Ronald Fritts v. Linda Fritts , 28 N.E.3d 258 ( 2015 )

Mar 12 2015, 9:51 am
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Jacob D. Winkler Dan J. May
Katherine J. Noel Kokomo, Indiana
Noel Law
Kokomo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronald Fritts, March 12, 2015
Appellant-Respondent, Court of Appeals Cause No.
34A02-1405-DR-361
v. Appeal from the Howard Superior
Court
Cause No. 34D04-0807-DR-809
Linda Fritts,
Appellee-Petitioner. The Honorable Thomas R. Lett,
Special Judge
Barnes, Judge.
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Case Summary
[1] Ronald Fritts appeals the trial court’s ruling on a motion for relief from
judgment filed by his ex-wife, Linda Christopher.1 Linda cross-appeals,
challenging the trial court’s resolution of other issues raised by the parties post-
dissolution. We affirm in part, reverse in part, and remand.
Issues
[2] Ronald raises one issue, which we restate as:
I. whether the trial court properly declined to
credit Linda with his proposed value of his
pension’s surviving spouse benefit.
[3] On cross-appeal, Linda raises five issues, which we restate as:
II. whether the trial court’s calculation of Linda’s
child support arrearage failed to take into
account a set-off included in the 2010
dissolution order;
III. whether the trial court properly calculated
outstanding medical expenses owed by Linda;
IV. whether the trial court properly found that
Ronald complied with the dissolution order
when he paid Linda’s previous attorney
$4,000.00;
V. whether the trial court properly declined to
credit Linda for various accounts; and
1
In the order dissolving the marriage, Linda’s last name was restored to Christopher.
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VI. whether Linda is entitled to appellate attorney
fees based on Indiana Appellate Rule 66(E).
Facts
[4] Ronald and Linda were married in 1993. During the marriage, Ronald adopted
one of Linda’s daughters, Kelsey, who is now emancipated. The couple
separated in June 2008, and, on July 16, 2008, Linda petitioned for dissolution
of the marriage.
[5] In December 2008, during the dissolution proceedings, Ronald retired from
Delphi. When he retired, he elected a surviving spouse benefit. As a result of
Delphi’s bankruptcy, administration rights of Ronald’s pension were transferred
to PBGC, and Ronald’s pension was reduced. A February 2, 2010 letter from
PBGC to Ronald indicated that, as of July 31, 2009, Ronald’s current monthly
benefit of $5,298.64 would be reduced to an estimated monthly benefit of
$3,909.37. The letter also explained that the monthly surviving spouse benefit
was estimated to be $2,541.09 upon Ronald’s death and, if Linda predeceased
Ronald, Ronald’s monthly benefit would increase by $163.87.
[6] On December 14, 2009, the trial court issued an order dissolving the marriage
and indicating that the remaining issues would be resolved in a bifurcated final
hearing. On May 28, 2010, following a March 2010 hearing, the trial court
issued a final dissolution order. It explained that, during the course of the
proceedings, neither party obeyed the trial court’s orders to pay child support
for Kelsey. The trial court subtracted the amount Ronald owed from the
amount Linda owed, which left Linda an outstanding balance of $2,310.00.
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The trial court then subtracted that amount from Linda’s share of the marital
estate. Regarding uninsured medical expenses for Kelsey, Ronald was required
to pay the first 6%, and the balance was to be split between the parties, with
Ronald paying 77% and Linda paying 23%.
[7] The trial court found “that an equal division of the marital property between the
parties is just and reasonable. To divide the marital property, [Linda] is
awarded a judgment against [Ronald] in the amount of $48,705.55.”
Appellant’s App. p. 30. In its division of property, the trial court awarded
Linda a Solidarity checking account and Ronald various Key Bank accounts.
The trial court ordered Ronald “to pay a portion of [Linda’s] attorney fees in
the amount of $4,000.00 within forty five (45) days.” Id.
[8] The trial court found that Linda was “entitled to one half of the value of the
pension based upon the coveture [sic] fraction formula.” Id. A pension
analysis prepared by the parties valued the marital property portion of Ronald’s
$771,923.28 pension at $283,182.97. The trial court required Linda’s attorney
to prepare any documents necessary to carry out the order. The trial court also
denied Linda’s “motion to require [Ronald] to execute a surviving spouse
option.” Id. The trial court’s order made no mention of the surviving spouse
benefit that Ronald had already elected.
[9] Linda appealed, challenging the date the trial court used to value certain assets
and the trial court’s calculation of child support. We affirmed the trial court’s
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order. See Christopher v. Fritts, No. 34A04-1008-DR-508 (Ind. Ct. App. March
23, 2011), trans. denied.
[10] Ronald made no payments to Linda as required by the order as to either the
property equalization payment or the pension. Despite efforts by both parties,
the parties agree that Ronald is unable to remove the surviving spouse benefit
from his pension plan. The parties filed numerous motions related to the
dissolution order, including Linda’s motion for relief from judgment, motion
for proceedings supplemental, and several summary judgment motions related
to the pension. On January 13, 2014, the trial court held a hearing on all
pending motions. Both Linda and Ronald testified, and both parties offered
numerous exhibits. Ronald testified that, based on Social Security
Administration actuarial data of their respective life expectancies and his own
calculations, Linda would outlive him by sixteen years and would receive
surviving spouse benefits totaling $487,889.00.
[11] Following the hearing, the trial court issued an order, which provided in part:
8. [Ronald] and [Linda] attempted to resolve the issue of
eliminating the surviving spouse election with the PBGC . . . . This
was unsuccessful.
9. The result of the PBGC’s refusal to eliminate the surviving
spouse benefit has created a drastic deviation from the Court’s Ruling
on May 28, 2010.
10. [Ronald’s] pension benefit without the surviving spouse
election, would have been $5,298.64. However, due to the surviving
spouse election, [Ronald’s] pension is only $3,909.37. Thus, due to
the fact that the PBCG [sic] will not honor the Court’s Ruling,
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[Ronald’s] pension has been reduced by $1,389.27 per month
(pursuant to PBGC calculations provided by both counsel).
11. The court cannot attempt to estimate the value of any
“windfall” to [Linda]. To do so would be speculative and considering
facts not in evidence. The coverture fraction formula was Ordered by
the trial court and was not appealed. The parties are bound by that
Order. [Ronald] is not entitled to credit for any “windfall” created by
the pension issue.
12. [Linda] was further Ordered to pay [Ronald] support pursuant
to the May 28, 2010 Ruling. She has failed to pay any support and has
an arrearage in the sum of $9,460.00. [Linda] was also ordered to pay
medical bills, which she did not. [Linda’s] share of the medical bills
was $1,074.00.
13. [Ronald] was awarded certain accounts with Key Bank,
pursuant to the May 28, 2010 Ruling. [Ronald] alleged, and [Linda]
admitted, she took funds from these accounts in the sum of $5,132.01.
*****
15. In order to effectuate a 50/50 division of the marital assets, the
May 28, 2010 Ruling awarded a Judgment to be paid by [Ronald] to
[Linda] in the sum of $48,705.55. Interest in the sum of $14,155.30
had accrued as of the hearing. The total sum owed to [Linda] is
$62,860.85.
16. The attorney fees Ordered paid to [Linda’s] attorney has been
paid to Mark Dabrowski, which the court finds complies with the
court’s Order.
17. The court finds that this Order effectively resolves all pending
motions, including any Motions for Summary Judgment.
Appellant’s App. pp. 23-24. The trial court explained that Ronald owed Linda
$62,860.85 for the 2010 judgment and interest and $43,131.00 for the pension
arrearage, for a total of $105,991.05. The trial court found that Linda owed
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Ronald $32,858.00 for the equity in the marital residence,2 $10,534.00 for child
support and medical bills, $600.00 for an appraisal fee, and $5,132.01 for the
Key Bank accounts, for a total of $49,124.01. Setting off the amount Linda
owed Ronald, the trial court ordered Ronald to pay Linda $62,860.05. The trial
court also ordered the parties to pay their own attorney fees. Both parties now
appeal.
Analysis
[12] Pursuant to Linda’s request, the trial court issued written findings and
conclusions. When reviewing such, we “shall not set aside the findings or
judgment unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.” Ind.
Trial Rule 52(A). We neither reweigh the evidence nor reassess witness
credibility, and we view the evidence most favorably to the judgment. Best v.
Best, 941 N.E.2d 499, 502 (Ind. 2011). “‘Findings are clearly erroneous only
when the record contains no facts to support them either directly or by
inference.’” Id. (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)).
“Appellate deference to the determinations of our trial court judges, especially
in domestic relations matters, is warranted because of their unique, direct
2
Although there have been several post-dissolution disputes regarding the sale of the marital residence,
neither party appeals the trial court’s resolution of that issue.
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interactions with the parties face-to-face, often over an extended period of
time.” Id.I. Pension
[13] Ronald contends that the trial court’s 2010 dissolution order is no longer just
and reasonable because of the inability to eliminate the surviving spouse
benefit, which, according to him, reduces his monthly pension benefit from
$5,298.64 to $3,909.37 and creates a windfall for Linda. Ronald contends that
the trial court should have given him credit toward any judgment he owes
Linda based on what she might receive from the surviving spouse benefit after
he dies.
[14] In response, Linda claims Ronald was made aware that the surviving spouse
benefit could not be eliminated in June 2010 and did not appeal, file a motion
to correct error, or file his own motion for relief from judgment pursuant to
Indiana Trial Rule 60(B). Ronald claims that he had no reason to appeal the
dissolution order because it was favorable regarding the surviving spouse
benefit. Although the dissolution order denied Linda’s motion to require
Ronald “to execute a surviving spouse option,” it did not address the surviving
spouse benefit that Ronald had elected upon his retirement in 2008 while the
dissolution proceeding was pending. Appellant’s App. p. 30.
[15] Correspondence between Ronald and PBGC indicates that on February 10,
2010, after the marriage was dissolved but before the property issues were
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resolved, Ronald sought to remove the surviving spouse benefit and that on
June 3, 2010, PBGC informed Ronald:
If you elected the normal form of benefit for a married participant
before the plan ended, the plan would have permitted you to change
your benefit to a straight-life annuity if your marriage ended in divorce
and your former spouse agreed, and then revert back to a joint-and-
65%-survivor annuity if you remarried. PBGC will not allow these
changes, but we will honor such changes made before the plan ended.
Appellee’s App. p. 76.3 Because this letter was issued within days of the May
28, 2010, dissolution order, it appears the irrevocability of the surviving spouse
benefit and the attempt to credit Linda for the potential proceeds of the benefit
could have been raised by Ronald in a motion to correct error. See Ind. Trial
Rule 59 (requiring that a motion to correct error be filed within thirty days after
the entry of a final judgment).
[16] To the extent the irrevocability of the surviving spouse benefit was learned later,
Ronald could have pursued relief from the dissolution order pursuant to Trial
Rule 60(B). See Evans v. Evans, 946 N.E.2d 1200, 1206 (Ind. Ct. App. 2011)
(concluding that the trial court properly recast a motion to compel payment
following a dissolution order that was legally impossible to implement as a Trial
Rule 60(B) motion); Case v. Case, 794 N.E.2d 514 (Ind. Ct. App. 2003)
(reviewing a motion to modify a dissolution decree as Trial Rule 60(B) motion
3
Although the certified PBGC records were not offered or admitted at the 2014 hearing, it appears that the
trial court had taken judicial notice of them at a previous hearing. While the case was being briefed, the trial
court approved an agreement by the parties that “The Record of Proceedings should be corrected and
supplemented to include the missing pages of Exhibit O and/or all of the certified PBGC records.”
Appellant’s Supplemental App. p. 4.
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for relief from judgment). Ronald claims that he was not required to seek relief
from judgment pursuant to Trial Rule 60(B) because Linda did. In support of
his argument, he relies on the general proposition that, although a trial court
may modify its property division decree under Trial Rule 60(B), it may not do
so without a motion by a party and without a hearing. See Poppe v. Jabaay, 804
N.E.2d 789, 795 (Ind. Ct. App. 2004) (concluding that because wife did not file
a Trial Rule 60(B) motion, the trial court had no authority to modify its decree
under that Rule), trans. denied, cert. denied. Ronald contends, it is of no
consequence that Linda filed the motion for relief from judgment and he
requested his own relief at the hearing because “[a]ll that is required is that ‘a
party’ file the motion.” Appellant’s Reply and Cross-Appellee Br. pp. 3-4.
[17] Unlike in Poppe, the issue here is not whether the trial court had the authority to
modify the dissolution decree under Trial Rule 60(B). It is whether Ronald was
required to file his own motion seeking relief. We conclude he was.
[18] Linda’s 2011 motion for relief from judgment was based on PBGC’s refusal to
pay Linda her share of the pension, not the parties’ inability to eliminate the
surviving spouse benefit. Certainly, Linda did not ask the trial court to credit
her $487,889.00 based on Ronald’s calculation of the surviving spouse benefit
as was Ronald’s position at the January 2014 hearing.
[19] Trial Rule 60(B) has several avenues for relief with different time limitations
and in some instances requires the allegation of a meritorious claim or defense.
“‘The burden is on the movant for relief from judgment to demonstrate that the
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relief is both necessary and just.’” Welton v. Midland Funding, LLC, 17 N.E.3d
353, 355 (Ind. Ct. App. 2014) (citation omitted). If we were to conclude that
Ronald was not required to file his own motion for relief from judgment, he
would essentially be to able avoid his burden of showing that his request for
relief was timely and that the relief he requested is required pursuant to Trial
Rule 60(B).4 We will not do this. Because Ronald did not file his own motion
for relief from judgment, he cannot now challenge the trial court’s decision not
to credit Linda with the proceeds she might someday receive from the surviving
spouse benefit.
II. Child support Arrearage
[20] Linda argues the trial court erroneously included $2,310.00 in her child support
arrearage. Linda does not dispute the finding that she has a child support
arrearage of $9,460.00 but contends that $2,310.00 of that amount was credited
to Ronald in the dissolution order. Ronald agrees that the dissolution order
credited him for $2,310.00 of the arrearage, and the parties and trial court
acknowledged this at the 2014 hearing. Specifically, the trial court asked
Ronald’s attorney if Linda owed Ronald “9460 minus 2310.” Tr. p. 72.
Ronald’s attorney responded, “Yeah, I’m sure [Linda’s attorney] will point that
out in his written findings that he presents to the Court.” Id. Thus, we must
4
Given that Ronald has not paid any of the 2010 judgment to Linda and is now asking that she be credited
for the proposed proceeds of the surviving spouse benefit, we are not persuaded by his claim that he was not
seeking relief from judgment and that he “has only tried to enforce” the dissolution order. Appellant’s Reply
and Cross-Appellee Br. p. 4.
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conclude that the setoff for child support arrearage in the amount of $9,460.00
erroneously includes $2,310.00 that had already been accounted for in the
dissolution order.
III. Medical Expenses
[21] At the hearing, Ronald claimed that Linda had failed to pay her portion of
Kelsey’s uninsured medical expenses. When questioned about the unpaid
medical expenses, Linda testified that the expenses submitted to the trial court
“included duplicate and triplicate bills and they included bills that were for
Ronald Fritts instead of Kelsey Fritts.” Tr. p. 23. At the conclusion of the
hearing, Ronald offered an exhibit containing forty-five pages of medical bills to
support his request. Linda’s attorney explained that he had not had the
opportunity to review the calculation, and the parties agreed that the exhibit
would be admitted into evidence and they would present arguments regarding
such in their proposed orders. In his proposed order, Ronald claimed he was
owed $1,074.00 in medical expenses. In her proposed order, Linda claimed she
only owed $54.25 and included an exhibit explaining her calculation. In its
order, the trial court found that Linda owed $1,074.00 for her share of medical
bills.
[22] Linda argues on appeal that Ronald’s exhibit includes duplicate bills and
services provided to him.5 Because the exhibit does appear to contain duplicate
5
This exhibit contains numerous post-it notes with handwritten notes marking duplicate bills and Ronald’s
bills. There is no indication that these notes were included on the bills when the exhibit was admitted into
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bills and to include services provided to Ronald, we remand for the trial court to
recalculate Linda’s unpaid medical expenses to ensure that the amount owed
does not include duplicate bills or services provided to Ronald.
IV. 2010 Attorney Fee Order
[23] Linda argues that the trial court improperly credited Ronald for the $4,000.00
he paid directly to Linda’s previous attorney. As a procedural matter, Linda
claims that the trial court should not have heard evidence on this issue because
she filed a motion for summary judgment in 2011 and a motion in limine in
2012 seeking to prevent the taking of evidence on this issue.6
[24] During the 2014 hearing, after questioning Linda about the payment of the
$4,000.00, Linda’s attorney referenced the motion for summary judgment and
motion in limine. The trial court indicated that the motion for summary
judgment had not been ruled on and suggested that, because Linda had
testified, they include the issue “as part of today’s evidence and today’s order.”
Tr. p. 27. Linda’s attorney responded, “That would be fine.” Id. Accordingly,
Linda may not now argue that Ronald did not properly respond to her motion
for summary judgment.
evidence. Accordingly, we have removed the notes and have not considered them in our review of this issue.
See Schaefer v. Kumar, 804 N.E.2d 184, 187 (Ind. Ct. App. 2004) (explaining that we cannot consider matters
outside the record on appeal), trans. denied.
6
None of the summary judgment pleadings nor the motion in limine are included in Linda’s appendix.
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[25] In the 2014 order, the trial court found, “The attorney fees Ordered paid to
[Linda’s] attorney has been paid to Mark Dabrowski, which the court finds
complies with the court’s Order.” Appellant’s App. p. 24. This is consistent
with Ronald’s testimony that he paid Linda’s trial attorney directly. This
testimony was supported by a canceled check to Mark Dabrowski, Linda’s
previous attorney, dated June 10, 2010, and deposited on June 18, 2010. Linda
also testified that Dabrowski had not billed her the $4,000.00.
[26] Relying on Indiana Code Section 31-15-10-1(b), which provides, “The court
may order the amount to be paid directly to the attorney, who may enforce the
order in the attorney’s name[,]” Linda argues that Ronald is not entitled to a
credit for his payment because the trial court did not order him to pay
Dabrowski directly. We are not persuaded. The 2010 dissolution order
required Ronald “to pay a portion of [Linda’s] attorney fees in the amount of
$4,000.00 within forty five (45) days[.]” Appellant’s App. p. 30. The evidence
shows that Ronald did this. Linda has not established that the trial court’s
finding on this issue was clearly erroneous.
V. Accounts
[27] Linda contends that, because the trial court gave Ronald credit for the
$5,132.01 decrease in the Key Bank accounts, the trial should have credited her
for the decreased value of the Solidarity checking account and for her payment
on other debts. In the dissolution order, Ronald was awarded a Key checking
account with a balance of $4,133.60. Ronald testified at the 2014 hearing that
from May 2010 to July 2010, the value of that account was reduced from
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$7,687.01 to zero and requested that he be awarded the $4,133.60. Bank
statements were admitted in support of Ronald’s testimony. Ronald also
testified that a Key Bank money market account and Key Bank cash reserve
account were “emptied” around the same time. Tr. p. 93. Linda testified that
she owed Ronald $4,133.00.
[28] Linda argued, however, that Ronald owed her $5,994.72 for payments she had
made on credit cards and other debts and for the reduced value of the Solidarity
checking account that she received in the dissolution order. Linda offered no
evidence to support this claim other than a summary of her testimony on this
point. Regarding the Solidarity checking account, Ronald testified that he set
up his own accounts when he moved out, that he did not use anything from
that account, and that he did not know the balance of the account when Linda
finally received it.
[29] The evidence suggests that Ronald’s accounts were intentionally depleted by
Linda, and Linda does not direct us to evidence suggesting that Ronald did the
same. Any discrepancy in the trial court’s valuation of Linda’s accounts is
attributable to Linda’s failure to clearly provide the necessary information
regarding the accounts at the time of dissolution. In the dissolution order, the
trial court stated:
While this matter was pending both parties made expenditures and
financial decisions that were not in accordance with the rulings of the
Court. The parties did not readily share financial information with
each other. The parties did not present an accurate accounting of their
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activities to the Court. The Court is not able to unravel this tangled
financial web.
Appellant’s App. p. 30. Without more, Linda has not established that the trial
court’s decision to not credit her for the difference in value in the various
accounts was clearly erroneous.
VI. Appellate Attorney Fees
[30] Finally, Linda requests appellate attorney fees pursuant to Indiana Appellate
Rule 66(E), which provides for the assessment of “damages if an appeal,
petition, or motion, or response, is frivolous or in bad faith. Damages shall be
in the Court's discretion and may include attorneys’ fees. . . .” We will only
assess damages where an appellant, acting in bad faith, maintains a wholly
frivolous appeal. Bessolo v. Rosario, 966 N.E.2d 725, 734 (Ind. Ct. App. 2012),
trans. denied. Although Appellate Rule 66(E) permits us to award damages on
appeal, we must act with extreme restraint in this regard due to the potential
chilling effect on the exercise of the right to appeal. Id. To prevail on her
claim, Linda must show that Ronald’s contentions and arguments on appeal are
utterly devoid of all plausibility. See id.[31] Ronald is unsuccessful in his appeal; however, we cannot conclude that his
claim is utterly devoid of all plausibility. Indeed, although the litigious nature
of these proceedings seems never-ending, it is not Ronald alone who bears
responsibility for such. Under these circumstances, appellate attorney fees are
not warranted.
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Conclusion
[32] Ronald knew or should have known that the surviving spouse benefit could not
be revoked as early as June 2010, and he was required to take action pursuant
to the Indiana Trial Rules to modify the judgment. Because he did not do so,
he may not argue on appeal that the trial court’s decision not to credit Linda for
the surviving spouse benefits she might receive is clearly erroneous. Because
the record shows that Ronald was improperly credited a second time for
$2,310.00 of Linda’s child support arrearage and is not clear regarding the
uninsured medical expenses, we remand for the trial court to correct the
arrearage and to reevaluate the medical expenses claimed by Ronald. Linda
has not established that the trial court’s order was clearly erroneous regarding
the payment of trial counsel’s attorney fees and the valuation of the accounts at
dissolution. She also has not established that appellate attorney fees are
warranted. We affirm in part, reverse in part, and remand.
[33] Affirmed in part, reversed in part, and remanded.
May, J., and Pyle, J., concur.
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