Samuel W. Koonce, Appellant-Defendant,
Kim M. Finney, Appellee-Plaintiff.
from the Hendricks Superior Court Trial Court Cause No.
32D02-1503-CT-37 The Honorable Rhett M. Stuard, Judge
Attorneys for Appellant Katherine A. Harmon Jared S. Sunday
Mallor Grodner LLP Indianapolis, Indiana
Attorneys for Appellee Christopher P. Jeter Amy O. Carson
Massillamany & Jeter LLP Fishers, Indiana
Samuel W. Koonce ("Husband") appeals an order
denying his Verified Motion for Relief from Judgment Pursuant
to Trial Rule 60(B)(6) and his Verified Motion to Clarify
Dissolution Decree. We affirm.
and Procedural History
Husband and Kim M. Finney ("Wife") were married on
March 31, 1985, and divorced on August 7, 1998. For all but approximately two months of
the parties' marriage, Husband served in the United
States Army. The dissolution court (hereinafter,
"Dissolution Court") divided Husband's military
pension benefits in the Dissolution Decree and ordered:
13. This Court has jurisdiction over the distribution and
division of Husband's military pension benefits pursuant
to I.C [sic] 31-9-2-42.
14. The Wife is entitled to direct payment from the Defense
Finance and Accounting Services by virtue of 10 U.S.C.
section 1408(d)(2) inasmuch as the parties [sic] marriage has
continued for more than ten (10) years during which Husband
has accrued active military service creditable for retirement
benefits. Further, as the wife of an active duty military
serviceman married for at least ten (10) years, Wife shall be
entitled to all statutory benefits afforded her.
15. During the period from the date of marriage to the date
of separation (March 31, 1985 to March 27, 1998) Husband
accumulated 156 months of active Federal service for
retirement; Husband has accumulated a total of 156 months of
active Federal service for retirement from his original
enlistment date to the date of separation.
16. The Wife shall receive 50% of the Member's disposable
retired pay, before taxes, as defined by 10 USC 1408 (a)(4)
and reduced by the cost of Husband's enrollment in the
Survivor Benefit Plan (SBP) for spouse. Wife shall be
responsible for the payment of income taxes on her
distributive share of Husband's military retired pay.
Wife's share shall be payable to the Wife/Former Spouse
in the month the military member FIRST receives retired or
disability retired pay; further, Husband shall be
responsible for making monthly payment directly to Wife for
any month in which Husband received retired or disability
retired pay where such payment to Wife has not been deducted
and paid via monthly allotment.
17. Husband shall at the time of retirement elect and enroll
in the spouse's option of the Survivor's Benefit Plan
(SBP) and make Wife the beneficiary thereof; and the monthly
cost of such SBP election shall be deducted from
Husband's gross disposable retirement pay prior to
calculation and payment of Wife's retirement
18. Wife's entitlement to a distribution of Husband's
military retired pay shall be documented by a duly executed
and ordered Qualified Domestic Relations Order. Husband and
Wife shall each execute any necessary documents to effectuate
(App. Vol. II (hereinafter "App.") at 30-1)
(emphasis in original).
Husband retired from the military in May 2005. Upon his
retirement, he paid Wife $325.00 per month out of his
retirement pay. In July 2014, Wife sent the Defense Finance
and Accounting Service ("DFAS") a copy of the
parties' Dissolution Decree in order to begin receiving
payments directly from DFAS as indicated in the Dissolution
Decree. On October 1, 2014, DFAS sent Wife a check for $1,
039.68, an amount which represented "31.7073% of
Husband's gross monthly retirement pay."
(Id. at 13.) Wife continued to receive payment from
DFAS, which "included increases for cost-of-living and
On December 22, 2014, Husband filed with the Dissolution
Court a request for modification of child support under the
original dissolution cause number ("Dissolution
Action"). On March 9, 2015, Wife filed in a different
court (hereinafter, "Civil Court") a separate civil
action ("Civil Action") alleging
fraud, constructive fraud, negligent misrepresentation, and
unjust enrichment aimed at [Wife], over the course of nearly
a decade, during which [Husband] deprived her of
tens-of-thousands of dollars in military retired pay for
which she was entitled per: (1) federal law; and (2) an order
of this Court. Instead of fulfilling his legal obligations,
[Husband] orchestrated a web of deceit to enrich himself at
the expense of his ex-wife and minor child. He maintained
this scheme through misrepresentations and/or omissions
relating to retired pay calculations, child support, and the
ability for [Wife] to obtain payment directly from the
federal government without his consent. [Wife] only recently
became aware of [Husband's] falsehoods and immediately
worked with the federal government to obtain direct and
accurate payments. Since that time, [Husband] has threatened
to slander, intimidate, and shame [Wife].
(Id. at 39.) On March 17, 2015, Husband filed a
Motion for Rule to Show Cause and/or Request for
Clarification of the Dissolution Decree in the Dissolution
Action, requesting the Dissolution Court clarify the terms of
the Dissolution Decree regarding Husband's military
On March 19, 2015, Husband filed a motion to dismiss
Wife's Civil Action, and the Civil Court denied his
motion. Husband filed a motion to correct errors, which the
Civil Court also denied. On December 8, 2015, while the
motions in the Dissolution Action were still pending, Husband
filed a Motion to Clarify Dissolution Decree as part of the
Civil Action, asking the Civil Court to clarify the terms of
the Dissolution Decree regarding Husband's military
pension. Wife filed her answer thereto on January 4, 2016,
and requested a hearing on the issue.
On January 7, 2015, Husband filed a motion in the Dissolution
Court for relief from judgment under Indiana Trial Rule
60(B)(6), alleging the portion of the Dissolution Decree
dividing Husband's military pension was void. On January
12, 2016, by agreement of both parties, the Civil Court
consolidated all issues, except Husband's request for
modification of child support, from the Dissolution Action
into the Civil Action. Wife filed her response to
Husband's Rule 60(B)(6) motion on January 28, 2016, in
The Civil Court held a hearing on Husband's motion to
clarify and Rule 60(B)(6) motion on February 16, 2016.
Husband requested findings of fact and conclusions of law by
motion the same day. On March 17, 2016, the Civil Court
issued its order on Husband's motions, denying them both.
On April 6, 2016, Husband requested the Civil Court certify
its order for interlocutory appeal and the Civil Court did so
on April 11, 2016. On April 15, 2016, Husband filed two
appeals: one indicating the Civil Court's order was a
final judgment, and the other requesting our court assume
jurisdiction over the Civil Court's order as a permissive
interlocutory appeal. We accepted jurisdiction over the
interlocutory appeal on May 13, 2016, and ordered the appeals
Husband requested the Civil Court enter written findings and
conclusions in support of its judgment. In such a
circumstance, we apply a two-tiered standard of review.
Maddux v. Maddux, 40 N.E.3d 971, 974 (Ind.Ct.App.
2015), reh'g denied.
First, we determine whether the evidence supports the
findings, and second whether the findings support the
judgment. We will reverse only if there is no evidence
supporting the findings or the findings fail to support the
judgment. We review the findings of fact using a clearly
erroneous standard. Clear error occurs when our review of the
evidence most favorable to the judgment leaves us firmly
convinced that a mistake has been made. We review the
conclusions of law using a de novo standard.
Id. at 974-75 (footnote and internal citations
Rule 60(B)(6) Motion
Under Indiana Trial Rule 60(B)(6), the trial court may
relieve a party from a judgment if "the judgment is
void." Id. A motion requesting relief under
Rule 60(B)(6) "shall be filed within a reasonable
time." T.R. 60(B). Our standard of review regarding a
motion for relief from judgment pursuant to Rule 60(B)(6)
"requires no discretion on the part of the trial court
because either the judgment is void or it is valid" and,
thus, our review is de novo. Rice v. Com'r,
Indiana Dept. of Envtl. Mgmt., 782 N.E.2d 1000, 1003
(Ind.Ct.App. 2003) (quoting Hotmix & Bituminous
Equip. Inc. v. Hardrock Equip. Corp., 719 N.E.2d 824,
826 (Ind.Ct.App. 1999)). To prevail under Rule 60(B)(6), the
party must demonstrate the prior judgment was void, and not
merely voidable. Id.
"The distinction between the terms 'void' and
'voidable' is critical in this context."
Chapin v. Hulse, 599 N.E.2d 217, 220 (Ind.Ct.App.
1992), trans. denied. A decision that is void
"has no legal effect at any time and cannot be confirmed
or ratified by subsequent action or inaction" and
"is subject to a collateral attack." Id. A
decision which is voidable "has legal effect until such
time as challenged in the appropriate manner and can be
ratified or confirmed ...