                                                                                  FILED
                                                                             Dec 14 2018, 8:34 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT
      William O. Harrington
      Harrington Law, P.C.
      Danville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Peter Coles,                                              December 14, 2018
      Appellant-Respondent,                                     Court of Appeals Case No.
                                                                23A05-1712-DR-2817
              v.                                                Appeal from the Fountain Circuit
                                                                Court
      Mary (Coles) McDaniel,                                    The Honorable Stephanie S.
      Appellee-Petitioner                                       Campbell, Judge
                                                                Trial Court Cause No.
                                                                23C01-1301-DR-35



      May, Judge.




[1]   Peter Coles (“Husband”) appeals the trial court’s grant of Mary (Coles)

      McDaniel’s (“Wife”) motion for relief from judgment and the trial court’s

      subsequent division of certain real property of the marriage. We affirm.



                            Facts and Procedural History
      Court of Appeals of Indiana | Opinion 23A05-1712-DR-2817 | December 14, 2018                    Page 1 of 13
[2]   Husband and Wife were married in 1991. On January 30, 2013, Wife filed for

      dissolution. Wife served a series of interrogatories on Husband on January 8,

      2015, and Husband answered those interrogatories on March 11, 2015. As part

      of those interrogatories, Husband was asked if he owned any real estate. The

      parties did not own real estate together, however, Husband held a remainder

      fee-simple interest in real estate subject to his mother’s life estate (“Lizton

      House”), which he did not disclose on the interrogatories.


[3]   The parties agreed to terms resolving all issues related to dissolution and

      submitted their Dissolution Settlement Agreement to the court. On August 12,

      2015, the trial court entered a decree of dissolution, incorporating the custody,

      support, and property settlement agreements from the Dissolution Settlement

      Agreement.


[4]   On March 22, 2016, Wife filed a motion for relief from judgment, alleging

      Husband did not disclose his interest in certain real property prior to the

      Dissolution Settlement Agreement. Specifically, Wife directed the trial court to

      two of Husband’s answers to interrogatories wherein he indicated he did not

      own real estate. Wife claimed she was entitled to relief because she would not

      have entered into their Dissolution Settlement Agreement if had she known of

      Husband’s interest in the Lizton House.


[5]   The trial court first ordered the parties to mediation, but mediation was

      unsuccessful. The trial court held a hearing on February 14, 2017. On April

      14, 2017, the trial court entered findings of fact and conclusions of law granting


      Court of Appeals of Indiana | Opinion 23A05-1712-DR-2817 | December 14, 2018   Page 2 of 13
      Wife’s motion to set aside the portions of the Dissolution Settlement

      Agreement regarding the parties’ debts and assets. The trial court ordered the

      parties to participate in mediation to determine the value of those debts and

      assets prior to the court holding a final hearing on the matter. Mediation was

      again unsuccessful. The trial court held a hearing on September 29, 2017, and

      then entered an order distributing the relevant debts and assets on November 5,

      2017 (“2017 Property Order”).



                                 Discussion and Decision
[6]   As an initial matter, we note Wife did not file an appellee’s brief. When an

      appellee does not submit a brief, we do not undertake the burden of developing

      arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct.

      App. 2002). Instead, we apply a less stringent standard of review and may

      reverse if the appellant establishes prima facie error. Id. Prima facie error is

      “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van

      Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).


                     Order Granting Wife Relief from Judgment
[7]   Whether to grant a motion for relief from judgment under Indiana Trial Rule

      60(B) is within the discretion of the trial court, and we reverse only for abuse of

      that discretion. Miller v. Moore, 696 N.E.2d 888, 889 (Ind. Ct. App. 1998). An

      abuse of discretion occurs when the decision is clearly against the logic and

      effect of the facts and circumstances before it, or if the trial court has

      misinterpreted the law. Id. When we review a trial court’s decision, we will
      Court of Appeals of Indiana | Opinion 23A05-1712-DR-2817 | December 14, 2018   Page 3 of 13
      not reweigh the evidence. Beike v. Beike, 805 N.E.2d 1265, 1267 (Ind. Ct. App.

      2004).


[8]   Where, as here, the trial court entered findings sua sponte after a bench trial, the

      findings control our review and judgment only as to those issues specifically

      referenced in the findings. See Samples v. Wilson, 12 N.E.3d 946, 949-50 (Ind.

      Ct. App. 2014). When the trial court does not make specific findings on an

      issue, we apply a general judgment standard, and we may affirm on any legal

      theory supported by the evidence adduced at trial. Id. at 950.


               A two-tier standard of review is applied to the sua sponte findings
               and conclusions made: whether the evidence supports the
               findings, and whether the findings support the judgment.
               Findings and conclusions will be set aside only if they are clearly
               erroneous, that is, when the record contains no facts or inferences
               supporting them. A judgment is clearly erroneous when a review
               of the record leaves us with a firm conviction that a mistake has
               been made. In conducting our review, we consider only the
               evidence favorable to the judgment and all reasonable inferences
               flowing therefrom. We will neither reweigh the evidence nor
               assess witness credibility.


      Id. Husband does not challenge the trial court’s findings, and thus they stand as

      proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because

      Madlem does not challenge the findings of the trial court, they must be accepted

      as correct.”). Thus, we turn to whether those findings support the trial court’s

      decision. Samples, 12 N.E.3d at 950.




      Court of Appeals of Indiana | Opinion 23A05-1712-DR-2817 | December 14, 2018   Page 4 of 13
[9]   Indiana Trial Rule 60(B)(3) provides for relief from a judgment for “fraud

      (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or

      other misconduct of an adverse party[.]” In its order granting Wife’s motion for

      relief from judgment, the trial court found Husband submitted incomplete or

      false answers to some of Wife’s interrogatories as part of the dissolution action.

      In addition, the trial court made other relevant findings, including:


              11. Husband’s responses to request for document production
              contained a total of thirty-eight (38) pages, and Exhibit C
              consisted of only two (2) documents. One document is an
              untitled document that does not list any address, but does
              contain a parcel number and a past due balance with handwriting
              from an unidentified source that states “This property is eligible
              for tax sale this year. You hold the life estate so the taxes are
              your responsibility.” The second page of Exhibit C is another
              untitled document that appears to be a tax statement of current
              account balance and refers to the same parcel number. It appears
              to be addressed to Pauline Coles but also lists [Husband’s]
              Reservation of Life Estate.


              12. Interrogatory No. 26 directs husband to “list all real or
              personal property in which you have a present or future interest,
              which you claim as inherited and/or property not to be included
              as marital property”. Husband responded “Investigation
              continues”.


              13. There was no evidence that husband ever supplemented his
              discovery responses with regard to any real property interest.


              14. Evidence at the hearing on wife’s motion to set aside
              judgment showed that both documents in Exhibit C of the
              discovery responses pertain to a parcel of property in which
              husband’s mother held a life estate and husband held the
      Court of Appeals of Indiana | Opinion 23A05-1712-DR-2817 | December 14, 2018   Page 5 of 13
        remainder. Wife testified that property tax assessments on the
        property value [sic] over $100,000.00. No evidence was
        presented as to the value of husband’s remainder interest.


        15. At the hearing on February 14, 2017, wife testified that she
        never reviewed husband’s discovery responses, nor did she
        review the responses with her attorney, prior to entering the
        Settlement Agreement.


        16. Wife also testified that prior to entering the Settlement
        Agreement, she was aware that husband’s mother had granted
        husband a remainder interest in her residence in Lizton, Indiana,
        during the parties’ marriage.


        17. According to wife, husband’s mother “put husband’s name
        on her property” to protect herself in the event she made a
        “stupid financial decision” in her old age.


        18. In paragraph 5 of the Settlement Agreement, the parties
        acknowledged that “they own no real estate together.”
        (Emphasis added). Nowhere in their Settlement Agreement do
        the parties acknowledge that they own no [sic] real estate. In
        paragraph 12 of their Settlement Agreement, “the parties
        acknowledge that they have disclosed all financial marital assets
        in this proceeding[.]”


        19. Husband argues that he did not sign the discovery responses
        and that they were provided to wife’s counsel with only
        husband’s counsel signing as to objections. Husband’s signature
        line “as to answers” is blank.


        20. Wife testified that if she had known that husband had a
        pecuniary interest in the property she would not have entered
        into the property settlement agreement under the same terms and

Court of Appeals of Indiana | Opinion 23A05-1712-DR-2817 | December 14, 2018   Page 6 of 13
               that the value of the property is a substantial asset that should be
               included in the marital estate and divided between the parties by
               the Court.


       (App. Vol. II at 17-8.)


[10]   Based on those findings, the trial court determined Wife was entitled to relief

       from the judgment. Citing Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d

       65 (Ind. 2006), the trial court specifically concluded:


               25. Husband’s false or incorrect (whether intentional or not)
               answer to Interrogatory number 4, his failure to answer
               Interrogatory number 26, and then his claim that he did not
               respond to the discovery request because he did not sign the
               responses that were submitted to wife would be in fact allowing
               husband to make a game and mockery of the discovery process
               that is required by the Trial Rules. Husband had a duty to
               respond honestly and fully to each interrogatory, not contend
               that an answer to a request for production trumps his
               Interrogatory Answers and expect wife to recognize this. Nor
               should he be permitted to submit responses without his signature
               and then argue that wife should not rely on the information in
               the discovery responses. Husband had a duty to comply with
               both the letter and the spirit of the discovery rules and this Court
               finds he did not.


               26. Further, husband executed the property settlement
               agreement with the acknowledgement that he had disclosed all
               financial marital assets. Even giving husband every benefit, it
               cannot be said with certainty that he did in fact disclose his
               present interest in the real estate.




       Court of Appeals of Indiana | Opinion 23A05-1712-DR-2817 | December 14, 2018   Page 7 of 13
       (App. Vol. II at 18-9.) Husband argues the trial court’s conclusion is incorrect

       as a matter of law of because the misconduct standard under Indiana Trial Rule

       60(B)(3) does not apply to this case.


[11]   In Markley, the case cited by the trial court, our Indiana Supreme Court set forth

       factors required for a party to show that she is entitled to relief for another

       party’s misconduct under Indiana Trial Rule 60(B)(3): (1) the relevant discovery

       responses amounted to misconduct; (2) the misconduct prevented the

       complaining party from fully and fairly presenting its case at trial; and (3) the

       complaining party has made a prima facie showing of a meritorious defense.

       Markley, 856 N.E.2d at 74.


[12]   In Markley, a patron at the grand opening of an Outback Steakhouse, William

       Whitaker, allegedly became intoxicated and caused an accident that injured the

       Markleys. The Markleys sued Outback Steakhouse, claiming Outback

       negligently served alcohol to an intoxicated person, knowingly served alcohol

       to an habitual drunkard, and knowingly served alcohol to a visibly intoxicated

       person. Outback served interrogatories on the Markleys, including one that

       requested:


               State specifically each and every fact upon which you rely to
               support your allegation under I.C. § 7.1-5-10-15.5 that these
               Defendants, and each of them, provided alcoholic beverages to
               William J. Whitaker with actual knowledge that he was visibly
               intoxicated, and the names and addresses of those persons
               possessing knowledge of such facts.




       Court of Appeals of Indiana | Opinion 23A05-1712-DR-2817 | December 14, 2018   Page 8 of 13
       Id. at 75. The Markleys did not disclose the name of Roysdon, whom they

       knew to be present at the time of the incident, because they did not intend to

       call her as a witness. Outback deposed Roysdon prior to trial and subpoenaed

       her to testify in Outback’s defense, as Roysdon told Outback in her deposition

       that Whitaker was not visibly intoxicated when she saw him at the grand

       opening.


[13]   However, during the trial, Roysdon contacted the Markleys and told them that

       she had lied to Outback and that she had observed Whitaker visibly intoxicated

       at the grand opening. She did not communicate any of her change in testimony

       to Outback, nor did the Markleys. When the trial resumed, the Markleys called

       Roysdon as a witness, much to the surprise of Outback, who did not object to

       Roysdon’s serving as a witness and was given an opportunity to cross examine

       Roysdon.


[14]   After the jury returned a verdict finding Outback 65% at fault for the Markleys’

       injuries, Outback filed a motion to correct error, asking for a new trial based on

       the circumstances surrounding Roysdon’s testimony. Outback also filed a

       motion for a new trial under Indiana Trial Rule 60(B). The trial court denied

       all of Outback’s post-trial motions, and Outback appealed. On appeal, Outback

       argued they were entitled to relief from the judgment under Indiana Trial Rule

       60(B)(3) because the Markleys violated various trial rules when they: (1) did not

       initially disclose their knowledge of Roysdon in the interrogatory, and (2) did

       not supplement that interrogatory when Roysdon came to the Markleys during

       trial. Our Indiana Supreme Court agreed with Outback and concluded:

       Court of Appeals of Indiana | Opinion 23A05-1712-DR-2817 | December 14, 2018   Page 9 of 13
               [T]he [Markleys’] failure to identify Roysdon as a person with
               knowledge of the relevant facts was a negligent if not intentional
               breach of its discovery obligations. Subsequently, [the Markleys]
               failed to supplement their response with the substance of her
               change in testimony. As these events unfolded, these omissions
               cascaded into a closing argument that materially misled the jury.
               The cumulative effect was misconduct prejudicing Outback’s
               defense.


       Id. at 74.


[15]   Husband argues Markley is


               inapposite and readily distinguishable from the facts in the
               instant case, because this case involves a property settlement
               agreement in a dissolution of marriage case and not a jury trial in
               a personal injury case. Moreover, there was not even a bench
               trial in this case. Therefore, it would be impossible to evaluate
               the impact of [Husband]’s alleged “misconduct” on the “full and
               fair” presentation of a case at trial.


       (Br. of Husband at 28.) We disagree with Husband. Despite the difference in

       procedural posture, the legal analysis directly applies to this case. In addition,

       the prejudice referenced in Markley, a personal injury case, also applies in cases

       where there is no trial. See Stonger v. Sorrell, 776 N.E.2d 353, 355-6 (Ind. 2002)

       (analysis of Indiana Trial Rule 60(B)(3) as applied to a divorce proceeding).


[16]   In Markley, our Indiana Supreme Court first noted the standard for

       interpretation of the requests in interrogatories and the requirements for the

       answers to interrogatories:



       Court of Appeals of Indiana | Opinion 23A05-1712-DR-2817 | December 14, 2018   Page 10 of 13
               Interrogatories should not “be interpreted with excessive rigidity
               or technicality, but a rule of reason should be applied.”
               Additionally, answers to interrogatories “must be responsive,
               full, complete and unevasive.” This commonsense approach to
               the interpretation of interrogatory requests furthers the purposes
               of discovery, namely, to allow parties to obtain evidence
               necessary to evaluate and resolve their dispute based on a full
               and accurate understanding of the true facts, to promote
               settlement, to remove surprise from trial preparation, and to
               narrow the disputed issues and facts requiring trial.


       Markley, 856 N.E.2d at 75-6 (internal citations omitted).


[17]   Here, the trial court found that Husband’s answers to the relevant

       interrogatories, including the reply, “Investigation continues,” (App. Vol. II at

       17), made a mockery of the discovery process, especially considering Husband

       did not later supplement that response and considering Husband indicated as

       part of the Dissolution Settlement Agreement that he had disclosed all real

       property interests. Further, Wife indicated she would not have entered into the

       Dissolution Settlement Agreement that excluded the Lizton House if she had

       known Husband’s interest therein. We therefore conclude the findings support

       the trial court’s conclusion that Wife was entitled to relief from judgment under

       Indiana Trial Rule 60(B). See Markley, 856 N.E.2d at 73 (listing factors to

       determine misconduct under Indiana Trial Rule 60(B)(3)).


              Division of Property Following Relief from Judgment
[18]   “The division of marital assets lies within the sound discretion of the trial court

       and we will reverse only for an abuse of that discretion.” Fischer v. Fischer, 68


       Court of Appeals of Indiana | Opinion 23A05-1712-DR-2817 | December 14, 2018   Page 11 of 13
       N.E.3d 603, 608 (Ind. Ct. App. 2017), trans. denied. An abuse of discretion

       occurs when the trial court’s decision is against the logic and effect of the facts

       and circumstances before the court. Id. In our review of the trial court’s

       decision, we do not reweigh the evidence or assess the credibility of witnesses,

       and we consider only the evidence most favorable to the trial court’s

       disposition. Id.


[19]   In its order granting Wife relief from judgment, the trial court vacated all

       property division provisions in the Dissolution Settlement Agreement between

       the parties. Then, in its 2017 Property Order, it divided the property as follows:


               The terms of the previously approved property settlement
               agreement is [sic] reaffirmed, with the additional order that wife
               and husband shall have set over to them as tenants in common
               the interest that husband held as of the date of the filing of
               separation and now fully vested remainder interest in the real
               property 106 N. Mulberry St., Lizton, IN, parcel number 32-03-
               29-440-002.000-021.


               Husband is ordered to cause to be prepared and to execute a deed
               transferring an undivided one-half interest to wife as tenant in
               common to wife [sic] within 7 days of the issuance of this order.


       (App. Vol. II at 21-2.) The trial court also divided Wife’s pension, which was

       not included in the Dissolution Settlement Agreement.


[20]   Husband argues the trial court abused its discretion when it divided his fee

       simple interest in the Lizton House when, at the time of separation, he had only

       a remainder interest in fee simple in the Lizton House. However, Husband

       Court of Appeals of Indiana | Opinion 23A05-1712-DR-2817 | December 14, 2018   Page 12 of 13
       provided the trial court with no evidence regarding the value of the property

       either at time of separation or at the time the trial court granted Wife relief from

       the Dissolution Settlement Agreement. Therefore, he is estopped from

       challenging the manner in which the trial court distributed the property. See In

       re Marriage of Church, 424 N.E.2d 1078, 1081 (Ind. Ct. App. 1981) (holding that

       “any party who fails to introduce evidence as to the specific value of marital

       property . . . is estopped from appealing the distribution on the ground of the

       trial court abuse of discretion based on that absence of evidence”).



                                                Conclusion
[21]   The trial court’s findings support its conclusion that Wife was entitled to relief

       from the dissolution settlement agreement because Husband engaged in

       misconduct when he provided evasive answers to interrogatories regarding the

       ownership of real property. Additionally, Husband is estopped from

       challenging the manner in which the trial court divided the Lizton House

       between the parties because he did not present evidence regarding its value at

       any time. Accordingly, we affirm.


[22]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 23A05-1712-DR-2817 | December 14, 2018   Page 13 of 13
