Albert J. Purcell v. Theresa M. Purcell

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Mar 24 2014, 10:13 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
ALBERT K. J. PURCELL REBECCA L. LOCKARD
Jeffersonville, Indiana Jeffersonville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ALBERT J. PURCELL, )
)
Appellant-Petitioner, )
)
vs. ) No. 10A01-1309-DR-390
)
THERESA M. PURCELL, )
)
Appellee-Respondent. )
APPEAL FROM THE CLARK CIRCUIT COURT
The Honorable Jerry F. Jacobi, Judge
Cause No. 10C02-0906-DR-117
March 24, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge
Case Summary and Issue
Following a dissolution of marriage between Albert Purcell and Theresa Purcell, the
trial court issued a qualified domestic relations order (“QDRO”) that distributed funds from a
profit sharing account owned by the parties prior to their divorce. Albert, pro se, appeals the
QDRO, raising the following issue for our review: whether the QDRO improperly modified
the terms of the parties’ decree of dissolution. Concluding the QDRO did not countermand
the terms of the decree of dissolution, we affirm.
Facts and Procedural History
On May 25, 2012, the trial court entered a decree of dissolution and dissolved the
parties’ marriage. Among the assets at issue in the dissolution was a Kitchen Kompact Profit
Sharing Account (“the Account”). The decree stated the Account’s “balance as of October
31, 2010 is $123,564.78.” Appellee’s Appendix at 4. The decree concluded the Account
“shall be split equally between the parties. [Theresa] shall receive her share through a
Qualified Domestic Relations Order prepared by [Albert] within thirty (30) days of the date
of this Order.” Id. at 6. In another portion of the decree, the trial court concluded “Theresa
should receive an equal sharing [sic] from [the Account], by Qualified Domestic Relations
Order. Theresa’s counsel shall prepare the QDRO, with full cooperation from Albert and his
counsel.” Id. at 7-8.
On March 6, 2013, the trial court issued the QDRO, which was prepared by Albert’s
attorney. The QDRO stated in pertinent part:
The amount of [Theresa’s] benefit under the [Account] shall be one-half of
$123,564.78 (or $61,782.39) as of October 31, 2010, the date of the court’s
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valuation, which one-half share shall be adjusted for any gains or losses since
October 31, 2010, calculated without regard to any previous loans made by
[Albert] before or after dissolution.
Id. at 13. Upon learning of the QDRO, Albert attempted to contact his attorney several times
but was unsuccessful. Eventually, on April 23, 2013, Albert proceeded pro se and filed a
motion to correct error, arguing the QDRO improperly modified the decree. A hearing was
held on August 6, 2013, and the trial court denied Albert’s motion. This appeal followed.
Discussion and Decision
I. Standard of Review
A trial court’s ruling on a motion to correct error is reviewed under an abuse of
discretion standard. Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1055 (Ind.
2003). An abuse of discretion occurs if the trial court’s decision is against the logic and
effect of the facts and circumstances or if it misapplied the law. Brown v. Brown, 979
N.E.2d 684, 685 (Ind. Ct. App. 2012).
II. The QDRO
Albert argues that the QDRO operated to improperly modify the terms of the parties’
decree. More specifically, he contends the QDRO incorrectly adjusted for gains or losses on
the Account since the October 31, 2010 valuation date, rather than merely distributing
one-half of the money that existed in the Account as of that date. Theresa responds that the
court’s ruling on the motion to correct error, which was made without specific grounds for
the denial, may be affirmed for two reasons: (1) Albert’s motion to correct error was
untimely, and (2) the QDRO did not improperly modify the decree.
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First, Theresa argues the trial court properly denied Albert’s motion to correct error
because it was untimely. A motion to correct error must be filed no later than thirty days
after the entry of judgment. Ind. Trial Rule 59(C). In fact, the trial court issued the QDRO
on March 6, 2013, and Albert did not file his motion to correct error until April 23, 2013, a
time that exceeded the deadline under Trial Rule 59. Denial on that basis would not be an
abuse of discretion.
Assuming that Albert’s motion was or could be treated as a motion for relief from
judgment under Indiana Trial Rule 60(B), Albert’s argument would still be unsuccessful on
the merits. Indiana law states that orders concerning property disposition in a dissolution of
marriage “may not be revoked or modified, except in case of fraud.” Ind. Code § 31-15-7-
9.1(a). However, the QDRO in this case did not modify the decree. The decree stated that
“[t]he [Account] balance as of October 31, 2010 is $123,564.78 and shall be split equally
between the parties.” Appellee’s App. at 6 (emphasis added). The decree did not say
Theresa was entitled to $61,782.39 from the Account. The QDRO did precisely what the
decree proposed: it split the Account equally between the parties. A truly equal division of
the Account could not be attained without consideration of gains or losses. The QDRO was
proper and the trial court’s denial of Albert’s motion to correct error was not an abuse of
discretion.
Conclusion
Concluding the QDRO did not improperly modify the terms of the parties’ decree of
dissolution, we affirm.
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Affirmed.
BARNES, J., and BROWN, J., concur.
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