      MEMORANDUM DECISION                                               FILED
                                                                    Jun 30 2016, 8:26 am
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                        CLERK
      Memorandum Decision shall not be                              Indiana Supreme Court
                                                                       Court of Appeals
      regarded as precedent or cited before any                          and Tax Court

      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Michael D. Sears                                          Adam J. Sedia
      Jacquelyn S. Pillar                                       Rubino, Ruman, Crosmer, & Polen
      Crist, Sears, & Zic, LLP                                  Dyer, Indiana
      Munster, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      ArcelorMittal USA, LLC                                   June 30, 2016
      Pension Plan,                                            Court of Appeals Case No.
      Appellant-Defendant,                                     45A03-1509-DR-1537
                                                               Appeal from the Lake Circuit
              v.                                               Court
                                                               The Honorable George C. Paras,
      Jackie L. Hickey,                                        Judge
      Appellee-Plaintiff                                       The Honorable Robert G. Vann,
                                                               Magistrate
                                                               Trial Court Cause No.
                                                               45C01-0912-DR-990



      Mathias, Judge.


[1]   Arcelormittal USA, LLC Pension Plan (“the Plan”) filed a motion in Lake

      Circuit Court to intervene in the dissolution action between Jackie L. Hickey

      Court of Appeals of Indiana | Memorandum Decision 45A03-1509-DR-1537 | June 30, 2016    Page 1 of 9
      (“Wife”) and Michael J. Hickey (“Husband”). The Plan also filed a motion for

      relief from judgment seeking to set aside the trial court’s order granting Wife’s

      motion for relief from judgment which set aside the trial court’s earlier order

      dissolving her marriage to Husband. The trial court denied the Plan’s motion to

      intervene, and the Plan appeals. On appeal, the Plan presents two issues, one of

      which we find dispositive: whether the trial court abused its discretion in

      denying the Plan’s motion to intervene. Concluding that the trial court abused

      its discretion in denying the Plan’s motion to intervene, we reverse and remand.


                                    Facts and Procedural History

[2]   Husband and Wife were married in 1980. During the marriage, Husband

      worked at Inland Steel and earned a pension which is administered by the Plan.

      On December 9, 2009, Husband filed a petition in the trial court seeking to

      dissolve his marriage with Wife. The trial court entered a provisional order on

      February 17, 2010. The parties appeared in court on April 3, 2012, for what was

      intended to be a final hearing. Husband appeared with counsel, and Wife

      appeared pro se. The parties still did not agree on the distribution of the marital

      property, nor had the value of Husband’s pension been determined. Instead of

      continuing the hearing, the trial court chose to bifurcate the proceedings and

      issued an order that same day dissolving the marriage and setting a hearing on

      the distribution of marital assets to be held on May 30, 2012.


[3]   On May 30, however, the parties informed the trial court that the value of the

      pension had still not been determined and that the parties’ vehicles had not

      been sold. Accordingly, the trial court ordered the parties to appear for a status
      Court of Appeals of Indiana | Memorandum Decision 45A03-1509-DR-1537 | June 30, 2016   Page 2 of 9
      hearing on July 10, 2012. At this hearing, the parties informed the trial court

      that the pension valuation had been completed but that their vehicles had not

      yet been sold. At the conclusion of the hearing, the trial court entered an order

      stating that Wife “shall be named Alternative Payee” of Husband’s pension. It

      also ordered that Wife be awarded 33.5% of the monthly pension benefits that

      would otherwise go to Husband. Lastly, the court ordered Husband’s counsel to

      file a qualified domestic relations order (“QDRO”) regarding the pension

      within sixty days.


[4]   On August 31, 2012, before the QDRO was prepared or filed, Husband died.

      On October 29, 2012, counsel made an appearance on behalf of Wife. On April

      11, 2013, Wife filed a motion to substitute the Estate of Michael J. Hickey (“the

      Estate”) as a party to the action, which the trial court granted. On April 16,

      2013, Wife filed a motion to set aside the previously entered decree of

      dissolution.


[5]   On December 17, 2013, the trial court held a hearing on Wife’s motion to set

      aside, at which Wife and the Estate appeared by counsel. The trial court entered

      an order on May 23, 2014, granting Wife’s motion and providing in relevant

      part:


              1. The Decree of Dissolution entered in this matter on April 16,
              2012, is void and is set aside Nunc Pro Tunc to April 16, 2012.
              2. The order is void. Indiana Code 31-15-2-14 requires that
              when a divorce proceeding is bifurcated that the parties sign a
              written waiver of final hearing and a statement explaining what
              items are agreed upon and which items are still in dispute. No

      Court of Appeals of Indiana | Memorandum Decision 45A03-1509-DR-1537 | June 30, 2016   Page 3 of 9
              such written agreement was filed in this matter. The statute
              which allows for a bifurcated hearing in a dissolution is in
              degradation [sic] of the common law and must be strictly
              construed.
              3. As such Jackie Cummins is now the widow of Michael
              Hickey and is entitled to the marital residence, the 199 [sic]
              Winnebago Motor Home, the 1978 Chevrolet Corvette, the 1996
              Chevrolet S-10 truck, the 1976 Honda Custom Chopper, and the
              2001 PT Cruiser is Wife’s as the jointly titled owner and widow.
              4. As this Court required an estate to be opened for Michael
              Hickey, and Attorney David Masse agreed, without receiving a
              retainer, to do so, this completes this matter. David Masse
              requests attorney fees in the amount of $2,000.00 and the Court
              now orders that Jackie Cummins pay Mr. Masse’s fee in the
              amount of $2,000.00.
              FOUND and RECOMMENDED this 23 day of May, 2014, and
              entered NUNC PRO TUNC to April 16, 2012.

      Appellant’s App. pp. 37-38. The Estate did not appeal this order.


[6]   On August 6, 2014, the Plan filed a motion to intervene and reinstate the

      dissolution action and also filed a motion to set aside the May 23 order which

      set aside the earlier dissolution decree. After Wife responded, the trial court

      held a hearing on the matter on October 21, 2014. On February 17, 2015, the

      trial court entered an order denying the motion to intervene and reinstate the

      action. Having denied the motion to intervene, the trial court did not rule on

      the Plan’s motion to set aside. On March 17, 2015, the Plan filed a motion for

      entry of judgment or, in the alternative, to certify the trial court’s February 17

      order for interlocutory appeal. The trial court held a hearing on this motion on

      June 3, 2017, and, on August 27, 2015, certified its February 17 order for

      Court of Appeals of Indiana | Memorandum Decision 45A03-1509-DR-1537 | June 30, 2016   Page 4 of 9
      interlocutory appeal. This court subsequently accepted interlocutory

      jurisdiction, and this appeal ensued.

                                        Discussion and Decision

[7]   The Plan first argues that the trial court erred in denying the Plan’s motion to

      intervene in the dissolution action between Wife and Husband’s Estate.

      Motions to intervene are governed by Indiana Trial Rule 24, which provides:


              (A) Intervention of right. Upon timely motion anyone shall be
              permitted to intervene in an action:
                   (1) when a statute confers an unconditional right to
                   intervene; or
                   (2) when the applicant claims an interest relating to a
                   property, fund or transaction which is the subject of the
                   action and he is so situated that the disposition of the action
                   may as a practical matter impair or impede his ability to
                   protect his interest in the property, fund or transaction,
                   unless the applicant’s interest is adequately represented by
                   existing parties.
              (B) Permissive intervention. Upon timely filing of his motion
              anyone may be permitted to intervene in an action:
                   (1) when a statute confers a conditional right to intervene; or
                   (2) when an applicant’s claim or defense and the main action
                   have a question of law or fact in common. When a party to an
                   action relies for ground of claim or defense upon any statute
                   or executive order administered by a federal or state
                   governmental officer or agency or upon any regulation, order,
                   requirement, or agreement issued or made pursuant to the
                   statute or executive administrative order, the governmental
                   unit upon timely application may be permitted to intervene in
                   the action. In exercising its discretion the court shall consider


      Court of Appeals of Indiana | Memorandum Decision 45A03-1509-DR-1537 | June 30, 2016   Page 5 of 9
                   whether the intervention will unduly delay or prejudice the
                   adjudication of the rights of the original parties.
              (C) Procedure. A person desiring to intervene shall serve a
              motion to intervene upon the parties as provided in Rule 5. The
              motion shall state the grounds therefor and set forth or include by
              reference the claim, defense or matter for which intervention is
              sought. Intervention after trial or after judgment for purposes of a
              motion under Rules 50, 59, or 60, or an appeal may be allowed upon
              motion. The court’s determination upon a motion to intervene
              shall be interlocutory for all purposes unless made final under
              Trial Rule 54(B).

      (emphasis added).


[8]   The Plan argues that it has a right to mandatory intervention under Trial Rule

      24(A)(2). The Plan contends that it meets all of the requirements for mandatory

      intervention: (1) it has an interest in the subject of the action; (2) disposition in

      the action may as a practical matter impede protection of that interest; and (3)

      representation of the interest by existing parties is inadequate. In re Paternity of

      Duran, 900 N.E.2d 454, 467 (Ind. Ct. App. 2009). The timeliness of the request

      to intervene is another factor which must also be considered. Id.


[9]   Although Trial Rule 24(C) expressly provides for intervention after a judgment

      for purposes of filing a motion for relief from judgment under Trial Rule 60(B),

      it has been held that such post-judgment motions to intervene are disfavored,

      and are appropriate only in “extraordinary and unusual circumstances,” where

      the rights of the proposed intervenor cannot otherwise be protected.

      Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 816 (Ind. 2012).



      Court of Appeals of Indiana | Memorandum Decision 45A03-1509-DR-1537 | June 30, 2016   Page 6 of 9
[10]   A motion for permissive intervention is obviously directed to the discretion of

       the trial court, but a motion for intervention as of right does not pose a pure

       question of law. Id. (citing Llewellyn v. Beasley, 415 N.E.2d 789, 792 (Ind. Ct.

       App. 1981)). Instead, “‘[d]eterminations as to intervention as a matter of right

       under T.R. 24(A)(2) must be classed as a mixed question of law and fact.’” Id.


[11]   The party seeking intervention bears the burden of meeting the requirements of

       Trial Rule 24(A)(2). See Barabas, 975 N.E.2d at 812. The trial court has

       discretion to determine whether a prospective intervenor has met this burden,

       we review the trial court’s ruling on a motion to intervene for abuse of

       discretion and assume that all facts alleged in the motion are true. Id.


[12]   Here, it is clear that the Plan has “an interest relating to a property, fund or

       transaction which is the subject of the action.” T.R. 24(A)(2). Husband’s

       pension is clearly marital property subject to distribution in the dissolution

       action. See Ind. Code § 31-9-2-98(b)(1) & (2) (defining “property” for purposes

       of marital dissolution to include “a present right to withdraw pension or

       retirement benefits” and “the right to receive pension or retirement benefits that

       are not forfeited upon termination of employment or that are vested . . . but that

       are payable after the dissolution of marriage[.]”); In re Marriage of Nickels, 834

       N.E.2d 1091, 1097 (Ind. Ct. App. 2005) (noting that pension benefits are

       marital property if the benefits are not forfeited at the termination of

       employment, or the benefits are vested and payable before or after the

       dissolution).



       Court of Appeals of Indiana | Memorandum Decision 45A03-1509-DR-1537 | June 30, 2016   Page 7 of 9
[13]   Moreover, it appears that the disposition of the dissolution action might, as a

       practical matter, impair or impede the Plan’s ability to protect its interest in the

       property. Indeed, the Plan is the administrator of these pension benefits and

       obviously has an interest in the distribution of the pension benefits: if Wife is

       deemed to be Husband’s widow she will receive his pension benefits, but if she

       is deemed to have been divorced she will receive no pension benefits.1

[14]   This leads us to the question of whether the Plan’s interests were adequately

       represented by the existing parties. The Plan argues that the Estate had no

       motive to represent the Plan’s interests regarding the pension. We agree. If Wife

       is considered to be Husband’s ex-spouse and receives no pension, this result

       does not injure or impair the Estate. If Wife is considered to be Husband’s

       widow, then she would be entitled to pension benefits as a widow; this result

       also does not injure or impair the Estate. Therefore, although the Estate may

       have had an interest in the broader question of whether Wife was to be

       considered Husband’s ex-spouse or his widow, it had no interest in the

       questions regarding the pension. Accordingly, we conclude that the trial court

       abused its discretion when it denied the Plan’s motion to intervene.

[15]   The Plan further argues that the trial court erred in effectively denying its

       motion to set aside and that we should reverse the trial court on this issue as




       1
        The parties agree that if Wife is not deemed to be Husband’s widow, then she will receive no pension
       benefits. The Plan claims that this is because Wife expressly waived her right to the qualified survivor annuity
       at the time of Husband’s retirement.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1509-DR-1537 | June 30, 2016                Page 8 of 9
       well. However, the trial court denied the Plan’s motion to intervene, and it

       never actually ruled on the Plan’s motion to set aside. Thus, the trial court

       never considered the Plan’s motion to set aside on the merits, and we are not a

       court of first instance. Accordingly, we remand this cause with instructions that

       the trial court address the Plan’s motion to set aside on its merits.


[16]   Reversed and remanded.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1509-DR-1537 | June 30, 2016   Page 9 of 9
