*1 36 108(c). Here, for deadline § the settled It is well 11 trial. U.S.C. a new
request correct to motion plaintiffs' the request ruling re on may not "(oin party a appeal, 2003, 24, same the to November no claim was made error [it] lief for Yosha, Townsend, bankruptcy v. filed for Corp. Kaminski Rosby day that court." (Ind. Price, 666 See N.E.2d entered. stay 800 was automatic Cline & and the Vill. Tomahawk (quoting App.2003) 6(A). days of Ct. three Within Trial Rule Ind. Farren, N.E.2d 571 stay, v. Apartments lifting the court bankruptcy denied. trans. plaintiffs' part (Ind.Ct.App.1991)), granted court 1294 trial Thus, Thus, trial is waived. issue correct error. motion the Section within occurred action court's Cross-Appeal extension, the court's and thirty-day 108 whether address also must We to correct motion plaintiffs' ruling on pertains appeal on review our 108(c). § 11 timely. See U.S.C. error was amended Order 2004 court's June 21 the June therefore conclude We Kamin- 10, 2008 Order. July original appeal. controls Order review limit our must that we contends ski because July Order court's to the trial CONCLUSION was error to correct motion plaintiffs' clear- was not trial court's The court did not trial when the denied deemed guilty Kaminski's because ly erroneous thirty days. within that motion rule on crimi- alone, that he prove not does plea, disagree. payments. disputed all the nally converted on a not rule does trial court request If the their Further, waived plaintiffs days thirty within error to correct ruling motion trial, court's and the trial for a new is deemed heard, motion it is after error motion to correct plaintiffs' on Trial Ind. of law. by operation denied timely. Denman, 538.3; see Rose Rule Affirmed. N.E.2d the motion rule on power trial court's VAIDIK, J., KIRSCH, C.J., concur. and subse- extinguished thereafter Rose, 676 N.E.2d nullity. ruling is a quent bankruptcy code: But under ... law nonbankruptey applicable
[I]f or con- commencing period
fixes a other in a court action a civil tinuing Marriage of Gerard In re the on a claim bankruptey than GOOSSENS, Appellant- period ... and such debtor against the Respondent, date of the before expired not has then petition, [bankruptey] filing of until the expire does period such GOOSSENS, Appellee- Penny of[:] later Petitioner. including any period, of such the end 20A03-0411-CV-509. No. occurring period of such suspension the commencement or after of Indiana. Appeals Court case; or 8, 2005. June of the termi- notice days after ... stay expiration nation or claim. to such respect
Naney McCaslin, A. McCaslin & McCas- lin, Elkhart, for Appellant. Crawford, C. Craw- Christopher Stevens Elkhart,
ford Garcia & Schweinzger, Appellee.
OPINION SULLIVAN, Judge. Appellant-Respondent, Gerard Goossens ("Husband"), appeals the trial court's de- cree in the dissolution of marriage his thou- ninety-seven Q. you If indicated Penny Goossens Appellee-Petitioner, (97,500), you would sand, five hundred presents ("Wife"). Upon appeal, that amount? dispute over any have as follows: issues, restate which we four *3 A. No. trial court value the the I. Whether you had indicated Q. you That's what by par- the owned to a house assigned thought it was worth? evidence; had by the supported ties Okay. A. Yeah. erred trial court the II. Whether you had information only the Q. That's marital es- the value calculating property? of that concerning the value tate; A. Yes. court should trial III. Whether information? additional Q. You had no Husband awarded have the court Transcript on the A. No." him; and awarded decree, court In the dissolution erred trial court house a Boulevard IV. Whether the Jackson assigned marital and distribute failing $90,000,stating: to list value their mortgages on than the other debts that the value court finds "The property. real E. Blvd. at 818 Jackson property located (Wife's testimony) has affirm. We $33,000.00 for a mortgage balance a were parties that the reveals The record $57,000.00." Appellant's equity of net in 2000. separated in 1998 and married Appendix child, After a H.G. had one parties trial that complains now Husband 5, 2004, the trial held on October hearing contrary to the evidence. finding is court's a de- following day entered on the court deci trial court's review the We marriage. parties' dissolving cree property value of ascertaining sion that complains Husband an abuse of action for in a dissolution par assigning value to erred in Sanjari Sanjari, discretion. East Jackson located at 818 ties' house Where a veri Wife filed in Elkhart. Boulevard is within court's valuation of trial September financial statement fied by the evi supported range of values house was value of this wherein the its discre dence, not abuse the court does $97,500. hearing, Wife At the listed at 1191-92. tion. Id. as Exhibit C into evidence submitted finding court's that the trial argues Wife for the Jackson Boulevard tax assessment in that Wife abuse of discretion was not an house, value also listed assessed the Jackson that she believed testified by $97,500. examination Upon direct $90,000. We house was worth Boulevard counsel, oc following colloquy her presented Although the evidence agree. curred: finding support would Wife value particular "Q. you Do have was worth Boulevard house Jackson particular to what your mind as be- that Wife $97,500, there was evidence estate is worth? piece of real $90,000. to be worth the house lieved A. No. have come to not we would Whether any estimate as Q. you] [hlave [Do had we trial court as the conclusion same might it be worth? your what think fact, the fact remains the finder been finding was within court's that the trial (90,000.00). Ninety A. thousand range supported by of values the evidence. sale of the residence whichever first oc- therefore conclude Appellant's curs." App. at 11. did not abuse its discretion in assigning Husband argues that if the total value of value to the Jackson property. Boulevard the assets of the marital estate were in- argues also that the trial creased, then the trial "equaliza- court's regarding court's calculation the total val tion" of the division adjusted should be ue of the marital assets is erroneous. accordingly to ensure that he receives one- findings, its the trial court stated: $92,495.74, half of the correct sum of the
"12. In summary, following are the marital assets. According to our calcula- *4 parties assets of the and the values tions, this precisely is what the trial court } by found the court: did in finding number thirteen. E. 818 Jackson $57,000.00 28,000.00 50600CR 7 Despite the erroneous sum listed find- 100.00 Toyota ing finding twelve, thirteen awardsto Hus- Chevy S10 100.00 401(k) 6,295.74 plan $35,495.74. property worth total of 1,000.00 Tools To equalize assets, the division of 84,500.00"Appellant's App. Total court also awarded to Husband a money correctly Husband notes that the correct Thus, worth Judgment $10,752.18. Hus- sum of by the values listed band's total $46,247.87, award is worth $92,495.74, $84,500. We are unable amount precisely $92,495.74, one-half of to explain this difference of amount Husband claims the marital assume it to be a simple mathematical estate was actually worth.1 Despite the oversight. are unable to agree, how- error in finding twelve, number ever, with claim that Husband's this error court awarded the proper amount to Hus is not harmless because of the trial court's band in finding thirteen. The error cal thirteen, finding number which reads: culation is therefore harmless. " division, To equal effect an the court grant $42,250.00[i.e., will party each half Husband argues next that he is $84,500 of the erroneous To ac- total]. entitled to post-judgment interest on the result, complish that grants "money judgment" awarded to him in find the husband the residence at 50600 CR ing number thirteen. parties rely Both (net 401(k) $28,000.00), value ac- upon cases interpreting Indiana Code ($6,295.74), count Toyota the 1992 (Burns § 24-4.6-1-101 Repl. Code Ed. ($100.00), Chevy ($100.00), the 1990 S10 1996), provides: ($1,000.00) and his tools for a total of "Except as provided by otherwise stat- $35,495.74. grants The court the wife ute, interest judgments on for money the residence at 818 E. Jackson Blvd whenever rendered shall be from the (net $57,000.00). value equalize To date of the return of the verdict or assets, division of grant- husband is finding of the court until satisfaction at: judgment against ed a the wife in the $10,752.13. sum of judgment The rate origi- agreed payable without at the emanci- nal contract sued upon, which shall interest pation of the child of parties, not exceed an annual eight rate of remarriage (8%) or death of the percent or the even though higher wife $57,000, $46,247.87, Wife was awarded worth the same amount awarded money judgment less the awarded to Husband and one-half of the value of the $10,752.13, in the amount of by for a total of marital assets listed the trial court. may properly due,
rate of interest
have
they
first
installments when
two
fell
charged according
been
con-
he refused to
Upon appeal
interest.
prior
judgment;
Court,
tract
to the Indiana Supreme
the "sole
question involved
whether or not the
[was]
An
eight percent
annual rate of
(8%)
deferred
payments
interest
from
if
there was no contract
drielw
date
the order or decree of the
parties."
wrote,
court." Id. at 124. The court
"The
Husband,
Davidson,
citing Tincher v.
court, undoubtedly, within
[trial]
its discere-
(Ind.Ct.App.20083),
"However so the Hasty decision Rutana, only approved the trial court's award of recognize We that Williamson v. (Ind.Ct.App.2000) N. E.2d 1247 736 interest. It did hold [Section 101] not required the deferred be support could read to a different conclu installments fact, bear Hasty case; deci In that sion. court entered interest. 24, sion decree October 1991 relied Higgins, dissolution Hatfield on Ind.App. 108 approving settlement agreement be .a a decision which pay holds interest is parties, pursuant tween the to which the husband was pay ordered to the wife able a predecessor of [Section under $80,000 only upon at the time of the sale of the default 101] of installment from the date payments they residence, became marital or within year one they due until paid. were cit decree, date of the whichever occurred Hatfield ed, authority, Winemiller" approved agreement first. The further re N.E.2d at 132 (emphasis original). $50,000 in quired that the pay husband to the wife he in when sold his interest a certain cluded that the required dissolution decree Thus, obligation business. the husband's pay the husband to separate lump-sum two $130,000. totaled The husband did not amounts to the wife and that later, years until over May seven on correctly determined that interest partial payment when he made a in began to accrue on the amount owed "from $10,000 $80,000 the amount of toward the payments the date the deferred were due 10, 1999, obligation. August On the hus- until that the date tendered [the husband] finally sold interest his busi- his check to the court clerk." at Id. in shortly ness and thereafter tendered acknowledge that Williamson con $120,000 to the trial court clerk. The trial language suggest tains which would court ordered the clerk to release the mon- mandatory interest "money judg ey approximately to the wife one month ments" and due from the date judg 10, 1999, September later. On the wife ment was entered. (citing See id. at 1249 proceedings supplemen- filed motion for Irvine, 71).2 However, 685 N.E.2d at tal in which she claimed she was owed Williamson court's holding ultimate was $43,816.80in post-judgment interest. The mandatory only that interest was from the issue before in proceedings the court payments date the were due. Id. at 1250. supplemental was whether the wife was Indeed, the Williamson court cited Van $80,000 "entitled to recover interest Riper stating may interest be deferred payment." settlement lump awarded when a sum becomes due Id. at agreed 1248. The trial court with late, payment though even the de the wife and ordered the husband to pay provide cree does not payment for the accrued, already plus at (citing interest. Id. Riper, Van additional interest until the sum paid. 132). N.E.2d Upon appeal, the husband contended that, We therefore pres- conclude that the trial court's award of interest was case, ent the trial court did err not in error because the dissolution decree was failing to award Husband interest on the "money judgment" reduced to a *7 deferred award to paid by be Wife. Al- respect to the amount pay. he had to The though may have been well Williamson court disagreed, citingthe def within its discretion to order interest inition "judgment" of a in Trial Rule 54. acerue, in precedent this area of given Id. at 1249. The court further observed law, say we are unable to that the trial that "this court has determined that when court erred in not doing so. in a property marital estate is divided pursuant agreement by to an parties, Lastly, Husband claims that he was spouse amount that one by is ordered to harmed trial court's failure to take pay money the other is a judgment that into account the liabilities of the marital accrues interest from the date that mortgages estate other than the on the judgment was (citing entered." Id. correctly Irvine houses. Husband notes that 71, Irvine, v. divided, 685 N.E.2d marital (Ind.Ct.App. property when is both as 1997)). court, sets and liabilities must be considered. citing Williamson See broadly tion then "[plost- Dusenberry stated that Dusenberry, 625 N.E.2d judgment statutorily However, mandated for money judgments." Id. The court argument con- brunt of Husband's is that he immediately, Irvine, due not at some future date. 685 2. We would observe that in the amount pay the husband was ordered to the wife was N.E.2d at 71. of process complains of law because his which Husband now was denied due were due failure, from the case on trial counsel withdrew to his own there is no reversible 16, 2004 and that because of his August error.
unfamiliarity procedure, trial Hus- with The judgment of the trial court is af- much present unable to band was firmed. favor, including in his evidence evidence regarding other marital liabilities. We are MATHIAS, J., concurs. persuaded.
not BAILEY, J., concurs in part and counsel did with Husband's in part opinion. dissents
draw from the case on the eve of trial. Instead, in fifty days Husband had BAILEY, Judge, concurring part and representation other or better obtain dissenting part. hearing. Husband prepare himself III, exception With the of I Issue concur nothing in the complains that there is rec majority opinion. However, with the I adequate ord to indicate that he had been dissent from the proper affirmation of the withdrawal, ly notified of his counsel's issue, ty division because I cannot agree dangers self-representation, or that with the dissolution court's order he was told to seek other counsel. Nota judgment Husband's "pay bly, authority requir cites to no able without interest." (App.11.) Hus Moreover, ing such a civil case. Hus post band is entitled to judgment interest Chronological band admits Case equalization on the judgment awarded him Summary indicates that he did receive no (1) because interest is man tice of his counsel's withdrawal. Never by equal dated statute and division theless, Husband's counsel withdrew over statute, marital assets is mandated half month and a before the final hear specific absent a reason for deviation.3 ing, ample and there was time which to property When in a marital estate is representation. secure other It is well pro litigants pursuant parties' agreement settled that se are divided to the held other, lawyers. party same and one is ordered to standard are licensed (Ind.Ct. the order is that ac- Hess, Hess App.1997). evidentiary judg- Because the crues interest from the date that issues (B) governs through gift. Indiana Code Section 31-15-7-5 inheritance or pro- the distribution of marital The economic circumstances of each vides as follows: spouse disposition at the time the *8 presume equal effective, The court shall that an property including is to become property division of the marital between the awarding desirability family resi- However, parties just and reasonable. right family dence or the to dwell in the presumption may by par- be rebutted periods residence for such as the court con- evidence, ty presents who relevant includ- just spouse having custody siders to the ing concerning following evidence fac- any children. tors, equal that an division would not be (4) parties during The conduct of the ~ just and reasonable: marriage disposition or as related to (1) spouse The contribution of each dissipation property. of their acquisition property, regardless of earnings earning ability The or whether contribution was income parties as related to: producing. (A) property; a final division of property The extent to which the (B) a final determination of the acquired by spouse: each rights parties. (A) marriage; before the Rutana, ment was entered. Williamson v. JOHNSON, Appellant- Donald N. E.2d (Ind.Ct.App.
2000);
Defendant,
Irvine,
Irvine v.
(Ind.Ct.App.1997). Post-judgment interest
statutorily
for money judg
mandated
Indiana, Appellee-Plaintiff.
STATE of
Williamson,
ments.
child will someday who be emancipated is
now only years seven old. specific
intent of the dissolution court was to divide
the marital equally. estate No statutory
ground support a deviation from the
presumptive equal division of marital as-
sets was found the trial court. Never-
theless, practical effect of permitting spouse
one equalization withhold an
judgment payment for many years, with- interest,
out depreciate is to the value of words, awarded. In other
depending upon timing trigger- event,
ing Husband would receive some-
what less or much less than the value of
one-half the marital estate. This is con-
trary intent, to the trial court's and con-
trary to statutory Therefore, mandate. I
dissent.