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Koonce v. Finney

Court of Appeals of Indiana

January 13, 2017

Samuel W. Koonce, Appellant-Defendant,
v.
Kim M. Finney, Appellee-Plaintiff.

         Appeal 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

          May, Judge.

         [¶1] 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.

         Facts and Procedural History

         [¶2] Husband and Kim M. Finney ("Wife") were married on March 31, 1985, and divorced on August 7, 1998.[1] 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 distribution.
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 this provision.

(App. Vol. II (hereinafter "App.") at 30-1) (emphasis in original).

         [¶3] 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 inflation." (Id.)

         [¶4] 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 pension.

         [¶5] 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.

         [¶6] 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 Civil Court.

         [¶7] 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.

         [¶8] 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 consolidated.

         Discussion and Decision

         [¶9] 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 omitted).

          Trial Rule 60(B)(6) Motion

         [¶10] 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.

         [¶11] "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 ...


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