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02/24/88 JOHN BEHME v. REBECCA BEHME

Filed: February 24, 1988.

JOHN BEHME, APPELLANT (RESPONDENT BELOW)
v.
REBECCA BEHME, APPELLEE (PETITIONER BELOW)



Appeal from the Vanderburgh Superior Court, The Honorable Thomas Lockyear, Judge, Cause No. 81-CIV-2238

Robertson, J., Ratliff, C. J., Staton, J. Concur.

Author: Robertson

ROBERTSON, J.

John Behme appeals the trial court's ruling modifying his divorce decree and fixing the value of Behme's lien on real estate awarded to his former wife, Rebecca. Rebecca sought, among other things, an order increasing child support for the parties' two minor children and requiring Behme to pay the remainder of the daughter Cathy's college tuition and educational expenses. The wife also sought a determination by the court of the amount of the lien and permission to withhold from the husband's lien, as reimbursement, costs incurred by her in obtaining medical care for the three children, high school educational expenses, increased child support retroactive to the date of the petition, child support arrearages, and attorney's fees.

The trial court denied Rebecca's petition to withhold payment of the lien, which was due and payable on the date of her remarriage, but reduced the amount of the lien by various amounts owed by Behme. In addition, the trial court ordered Behme to pay future college expenses for his daughter Cathy and determined the net amount of the lien.

Behme raises at least nine errors in this appeal. We agree with Rebecca that Behme's failure to adequately present many of these errors to the trial court in his motion to correct error and to comply with the dictates of Ind. Rules of Procedure, Trial Rule 59(D) and Appellate Rule 8.3(A)(7) acts as a waiver of those issues.[Footnote 1] Restated then, we find the following issues remaining in this appeal:

(1) Whether the trial court lacked subject matter jurisdiction to determine the amount of interest owed to Behme on his lien;

(2) Whether the trial court lacked subject matter jurisdiction to render a support order requiring Behme to pay college expenses for his daughter Cathy;

(3) Whether the trial court erroneously interpreted the decree when it determined that interest accrued on the lien from March 26, 1986 through April 26, 1986; and,

(4) Whether the trial court erroneously interpreted the decree when it determined the principal amount of Behme's lien.

We will address the question of waiver before considering the other issues. Issues one and two will be treated together.

I.

The purpose of T.R. 59(D) which governs the motion to correct error is to allow the trial court the first opportunity to determine or remedy the alleged error. T.R. 59(D) provides that allegations of error be separately and specifically stated and that each alleged error be accompanied by a statement of facts and grounds. T.R. 59(D)'s requirement of specificity applies to both the statement of error and the facts and grounds in support of the claimed error; not only must the alleged error be specifically set out, but the facts and grounds in support of the claimed error must be discussed with enough particularity that the trial court may be made aware of the exact legal issue involved. Failure to comply with the specificity requirements of T.R. 59(D) subjects an alleged error to waiver on appeal. See Young v. Duckworth (1979), 291 Ind. 554, 394 N.E.2d 123, cert. denied 445 U.S. 906; Guardiola v. State (1978), 268 Ind. 404, 375 N.E.2d 1105, 1106-1107; Rogers v. Rogers (1982), Ind.App., 437 N.E.2d 92, 95.

We deem these allegations of error raised in this appeal waived for the following reasons:[Footnote 2]

(1) the trial court abused its discretion in ordering Behme to pay his daughter Cathy's college expenses because the mother produced no evidence regarding Cathy's aptitude or ability to pursue a college education;

Behme alleges in his motion to correct error that there was no showing of the mother's need for and of the father's ability to pay increased child support and college expenses. This allegation of error does not address the daughter's abilities or aptitude. An alleged error must be first specifically presented to the trial court; claims or arguments presented for the first time in an appellant's brief are not properly before the court on appeal. Guardiola, supra; Rodgers, supra.

Behme also alleges in his motion to correct error that the trial court failed to consider the factors enumerated in IND. CODE 31-1-11.5-12. Errors should not be hidden in generality to be later specifically raised on appeal. Guardiola, supra. The claimed error must be discussed with enough particularity to apprise the court of the precise legal issue involved. Ind. Dept. of Public Welfare v. Rynard (1980), Ind.App., 403 N.E.2d 1110, 1113, affirmed 472 N.E.2d 888. Behme's allegation of error does not specify which factor the trial court failed to consider, in what way the evidence was insufficient or even which aspect of the support order was at issue. A statement of facts and grounds in support of the allegation as required by the rule would have notified the court of the exact question at issue.

(2) the trial court erred in deducting $1400 from Behme's lien for Cathy's 1986-87 college tuition because there was no evidence Rebecca expended any sums toward tuition for that period and because the evidence showed the ...


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