 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEY FOR APPELLEE:

HEATHER L. PERKINS                                JAMES W. ENSLEY

                                                                             FILED
Collier Homann & Perkins, LLC                     Greencastle, Indiana
Crawfordsville, Indiana
                                                                          Nov 20 2012, 9:16 am


                               IN THE                                              CLERK
                                                                                of the supreme court,

                     COURT OF APPEALS OF INDIANA                                court of appeals and
                                                                                       tax court




GERALD E. SMITH,                                  )
                                                  )
       Appellant,                                 )
                                                  )
               vs.                                )        No. 67A01-1205-DR-241
                                                  )
RONDA K. (SMITH) BUSCH,                           )
                                                  )
       Appellee.                                  )


                      APPEAL FROM THE PUTNAM CIRCUIT COURT
                         The Honorable Matthew L. Headley, Judge
                              Cause No. 67C01-0405-DR-171


                                       November 20, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Gerald E. Smith appeals from the trial court’s order granting a motion to correct error

filed by Ronda K. (Smith) Busch after Ronda’s petition to modify support was dismissed for

failure to prosecute. Gerald presents the following issue for our review: Did the trial court

abuse its discretion by granting the motion to correct error and establishing discovery

deadlines pertinent to Ronda’s petition?

       We reverse and remand.

       Gerald and Ronda’s marriage was dissolved by the trial court on September 7, 2004.

Although other motions were filed during the interim, the filing giving rise to this appeal is

Ronda’s affidavit of contempt and petition to modify support. That petition was filed on

October 8, 2009, and the matter was set for hearing. Gerald served Ronda with discovery

requests on November 9, 2009. Hearing dates were continued and rescheduled, and when

Gerald had not received a discovery response for over a year, he filed a motion to dismiss

pursuant to T.R. 41(E). Ronda filed a response to Gerald’s motion. The trial court then

vacated the matter from the T.R. 41(E) docket and ordered the parties to mediation.

       After another year passed, during which time no mediation occurred and no discovery

responses were supplied by Ronda, Gerald filed another T.R. 41(E) motion to dismiss the

matter. Ronda filed a motion to set a hearing on Gerald’s motion and a request to remove the

case from the T.R. 41(E) docket. The trial court set the matter for a telephonic hearing.

Gerald filed a response to the motion to set hearing and to remove the matter from the T.R.

41(E) docket prior to the date for the telephonic hearing. The trial court granted the motion

to dismiss and vacated the telephonic hearing setting.



                                              2
       Ronda filed a motion to correct error and Gerald filed a response to that pleading. A

hearing was held on May 1, 2012 at which the parties appeared, but no witnesses were

sworn. The parties presented their arguments and supporting documents to the trial court.

After taking the matter under advisement, the trial court issued an order granting the motion

to correct error. Gerald now appeals.

       Gerald appeals from the trial court’s order granting Ronda’s motion to correct error.

To the extent the motion concerns questions of law we review the issues de novo. City of

Indianapolis v. Hicks, 932 N.E.2d 227 (Ind. Ct. App. 2010). Generally, we review a trial

court’s ruling on a motion to correct error for an abuse of discretion.        Id. An abuse of

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

circumstances before it or if the court has misinterpreted the law. Scales v. Scales, 891

N.E.2d 1116 (Ind. Ct. App. 2008).

       The basis for Ronda’s motion was newly discovered evidence. Motions based on

newly discovered material evidence are viewed with disfavor. Id. Newly discovered

evidence is “material evidence . . . which, with reasonable diligence, could not have been

discovered and produced at trial.” T.R. 59 (A)(1). In order to prevail on a motion to correct

error based on newly discovered evidence, a party must do as follows:

       demonstrate that the evidence could not have been discovered and produced at
       trial with reasonable diligence; that the evidence is material, relevant, and not
       merely cumulative or impeaching; that the evidence is not incompetent; that he
       exercised due diligence to discover the evidence in time for the final hearing;
       that the evidence is worthy of credit; and, that the evidence raises the strong
       presumption that a different result would have been reached upon retrial.




                                                3
Matzat v. Matzat, 854 N.E.2d 918, 920 (Ind. Ct. App. 2006). “When a motion to correct

error is based upon evidence outside the record, the motion shall be supported by affidavits

showing the truth of the grounds set out in the motion and the affidavits shall be served with

the motion.” T.R. 59(H)(1).

       In the present case, no affidavits were tendered along with Ronda’s motion to correct

error. The motion relied upon evidence outside the record because Ronda’s counsel

attempted to establish the background of the purported newly discovered evidence via details

of conversations with Gerald’s counsel, i.e., evidence outside the record. Additionally, the

evidence Ronda claimed was newly discovered pertained to college expenses for a child who

had completed two years of college during the pendency of the motions. The discovery

request Gerald served on Ronda immediately after her motion to modify child support was

filed included a request for information pertaining to the costs and contributions toward post-

secondary education expenses of the child at issue. The evidence that Ronda’s counsel

claimed to be in the process of collecting does not meet the definition of newly discovered

material evidence.

       The trial court’s order in pertinent part reads as follows:

       The Court, having taken this matter under advisement, now finds that there
       really isn’t an error for the court to correct, but more so for certain discovery to
       be completed and the matter litigated/tried, if necessary.

       Court orders mother to produce a full completed set of answers to pending
       interrogatories to father no later than May 30, 2012. Court further orders that
       any additional discovery be served no later than June 20, 2012, with answers
       due July 20, 2012. Trial, if necessary, shall be on August 7, 2012 at 9:00 a.m.,
       with one hour allotted.



                                                4
       Court shall consider college expenses and, among other things, any request for
       attorney fees [] that may have been incurred in this matter.

Appellant’s Appendix at 37-38.

       Instead of pursuing a motion to correct error, Ronda should have proceeded under

T.R. 41(F) to either have the dismissal without prejudice set aside for good cause shown, or

to have the dismissal with prejudice set aside alleging the grounds contained in Indiana Trial

Rule 60(B). The trial court appears to have acknowledged as much by stating that there

really was no error to be corrected.

       The trial court, nonetheless, abused its discretion by granting the motion to correct

error. There were no supporting affidavits setting forth the background of the newly

discovered material evidence and there does not appear to have been any newly discovered

evidence. At the hearing, there was no sworn testimony and only the arguments of counsel

were heard. We reverse the trial court’s order and remand this matter to the trial court with

instructions to reinstate its order granting the T.R. 41(E) dismissal.

       Judgment reversed and remanded

BROWN, J., and PYLE, J., concur.




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