In Re: The Marriage of Wendi L. Lanford v. Stuart D. Lanford (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 13 2017, 7:30 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT
Lisa M. Joachim
Mann Law, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Marriage of June 13, 2017
Wendi L. Lanford, Court of Appeals Case No.
49A02-1702-DR-239
Appellant-Respondent/
Appeal from the Marion Superior
Counter-Petitioner,
Court
v.
The Honorable David J. Dreyer,
Judge
Stuart D. Lanford, The Honorable Patrick Murphy,
Appellee-Petitioner/ Magistrate
Counter-Respondent Trial Court Cause No.
49D10-1504-DR-12545
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-DR-239 | June 13, 2017 Page 1 of 3
[1] Wendi and Stuart Lanford were married and, on April 16, 2015, Stuart filed a
petition to dissolve the marriage. Following a final hearing, the trial court
issued a final order and decree of dissolution on August 30, 2016. On
September 29, 2016, Wendi and Stuart each filed a motion to correct error.
Over three months later, on January 6, 2017, the trial court granted Stuart’s
motion to correct error. The order was signed only by a magistrate and not
approved by a judge. Appealed Order p. 2. Wendi now appeals from that
order.
[2] Motions to correct error are governed by Indiana Trial Rule 53.3, which
provides, in relevant part, as follows:
In the event a court fails for forty-five (45) days to set a Motion to
Correct Error for hearing, or fails to rule on a Motion to Correct
Error within thirty (30) days after it was heard or forty-five (45)
days after it was filed, if no hearing is required, the pending
Motion to Correct Error shall be deemed denied. Any appeal
shall be initiated by filing the notice of appeal under Appellate
Rule 9(A) within thirty (30) days after the Motion to Correct
Error is deemed denied.
Ind. Trial Rule 53.3(A) (emphases added). There are limited exceptions to this
general rule, none of which are relevant to this case. See T.R. 53.3(B)
(exceptions where party failed to serve the judge personally, parties stipulated
that time limitation set forth in section (A) does not apply, or time limitation is
extended by section (D)); T.R. 53.3(D) (trial court may extend time limitation
up to thirty days by filing an entry in the chronological case summary before
expiration of original time period).
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-DR-239 | June 13, 2017 Page 2 of 3
[3] Here, the trial court did not rule on Stuart’s motion within thirty days or set it
for a hearing within forty-five days of the date it was filed. As such, the motion
was deemed denied on November 14, 2016, and Stuart’s thirty-day window to
appeal that deemed denial lapsed on December 14, 2016. The trial court’s
order granting the motion was not issued until January 6, 2017; therefore, the
order was belated.
[4] In this case, after Stuart’s motion was deemed denied, he did not file a notice of
appeal within thirty days of the deemed denial. As such, the trial court had no
authority to rule on the motion months after it was filed, and the order is a
nullity.1
[5] The judgment of the trial court is reversed.
Barnes, J., and Crone, J., concur.
1
Additionally, we note that the order on the motion to correct error was signed only by a magistrate and not
approved by a judge. See Ind. Code §§ 33-23-5-5 (listing powers of magistrates, which does not include
entering a final order on a motion to correct error), -8 (magistrate may not enter a final appealable order
unless sitting as a judge pro tempore or a special judge with limited exceptions), -9 (magistrate may enter
final order in a criminal proceeding).
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-DR-239 | June 13, 2017 Page 3 of 3