Wright v. Wright
| Decision Date | 12 December 2002 |
| Docket Number | No. 32A01-0208-CV-293.,32A01-0208-CV-293. |
| Citation | 782 N.E.2d 363 |
| Parties | Gerald Franklin WRIGHT, Appellant, v. Kimberly Vanarsdale WRIGHT, Appellee. |
| Court | Indiana Appellate Court |
Steven T. Fulk, Fulk & Allain, Indianapolis, IN, Attorney for Appellant.
Gerald Franklin Wright ("Husband") appeals the trial court's denial of his motion to correct error. He presents two issues for our review, which we restate as:
1. Whether Husband properly served his motion to correct error on the trial court pursuant to Trial Rule 59.
2. Whether the trial court abused its discretion when it modified the terms of the parties' dissolution decree regarding Husband's visitation with his children.
We reverse and remand with instructions.
Husband and Wife, Kimberly Vanarsdale Wright, were married and had four children together. In 1999, Wife filed a petition for dissolution of the marriage. Husband and Wife reached an agreement regarding the division of marital property and custody and visitation of their four children. On August 9, 2001, at the final hearing regarding the dissolution petition, the parties read into the record portions of the agreement and submitted a copy of the written agreement to the trial court.1 The court approved the agreement, without the parties' signatures, and agreed to sign the dissolution decree after the parties submitted one.
When Husband's attorney did not file a copy of the settlement agreement with the court, Wife's attorney filed one. In its dissolution decree, the court approved the agreement "in all respects and without the signatures of the parties or their attorneys as stipulated and approved in open court." The parties' agreement, signed by the trial court on November 26, 2001, states, in relevant part, as follows:
Wife subsequently filed a motion to correct error, seeking to amend several provisions contained in the parties' agreement, including the provision regarding visitation. Specifically, Wife argued that Husband would be responsible for pick up and delivery of the children during every weeknight visitation. Wife also stated that Husband would always be responsible for delivery of the children following an extended overnight visitation (when the children were not in school). At the hearing on Wife's motion, Husband disputed Wife's contentions and argued that their agreement on the visitation issue was properly set out in the agreement approved by the trial court in its decree.
The trial court granted Wife's motion to correct error and issued an order thereon, amending the dissolution decree, in relevant part, as follows:
Pick up and return of children:
The parties shall follow the Parenting Time Guidelines concerning the pick up and return of the children except that [Husband] shall pick up and return the children during week night parenting time and if parenting time is extended overnight to a week day. The parties shall continue to communicate regularly to avoid confusion concerning parenting time.
Husband subsequently filed a motion to correct error seeking to change the "pick up and return" provision back to the way it appeared in the original agreement approved and signed by the trial court on November 26, 2001. Wife opposed that motion and, in addition to disputing the substance of the parties' agreement, alleged that Husband had not properly served his motion on the court. The court entered a general denial of Husband's motion, and this appeal ensued.
Wife has filed no appellee's brief in this case. Where the appellee fails to file a brief on appeal, we may in our discretion reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. Hubbard v. Hubbard, 690 N.E.2d 1219, 1220 (Ind.Ct.App.1998). This rule was established for our protection so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Id.
We review the trial court's decision to grant or deny a motion to correct error for abuse of discretion. Sears Roebuck and Co. v. Noppert, 705 N.E.2d 1065, 1067 (Ind.Ct.App.1999), trans. denied. An abuse of discretion will be found when the trial court's action is against the logic and effect of the facts and circumstances before it and the inferences which may be drawn therefrom. Gregor v. State, 646 N.E.2d 52, 53 (Ind.Ct.App.1994). An abuse of discretion also results from a trial court's decision that is without reason or is based upon impermissible reasons or considerations. Id.
Husband first contends that, despite Wife's assertion to the contrary, he obtained proper service of his motion to correct error on the trial court.2 Thus, Husband maintains that the trial court should not have denied his motion on that basis. We must agree. In Unishops, Inc. v. May's Family Centers, Inc., 176 Ind. App. 406, 375 N.E.2d 1135, 1136-38 (1978), this court addressed this issue and held that delivery to the clerk of the court was sufficient to satisfy the requirement under Trial Rule 59 that a motion to correct error be served on the trial court. See also Ind. Trial Rule 5. Thus, here, when Husband filed his motion with the clerk on March 18, 2002, he properly served the trial court.
Husband next maintains that the trial court abused its discretion when it denied his motion to correct error. Specifically, Husband contends that the trial court erred when, after first approving the parties' settlement agreement in all respects, it granted Wife's motion to correct error and modified the terms of the visitation provision without Husband's consent. In effect, Husband contends that there was no error in the visitation provision of the dissolution decree, and Wife's motion to correct error was tantamount to a petition to modify visitation.3 Indiana Code Section 31-15-2-17 provides in relevant part:
(Emphasis added). Husband maintains that the trial court essentially adopted the parties' agreement under Indiana Code Section 31-15-2-17(b)(1), but subsequently made provisions regarding visitation not contained in that agreement under Section (b)(2). Husband contends that the statute only authorizes the trial court to choose one or the other course of action.
We agree with Husband that, in the dissolution decree, the trial court unequivocally "approved and ordered [the agreement] in all respects without the signatures of the parties or their attorneys as stipulated and approved in open court." As such, under the statute, the court was prohibited from subsequently making provisions regarding visitation not contained in the parties' agreement.
We also note that, while the version of the agreement incorporated into the decree was not the same as that submitted to the trial court at the final hearing, both versions were consistent on the transportation issue. In particular, the version submitted to the trial court on August 9, 2001 stated the following regarding visitation:
Visitation for [Husband] shall follow Parenting Time guidelines for weekend visitations with the exception that his visits will begin at 4:45. Weekend visitation would conclude at 6:00 p.m. on Sunday evening. During breaks from school, exception [sic] will be that [Husband] may extend his evening visitation during the week and on Sunday to include an overnight stay with children being returned at 8:30 a.m. During extended overnight vis. on Sundays & weeknights, if [Wife] is working during return time, [Husband] is respons. for return arr's.[4]
Moreover, during the final hearing, Husband's attorney read the parties' agreed provision regarding visitation aloud to the court as follows:
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