      MEMORANDUM DECISION                                                           FILED
      Pursuant to Ind. Appellate Rule 65(D),                                   Apr 27 2017, 10:28 am

      this Memorandum Decision shall not be                                         CLERK
                                                                                Indiana Supreme Court
      regarded as precedent or cited before any                                    Court of Appeals
                                                                                     and Tax Court
      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
      Yvonne M. Spillers                                      Stephen P. Rothberg
      Fort Wayne, Indiana                                     Fort Wayne, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      In re the Marriage of:                                  April 27, 2017
                                                              Court of Appeals Case No.
      Heather Rose,                                           02A03-1611-DR-2640
      Appellant-Respondent,                                   Appeal from the Allen Superior
                                                              Court
              v.                                              The Honorable Charles F. Pratt,
                                                              Judge
      Bradley Rose,                                           The Honorable Sherry A. Hartzler,
      Appellee-Petitioner.                                    Magistrate
                                                              Trial Court Cause No.
                                                              02D08-1305-DR-726



      Najam, Judge.


                                       Statement of the Case
[1]   Heather Rose (“Wife”) appeals from the dissolution court’s judgment. In its

      judgment, the court ordered Bradley Rose (“Husband”) and Wife to equally
      Court of Appeals of Indiana | Memorandum Decision 02A03-1611-DR-2640 | April 27, 2017             Page 1 of 10
      split post-dissolution costs relating to a foreclosure on their mortgage. The

      court also ordered Wife to pay Husband more than $18,000 in court costs and

      attorney’s fees that he had incurred in defending himself from tort claims

      initiated by Wife in a separate civil action. Wife raises two issues for our

      review, which we restate as follows:


              1.      Whether the dissolution court abused its discretion when it
                      ordered Husband and Wife to equally split the post-
                      dissolution costs relating to the foreclosure on their
                      mortgage.


              2.      Whether the dissolution court erred when it interpreted its
                      original order that Wife shall hold Husband harmless from
                      certain medical bills to include Wife having to pay
                      Husband’s court costs and attorney’s fees in the separate
                      civil action.


[2]   We affirm in part and reverse in part.


                                 Facts and Procedural History
[3]   In May of 2013, Husband filed a petition for the dissolution of his marriage to

      Wife. Wife responded to Husband’s petition and counterclaimed for damages

      that resulted from a battery Husband had inflicted on Wife during the marriage.

      In particular, Wife alleged as follows:


              On April 21, 2013, [the] parties were drinking alcohol to an
              excess when [Husband] was pulling [Wife] around the marital
              home[,] which caused large clumps of her hair to fall out. He
              shoved her onto the floor . . . causing such a commotion it
              agitated their family dog—a pitbull—which then bit [Wife]

      Court of Appeals of Indiana | Memorandum Decision 02A03-1611-DR-2640 | April 27, 2017   Page 2 of 10
                repeatedly on the thigh and forearm ultimately requiring stitches.
                [Husband] refused to free [Wife and] she was unable to protect
                herself from the attacking dog. [Husband] threw [Wife] onto
                their outside deck with such force it knocked her
                unconscious. . . .


      Appellant’s App. Vol. II at 15. In light of the April 21 incident, Wife sought

      compensatory and punitive damages against Husband from the dissolution

      court.


[4]   Following an evidentiary hearing, the dissolution court entered its decree of

      dissolution. In its decree, the dissolution court expressly found that Wife had

      incurred those medical costs due to Husband’s “misconduct” during the April

      21 incident. Id. However, while the court ordered Wife to pay and be

      responsible for those costs, the court also awarded Wife 72% of the marital

      estate.


[5]   The dissolution court further found that the marital residence had a fair market

      value of $72,000 but was encumbered by a mortgage in that same amount. The

      court ordered Husband to pay and hold Wife harmless with respect to that

      mortgage. The court further found that the marital residence was in foreclosure

      proceedings.


[6]   Indeed, at the evidentiary hearing, Wife submitted a report to the court in

      which the reinstatement amount to remove the marital residence from the

      foreclosure proceedings was identified as $6,105.56. However, around that

      same time Wife learned that the reinstatement amount was actually $8,026.56.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1611-DR-2640 | April 27, 2017   Page 3 of 10
      Wife informed the court of her error with respect to identifying that amount

      about two weeks after she had learned of it. Nonetheless, one week after Wife’s

      correction, the court issued its decree and, in the decree, the court relied on the

      erroneous reinstatement amount and found that the parties had both borne the

      cost of satisfying the reinstatement amount. Thereafter, due to the remaining

      balance on the reinstatement amount, the mortgagee again instituted

      foreclosure proceedings, which ultimately resulted in a deficiency judgment

      against Husband in the amount of $17,970.11.


[7]   Meanwhile, although the dissolution proceedings were ongoing and despite

      having counterclaimed against Husband on the basis of the April 21 incident in

      those proceedings, Wife filed an independent civil action against Husband in

      which she sought damages resulting from the April 21 incident. In that civil

      action, Wife alleged that Husband had committed false imprisonment and

      intentional infliction of emotional distress in addition to battery. Further, in

      addition to compensatory and punitive damages, Wife sought damages relating

      to pain, suffering, and emotional distress.


[8]   Husband moved for summary judgment on Wife’s independent civil action on

      the basis of res judicata, but the trial court denied his request. After a bench trial,

      the court entered judgment for Wife in the amount of $200, which the court

      awarded “for pain and suffering and emotional distress.” Id. at 119. The court




      Court of Appeals of Indiana | Memorandum Decision 02A03-1611-DR-2640 | April 27, 2017   Page 4 of 10
      declined to award Wife more due to “her behavior in this incident.”1 Id. The

      court further declined to enter punitive damages against Husband and found

      that, insofar as Wife was entitled to compensatory damages, she “has already

      been awarded her medical bills by virtue of the Decree of Dissolution . . . [,

      which] awarded Wife a disproportionate amount of the marital assets . . . .” Id.

      And the trial court ordered Husband to pay Wife’s court costs.


[9]   On January 28, 2016, Husband filed a Trial Rule 60(B) motion for relief from

      judgment in the dissolution court on the basis of the deficiency judgment

      entered against him during the post-dissolution foreclosure proceedings.

      Husband later also filed a petition for indemnity in the dissolution court. In

      that petition, Husband asserted that the hold-harmless provision of the

      dissolution decree, which related to Wife’s medical bills following the April 21

      incident, required Wife to pay his court costs and attorney’s fees related to his

      defense to that incident in the civil action. The dissolution court agreed with

      both of Husband’s requests and ordered Wife to pay half of the deficiency

      judgment and all $18,177.02 of Husband’s court costs and attorney’s fees from

      the civil action. This appeal ensued.




      1
        According to the dissolution decree, Wife was to have vacated the marital residence by April 1. After the
      bench trial in the civil action, the court agreed with Husband that “[t]he evidence supports [his] claim that he
      was taking action to eject Wife from the residence” on April 21. Appellant’s App. Vol. II at 119-20.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1611-DR-2640 | April 27, 2017               Page 5 of 10
                                      Discussion and Decision
                                     Issue One: Deficiency Judgment

[10]   On appeal, Wife asserts that the dissolution court erred when it granted

       Husband’s Trial Rule 60(B) motion for relief from judgment and ordered her to

       pay half of the post-dissolution deficiency judgment. Relief from judgment

       under Trial Rule 60 is an equitable remedy within the trial court’s discretion.

       C.A.B. v. J.D.M. (In re C.B.M.), 992 N.E.2d 687, 691 (Ind. 2013). “Accordingly,

       we generally review a trial court’s Rule 60 ruling only for an abuse of

       discretion.” Id.


[11]   Husband premised his Rule 60(B) motion on the theory that Wife’s erroneous

       report to the dissolution court regarding the reinstatement amount, on which

       the court relied in entering the decree, was a “mistake” under Rule 60(B)(1) that

       entitled him to relief from the decree. See Ind. Trial Rule 60(B)(1). After

       hearing the parties’ arguments and reviewing submitted documentation, the

       dissolution court agreed, stating that “the evidence presented to the Court

       [during the dissolution proceedings] was incorrect and thus a mistake of fact.”

       Appellant’s App. Vol. II at 51. The court further stated that “the facts relating

       to reinstatement of the mortgage were not known to the parties until after the

       trial was held and this failure is not the result of fault or negligence on either

       party.” Id. at 52. The court then concluded that Husband had demonstrated

       that relief from the decree was “necessary and just,” and it ordered the parties

       to be “equally responsible for the deficiency judgment.” Id.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1611-DR-2640 | April 27, 2017   Page 6 of 10
[12]   Wife first contends that the dissolution court erred when it granted Husband’s

       motion for relief from judgment either because the costs from which Husband

       sought relief did not exist at the time the court entered the decree or because the

       risk of those costs was anticipated in the decree, which, Wife continues,

       instructed Husband to hold Wife harmless on the mortgage. We reject those

       arguments. The whole point behind the dissolution court’s original order that

       the parties first pay the reinstatement amount was to avoid further foreclosure

       proceedings, which were likely to result in further expenses to the parties. But

       the evidence submitted to the court to accomplish that goal was mistaken,

       resulting in further foreclosure proceedings and expenses, which proves the

       dissolution court’s original point. Moreover, the court’s order that Husband

       hold Wife harmless with respect to the mortgage was clearly made in

       anticipation of the marital residence having first been removed from the

       foreclosure process. Accordingly, we are not persuaded by Wife’s arguments.


[13]   Wife also suggests that the dissolution court abused its discretion in ordering

       her to pay half of the deficiency judgment when the decree awarded her 72% of

       the marital estate. But the decree ordered the erroneous reinstatement amount

       to be paid by the parties before it divided the marital estate. That is, in the

       original decree the parties were equally responsible for the reinstatement

       amount. As such, the court cannot have abused its discretion in ordering the

       parties to each pay half of the deficiency judgment that resulted from the

       mistaken reinstatement amount.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1611-DR-2640 | April 27, 2017   Page 7 of 10
[14]   Finally, Wife argues that, in light of her testimony before the dissolution court

       at the evidentiary hearing prior to the decree and various excerpts from the

       dissolution court at that time, the dissolution court erred when it found a

       mistake of fact underlying Husband’s Rule 60(B) motion. Wife’s argument is

       not consistent with our standard of review, and, as such, we reject it. Similarly,

       Wife asserts that Husband’s failure to object to the erroneous reinstatement

       amount forecloses his Rule 60(B) motion. We also reject that argument. Wife

       cites no support from the original proceedings to show that Husband was aware

       at that time that the proffered reinstatement amount was a mistake. And we

       reject Wife’s suggestion that Husband’s use of Trial Rule 60(B) to revisit the

       decree was procedurally improper. See, e.g., Russell v. Russell, 693 ne 980, 982

       (Ind. Ct. App. 1998), trans. denied.


[15]   In sum, we hold that the dissolution court acted within its equitable discretion

       when it granted Husband’s Rule 60(B) motion and ordered the parties to be

       equally responsible for the post-dissolution deficiency judgment.


                                Issue Two: Husband’s Court Costs and
                                   Attorney’s Fees in the Civil Action

[16]   Wife next challenges the dissolution court’s order that she pay Husband’s court

       costs and attorney’s fees that resulted from her separate civil action against

       Husband. The dissolution court’s resolution of this issue turned on its




       Court of Appeals of Indiana | Memorandum Decision 02A03-1611-DR-2640 | April 27, 2017   Page 8 of 10
       interpretation of the decree.2 We have long recognized that “[a] judgment is

       construed in the same manner as a contract would be. The language of a

       judgment is ambiguous where it would lead two reasonable [people] to different

       conclusions as to its effect and meaning.” Flynn v. Barker, 450 N.E.2d 1008,

       1009 (Ind. Ct. App. 1983). “When construing the language of a judgment[,] the

       Court will attempt to read the provisions of the judgment so as to render all of

       them effective and not mere su[r]plusage.” Id. We interpret contracts, and,

       therefore, judgments, de novo. See State Farm Mut. Auto. Ins. Co. v. Jakubowicz, 56

       N.E.3d 617, 619 (Ind. 2016).


[17]   According to the dissolution court, paragraph 39 of the decree entitled Husband

       to have Wife pay his court costs and attorney’s fees from the separate civil

       action. Again, that paragraph states as follows:

                39. [Wife] shall pay and hold [Husband] harmless with respect
                to the following marital debts:


                Creditor                                              Balance
                Allied Hospital Pathologist                           $44.00
                Parkview Regional Medical Center                      [$]3,098.00
                Professional ER Physicians                            [$]774.00
                Maumee Township Ambulance                             [$]730.00
                Fort Wayne Radiology                                  [$]172.00




       2
         We note that, in her brief on appeal, Wife states that she argued in the dissolution court that Husband’s
       request for costs and fees was barred by res judicata. But it is not clear that Wife makes that argument on
       appeal. Regardless, we need not consider it given our disposition.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1611-DR-2640 | April 27, 2017             Page 9 of 10
       Appellant’s App. Vol. II at 45. The dissolution court concluded that, because

       that paragraph instructs Wife to hold Husband harmless with respect to the

       medical bills that resulted from the April 21 incident, it likewise requires Wife

       to pay Husband’s court costs and attorney’s fees because, in the civil action,

       Wife sought, among other damages, to have Husband pay those bills.


[18]   We cannot agree with the dissolution court’s interpretation of paragraph 39 of

       the decree. That provision is unambiguous and instructs that Wife shall hold

       Husband harmless only with respect to the payment of the five medical bills

       listed. That language comes into effect only if Wife defaults on the medical

       bills. Paragraph 39 does not mention or oblige Wife to pay Husband’s court

       costs and attorney’s fees arising from a separate civil action between them.3

       And insofar as Wife might have sought to have Husband pay those bills in the

       civil action, Husband argued in the trial court that res judicata should preclude

       that request, but the trial court rejected Husband’s argument, and he did not

       appeal. Accordingly, we reverse the dissolution court’s order that Wife pay

       Husband’s $18,177.02 in court costs and attorney’s fees.


[19]   Affirmed in part and reversed in part.


       Riley, J., and Bradford, J., concur.




       3
          We also note that, in entering judgment for Wife in the civil action, the trial court ordered Husband to pay
       Wife’s court costs. The dissolution court’s subsequent order for Husband appears to be in conflict with the
       trial court’s judgment.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1611-DR-2640 | April 27, 2017             Page 10 of 10
