HUBBARD v. HUBBARD

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Docket Number

No. 49A02-9708-CV-550

Attorney(S)

Paula J. Schaefer, Micheal G. Ruppert, Ruppert Schaefer, P.C., Indianapolis, for Appellant-Petitioner.

Judges

STATON, Judge, concurring in result.

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Smart Summary

Factual and Procedural Background

Terry W. Hubbard ("Father") filed petitions to modify child custody and child support, while Linda J. Hubbard ("Mother") filed petitions for contempt. After two hearings, the trial court entered findings, conclusions, and a final order on January 24, 1997. On January 30, 1997, Mother filed a "motion to reconsider," which the trial court granted the same day, vacating its prior final judgment and later issuing a new judgment on April 23, 1997. Father appeals, challenging the trial court's authority to grant the motion to reconsider after final judgment and the procedural handling of that motion.

Legal Issues Presented

Whether the trial court erred in granting Mother's motion to reconsider and vacating its final judgment after the entry of final judgment.
If the motion should be construed as a motion to correct error, whether the trial court followed the procedural requirements for such a motion.

Arguments of the Parties

Appellant's Arguments (Father)

The trial court lacked authority to grant a motion to reconsider after final judgment had been entered.
Even if Mother's motion is treated as a motion to correct error, the trial court failed to comply with procedural rules, specifically denying Father an opportunity to respond before ruling.
The trial court abused its discretion by vacating the prior order and entering a new judgment without following Trial Rule 59(E).

The opinion does not contain a detailed account of the appellee's (Mother's) legal arguments as she did not file a brief on appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Phegley v. Phegley, 629 N.E.2d 280 (Ind. Ct. App. 1994)	Appellate discretion to reverse when appellee fails to file a brief and appellant shows prima facie reversible error.	Allowed reversal of trial court's decision due to appellee's failure to file brief and appellant's prima facie showing of error.
Haskell v. Peterson Pontiac GMC Trucks, 609 N.E.2d 1160 (Ind. Ct. App. 1993)	Trial court's inherent power to reconsider or vacate orders before final judgment.	Confirmed that trial court's power to reconsider ceases upon entry of final judgment.
McLaughlin v. American Oil Co., 391 N.E.2d 864 (Ind. Ct. App. 1979)	Trial court's jurisdiction continues until final judgment is entered.	Supported the principle that trial court loses power to reconsider after final judgment.
Chapin v. Hulse, 599 N.E.2d 217 (Ind. Ct. App. 1992)	Definition and effect of final judgment; court retains jurisdiction only as permitted by judgment or statute after final judgment.	Used to explain limitations on trial court's jurisdiction post-final judgment.
Matter of J.L.V., Jr., 667 N.E.2d 186 (Ind. Ct. App. 1996)	Final judgment disposes of the subject matter as to the parties within the court's power.	Supported the court's understanding of finality of judgment.
W W Equipment Co., Inc. v. Mink, 568 N.E.2d 564 (Ind. Ct. App. 1991)	Trial Rule 52(B) allows trial court to amend findings or enter new judgment before or as part of motion to correct error.	Clarified the scope of trial court's power to revise findings before ruling on motion to correct error.
Indiana Michigan Elec. Co. v. Harlan, 504 N.E.2d 301 (Ind. Ct. App. 1987)	Trial court may change record at any time until ruling on motion to correct error.	Supported the timing and limits of trial court's power to amend judgments.
State ex rel. Jackson v. Owen Circuit Court, 314 N.E.2d 73 (Ind. Ct. App. 1974)	Trial court's authority to change record before ruling on motion to correct error.	Reinforced the procedural context for trial court's amendments.

Court's Reasoning and Analysis

The court began by noting that Mother did not file an appellee's brief, allowing the court to reverse if a prima facie error is shown. The central issue was whether the trial court had authority to grant Mother's "motion to reconsider" after final judgment was entered. The court explained that a trial court's inherent power to reconsider or vacate an order exists only while the case remains in fieri, i.e., before final judgment.

Since the trial court entered final judgment on January 24, 1997, Mother's motion filed on January 30 could not be a true motion to reconsider under Trial Rule 53.4(A), which applies only pre-judgment. Instead, the motion had to be treated as a motion to correct error under Trial Rule 59, which governs post-judgment motions to alter or vacate a judgment.

Because Trial Rule 59 requires that the opposing party be given notice and an opportunity to respond before the court rules, the trial court erred by granting Mother's motion the same day without allowing Father to respond. The court rejected the trial court's reliance on Trial Rule 52(B) because the motion to correct error had already been filed and ruled upon without following the proper procedures.

Therefore, the trial court abused its discretion by vacating the January 24 judgment and entering a new judgment on April 23 without complying with procedural safeguards. The court vacated the April 23 judgment and remanded with instructions to allow Father to respond and proceed consistent with Trial Rule 59.

Judge Staton, concurring in result, emphasized the same procedural error: the trial court failed to provide Father the 15-day period to respond mandated by Trial Rule 59(E) before ruling on the motion, constituting an abuse of discretion.

Holding and Implications

The Court reversed the trial court's April 23, 1997, judgment and remanded the case with instructions to permit Father to respond to Mother's motion to correct error and to conduct further proceedings consistent with Trial Rule 59.

The direct effect of this decision is to restore the January 24, 1997, final judgment until proper procedures are followed. No new precedent was established beyond reaffirming the procedural requirements for motions to reconsider and motions to correct error after final judgment.

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TERRY W. HUBBARD, APPELLANT-PETITIONER, v. LINDA J. HUBBARD, APPELLEE-RESPONDENT.

OPINION

GARRARD, Judge.

STATEMENT OF THE CASE

Terry W. Hubbard ("Father") appeals the trial court's findings, conclusions and order on his petitions to modify child custody and to modify child support and his former wife's, Linda Hubbard ("Mother"), petitions for contempt. Father presents several issues for our review, one of which we find dispositive: whether the trial court erred when it granted Mother's motion to reconsider and vacated its final judgment.

We reverse and remand with instructions.

DISCUSSION AND DECISION Standard of Review

Initially, we note that Mother chose not to file an appellee's brief. Where the appellee fails to file a brief on appeal, it is within our discretion to reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. Phegley v. Phegley, 629 N.E.2d 280, 282 (Ind.Ct.App. 1994), trans. denied. This rule is not for the benefit of the appellant. Rather, it was established for the protection of the court so that the court might be relieved of the burden of controverting the arguments advanced for reversal where such burden rests with the appellee. Id. We need not reach the merits of the instant case, as Father has made a prima facie showing of procedural error which we conclude requires reversal.

Motion to Reconsider Final Judgment

Following two hearings and after taking the parties' various petitions under advisement, the trial court entered its findings, conclusions and final order on all petitions pending before the court on January 24, 1997. On January 30, 1997, Mother filed what was denominated as a "motion to reconsider." Without allowing Father to respond to Mother's motion, the trial court granted Mother's motion to reconsider on the same day it was filed, vacating its January 24, 1997, findings, conclusions and order. Thereafter, on April 23, 1997, the trial court issued its new findings, conclusions and order. On appeal, Father alleges that the trial court erred when it granted Mother's motion to reconsider, vacated its January 24, 1997, order, and subsequently entered a new judgment. Specifically, Father contends that the trial court was without power to grant Mother's motion to reconsider following the entry of final judgment. In the alternative, Father maintains that even if Mother's motion is deemed a motion to correct error, the trial court committed procedural errors which require reversal. We agree with Father on both counts.

Father did file a response and objection to Mother's motion on February 4, 1997; however, the trial court could not have considered Father's response as it had already granted Mother's motion.

Father points to our well-settled rule that a trial court has inherent power to reconsider, vacate or modify any previous order so long as the case has not proceeded to final judgment; that is to say the case is still in fieri. Haskell v. Peterson Pontiac GMC Trucks, 609 N.E.2d 1160, 1163 (Ind.Ct.App. 1993); McLaughlin v. American Oil Co., 181 Ind. App. 356, 358, 391 N.E.2d 864, 865 (1979). Once a trial court acquires jurisdiction, it retains jurisdiction until it enters a final judgment in the case. Chapin v. Hulse, 599 N.E.2d 217, 219 (Ind.Ct.App. 1992), trans. denied. A final judgment disposes of the subject matter of litigation as to the parties so far as the court in which the action is pending has the power to dispose of it. Matter of J.L.V., Jr., 667 N.E.2d 186, 188 (Ind.Ct.App. 1996).

We note that the lead case cited by Father in support of his argument is this court's opinion in In re Marriage of Pond, 676 N.E.2d 401 (Ind.Ct.App. 1997), trans. granted. We admonish counsel that transfer was granted in Pond on July 17, 1997 (long before Father's brief was filed) and, thus, our opinion has been vacated and may not be cited as law. See Ind.Appellate Rule 11(B)(3).

We agree with Father that because this case had proceeded to final judgment prior to Mother's filing of her "motion to reconsider," Mother's motion cannot be considered a true motion to reconsider, as the court no longer had the power to rule on such a motion. Our review of the trial rules reveals that motions to reconsider are properly made and ruled upon prior to the entry of final judgment. See Ind.Trial Rule 53.4(A). After final judgment has been entered, the issuing court retains such continuing jurisdiction as is permitted by the judgment itself, or as is given the court by statute or rule. Chaplin, 599 N.E.2d at 219. One such rule is Trial Rule 59 which provides the court, on its own motion to correct error or that of any party, the ability to alter, amend, modify or even vacate its decision following the entry of final judgment. Accordingly, although substantially the same as a motion to reconsider, a motion requesting the court to revisit its final judgment must be considered a motion to correct error. We decline to favor form over substance and, despite its caption, Mother's motion in the instant case should have been treated as a motion to correct error.

Acknowledging the pre-judgment nature of a motion to reconsider, Trial Rule 53.4(A) reads as follows:

(A) Repetitive Motions and Motions to Reconsider Ruling on a Motion. No hearing shall be required upon a repetitive motion or upon motions to reconsider orders or rulings upon a motion. Such a motion by any party or the court or such action to reconsider by the court shall not delay the trial or any proceedings in the case, or extend the time for any further required or permitted action, motion or proceedings under these rules.

Indeed, Mother's motion to reconsider contained an alternate request that in the event the trial court concluded that it could not reconsider its judgment, that the motion be treated as a motion to correct error.

As such, Father should have been given notice and an opportunity to respond to Mother's motion to correct error prior to the trial court's ruling on the motion. Ind.Trial Rule 59(E). Because the trial court granted Mother's motion without following the procedural requirements of Trial Rule 59, we must conclude that the trial court abused its discretion when it granted Mother's motion, vacated its prior order and entered a new judgment.

We note that the trial court is given a similar and related power to revise or vacate its decisions pursuant to Indiana Trial Rule 52(B). See Ind.Trial Rule 59(J)(4). Trial Rule 52(B) provides that in a case tried without a jury, the court may, at any time before a motion to correct error is required to be made, or with or as part of a motion to correct error by any party, take additional testimony, amend or make new findings of fact and enter a new judgment, or any combination thereof. See W W Equipment Co., Inc. v. Mink, 568 N.E.2d 564, 570 (Ind.Ct.App. 1991), trans. denied. Thus, at least up to and including the ruling on a motion to correct error, the trial court is permitted to alter, amend or modify its judgment without limitation. Indiana Michigan Elec. Co. v. Harlan, 504 N.E.2d 301, 308 (Ind.Ct.App. 1987), trans. denied; see State ex rel. Jackson v. Owen Circuit Court, 160 Ind. App. 685, 314 N.E.2d 73, 76 (trial court may change its record at any time until it rules on a motion to correct error).

However, Trial Rule 52(B) cannot justify the trial court's action in the instant case. First, we cannot say that the trial court utilized its power under the rule to alter or amend its findings and judgment "before" a motion to correct error was filed or ruled upon as such motion was indeed filed and granted. Moreover, the trial court did not take action "as part of" a motion to correct error because, as we have stated, the trial court did not adhere to the procedural requirements of Trial Rule 59. Ind.Trial Rule 52(B). Accordingly, Trial Rule 52(B) does not apply.

We conclude that Mother filed a motion to correct error following the trial court's entry of final judgment. Because the procedural requirements for Trial Rule 59 were not met, the trial court abused its discretion when it granted Mother's motion, vacated its prior judgment and entered a new judgment. Therefore, we vacate the trial court's judgment of April 23, 1997, and remand with instructions for the court to permit Father to respond to Mother's motion to correct error and then to conduct such further proceedings consistent with the Trial Rules as may be necessary.

Reversed and remanded.

RUCKER, J., concurs.

STATON, J., concurs in result with separate opinion.

STATON, Judge, concurring in result.

I concur in result for a somewhat different and more simplified reason than the Majority. The factual posture here is as follows:

1. Final judgment had been entered January 24, 1997.

2. Later, a pleading was filed January 30, 1997 by Mother which had to be considered a motion to correct error.

3. The trial court ruled on the motion to correct error the same day it was filed.

4. Ind. Trial Rule 59(E) provides that the Father had fifteen (15) days after service of the motion to respond.

5. Father had no time to respond before the ruling.

Therefore, the trial court abused its discretion when it failed to follow Ind. Trial Rule 59(E). It should have withheld its ruling until Father responded or the fifteen days had expired.