispose of the argument on the merits.

Our own research fails to disclose wherein the amendment of a judgment pursuant to a motion to correct errors constitutes a denial of due process. The very purpose of a motion to correct errors is to advise the trial court of alleged error and give it an opportunity to amend its judgment. Bud Gates, Inc. v. Jackson (1970), 147 Ind.App. 123, 258 N.E.2d 691; Stout v. Mercer (1st Dist. 1974), Ind.App., 312 N.E.2d 515. The effect of such an amended judgment was discussed by the Supreme Court in State v. Deprez (1973), 260 Ind. 413, 296 N.E.2d 120. In deciding that a second motion to correct errors directed to the amended judgment was necessary to bring an appeal, the court said:

'First there is the question in this instance of what constituted the final judgment referred to in Rule AP. 4. The net effect of the November 4, 1970 entry was dismissal with prejudice, and would have been final, had it not been for the Motion to Correct Errors filed on January 4, 1971. If the trial court had simply either granted or denied that Motion to Correct Errors such step would have constituted the final judgment from which this appeal could have been taken without further ado. Rule AP. 4.

However, because of the insufficiency of the November 4, 1970 entry in the light of the attack made upon it by the State's Motion to Correct Errors, the trial court entered a completely new entry of February 3, 1971, pursuant to Rule TR. 52(B), constituting new findings of fact and a new judgment as authorized further by Rule TR. 59(E). This new entry for the first time set forth the reasons in fact and in law upon which the trial court's dismissal was based. If they were in error, then a Motion to Correct Errors was clearly necessary. Thus, the February 3, 1971 entry became the final judgment to which a Motion to Correct Errors, referred to in Rule AP. 4, should have been filed.' (Emphasis supplied). 260 Ind. at 420--21, 296 N.E.2d at 124.

If, upon entry of a judgment, property rights were to vest immediately which could be divested only through a full evidentiary hearing, it would severely limit a trial court's broad power to alter or amend its judgment pursuant to TR. 52(B) and TR. 59. See Board of Commissioners, City of Howard v. Kokomo City Plan Commission (2d Dist. 1974), Ind.App., 310 N.E.2d 877, rev'd. on other grounds (1975), Ind., 330 N.E.2d 92; Wadkins v. Thornton (2d Dist. 1972), 151 Ind.App. 380, 279 N.E.2d 849. There was no denial of due process by amendment of the judgment.

B. The Trial court Did Not Abuse Its Discretion in Amending the Judgment

Lewis argues that the trial court abused its discretion in changing the manner in which the alimony award was to be paid because it considered matters outside the record and because the amended judgment is not based upon the facts or upon circumstances of the particular parties.

The only basis Lewis uses for asserting that the court considered matters outside the record is the court's finding in the amended judgment regarding a trust established for the children:

'1. The irrevocable trust was not made an issue in the divorce action. The trust was for the benefit of the minor children and was not to defendant's benefit. The trust is now a matter of court action in Cause No. 73CH4052 in the Circuit Court of Cook County, Illinois, County Department--Chancery Division.'

Although there was testimony concerning the establishment of the trust offered attrial, the pending Illinois action was not before the court. Lewis does not complain about the...

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