Jeffery C. Sharp v. Shiela D. Scott (f/k/a Shiela D. Sharp) (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 10 2019, 5:31 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
Christopher P. Phillips
Phillips Law Office, P.C.
Monticello, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffery C. Sharp, January 10, 2019
Appellant-Respondent, Court of Appeals Case No.
37A03-1711-DR-2632
v. Appeal from the Jasper Circuit
Court
Shiela D. Scott The Honorable Rex W. Kepner,
(f/k/a Shiela D. Sharp), Special Judge
Appellee-Petitioner. Trial Court Cause No.
37C01-1410-DR-874
Mathias, Judge.
[1] Jeffery Sharp (“Husband”) appeals the Jasper Circuit Court’s denial of his
motion for change of judge. Concluding that Husband was not entitled to a
change of judge, we affirm.
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Facts and Procedural History
[2] Husband’s and Shiela Sharp’s (“Wife”) marriage was dissolved in 2015. In its
distribution of the marital assets, the trial court awarded Wife exotic wood
owned by the parties. Upon sale of the wood, Wife was ordered to pay the
parties’ joint tax debt. The remaining balance, if any, was to be divided 60% to
Wife and 40% to Husband.
[3] Before their marriage was dissolved, the parties’ business, Sharp Electric, sold
exotic wood to Bradley Crum (“Crum”) for $5,000. During the dissolution
proceedings, the parties submitted evidence that the wood had a value of
approximately $186,000. Tr. pp. 7–9, 39. In its order dividing the parties’
marital assets, the trial court found:
The above division takes into consideration the fact that the Wife
received a gift of $90,000.00 in land value from her father that
she used to obtain real estate for the parties. But more
importantly, it also takes into consideration that the husband
attempted to and perhaps did sell some of the exotic wood owned
by the parties. It remains unclear how much of the wood is
missing. Per the testimony of the parties, this wood has a value of
around $200,000.00 or more. In the event the wood is missing
and not attainable by the Wife, then all the taxes due and owing
to both the State and Federal Government shall be paid solely by
the Husband.
Appellant’s App. p. 10.
[4] On August 10, 2017, Wife filed a motion to enforce the court’s order
concerning the distribution of the parties’ assets. Wife stated that Crum refused
to allow her to take possession of the wood in his possession and that he was
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attempting to hide or dispose of the wood. Wife also alleged that Husband
refused to assist with obtaining the wood in Crum’s possession. On August 15,
2017, the trial court granted Wife’s motion and ordered that
upon presentation of the Court’s Order of October 28, 2015 to
any law enforcement official having jurisdiction over Bradley
Crum to render any and all assistance allowing her to obtain
possession of all of the wood in Bradley Crum’s possession at his
residence or any other location that he may have moved the
wood to in order to carry out the Court’s Order of October 28,
2015.
Appellant’s App. p. 13.
[5] Thereafter, Crum filed a motion to intervene and requested that the trial court
enter a stay of its October 28, 2015 order dividing the parties’ marital assets and
the August 15, 2017 order. In his motion, Crum argued that he was a bona fide
purchaser and submitted proof of payment for the wood. Wife objected to
Crum’s petition to intervene in the dissolution proceeding.
[6] On September 11, 2017, Husband filed a motion for automatic change of judge
pursuant to Trial Rule 76(B). Wife objected to Husband’s motion and argued
that the motion was not proper under Rule 76(B) because neither of the parties
requested a modification of the dissolution decree.
[7] The trial court held a hearing on all pending motions on October 12, 2017. At
the hearing, Crum agreed to return the wood to Wife in exchange for $5,000,
the same amount he paid for it. The trial court reiterated that any balance
remaining over $5,000 after the sale of the wood would be split 60/40 in favor
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of Wife. Appellant’s App. p. 32. Husband’s motion for change of judge was
implicitly denied as the trial court continues to rule on motions filed in the
proceedings, including Husband’s request that the trial court stay its October
17, 2017 order enforcing the dissolution decree.1 Husband now appeals the
denial of his motion for change of judge.
Standard of Review
[8] Wife has not filed an appellee’s brief, and therefore, we need not undertake the
burden of developing an argument on her behalf. See Trinity Homes, LLC v. Fang,
848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we will reverse the trial court’s
judgment if the appellant’s brief presents a case of prima facie error. Id. Prima
facie error in this context is defined as, “at first sight, on first appearance, or on
the face of it.” Id.
Discussion and Decision
[9] Pursuant to Indiana Trial Rule 76(B), in a civil action, a party is entitled to one
change of judge. However, “[a]fter a final decree is entered in a dissolution of
marriage case or paternity case, a party may take only one change of judge in
connection with petitions to modify that decree, regardless of the number of
times new petitions are filed.” Id. See also In re Marriage of Turner v. Turner, 785
N.E.2d 259, 261 (Ind. Ct. App. 2003) (quoting Trojnar v. Trojnar, 656 N.E.2d
287, 289–90 (Ind. Ct. App. 1995) (explaining that Trial Rule 76(B) allows for
1
The trial court granted Husband’s motion to stay pending appeal.
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“one change of judge in connection with a dissolution proceeding prior to entry
of a final decree ... and one change of judge in connection with proceedings to
modify that decree.”). “Accordingly, the right to a change of judge in
connection with a petition to modify must be viewed prospectively, inasmuch
as that right is derived from the newly-filed petition and does not relate back to
pending matters.” Id. at 262.
[10] On the other hand, “[t]he judge who presided at trial should rule on post-trial
motions because ‘parties are entitled to have issues determined by the judicial
entity hearing the evidence and observing the demeanor of the witnesses.’” Id.
(quoting Vehslage v. Rose Acre Farms, Inc., 474 N.E.2d 1029, 1033 (Ind. Ct. App.
1985)). This policy is memorialized in Trial Rule 63(A), which provides in
pertinent part:
The judge who presides at the trial of a cause or a hearing at
which evidence is received shall, if available, hear motions and
make all decisions and rulings required to be made by the court
relating to the evidence and the conduct of the trial or hearing
after the trial or hearing is concluded.
See also Turner, 785 N.E.2d at 262 (quoting Bailey v. Sullivan, 432 N.E.2d 75, 76
(Ind. Ct. App. 1982) (explaining that “‘[t]he principal behind Trial Rule 63 is
obviously that a judge who has directed a trial is, if available, the best person to
rule on post-trial motions”). In sum, a party does not have the right to file a
change of judge motion with every type of post-decree petition. See Linton v.
Linton, 166 Ind. App. 427, 430, 339 N.E.2d 96, 97 (1975) (holding that a party
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was not entitled to change of judge in post-decree proceeding relative to
contempt citation).
[11] In this case, the motion pending before the trial court was not a motion to
modify the divorce decree. The pending matters before the court were post-
decree motions to enforce distribution of the parties’ asset and a motion to
intervene filed by Crum who had possession of and a monetary interest in the
parties’ asset. These motions related back to issues adjudicated in the final
decree. Moreover, the trial court did not modify its distribution of the parties’
asset, i.e. the exotic wood, in its October 17, 2017 order. For all of these
reasons, we conclude that Husband was not entitled to a change of judge under
Trial Rule 76(B), and we therefore affirm the judgment of the trial court.
[12] Affirmed.
Bailey, J., and Bradford, J., concur.
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