145 N.E.3d 874
Ind. Ct. App.2020Background
- Larry (Husband) and Kelly Penley (Wife) divorced after Wife filed for dissolution in Aug. 2017; a provisional decree issued Dec. 18, 2017 and a final dissolution hearing occurred Sept. 18, 2018.
- The trial court issued a final dissolution decree on Nov. 8, 2018 ordering among other things $13,190 be paid to Gracie Hamilton on a personal loan and splitting remaining house-sale proceeds 70% to Wife / 30% to Husband.
- The trial court’s Chronological Case Summary (CCS) recorded the decree but contained no notation that the clerk served the decree on the parties and also showed an incorrect CCS entry date for the decree.
- Neither Husband nor Wife received written or electronic notice of the November 2018 decree; Husband learned of the decree in late March 2019 and filed a motion (treated as request for leave) on Mar. 26, 2019 to file a belated motion to correct error under Trial Rule 72(E).
- The trial court held a hearing and denied leave on July 18, 2019, concluding Husband failed to show good cause; Husband appealed.
- The Court of Appeals reversed, holding the clerk’s CCS contained no record of service and, because Husband lacked notice and the CCS did not show mailing, Husband was entitled to leave to file a belated motion to correct error.
Issues
| Issue | Plaintiff's Argument (Husband) | Defendant's Argument (Wife) | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by denying leave to file a belated motion to correct error under Trial Rule 72(E) | Clerk failed to serve the Nov. 8, 2018 decree and the CCS contains no record of service, so good cause exists to extend time; Husband had no actual knowledge until March 2019 | The decree was noted in the CCS and in the RJO entry, so Husband had constructive notice and Trial Rule 59/6(B)(2) barred extension; clerk’s failure to mail is irrelevant once CCS shows entry | Reversed: abuse of discretion. Because CCS lacks evidence that the decree was served and Husband did not receive notice, Trial Rule 72(E) permits leave; Husband may file a motion to correct error within 30 days of opinion certification |
Key Cases Cited
- Collins v. Covenant Mut. Ins. Co., 644 N.E.2d 116 (Ind. 1994) (Trial Rule 72 is the sole vehicle to extend filing deadlines when a party claims failure to receive notice of a final judgment)
- Front Row Motors, LLC v. Jones, 5 N.E.3d 753 (Ind. 2014) (appellee’s failure to file a brief permits reversal on prima facie showing of error)
- Trinity Homes, LLC v. Fang, 848 N.E.2d 1065 (Ind. 2006) (same principle on appellate briefing responsibilities)
- Atkins v. Veolia Water Indianapolis, LLC, 994 N.E.2d 1287 (Ind. Ct. App. 2013) (abuse-of-discretion standard governs Trial Rule 72(E) rulings)
- In re Sale of Real Prop. with Delinquent Taxes or Special Assessments, 822 N.E.2d 1063 (Ind. Ct. App. 2005) (Trial Rule 72(E) is the proper method to challenge lack of clerk service)
- Markle v. Ind. State Teachers Ass’n, 514 N.E.2d 612 (Ind. 1987) (CCS notations must specifically show what was mailed; generic notations insufficient)
- Verta v. Pucci, 14 N.E.3d 749 (Ind. Ct. App. 2014) (remand where CCS contained no indication that a party was served with an order)