Russell F. Dumka, Appellant-Plaintiff,
Lori Erickson and Edward Jones, Appellees-Defendants
Attorney for Appellant John William Davis, Jr. Davis &
from the Elkhart Circuit Court The Honorable Terry C.
Shewmaker, Judge Trial Court Cause No. 20C01-1405-PL-000127
[¶1] Russell F. Dumka appeals from the
trial court's order denying garnishment of an individual
retirement account inherited by Lori Erickson from her
husband. Although he concedes that the asset is exempt from
garnishment, he argues that the trial court erred by applying
the statutory exemption because it was Lori's burden to
assert the exemption and she failed to do so. Concluding that
the order complies with the evidence and the law, we affirm.
and Procedural History
[¶2] In May 2014, Dumka and Craig
Erickson (now deceased) each owned fifty percent of MIKO-Home
Machine Co., Inc. Craig served as president, and Dumka served
as vice-president. Craig's wife, Lori, served as
secretary and treasurer. Craig, Lori, and Dumka constituted
the board of directors. Dumka filed a stockholder's
derivative action on behalf of MIKO against Craig and Lori,
alleging that they had stolen property from MIKO and
requesting that a receiver be appointed for MIKO. In July
2014, the trial court entered a default judgment ("the
MIKO Judgment") in favor of MIKO and against the
Ericksons jointly and severally for $2, 124, 132.24 plus
attorney fees and court costs. In January 2015, the trial
court issued an order approving the receiver's final
accounting, conveying MIKO's tangible assets to Dumka,
and assigning part of the MIKO Judgment to Dumka.
In December 2015, Dumka filed a motion for proceedings
supplemental against Lori and naming Edward Jones as
garnishee-defendant, seeking to recover the unpaid balance of
$984, 129.48 remaining under the MIKO Judgment. In January
2016, a hearing was held. Dumka appeared in person and by
counsel, and Lori appeared pro se. Dumka submitted Edward
Jones's answer to interrogatories, in which it indicated
that it held in Lori Erickson's name an "Inherited
Traditional Individual Retirement Account (IRA) … held
for the benefit of Craig D. Erickson, C/O Lori L. Erickson,
" with an estimated value of $51, 115.02.
Appellant's App. at 190. The answer to interrogatories
also stated, "Please note this account was formerly a
traditional IRA held for the benefit of Craig D.
Erickson." Id. Dumka also submitted Lori's
affidavit, in which she attested that she had the Edward
Jones IRA. Id. at 194. Both documents were admitted
into evidence without objection. Dumka asked the trial court
to enter a final order of garnishment directing Edward Jones
to liquidate the IRA. The trial court asked Lori whether she
had any problems with the submission by Dumka's attorney
of a final garnishment order against Edward Jones, and she
said, "No." Tr. at 3. At no time did Lori assert
that the IRA was exempt from garnishment. The trial court
then directed Dumka's attorney to submit a proposed
garnishment order and stated that it would approve the order.
Id. The entry in the chronological case summary
states, "[W]ithout objection, Final Order in Garnishment
will issue upon receipt of same." Appellant's App.
In February 2016, the trial court issued an order denying
Dumka's request for garnishment ("the Order").
The trial court found that pursuant to Indiana Code Section
34-55-10-2(c)(6), "non-spousal inherited IRAs are not
exempt from garnishment, " but "IRAs inherited by
surviving spouses are exempt, " and because the Edward
Jones IRA was inherited by a surviving spouse, it is exempt
from garnishment. Id. at 21. Dumka filed a motion to
correct error, arguing that the trial court erred by
asserting exemptions on Lori's behalf and acting as her
advocate. Following a hearing, the trial court denied the
motion, finding that it did not err by taking judicial notice
of Section 34-55-10-2(c)(6). This appeal ensued.
[¶5] Initially, we note that Lori did
not file a brief.
When an appellee fails to submit a brief, we do not undertake
the burden of developing appellee's arguments, and we
apply a less stringent standard of review. We may reverse if
the appellant establishes prima facie error, which is error
at first sight, on first appearance, or on the face of it.
The prima facie error rule relieves this Court of the burden
of controverting arguments advanced in favor of reversal
where that burden properly rests with the appellee.
Jenkins v. Jenkins, 17 N.E.3d 350, 351-52
(Ind.Ct.App. 2014) (citations omitted).
[¶6] Dumka argues that the trial court
erred by denying his request for garnishment based on an