Thomas Zachary v. Amanda Suzanne Nesbitt (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 Jul 21 2020, 8:40 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Stephen P. Rothberg
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas Zachary, July 21, 2020
Appellant-Petitioner, Court of Appeals Case No.
20A-DC-329
v. Appeal from the Kosciusko
Superior Court
Amanda Suzanne Nesbitt, The Honorable David C. Cates,
Appellee-Respondent. Judge
Trial Court Cause No.
43D01-1804-DC-131
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020 Page 1 of 12
Case Summary
[1] Thomas Zachary (“Husband”) appeals the trial court’s denials of his motion to
correct error and motion for relief from judgment regarding his dissolution
proceedings with Amanda Suzanne Nesbitt (“Wife”). We affirm.
Issues
[2] Husband raises two issues, which we restate as:
I. Whether the trial court properly denied Husband’s motion
to correct error.
II. Whether the trial court properly denied Husband’s motion
for relief from judgment.
Facts
[3] Husband and Wife were married in 2006 and have three children. Husband
filed a petition for dissolution of marriage in April 2018. The trial court entered
a provisional order, which required in part: “[Husband] shall transfer the sum
of $68,000.00 in savings from the parties’ joint banking account back to that
joint banking account [(“Lake City Joint Account”)] where the sums shall
remain and neither party shall make use of the same absent agreement of the
parties or prior approval of the Court.” Appellant’s App. Vol. II p. 26.
[4] On August 26, 2019, the trial court entered a decree of dissolution of marriage.
The trial court valued the Lake City Joint Account at $63,029.00 and awarded
the account to Husband as part of the equal division of marital property. The
trial court also ordered:
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Assuming Mother does not relocate from Kosciusko County,
commencing the first Friday after entry of the Decree for
Dissolution of Marriage, and continuing until the dependent
children of the marriage are emancipated or reach the age of
nineteen (19) years or until further Order of the Court, Father
shall pay the sum of $654.00 per week for child support.
Id. at 45. Accordingly, Husband’s child support obligation of $654.00 per week
began on August 30, 2019. The trial court also ordered the following regarding
the parties’ 2018 tax returns:
Mother filed a tax return for 2018 electing a “married filing
separate” status and received a refund. The parties should and
shall divide any tax refunds in equal shares and shall pay any
liability in equal shares as well. The Court, for purposes of
distribution, relies on Father’s evidence and finds the net value of
the marital asset occasioned by the income tax refund in the
amount of $2,542.00, which is awarded to Mother.
Id. at 41.
[5] In September 2019, Husband filed a motion to correct error pursuant to Indiana
Trial Rule 59. Husband argued, in part, that Wife removed $16,380.00 from
the Lake City Joint Account without disclosing the withdrawal.
[6] Additionally, in December 2019, Husband filed a motion for relief from
judgment pursuant to Indiana Trial Rule 60. Husband argued that he
involuntarily overpaid child support when his employer improperly deducted
an extra $2,834.00 in October after a delay in processing the Income
Withholding Order. Husband also argued that he paid $6,907.00 in 2018
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federal taxes and received a refund of $2,253.00 in 2018 state taxes, and he was
entitled to $2,327.00 from Wife pursuant to the tax return provisions of the
decree.
[7] After a joint hearing on all pending motions, the trial court entered an order
denying Husband’s motion to correct error without specifically addressing the
Lake City Joint Account. The trial court also denied Husband’s motion for
relief from judgment as follows:
By application of this Court’s Orders as to Petitioner’s support
obligation and income withholding orders, Petitioner alleges an
overpayment of support. The Court finds the difference between
provisional and final support herein to be de minimus and,
accordingly, DENIES Petitioner’s motion in that regard.
Id. at 20. The trial court denied Husband’s argument regarding the 2018 taxes
without a specific finding. Husband now appeals.
Analysis
[8] At the outset, we note that the appellee did not file a brief in this case. “When
an appellee fails to submit a brief, we apply a less stringent standard of review
with respect to the showing necessary to establish reversible error.” In re
Paternity of S.C., 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), aff’d on reh’g, 970
N.E.2d 248 (Ind. Ct. App. 2012), trans. denied. “In such cases, we may reverse
if the appellant establishes prima facie error, which is an error at first sight, on
first appearance, or on the face of it.” Id. “Moreover, we will not undertake the
burden of developing legal arguments on the appellee’s behalf.” Id.Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020 Page 4 of 12
I. Motion to Correct Error
[9] Husband argues that the trial court erred by denying his motion to correct error
regarding the Lake City Joint Account. In general, we review a trial court’s
ruling on a motion to correct error for an abuse of discretion. City of Indianapolis
v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied. To the extent,
however, the issues raised are purely questions of law, our review is de novo.
Id. An abuse of discretion occurs when the decision is “clearly against the logic
and effect of the facts and circumstances before the court or if the court has
misinterpreted the law.” Fulp v. Gilliland, 998 N.E.2d 204, 210 (Ind. 2013).
[10] Husband’s motion was filed pursuant to Indiana Trial Rule 59, which provides
that a motion to correct error is a prerequisite for appeal when the party seeks to
address “[n]ewly discovered material evidence . . . capable of production within
thirty (30) days of final judgment which, with reasonable diligence, could not
have been discovered and produced at trial.” Trial Rule 59(H) provides, in
part:
(1) 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.
(2) If a party opposes a motion to correct error made under this
subdivision, that party has fifteen [15] days after service of the
moving party’s affidavits and motion, in which to file opposing
affidavits.
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[11] The decision to grant a Trial Rule 59 motion to correct error on the basis of
newly discovered evidence trial “is an equitable one, and requires the court to
balance the alleged injustice suffered by the party moving for relief against the
interest of the winning party and society in general in the finality of litigation.”
Faulkinbury v. Broshears, 28 N.E.3d 1115, 1122 (Ind. Ct. App. 2015) (internal
citations omitted). To prevail on a motion to correct error based on newly
discovered evidence, a party must
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.
Scales v. Scales, 891 N.E.2d 1116, 1120 (Ind. Ct. App. 2008) (quoting Matzat v.
Matzat, 854 N.E.2d 918, 920 (Ind. Ct. App. 2006)).
[12] According to Husband, after the dissolution decree was entered, Husband
discovered that Wife removed $16,379.00 from the Lake City Joint Account in
violation of the trial court’s provisional order. In support of his argument,
Husband submitted an affidavit pursuant to Rule 59(H), which provided:
3. Included in the court’s final judgment is set off of Lake City
Bank account ***4078 to Affiant in the amount of $63,029.00.
4. Affiant, upon review of the court’s judgment and order, caused
liquidation/transfer of the account in which at that time the sum
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of $46,650.00 remained, leaving a shortfall in the amount of
$16,379.00. Pursuant to the court’s provisional order Affiant
periodically replenished the account with sufficient deposits to
bring level that auto-payment obligation on the account set off to
Affiant.
5. During the pendency of the action and pursuant to the court’s
provisional order, Affiant routinely reimbursed the account for
those debts and obligations set off to him by the court through
auto pay from said account that he would remain in compliance.
The shortfall is predicated on Respondent’s use of the account
and failure to reimburse or replenish so as to maintain the asset.
Appellant’s App. Vol. II pp. 57-58. At the hearing on the motion to correct
error, Wife argued that both parties used this joint account during the
dissolution proceedings to pay provisional debts, including household expenses,
extracurricular activity expenses for the children, and child support.
[13] Husband presented no evidence that this evidence could not have been
discovered and produced at trial with reasonable diligence. On appeal,
Husband makes no argument concerning this requirement. This account was a
joint account that apparently both parties used throughout the dissolution
proceedings, and Husband presented no evidence regarding when Wife
allegedly withdrew the funds. Husband could have presented evidence
concerning the alleged shortfall in the account during the final hearing. As
such, the alleged shortfall does not qualify as “newly discovered evidence,” and
the trial court did not abuse its discretion by denying Husband’s motion to
correct error. See, e.g., Scales, 891 N.E.2d at 1121 (“We will not now allow
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[Husband] to circumvent the trial rules by claiming that he could not have
discovered these retirement account figures before the final hearing. The trial
court acted within its discretion in denying Husband’s motion to correct
error.”).
II. Motion for Relief from Judgment
[14] Husband argues that the trial court erred by denying Husband’s motion for
relief from judgment pursuant to Indiana Trial Rule 60(B). “Whether to grant a
motion for relief from judgment under Indiana Trial Rule 60(B) is within the
discretion of the trial court, and we reverse only for abuse of that discretion.”
Coles v. McDaniel, 117 N.E.3d 573, 576 (Ind. Ct. App. 2018). An abuse of
discretion occurs when the decision is “clearly against the logic and effect of the
facts and circumstances before the court or if the court has misinterpreted the
law.” Fulp, 998 N.E.2d at 210.
[15] Trial Rule 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:
*****
(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; [or]
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*****
(8) any reason justifying relief from the operation of the
judgment, other than those reasons set forth in sub-paragraphs
(1), (2), (3), and (4).
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.
[16] According to Husband, the trial court abused its discretion by denying his
motion for relief from judgment regarding: (1) Husband’s alleged involuntary
overpayment of child support in October 2019; and (2) Wife’s failure to
reimburse Husband for his 2018 tax liability when his tax returns were filed
after the decree was issued.
A. Involuntary Overpayment of Child Support
[17] Husband argues that he involuntarily overpaid his child support obligation.
Where an overpayment of child support is not voluntary, the amount may be
credited to future child support payments. Carpenter v. Carpenter, 891 N.E.2d
587, 601 (Ind. Ct. App. 2008).
[18] Husband’s child support obligation of $654.00 per week began on August 30,
2019. According to Husband, he timely paid the child support despite a delay
in his employer processing the Income Withholding Order. Husband argues
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that, when his employer started deducting child support from his earnings, his
employer improperly deducted an extra $2,834.00.
[19] The documents submitted by Husband demonstrate that Husband regularly
paid his weekly child support of $654.00 in cash from August 30, 2019, through
October 24, 2019. On October 28, 2019, an electronic funds transfer of
$2834.00 occurred. No additional payments were made until December 2,
2019, when another electronic funds transfer of $2834.00 occurred. Husband
then filed his motion for relief from judgment on December 10, 2019.
[20] It is not evident from the documents submitted by Husband that he overpaid his
child support. Rather, it appears that the October 28, 2019 electronic funds
transfer was meant to pay all of the November 2019 child support due.
Although Husband argues the $2834.00 payment “covered that same period of
time [Husband] had continued to pay child support,” the evidence Husband
presented does not support this claim. Appellant’s Br. p. 13.
[21] Moreover, we also note that the purpose of a Trial Rule 60(B) motion is to
relieve a party from a final judgment for certain specified reasons. See Ind. T.R.
60(B). Husband is not requesting the trial court to relieve him from a final
judgment or modify the final judgment in any way. Rather, Husband is merely
requesting the trial court to enforce the decree. As such, Husband’s arguments
should have been presented in a contempt proceeding or in a motion to enforce
the decree. For these reasons, the trial court did not abuse its discretion by
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denying Husband’s motion for relief from judgment regarding the child support
claim.
B. 2018 Tax Return Provisions
[22] Next, Husband argues the trial court erred by denying his motion for relief from
judgment regarding the decree’s 2018 tax return provisions. The decree
provided:
Mother filed a tax return for 2018 electing a “married filing
separate” status and received a refund. The parties should and
shall divide any tax refunds in equal shares and shall pay any
liability in equal shares as well. The Court, for purposes of
distribution, relies on Father’s evidence and finds the net value of
the marital asset occasioned by the income tax refund in the
amount of $2,542.00, which is awarded to Mother.
Appellant’s App. Vol. II p. 41.
[23] According to Husband, his 2018 tax returns “had not yet been prepared or filed
as of the date of the court’s order.” Appellant’s Br. p. 19. Wife’s 2018 tax
refund was included in the marital estate and was awarded to Wife as part of
the equal division of marital property. Although Husband’s tax liability also
could have been considered during the dissolution proceedings, Husband, for
whatever reason, chose not to timely file his 2018 tax returns. Husband’s
returns were prepared in the fall of 2019, after the trial court issued the decree.
Husband paid $6,907.00 in 2018 federal taxes and received a refund of
$2,253.00 in 2018 state taxes, resulting in a net liability of $4,654.00. Husband
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argues that he is entitled to half of the liability, $2,327.00, from Wife pursuant
to the decree.
[24] We agree that the language of the decree—“The parties should and shall divide
any tax refunds in equal shares and shall pay any liability in equal shares as
well”—seemingly supports Husband’s argument that he is entitled to
reimbursement from Wife for half of his 2018 tax liability. Appellant’s App.
Vol. II p. 41. Again, however, Husband is not requesting that the trial court
relieve him from a final judgment or modify the final judgment in any way.
Rather, Husband is merely requesting the trial court to enforce the 2018 tax
provision of the decree. Accordingly, Husband has failed to demonstrate that
he is entitled to “relief” from a judgment, and the trial court did not abuse its
discretion by denying Husband’s motion for relief from judgment regarding the
tax liability claim. Husband does, however, have the availability of contempt
proceedings or a motion to enforce the decree.
Conclusion
[25] The trial court properly denied Husband’s motion to correct error and motion
for relief from judgment. Accordingly, we affirm.
[26] Affirmed.
Riley, J., and Kirsch, J., concur.
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