Nicholaus Griesemer and Alexander Griesemer, Minor Children, By Next Friend, Pamela Griesemer v. Brian Griesemer (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Jun 28 2016, 8:22 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
F. Anthony Paganelli Arend J. Abel
Thomas D. Perkins TaKeena M. Thompson
Stephanie L. Grass Cohen & Malad, LLP
Paganelli Law Group Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nicholaus Griesemer and June 28, 2016
Alexander Griesemer, Minor Court of Appeals Case No.
Children, By Next Friend, 49A04-1512-CT-2130
Pamela Griesemer, Appeal from the
Appellants-Plaintiffs, Marion Superior Court
The Honorable
v. James A. Jovan, Judge
The Honorable
Brian Griesemer, Kimberly Dean Mattingly,
Magistrate
Appellee-Defendant.
Trial Court Cause No.
49D13-1507-CT-24508
Kirsch, Judge.
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[1] Nicholaus Griesemer and Alexander Griesemer (“the Children”), by next friend
Pamela Griesemer (“Mother”) (collectively, “the Appellants”), appeal the trial
court’s order denying their motion to correct error. The Appellants raise several
issues for our review, which we consolidate and restate as: whether the trial
court erred in dismissing the Appellants’ complaint on the basis that the trial
court did not have subject matter jurisdiction over the case and because the
Appellants’ claim was the same action as one pending in another court.
[2] We affirm.
Facts and Procedural History
[3] On January 14, 2013, Mother filed a petition for dissolution of her marriage to
Brian Griesemer (“Father”). The dissolution action was assigned to Marion
County Superior Court, Civil Division Number 6 (“the Dissolution Court”),
and on June 13, 2014, the Dissolution Court issued the dissolution decree (“the
Decree”). The Decree divided the parties’ marital property and liabilities,
including several accounts Mother and Father had created for the benefit of the
Children; the Decree also ordered support for the Children and provided how
the Children’s education was to be funded. During the marriage, Mother and
Father had set up several educational trust accounts for the benefit of the
Children. Concerning these educational accounts, the Decree set forth the
following provisions:
24. [Father] already received as his sole and separate property
the Wells Fargo Advantage Funds Coverdell Education Savings
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Accounts . . . each of which were owned by him for benefit of the
individual Children . . .
25. [Father] already received as his sole and separate property
the Scottrade Coverdell Education Savings Account . . . each of
which were owned by him for benefit of the individual Children .
..
26. [Father] already received as his sole and separate property
the Scottrade Coverdell Education Savings Account . . . each of
which were owned by him for benefit of the individual Children .
..
27. [Father] already received as his sole and separate property
the Scottrade UTMA account . . . which was owned by him for
benefit of the individual Children . . .
....
32. The CollegeChoice 529 Direct Savings Plans . . . shall be
maintained for the benefit of the child named as beneficiary. In
addition, neither party shall or will take any of the following
actions with regard to the CollegeChoice 529 Direct Savings
Plans . . .:
a. Borrow against, cancel, transfer, remove, withdraw, or
dispose of any funds for any purpose other than qualified
higher education expenses, except as otherwise provided
herein;
b. Delete, change, modify, or add to a beneficiary
designation; or
c. Contribute any funds.
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33. [Father] shall retain all right, title, and interest he has in the
Trustco accounts . . . which are owned by him as custodian for
the individual Children . . .
Appellants’ App. at 45-48.
[4] On July 24, 2015, the Children and Mother, acting as their next friend, filed a
complaint in Marion County Superior Court, Civil Division Number 13 (“the
trial court”), alleging that Father misappropriated over $55,000 from the
educational accounts disposed of in the Decree. On August 17, 2015, Father
filed a motion to dismiss the Appellants’ complaint for lack of subject matter
jurisdiction pursuant to Indiana Trial Rule 12(B)(1) and on the basis that the
same action is pending in another Indiana state court pursuant to Indiana Trial
Rule 12(B)(8). On September 4, 2015, the trial court granted Father’s motion to
dismiss; also, on the same date, the Appellants filed their response to Father’s
motion to dismiss and a proposed order denying the motion to dismiss. On
September 16, 2015, the trial court returned the proposed order and made an
entry in the CCS, stating “Order Denying Motion to Dismiss denied as Moot;
case has been dismissed. Deadline to respond was 9/2/2015.” Id. at 2. On
October 5, 2015, the Appellants filed a motion to correct error, which the trial
court denied on November 10, 2015. The Appellants now appeal.
Discussion and Decision
[5] The Appellants appeal from the denial of their motion to correct error. The
standard of appellate review of trial court rulings on motions to correct error is
abuse of discretion. Dunno v. Rasmussen, 980 N.E.2d 846, 849 (Ind. Ct. App.
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2012) (citing Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1055 (Ind.
2003)). An abuse of discretion occurs when the decision is clearly against the
logic and effect of the facts and circumstances before the court, including any
reasonable inferences therefrom. Id.
[6] In the present case, the trial court dismissed the Appellants’ complaint pursuant
to Indiana Trial Rule 12(B)(1), lack of subject matter jurisdiction, and Indiana
Trial Rule 12 (B)(8), due to prior pending litigation. The standard of review for
a motion to dismiss for lack of subject matter jurisdiction is dependent upon
what occurred in the trial court. Jennings v. St. Vincent Hosp. & Health Care Ctr.,
832 N.E.2d 1044, 1050 (Ind. Ct. App. 2005), trans. denied. Where, as here, the
trial court rules on a paper record without conducting an evidentiary hearing,
the standard of review is de novo. Id. No deference is afforded the trial court’s
factual findings or judgment because this court on review is in as good a
position as the trial court to determine whether the court has subject matter
jurisdiction. Id. Similarly, our review of the trial court’s dismissal of the
Appellants’ complaint under Trial Rule 12(B)(8) is de novo. Beatty v. Liberty
Mut. Ins. Grp., 893 N.E.2d 1079, 1084 (Ind. Ct. App. 2008).
[7] The Appellants argue that the trial court erred in granting Father’s motion to
dismiss pursuant to both Trial Rule 12(B)(1) and Trial Rule 12(B)(8). The
Appellants contend that it was error to dismiss their case under 12(B)(1) and to
conclude that the trial court lacked subject matter jurisdiction because their
complaint concerned conversion of property misappropriated by Father and
the fact that property was initially awarded to Father in the Decree has no
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bearing on the Appellants’ contentions. The Appellants maintain that the
Dissolution Court’s jurisdiction should not be eternal and the resolution of their
complaint did not require any review or enforcement of the Decree. The
Appellants also argue that it was error to dismiss their complaint under 12(B)(8)
because there is no similarity of parties, subject matter, or remedies between the
present action and the dissolution.
[8] It is a firmly established rule that a court that issues a dissolution decree retains
exclusive and continuing jurisdiction to hear issues seeking clarification,
interpretation, and enforcement of the dissolution decree. Fackler v. Powell, 839
N.E.2d 165, 167-68 (Ind. 2005). See also Russell v. Russell, 693 N.E.2d 980, 982
(Ind. Ct. App. 1998) (determining that a dissolution court retains jurisdiction to
clarify and enforce a property settlement agreement that was part of the
dissolution decree), trans. denied; Anderson v. Anderson, 399 N.E.2d 391, 400
(Ind. Ct. App. 1979) (holding that a dissolution court maintains exclusive
jurisdiction to decide questions pertaining to marital property).
[9] Father asserts that Fackler v. Powell is directly on point with the present case.
We agree. In Fackler, after a property settlement agreement was approved by
the dissolution court and incorporated into the dissolution decree, the wife later
filed an action in a different trial court, which alleged that the husband owed
her money pursuant to the decree; the wife also named the husband’s living
trust as a named party. 839 N.E.2d at 166. The husband filed a motion to
dismiss the action filed by the wife, contending that the dissolution court held
exclusive jurisdiction over the subject matter at issue in the wife’s complaint,
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but the trial court disagreed and held that it possessed subject matter jurisdiction
over the action, denying the husband’s motion. Id. On transfer, our Supreme
Court held that the dissolution court retained jurisdiction to interpret the terms
of its property settlement agreements and to enforce them and determined that
the trial court lacked jurisdiction to decide the rights of the parties under the
dissolution decree. Id. at 167. Although the wife argued that her claim was
brought against two separate legal entities, her husband and his living trust, and
that the dissolution court would have no jurisdiction over the living trust, the
Supreme Court was not persuaded by her argument, and held that the wife had
not proven that it would be improper to join the living trust in an enforcement
action through the dissolution court or that she would not otherwise be able to
enforce a judgment obtained through the dissolution court against the living
trust. Id. at 170.
[10] Here, the educational accounts at issue and how they were to be handled were
dealt with in the Decree issued by the Dissolution Court. Of concern to the
Appellants’ claims was Father’s alleged dissipation of the funds in the accounts
and the proper way Father was to handle the funds. In order to determine the
merits of what happened with the funds in the accounts and how Father used
the funds, an interpretation of the Decree was needed. As the Dissolution
Court was in the best position to properly interpret the Decree and because,
pursuant to Fackler, it retained jurisdiction to interpret the terms of the Decree
and to enforce it, proper jurisdiction for the Appellants’ contentions rested with
the Dissolution Court.
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[11] The Appellants contend that their lawsuit is not a case where they are
requesting the trial court to interpret, modify, or enforce the Decree issued by
the Dissolution Court; instead, they are seeking to redress Father’s alleged
misappropriation of property he was awarded under the Decree as custodian of
the property. However, in order to award damages for conversion, which is
what the Appellants are seeking, the portion of the Decree that awarded the
educational accounts to Father would need to be interpreted and enforced, and
if an award of damages is denied, this would likewise involve the interpretation
and enforcement of part of the Decree. Because of the Dissolution Court’s
continuing jurisdiction, such actions need to occur in that court and not the trial
court.
[12] The Appellants also assert that their claims were not required to be filed in the
Dissolution Court because the Children were not parties to the dissolution
proceedings and have no standing to seek interpretation or enforcement of the
Decree. However, several provisions of the Decree relate to the support and
care of the Children, and although not named partied to the dissolution
proceedings, these provisions, including the ones at issue, make clear that they
were intended beneficiaries of parts of the Decree. Mother, who was a named
party to the dissolution and joined the current lawsuit as next friend to the
Children, can stand in and represent the Children in the dissolution action and
request interpretation and enforcement of the pertinent provisions of the Decree
in the same fashion as she could request interpretation and enforcement of child
support provisions in the Decree.
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[13] The Appellants also argue that it was error to grant Father’s motion to dismiss
based on Trial Rule 12(B)(8). Under Trial Rule 12(B)(8), dismissal of an action
is permitted when the “same action [is] pending in another state court of this
state.” This rule employs the general principle that, when an action in pending
in an Indiana court, other Indiana courts must defer to that court’s authority
over the case. Bosley v. NIKTOB, LLC, 973 N.E.2d 602, 605 (Ind. Ct. App.
2012), trans. denied. “The rule applies where the parties, subject matter, and
remedies are precisely the same, and it also applies when they are only
substantially the same.” Beatty, 893 N.E.2d at 1084.
[14] In the present case, the Appellants’ action filed in the trial court and the
dissolution action are at least substantially the same. The subject matter in both
actions related to the educational accounts and the proper way they were to be
handled pursuant to the Decree. The ability of the Appellants’ to be able to
recover any misappropriated funds depends on the interpretation of the
provisions in the Decree concerning the educational accounts. Therefore, both
actions require interpretation and enforcement of certain provisions in the
Decree dealing with the educational accounts.
[15] As for the parties under both actions, Mother was a party to the dissolution
action and joined the action in the trial court as the next friend of the Children.
Although the Children were not named parties to the dissolution action, they
are minors and numerous provisions in the Decree were set forth for their
benefit, specifically the provisions relating to the educational accounts that were
to be “owned by [Father] for the benefit of the individual children.” Appellants’
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Ohio App. at 45. Mother, as their next friend, was able to join the action filed in the
trial court to represent the Children’s interests and should also be able to seek to
have the pertinent provisions of the Decree interpreted and enforced on their
behalf in the dissolution action. Therefore, the parties under both actions are
substantially the same.
[16] Concerning the remedies, as part of the dissolution proceedings, the Dissolution
Court divided the marital estate and established the rights of each of the parties
to the marital property, including the educational accounts; as part of the
dissolution action, these provisions can be interpreted and enforced. The
conversion action filed in the trial court sought a determination that Father
committed conversion by misappropriating the funds in the educational
accounts, which would necessitate interpreting and enforcing the provisions in
the Decree dealing with the educational accounts. We, therefore, conclude that
the remedies in both actions are substantially the same. Because the parties,
subject matter, and remedies are substantially the same, the trial court did not
err in dismissing the Appellants’ action pursuant to Trial Rule 12(B)(8).
[17] The Appellants additionally argue that the trial court erred in granting Father’s
motion to dismiss without considering their timely-filed response to the motion.
Assuming without deciding that the trial court erred in not considering the
Appellants’ response, “[Indiana] Appellate Rule 66(A) makes clear that an error
in the trial court does not warrant reversal on appeal ‘where its probable impact,
in light of all the evidence in the case, is sufficiently minor so as not to affect the
substantial rights of the parties.’” LaPorte Cmty. Sch. Corp. v. Rosales, 963 N.E.2d
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520, 525 (Ind. 2012) (quoting Ind. Appellate Rule 66(A)). Because we have
concluded that the trial court properly dismissed the Appellants’ action, we find
that any error in not considering the Appellants’ response did not affect their
substantial rights. Further, the Appellants do not set forth how they were
prejudiced by the trial court’s failure to consider their response. We, therefore,
conclude the trial court did not commit reversible error in not considering the
Appellants’ response.
[18] Affirmed.
[19] Riley, J., and Pyle, J., concur.
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