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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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