Gerald E. Smith v. Ronda K. (Smith) Busch

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
HEATHER L. PERKINS JAMES W. ENSLEY
FILED
Collier Homann & Perkins, LLC Greencastle, Indiana
Crawfordsville, Indiana
Nov 20 2012, 9:16 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
GERALD E. SMITH, )
)
Appellant, )
)
vs. ) No. 67A01-1205-DR-241
)
RONDA K. (SMITH) BUSCH, )
)
Appellee. )
APPEAL FROM THE PUTNAM CIRCUIT COURT
The Honorable Matthew L. Headley, Judge
Cause No. 67C01-0405-DR-171
November 20, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Gerald E. Smith appeals from the trial court’s order granting a motion to correct error
filed by Ronda K. (Smith) Busch after Ronda’s petition to modify support was dismissed for
failure to prosecute. Gerald presents the following issue for our review: Did the trial court
abuse its discretion by granting the motion to correct error and establishing discovery
deadlines pertinent to Ronda’s petition?
We reverse and remand.
Gerald and Ronda’s marriage was dissolved by the trial court on September 7, 2004.
Although other motions were filed during the interim, the filing giving rise to this appeal is
Ronda’s affidavit of contempt and petition to modify support. That petition was filed on
October 8, 2009, and the matter was set for hearing. Gerald served Ronda with discovery
requests on November 9, 2009. Hearing dates were continued and rescheduled, and when
Gerald had not received a discovery response for over a year, he filed a motion to dismiss
pursuant to T.R. 41(E). Ronda filed a response to Gerald’s motion. The trial court then
vacated the matter from the T.R. 41(E) docket and ordered the parties to mediation.
After another year passed, during which time no mediation occurred and no discovery
responses were supplied by Ronda, Gerald filed another T.R. 41(E) motion to dismiss the
matter. Ronda filed a motion to set a hearing on Gerald’s motion and a request to remove the
case from the T.R. 41(E) docket. The trial court set the matter for a telephonic hearing.
Gerald filed a response to the motion to set hearing and to remove the matter from the T.R.
41(E) docket prior to the date for the telephonic hearing. The trial court granted the motion
to dismiss and vacated the telephonic hearing setting.
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Ronda filed a motion to correct error and Gerald filed a response to that pleading. A
hearing was held on May 1, 2012 at which the parties appeared, but no witnesses were
sworn. The parties presented their arguments and supporting documents to the trial court.
After taking the matter under advisement, the trial court issued an order granting the motion
to correct error. Gerald now appeals.
Gerald appeals from the trial court’s order granting Ronda’s motion to correct error.
To the extent the motion concerns questions of law we review the issues de novo. City of
Indianapolis v. Hicks, 932 N.E.2d 227 (Ind. Ct. App. 2010). Generally, we review a trial
court’s ruling on a motion to correct error for an abuse of discretion. Id. An abuse of
discretion occurs when the trial court’s decision is against the logic and effect of the facts and
circumstances before it or if the court has misinterpreted the law. Scales v. Scales, 891
N.E.2d 1116 (Ind. Ct. App. 2008).
The basis for Ronda’s motion was newly discovered evidence. Motions based on
newly discovered material evidence are viewed with disfavor. Id. Newly discovered
evidence is “material evidence . . . which, with reasonable diligence, could not have been
discovered and produced at trial.” T.R. 59 (A)(1). In order to prevail on a motion to correct
error based on newly discovered evidence, a party must do as follows:
demonstrate that the evidence could not have been discovered and produced at
trial with reasonable diligence; that the evidence is material, relevant, and not
merely cumulative or impeaching; that the evidence is not incompetent; that he
exercised due diligence to discover the evidence in time for the final hearing;
that the evidence is worthy of credit; and, that the evidence raises the strong
presumption that a different result would have been reached upon retrial.
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Matzat v. Matzat, 854 N.E.2d 918, 920 (Ind. Ct. App. 2006). “When a motion to correct
error is based upon evidence outside the record, the motion shall be supported by affidavits
showing the truth of the grounds set out in the motion and the affidavits shall be served with
the motion.” T.R. 59(H)(1).
In the present case, no affidavits were tendered along with Ronda’s motion to correct
error. The motion relied upon evidence outside the record because Ronda’s counsel
attempted to establish the background of the purported newly discovered evidence via details
of conversations with Gerald’s counsel, i.e., evidence outside the record. Additionally, the
evidence Ronda claimed was newly discovered pertained to college expenses for a child who
had completed two years of college during the pendency of the motions. The discovery
request Gerald served on Ronda immediately after her motion to modify child support was
filed included a request for information pertaining to the costs and contributions toward post-
secondary education expenses of the child at issue. The evidence that Ronda’s counsel
claimed to be in the process of collecting does not meet the definition of newly discovered
material evidence.
The trial court’s order in pertinent part reads as follows:
The Court, having taken this matter under advisement, now finds that there
really isn’t an error for the court to correct, but more so for certain discovery to
be completed and the matter litigated/tried, if necessary.
Court orders mother to produce a full completed set of answers to pending
interrogatories to father no later than May 30, 2012. Court further orders that
any additional discovery be served no later than June 20, 2012, with answers
due July 20, 2012. Trial, if necessary, shall be on August 7, 2012 at 9:00 a.m.,
with one hour allotted.
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Court shall consider college expenses and, among other things, any request for
attorney fees [] that may have been incurred in this matter.
Appellant’s Appendix at 37-38.
Instead of pursuing a motion to correct error, Ronda should have proceeded under
T.R. 41(F) to either have the dismissal without prejudice set aside for good cause shown, or
to have the dismissal with prejudice set aside alleging the grounds contained in Indiana Trial
Rule 60(B). The trial court appears to have acknowledged as much by stating that there
really was no error to be corrected.
The trial court, nonetheless, abused its discretion by granting the motion to correct
error. There were no supporting affidavits setting forth the background of the newly
discovered material evidence and there does not appear to have been any newly discovered
evidence. At the hearing, there was no sworn testimony and only the arguments of counsel
were heard. We reverse the trial court’s order and remand this matter to the trial court with
instructions to reinstate its order granting the T.R. 41(E) dismissal.
Judgment reversed and remanded
BROWN, J., and PYLE, J., concur.
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