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In re Marriage of Hickey

Court of Appeals of Indiana

September 27, 2018

In re the Marriage of Michael Hickey (Deceased), Petitioner,
v.
Jackie L. Hickey, Appellee-Respondent,
v.
ArcelorMittal USA LLC Pension Plan, Appellant-Intervenor

          Appeal from the Lake Circuit Court The Honorable Marissa J. McDermott, Judge The Honorable Lisa A. Berdine, Magistrate Trial Court Cause No. 45C01-0912-DR-990

          Attorney for Appellant Michael D. Sears Jacquelyn S. Pillar Crist, Sears, & Zic, LLP Munster, Indiana

          Attorney for Appellee Daniel J. Zlatic Rubino, Ruman, Crosmer & Polen Dyer, Indiana

          MAY, JUDGE.

         [¶1] ArcelorMittal USA LLC Pension Plan ("ArcelorMittal") appeals the trial court's denial of its motion for relief from judgment, which had sought to set aside a May 23, 2014, order granting Jackie L. Hickey's ("Wife") motion for relief from the judgment that had declared void the trial court's earlier order dissolving Wife's marriage to Michael Hickey ("Husband"). ArcelorMittal submits multiple issues for our review, one of which we find dispositive: whether the trial court erred when it denied ArcelorMittal's motion for relief from judgment because Wife invited any error upon which the trial court premised its earlier order granting Wife's motion for relief from the dissolution order. We reverse and remand.

         Facts and Procedural History

         [¶2] The pertinent facts were set forth in an earlier interlocutory appeal in this matter:

         [¶3] Husband and Wife were married in 1980. During the marriage, Husband worked at Inland Steel and earned a pension[1] which is administered by [ArcelorMittal]. On December 9, 2009, Husband filed a petition in the trial court seeking to dissolve his marriage with Wife. The trial court entered a provisional order on February 17, 2010. The parties appeared in court on April 3, 2012, for what was intended to be a final hearing. Husband appeared with counsel, and Wife appeared pro se. The parties still did not agree on the distribution of the marital property, nor had the value of Husband's pension been determined. Instead of continuing the hearing, the trial court chose to bifurcate the proceedings and issued an order that same day dissolving the marriage and setting a hearing on the distribution of marital assets to be held on May 30, 2012.

         [¶4] On May 30, however, the parties informed the trial court that the value of the pension had still not been determined and that the parties' vehicles had not been sold. Accordingly, the trial court ordered the parties to appear for a status hearing on July 10, 2012. At this hearing, the parties informed the trial court that the pension valuation had been completed but that their vehicles had not yet been sold. At the conclusion of the hearing, the trial court entered an order stating that Wife "shall be named Alternative Payee" of Husband's pension. It also ordered that Wife be awarded 33.5% of the monthly pension benefits that would otherwise go to Husband. Lastly, the court ordered Husband's counsel to file a qualified domestic relations order ("QDRO") regarding the pension within sixty days.

         [¶5] On August 31, 2012, before the QDRO was prepared or filed, Husband died. On October 29, 2012, counsel made an appearance on behalf of Wife. On April 11, 2013, Wife filed a motion to substitute the Estate of Michael J. Hickey ("the Estate") as a party to the action, which the trial court granted. On April 16, 2013, Wife filed a motion to set aside the previously entered decree of dissolution.

         [¶6] On December 17, 2013, the trial court held a hearing on Wife's motion to set aside, at which Wife and the Estate appeared by counsel. The trial court entered an order on May 23, 2014, granting Wife's motion and providing in relevant part:

         [¶7] 1. The Decree of Dissolution entered in this matter on April 16, 2012, is void and is set aside Nunc Pro Tunc to April 16, 2012.

         [¶8] 2. The order is void. Indiana Code 31-15-2-14 requires that when a divorce proceeding is bifurcated that the parties sign a written waiver of final hearing and a statement explaining what items are agreed upon and which items are still in dispute. No such written agreement was filed in this matter. The statute which allows for a bifurcated hearing in a dissolution is in degradation [sic] of the common law and must be strictly construed.

         [¶9] 3. As such Jackie Cummins is now the widow of Michael Hickey and is entitled to the marital residence, the 199[sic] Winnebago Motor Home, the 1978 Chevrolet Corvette, the 1996 Chevrolet S-10 truck, the 1976 Honda Custom Chopper, and the 2001 PT Cruiser is Wife's as the jointly titled owner and widow.

         [¶10] 4. As this Court required an estate to be opened for Michael Hickey, and Attorney David Masse agreed, without receiving a retainer, to do so, this completes this matter. David Masse requests attorney fees in the amount of $2, 000.00 and the Court now orders that Jackie Cummins pay Mr. Masse's fee in the amount of $2, 000.00.

         [¶11] FOUND and RECOMMENDED this 23 day of May, 2014, and entered NUNC PRO TUNC to April 16, 2012.

         [¶12] The Estate did ...


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