Gary McCoy v. Sandra Kay Roberts ( 2013 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Jul 15 2013, 6:08 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
JANE G. COTTON
Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GARY McCOY, )
)
Appellant-Respondent, )
)
vs. ) No. 48A04-1211-DR-590
)
SANDRA KAY ROBERTS, )
)
Appellee-Petitioner. )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Carl Van Dorn, Special Judge
Cause No. 48D03-0905-DR-597
July 15, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
This appeal stems from the divorce of Gary McCoy (“Husband”) and Sandra Kay
Roberts (“Wife”). During their marriage, the parties built a new home on Husband’s
property. The divorce decree awarded Husband his old home and gave Wife possession of
the new home pending its sale. Also pending the sale, the parties were ordered to share the
barn located on Husband’s property and to divide equally the mortgage, insurance, and
property tax payments on the new home. Husband filed a motion to correct error in which he
challenged several of the decree’s provisions relating to the real estate. The motion was
deemed denied, and Husband filed a notice of appeal, but later dismissed his appeal
voluntarily.
Thereafter, Husband filed a motion for relief from judgment pursuant to Indiana Trial
Rule 60(B), in which he alleged that the house still had not been sold, that Wife had no
incentive to sell, and that Wife was not making diligent efforts to sell. After a hearing, the
trial court found that Husband had not established that he was entitled to relief pursuant to
Trial Rule 60(B). Husband now appeals, arguing that the trial court abused its discretion by
denying his motion. We conclude that Husband’s Trial Rule 60(B) motion is procedurally
improper because it is substantially similar to his motion to correct error, the denial of which
he did not appeal. Alternatively, Husband argues that the trial court abused its discretion by
not taking measures to enforce the divorce decree; specifically, he argues that the court
should have reduced the list price of the house. Husband has not persuaded us that the trial
court abused its discretion by not reducing the list price of the house. Therefore, we affirm.
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Facts and Procedural History
Husband and Wife were married on September 8, 2008. Prior to the marriage,
Husband owned a home, barn, and pond located on sixty acres. Wife also owned a home
prior to the marriage, which she sold to help finance the building of a new home near the
pond on Husband’s property. The parties also took out a mortgage on the new home, which
included about $60,000 that remained on the mortgage on Husband’s old home.
Wife filed a petition for dissolution on May 15, 2009. On June 9, 2009, the trial court
entered a provisional decree regarding the parties’ real estate. Husband was given possession
of his old house, and Wife was given possession of the new house. It was anticipated that the
new house would be sold, so Wife was ordered to maintain the home in a presentable
condition. The parties were ordered to take turns making the mortgage payments, and the
insurance and property tax payments on the new home were to be divided equally. Husband
and Wife each own horses, and they were ordered to share the horse barn.
The final dissolution decree was issued on October 19, 2010. At that time, the new
house still had not been sold. The dissolution decree provided that the new house was to be
sold, along with the surrounding five acres and the pond. Because the proceeds of Wife’s old
home had been invested in the new home and she had also paid some other expenses on the
parties’ behalf, the court ordered that she should receive the first $124,871 from the sale of
the new home. Any excess was to be divided equally. In the event that there was a shortfall,
Husband was ordered to reimburse Wife, but any reimbursement would be capped at
$25,000. The court ordered the parties to continue alternating the mortgage payments,
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splitting the insurance and property tax costs, and sharing the horse barn pending the sale of
the new home.
On November 17, 2010, Husband filed a motion to correct error. Husband argued
inter alia that Wife had no incentive to sell because he was subsidizing her living expenses,
that he was paying de facto maintenance, and that the court had failed to enter a complete and
final distribution. Relief requested included making Wife solely responsible for paying the
mortgage, eliminating the provision requiring them to share the barn, setting a deadline for
the sale of the house, and dividing the proceeds equally. Husband’s motion was deemed
denied, and he filed a notice of appeal, but he later dismissed his appeal voluntarily.
On August 15, 2012, Husband filed a motion for relief from judgment pursuant to
Trial Rule 60(B)(8). The motion alleged that the house had been on the market for 3.5 years,
that potential buyers had shown little interest in the home, and that Wife was not motivated to
sell and had not made diligent efforts to sell. Husband further complained that living in close
proximity and sharing the barn had led to frequent conflict. Husband requested the following
relief:
a. That the home be listed for auction immediately with a reserve
price equal to the balance of the mortgage.
b. That if there is a shortfall, the $25,000 that [Husband] was to
pay [Wife] be considered as satisfied in full, due to the fact that
[Husband] has now paid over $50,000 in expenses that have
directly benefited [Wife] but have not benefited him.
c. If the Court declines to order the home sold by auction, then the
Court should give [Husband] exclusive use of the home so that
he can make diligent efforts to get it sold.
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d. That the Court should immediately order that [Wife] no longer
has use of the barns or land that was [Husband’s] prior to the
marriage. [Wife] should remove her horses and personal
property from the barns immediately.
e. Together with all other just and proper relief.
Appellant’s App. at 22-23.
On September 24, 2012, the court held a hearing on Husband’s motion. At the outset,
Wife argued that Husband’s motion for relief from judgment was procedurally improper
because he had raised “some of the same issues” in his motion to correct error, and a motion
pursuant to Trial Rule 60(B) “should not be a substitute for a Direct Appeal.” Tr. at 10-11.
Wife also argued that Husband was attempting to improperly modify the dissolution decree.
Husband responded that the fact that the house still had not been sold meant that there was
“an impossibility situation” or that “somebody’s not doing what they’re suppose[d] to be
doing.” Id. at 14.
Wife testified that the house was initially listed for close to $600,000. The current
realtor, Fran Plummer, listed the house at $499,900 in February 2010. Plummer testified that
the house had been shown about twenty-five times, and no offers have been made. She
stated that there was a limited market in Madison County for a house of this style and price
range. She did not think that an auction would bring buyers for a house in this price range.
Plummer felt that Wife kept the house presentable and did not do anything to impede the
sale; however, Plummer felt that the list price should be reduced to $449,000, which Wife
was unwilling to do. The record reflects that Wife does not want to sell the house for less
than $499,900 because that is the minimum price necessary to allow her to fully recover
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$124,871 from the proceeds.
At the conclusion of the hearing, Husband asked the court to lower the list price. At
various points, Husband also suggested that he could buy out Wife’s interest in the home, and
Wife appeared to be open to the idea, but disagreed as to the amount that Husband should
have to pay to buy her out.
On October 22, 2012, the trial court issued an order denying Husband’s motion,
finding that “the facts do not rise to an exceptional circumstance justifying extraordinary
relief.” Appellant’s App. at 24. Husband now appeals.
Discussion and Decision
Husband filed a motion pursuant to Trial Rule 60(B)(8), which allows the trial court to
relieve a party from a judgment for “any reason justifying relief.” A movant relying on
subsection (8) must allege a meritorious claim or defense. Ind. T.R. 60(B). The movant
bears the burden of establishing the grounds for relief. In re Paternity of P.S.S., 934 N.E.2d
737, 740 (Ind. 2010). On appeal, we review the trial court’s ruling on a Trial Rule 60(B)
motion for abuse of discretion. Id. at 741. An abuse of discretion occurs when the trial
court’s decision is against the logic and effect of the facts and circumstances before it and the
inferences which may be drawn therefrom. Id.On appeal, Husband argues that the trial court abused its discretion by denying his
Trial Rule 60(B) motion; alternatively, he argues that the court abused its discretion by not
taking measures to enforce the dissolution decree’s requirement that the new house be sold.
Wife has not filed a brief.
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When an appellee has not filed an answer brief, we need not undertake the
burden of developing an argument on the appellee’s behalf. Rather, we may
reverse the trial court if the appellant presents a case of prima facie error.
Prima facie error means at first sight, on first appearance, or on the face of it.
If an appellant does not meet this burden, we will affirm.
Henderson v. Henderson, 919 N.E.2d 1207, 1210 (Ind. Ct. App. 2010).
We conclude that Husband has not shown prima facie error with regard to the denial
of his Trial Rule 60(B) motion. The substance of Husband’s Trial Rule 60(B) motion was
substantially similar to that of his motion to correct error, the denial of which he did not
appeal. A Trial Rule 60(B) motion is not a substitute for a direct appeal.1 P.S.S., 934 N.E.2d
at 740.
Husband cites one case in support of his argument that Trial Rule 60(B) is a proper
vehicle for the relief that he seeks, he cites “Case v. Case (Ind.Ct.App.2003).” Appellant’s
Br. at 14. This citation, which lacks the reporter, volume, and page number, is not an
adequate citation. See Ind. Appellate Rule 22 (stating that “[u]nless otherwise provided, a
current edition of a Uniform System of Citation (Bluebook) shall be followed” and that
Indiana cases “shall be cited by giving the title of the case followed by the volume and page
of the regional and official reporter (where both exist), the court of disposition, and the year
of the opinion” and setting forth examples). Parties are responsible for supporting their
arguments with citation to authority, Ind. Appellate Rule 46(A)(8)(a), and failure to do so
generally results in waiver. Ill. Bulk Carrier, Inc. v. Jackson, 908 N.E.2d 248, 262 n.7 (Ind.
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Husband acknowledges that the substance of his motions was similar. He represents that he
dismissed his appeal because he could not afford it and that the instant appeal is being done free of charge.
Assuming arguendo that this would justify relief pursuant to Trial Rule 60(B), Husband did not make this
argument to the trial court, nor is there anything in the record to support his assertions.
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Ct. App. 2009), trans. denied. Providing citations that are lacking in basic information such
as volume and page numbers is arguably tantamount to providing no citation at all.
Waiver notwithstanding, the case that Husband appears to be relying on, Case v. Case,
794 N.E.2d 514 (Ind. Ct. App. 2003), is distinguishable. In Case, the divorce decree ordered
the parties to divide a 401(k) account using specific dollar amounts. Shortly after the decree
was issued, the account dropped significantly in value, such that the parties could not get the
specific amounts that had been awarded. The husband filed a motion requesting the court to
divide the account 55.31% to the wife and 44.69% to the husband, which was in proportion
to the amounts awarded in the court’s original decree. The court granted the motion, and the
wife appealed. We treated the husband’s motion as a Trial Rule 60(B) motion. Id. at 517.
We held that, in the absence of specific language in the decree addressing risk of loss, the
loss should be divided proportionally; therefore, we affirmed the judgment of the trial court.
Id. at 519.
In this case, while the house has proven difficult to sell, the facts do not rise to the
level of impossibility, as in Case. Furthermore, the reasoning in Case was premised on the
fact that the divorce decree did not address the possibility of a change in value in the account.
By contrast, the trial court in this case anticipated that the proceeds from the sale of the
house could exceed or fall short of the amount awarded to Wife, and the decree addressed
both possibilities. Finally, our supreme court has expressed reluctance to apply the reasoning
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of Case to real estate. Ryan v. Ryan, 972 N.E.2d 359, 369-70 (Ind. 2012).2
Alternatively, Husband argues that the trial court abused its discretion by not taking
measures to enforce the divorce decree. Husband asserts that he was not able to find relevant
authority to support his argument, but appears to accept that the court possessed discretion to
determine how its decree should be enforced. See Appellant’s Br. at 15 (arguing that the
court “abused its discretion in declining to enforce the provision of the decree of dissolution
that states the house is to be sold”). The only relief requested in this section of his brief is
that we direct that the house be listed at $449,000.
Husband has not persuaded us that the trial court abused its discretion by declining to
order the parties to reduce the list price. While Plummer testified that she would like to list
the house at $449,000, she also testified that there had been increased interest in the house in
recent months. Husband currently has a house, barn, and fifty-five acres that he owns free
and clear, while a significant portion of Wife’s assets are tied up in the house and cannot be
recovered unless the house sells for a certain price. Wife testified that she was willing to
refinance the home in order to help ease the financial burden of maintaining the new house
pending the sale. The trial court was well acquainted with the parties’ relative financial
positions and was able to weigh the equities of reducing the list price or allowing Wife
additional time to try to sell the house at $499,900. Finding no abuse of discretion, we affirm
the judgment of the trial court.
2
We note that Wife cited Ryan during the hearing on Husband’s Trial Rule 60(B) motion, and that it
can easily be found by KeyCiting Case or using a similar citator.
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Affirmed.
ROBB, C.J., and FRIEDLANDER, J., concur.
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