Tosha Ferron v. Kenneth Ferron (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Sep 10 2020, 9:13 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Heather M. O’Farrell Paul R. Sadler
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tosha Ferron, September 10, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-DN-75
v. Appeal from the Hamilton
Superior Court
Kenneth Ferron, The Honorable Jonathan M.
Appellee-Plaintiff. Brown, Judge
Trial Court Cause No.
29D02-1709-DN-8254
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, Tosha Ferron (Wife), appeals the trial court’s post-
dissolution Order denying her Motion to Set Aside Decree of Dissolution of
Marriage for Fraud.
[2] We affirm.
ISSUE
[3] Wife raises one issue on appeal, which we restate as: Whether the trial court
abused its discretion by denying Wife’s Motion to Set Aside Decree of
Dissolution of Marriage for Fraud.
FACTS AND PROCEDURAL HISTORY
[4] Wife and Appellee-Petitioner, Kenneth Ferron (Husband), were married on
January 10, 2005. No children were born of this marriage and the parties
resided in Noblesville, Indiana.
[5] On September 6, 2017, Husband filed a petition to dissolve the marriage. Both
parties were represented by counsel during various portions of the proceedings.
On December 12, 2017, Wife’s attorney filed his motion to withdraw, and he
indicated that Wife had “not retained counsel for further representation in this
matter.” (Appellee’s App. Vol. II, p. 2). On December 15, 2017, Husband’s
attorney presented Wife with the Settlement Agreement, and without any
advice from counsel, Wife subsequently executed that agreement.
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[6] On January 8, 2018, after the parties waived a final dissolution hearing, the trial
court entered an order dissolving the parties’ marriage (Decree). The
Settlement Agreement was incorporated in the Decree as follows:
The parties heretofore have entered into a [] Settlement Agreement
and the same is being filed contemporaneously with this Decree.
This Agreement was entered into between the parties following a
separation, not followed by a reconciliation, and has been
entered into fairly, without fraud, duress or undue influence, and
its provisions are equitable. The parties have read the Agreement
and understand and comprehend its terms. The [c]ourt, in its
discretion, finds that the terms and provisions of the Agreement of
the parties are approved in all respects and are in complete
discharge of the property rights of the parties arising from the
marriage relationship.
(Appellant’s App. Vol. II, p. 16) (emphasis in original).
[7] Prior to their divorce, they had established a company, Right Choice Food
LLC, and through that company, they operated a pizza franchise, Little
Caesars. As to the management of their franchise business, the Settlement
Agreement provided that:
3. . . . The parties will collectively continue to run Right Choice
Food, LLC DBA Little Caesars jointly according to the terms of
their operating agreement.
(Appellant’s App. Vol. II, p. 20).
[8] On July 2, 2019, more than a year after the Decree was entered, Wife filed her
Motion to Set Aside Decree of Dissolution of Marriage for Fraud. Wife argued
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that prior to signing the Settlement Agreement, Husband persuaded her to
terminate her own attorney from the divorce proceedings and continue with his
attorney, and that shortly thereafter, she was “induced” into signing the
Settlement Agreement without the advice of counsel. (Appellant’s App. Vol. II,
p. 10). Wife additionally claimed that
8. Prior to their dissolution of marriage, the parties were part
owners with Wife’s family of a Little Casear’s (sic) Pizza
franchise (“franchise”). The franchise was held in a limited
liability company, Right Choice Food, LLC.
9. The parties’ interest in Right Choice Food, LLC, was
expressly treated in paragraph numbered 3 under the heading
“Property Division.” That paragraph states: “3. Right Choice
Food, LLC DBA Little Casears (sic). The parties will
collectively continue to run Right Choice Food, LLC DBA Little
Casears (sic) jointly according to the terms of their operating
agreement.”
10. Paragraph 3 fails to divide the parties’ ownership interest in
the franchise, and only treats how the franchise is to be “run.”
11. Prior to the dissolution of marriage, [Wife] was an active
participant in the operation of Right Choice Food, LLC, and
participated in the profits from said franchise.
12. After the dissolution, [Husband] has excluded [Wife] from
operation of the franchise, secretly removed her as the LLC’s
Registered Agent, and refuses to provide any financial
information concerning the franchise to [Wife], much less any
profits.
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13. [Wife] has learned after the dissolution that the operating
documents of the [f]ranchise now list only [Husband] as a
member of the Right Choice Food, LLC, and that [Wife] was
excluded from the membership roll.
****
15. In this case, by refusing to provide discovery disclosing the
parties’ assets, by inducing [Wife] to terminate her attorney, by
inducing [Wife] to execute a Settlement Agreement while her
attorney was still in the case (in violation of Indiana Rule of
Professional Conduct 4.2), and by making representations that
[Wife] would continue to participate in the operation of the
Franchise as a participating member after the dissolution as
before the dissolution, [Husband], did defraud [Wife].
16. Notwithstanding the issue of fraud, the Settlement
Agreement fails to properly divide the parties’ ownership interest
in Right Choice Food, LLC. Where terms of a settlement
agreement are ambiguous, other evidence of the parties intent
should be considered to resolve the conflict. . . .
(Appellant’s App. Vol. II, pp. 11-13).
[9] On September 20, 2019, Husband responded by filing a motion to dismiss and
he argued among other things that Wife’s motion was in essence a motion to
modify the Decree and was untimely pursuant to Indiana Trial Rule 60(B)
because it had been filed more than one year after the Decree was entered.
[10] On December 10, 2019, the trial court conducted a hearing as to Wife’s motion
to set aside the Decree for fraud and Husband’s motion to dismiss. At the
outset, and with Wife’s agreement, the trial court accepted Husband’s request
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to first hear his legal arguments as to his motion to dismiss. Husband’s counsel
proceeded to argue that pursuant to Indiana Trial Rule 60(B)(3), Wife’s motion
for relief from judgment was untimely because it had been made more than a
year after the date the Decree was entered. In excuse of her belated motion,
Wife claimed that her motion was pursuant to T.R.60(B)(8), which permitted
such a motion if filed within a reasonable time. Notwithstanding Wife’s
argument that her motion met the threshold under T.R.60(B)(8), the trial court
found that Wife’s motion to set aside the Decree for fraud was made pursuant
to T.R. 60(B)(3) and, therefore, was untimely. Thus, the trial court granted
Husband’s motion to dismiss, thereby denying Wife’s motion.
[11] Wife now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
[12] Wife contends that the trial court abused its discretion by denying her motion
for relief from judgment—i.e., her motion to set aside the Decree for fraud.
While Wife did not cite to a specific rule in her motion to set aside the Decree
for fraud, at the evidentiary hearing, Wife explained that she was proceeding
pursuant to Indiana Trial Rule 60(B)(8). We will therefore analyze her motion
accordingly.
[13] A motion made under T.R. 60(B) is addressed to the equitable discretion of the
trial court, and we will reverse only upon an abuse of that discretion. Ind. Ins.
Co. v. Ins. Co. of N. Am., 734 N.E.2d 276, 279 (Ind. Ct. App. 2000), trans. denied.
Under T.R. 60(B), the burden is on the movant to establish grounds for relief.
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Id. T.R. 60(B) is meant to afford relief from circumstances which could not
have been discovered during the period a motion to correct error could have
been filed; it is not meant to be used as a substitute for a direct appeal or to
revive an expired attempt to appeal. Id.
[14] T.R. 60(B) provides in part:
On motion and upon such terms as are just the court may relieve
a party or his legal representative from a judgment, including a
judgment by default, for the following reasons:
(1) mistake, surprise, or excusable neglect;
(2) any ground for a motion to correct error, including without
limitation newly discovered evidence, which by due diligence
could not have been discovered in time to move for a motion to
correct errors under Rule 59;
(3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(4) entry of default or judgment by default was entered against
such party who was served only by publication and who was
without actual knowledge of the action and judgment, order or
proceedings;
****
(8) any reason justifying relief from the operation of the
judgment, other than those reasons set forth in subparagraphs (1),
(2), (3), and (4).
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The motion shall be filed within a reasonable time for reasons
(5), (6), (7), and (8), and not more than one year after the
judgment, order or proceeding was entered or taken for reasons
(1), (2), (3), and (4). A movant filing a motion for reasons (1),
(2), (3), (4), and (8) must allege a meritorious claim or defense . .
..
[15] It is undisputed that Wife’s motion to set aside the Decree for fraud was filed
more than one year after the Decree was entered. Because it had been over one
year from the time that the trial court entered the Decree in this case, the
provisions of T.R. 60(B)(1)-(4) were unavailable to Wife. Thus, any provision
under which Wife’s motion could have been granted would only have been
under T.R. 60(B)(8).
[16] T.R. 60(B)(8) allows the trial court to set aside a judgment within a reasonable
time for any reason justifying relief “other than those reasons set forth in sub-
paragraphs (1), (2), (3), and (4).” T.R. 60(B)(8). “These residual powers under
subsection (8) ‘may only be invoked upon a showing of exceptional circumstances
justifying extraordinary relief,’ and is exclusive of other remedies available under
T.R. 60(B)(1), (2), (3), and (4).” Graham v. Schreifer, 467 N.E.2d 800, 803 (Ind.
Ct. App. 1984) (citing In re Marriage of Jones, 180 Ind. App. 496, 389 N.E.2d
338, 340 (1979) (emphasis in original)). This court has further explained the
provisions of T.R. 60(B)(8) as follows:
T.R. 60(B)(8) is an omnibus provision which gives broad
equitable power to the trial court in the exercise of its discretion
and imposes a time limit based only on reasonableness.
Nevertheless, under T.R. 60(B)(8), the party seeking relief from
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the judgment must show that its failure to act was not merely due
to an omission involving the mistake, surprise or excusable
neglect. Rather some extraordinary circumstances must be
demonstrated affirmatively. This circumstance must be other
than those circumstances enumerated in the preceding
subsections of T.R. 60(B).
Blichert v. Brososky, 436 N.E.2d 1165, 1167 (Ind. Ct. App. 1982) (citations
omitted).
[17] According to T.R. 60(B)(8) motion, Wife had to show that: (1) she brought her
claim within a reasonable time in light of the circumstances of the case; (2)
extraordinary or exceptional circumstances justify that relief existed; and (3) she
had alleged a meritorious claim or defense. See Parham v. Parham, 855 N.E.2d
722, 728 (Ind. Ct. App. 2006). Wife filed her claim after eighteen months from
which the circumstances arose, and we conclude that this was within a
reasonable timeframe. However, Wife’s motion fails on the second prong.
Wife failed to show that extraordinary circumstances, existed other than those
circumstances enumerated in the preceding subsections of T.R. 60(B). Wife’s
arguments are strongly grounded on her allegation that Husband committed
fraud—i.e., that Husband failed to disclose to the trial court that the operating
agreement ousted her from the operations of Little Caesars, an act contrary to
the provisions of the Settlement Agreement which required joint operation of
the parties. Wife’s motion could have properly fallen under T.R 60(B)(3) which
addresses fraud; therefore, Wife could not seek relief under T.R.60(B)(8).
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[18] Lastly, Wife was also required to present a meritorious defense. As noted, a
meritorious claim or defense is one showing that, if the case were tried on the
merits, a different result would be reached. Parham, 855 N.E.2d at 728. At the
evidentiary hearing, in support of her fraud claim against Husband, Wife
asserted that during discovery Husband failed to provide or offer details of the
operating agreement which ousted her from the operations of Little Caesars.
Contrary to Wife’s claims, the Settlement Agreement, which was incorporated
in the Decree, stated that the agreement was entered into fairly, without fraud,
duress or undue influence, and its provisions are equitable. The fact that the
Settlement Agreement explicitly referred to the operating agreement would
indicate that Wife knew of the particulars she now claims were concealed by
Husband during discovery, and if she was unaware, she should have completed
further discovery, investigated the issue, or otherwise be represented by an
attorney to help her interpret the provisions of the Settlement Agreement.
Based on the evidence, we conclude that Wife’s arguments were inadequate
under Trial Rule 60(B)(8), and the trial court did not abuse its discretion by
refusing to grant Wife’s motion.
CONCLUSION
[19] In sum, we conclude that the trial court did not abuse its discretion by denying
Wife’s motion to set aside the Decree for fraud.
[20] We affirm.
[21] May, J. and Altice, J. concur
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