ILNews

Court chooses 'lesser of two evils'

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals was forced to choose between the lesser of two evils in a case in which an ex-husband appealed a trial court's nunc pro tunc order granting his ex-wife's motion to correct error regarding their marriage dissolution decree.

In James E. Johnson Jr. v. Marcia Johnson, No. 02A03-0710-CV-496, the appellate court had to decide whether the trial court erred in granting the nunc pro tunc order. James argued the trial court didn't rule on Marcia's motion to correct error pursuant to Trial Rule 53.3(A), so the motion was deemed denied after 30 days and Marcia failed to file a notice of appeal.

The trial court issued its decree of dissolution Oct. 10, 2006. On Nov. 8, 2006, Marcia filed a motion to correct error and requested a hearing. A magistrate judge presided over the May 14, 2007, hearing and orally informed the parties she was going to "grant the motion to correct errors." The court didn't enter the order until Aug. 1, 2007, almost 80 days after the hearing, and issued a nunc pro tunc amended decree in favor of Marcia.

James appealed, arguing the magistrate judge didn't have the authority to grant Marcia's motion and the nunc pro tunc order was issued after her motion had been "deemed denied" per T.R. 53.3, so the original dissolution decree should be reinstated.

Chief Judge John Baker wrote for the majority and agreed with James' arguments. Under civil proceedings, a magistrate cannot enter a final appealable order unless sitting as a judge pro tempore or a special judge; the magistrate in the Johnson's case was not presiding as either.

Even if the magistrate had the intent to grant Marcia's motion to correct error, she didn't have the authority to actually grant it, wrote Chief Judge Baker.

James argued that the motion to correct error was deemed denied pursuant to T.R. 53.3, 30 days after the May 14, 2007, hearing. Because Marcia didn't file a notice of appeal 30 days after the motion was deemed denied, the original dissolution decree needs to be reinstated, he argued.

The trial court didn't rule within 30 days of Marcia's motion to correct error, and based on holdings of Garrison v. Metcalf, 849 N.E.2d 1114, 1115 (Ind. 2006) and Paulsen v. Malone, No. 06A05-0709-CV-544 (Feb. 6, 2008), Marcia's motion was deemed denied pursuant to T.R. 53.3, 30 days after the hearing, "despite the trial court's belated attempt to grant the motion," he wrote.

The purpose of a nunc pro tunc order is to correct an omission of record of action that occurred. "Because there is no evidence that the trial court granted Marcia's motion within (30) days of the hearing, there was no basis in the record for the trial court to issue a nunc pro tunc order," Chief Judge Baker wrote.

As the Indiana Supreme Court has held, Marcia was required to file a notice of appeal within 30 days of her motion being deemed denied even if the trial court belatedly granted her motion. Since she did not, the Court of Appeals reversed the trial court's nunc pro tunc order and remanded so the trial court could reinstate the original dissolution decree.

In regards to the nunc pro tunc order, the court was required to choose the lesser of two evils - either hold that Marcia's motion was deemed denied and she had to appeal within 30 days of the denial, or hold that the trial court's nunc pro tunc order was valid and retroactively applies to the date of the hearing, he wrote.

"If we were to decide that the trial court's nunc pro tunc order was valid and retroactively applies to the date of the hearing - May 14, 2007 - James would have had to file his notice of appeal by June 13, 2007. However, the trial court did not even issue the nunc pro tunc order until August 1, 2007 - approximately seven weeks after the deadline for James to file a notice of appeal would have expired. Such a result would be illogical and, as our Supreme Court recognized in Garrison, would effectively amend the deadline in Rule 53.3," Chief Judge Baker wrote.

Judge Carr Darden dissented from the majority, finding that according to the record of the May 14, 2007, hearing, the trial court did rule on the motion at the end of the hearing, so T.R. 53.3 wouldn't have a dispositive effect on this case.

He believed at the end of the hearing, the parties understood the court had granted Marcia's motion and there is no indication that James' attorney wouldn't prepare the order to effect the trial court's order. There was also no reason for Marcia to file an appeal because she would not have reason to believe that an order prepared by James' attorney with the magistrate's ruling wouldn't have been adopted by the trial court.

"I believe that the trial court's nunc pro tunc entry was a proper exercise of its equity power by the trial court," he wrote.
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  1. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

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  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

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