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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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