ILNews

Court chooses 'lesser of two evils'

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
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.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Are you financially squeezed? Do you seek funds to pay off credits and debts Do you seek finance to set up your own business? Are you in need of private or business loans for various purposes? Do you seek loans to carry out large projects Do you seek funding for various other processes? If you have any of the above problems, we can be of assistance to you but I want you to understand that we give out our loans at an interest rate of 3% . Interested Persons should contact me with this below details . LOAN APPLICATION FORM First name: Date of birth (yyyy-mm-dd): Loan Amount Needed: Duration: Occupation: Phone: Country: My contact email :jasonwillfinanceloanss@hotmail.com Note:that all mail must be sent to: jasonwillfinanceloanss@hotmail.com Thanks and God Bless . Jason Will

  2. Can I get this form on line,if not where can I obtain one. I am eligible.

  3. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  4. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  5. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

ADVERTISEMENT