      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                       FILED
      regarded as precedent or cited before any
                                                                             Jul 28 2017, 5:36 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                     CLERK
                                                                              Indiana Supreme Court
      estoppel, or the law of the case.                                          Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Scott F. Bieniek                                         Lisa A. Anderson
      Bieniek Law, P.C.                                        Mallor Grodner, LLP
      Greencastle, Indiana                                     Bloomington, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      David D. Hughes,                                         July 28, 2017
      Appellant,                                               Court of Appeals Case No.
                                                               67A01-1612-DR-2753
              v.                                               Appeal from the Putnam Superior
                                                               Court
      Laurina S. Hughes,                                       The Honorable Charles D. Bridges,
      Appellee.                                                Judge
                                                               Trial Court Cause No.
                                                               67D01-1507-DR-127



      Barnes, Judge.


                                             Case Summary
[1]   In this dissolution action, the trial court issued findings of fact and conclusions

      thereon that divided the parties’ marital assets upon the dissolution of their


      Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017            Page 1 of 11
      marriage, ordered an equal division of the parties’ assets, and ordered Laurina

      Hughes (“Wife”) to pay an equalization payment of $147,947.74. David

      Hughes (“Husband”) appeals the trial court’s belated grant of Wife’s motion to

      correct error. Concluding that because of a procedural error the trial court

      lacked the authority to rule on Wife’s motion to correct error, we dismiss this

      appeal.


                                                       Issue
[2]   The dispositive issue is whether this appeal should be dismissed because the

      trial court lacked the authority to rule on Wife’s motion to correct error.


                                                       Facts
[3]   Husband and Wife were married on May 7, 1988. Wife filed a petition for
                                                1
      dissolution on March 16, 2015.


[4]   A final hearing was held on May 26, 2016. The trial court issued findings of

      fact and conclusions thereon on July 11, 2016, rejecting Wife’s request for an

      unequal distribution of the marital estate. To achieve an equal distribution, the

      trial court required Husband to transfer $100,000.00 of his retirement funds to

      Wife, and Wife to pay to Husband a property equalization payment of

      $147,947.74.




      1
       Wife filed the petition for dissolution in the Monroe Circuit Court. Husband objected because the parties
      did not live in Monroe County. The case was transferred to the Putnam Superior Court.

      Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017            Page 2 of 11
[5]   Wife filed a motion to correct error on August 10, 2016. On September 29,

      2016, three days after the motion was deemed denied under Indiana Trial Rule
                   2
      53.3(A), the trial court issued an order setting the matter for an attorney-only

      conference to be held on October 12, 2016. On October 12, 2016, the trial

      court, on its own motion, continued the conference to November 1, 2016.


[6]   On October 24, 2016, Wife timely filed a Notice of Appeal of the deemed

      denial of her motion to correct error (“Wife’s Appeal”). The Notice of

      Completion of Clerk’s Record for Wife’s Appeal was issued on October 25,

      2016, and an amended notice was issued the same day but noted on the

      chronological case summary (CCS) on October 26, 2016. This court

      “acquire[d] jurisdiction” over Wife’s Appeal on October 26, 2016. See Ind.

      Appellate Rule 8.


[7]   Although this court had acquired jurisdiction over Wife’s Appeal, the trial

      court, nevertheless, held a telephonic conference regarding Wife’s motion to

      correct error on November 1, 2016. On November 17, 2016, the trial court

      issued an order that belatedly granted Wife’s motion to correct error and

      ordered a 53/47 split of the parties’ marital assets in favor of Wife, finding that

      “[a] consideration of the required factors leads to the conclusion that an



      2
          Trial Rule 53.3(A) provides:

               In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or
               fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five
               (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall
               be deemed denied. Any appeal shall be initiated by filing the notice of appeal under Appellate
               Rule 9(A) within thirty (30) days after the Motion to Correct Error is deemed denied.

      Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017                    Page 3 of 11
       unequal division is just and reasonable under the circumstances based upon the

       disparity of income and the economic circumstances of the parties.”

       Appellant’s App. p. 25.


[8]    On November 23, 2016, Wife filed with this court a motion to dismiss her

       appeal of the deemed denied motion to correct error, without prejudice. This

       court denied her motion because Wife failed to state a reason why the appeal

       should be dismissed without prejudice. On November 30, 2016, Wife filed with

       this court an amended motion to dismiss her appeal with prejudice. The

       motion was granted on December 5, 2016, and Wife’s Appeal was dismissed

       with prejudice.


[9]    The instant appeal was initiated when Husband filed a Notice of Appeal on

       December 2, 2016, seeking review of the trial court’s November 17, 2016 order

       that belatedly granted Wife’s motion to correct error.


                                                   Analysis
[10]   Husband appeals the trial court’s belated grant of Wife’s motion to correct error

       that ultimately ordered the unequal division of the parties’ marital assets in

       favor of Wife. This Court reviews a trial court’s ruling on a motion to correct

       error under an abuse of discretion standard. Zaremba v. Nevarez, 898 N.E.2d

       459, 463 (Ind. Ct. App. 2008). An abuse of discretion occurs when the decision

       is clearly against the logic and effect of the facts and circumstances before the

       court, including any reasonable inferences therefrom. Id.



       Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017   Page 4 of 11
[11]   In their briefs, the parties present extensive argument and authority on the issue

       of whether the trial court erred when, without entering additional findings and

       conclusions thereon, it amended its original judgment, deviated from the

       presumed equal distribution of the parties’ marital assets, and ordered an

       unequal distribution in favor of Wife. However, the procedural history leading

       to this appeal compels us instead to consider sua sponte: 1) whether in light of

       our supreme court’s decision in Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285

       (Ind. 2000), appellate review of the trial court’s belated grant of Wife’s motion

       to correct error is available, and 2) whether this appeal should be dismissed

       because due to a procedural error, the trial court was without authority to rule
                                                     3
       on Wife’s motion to correct error. Applying the reasoning in Cavinder, we find

       that the trial court’s November 17, 2016 belated grant of Wife’s motion to

       correct error was not available for appellate review and that, because the trial

       court issued the order after this court acquired jurisdiction over Wife’s Appeal,

       this appeal must be dismissed.


[12]   In Cavinder, our supreme court addressed the ability of a party, under certain

       circumstances, to obtain appellate review of the merits of issues raised in a

       motion to correct error which is deemed denied. Specifically, in Cavinder,

       summary judgment was entered for Cavinder. Hall filed a motion to correct

       error that was deemed denied. Hall timely filed a notice of appeal and raised



       3
         See Schumacher v. Radiomaha, Inc., 619 N.E.2d 271, 273 (Ind. 1993) (holding trial court does not have
       jurisdiction to continue with case concerning matter from which an appeal is taken so long as that appeal is
       pending; failure of appellant to object does not waive issue).

       Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017              Page 5 of 11
       the issues originally presented in his deemed denied motion. Thereafter, more

       than thirty days after the motion was deemed denied, the trial court belatedly

       granted Hall’s motion to correct error and set aside its earlier grant of summary

       judgment in favor of Cavinder. Having obtained the relief sought, Hall “did not

       further pursue his appeal.” Cavinder, 726 N.E.2d at 287. Cavinder, however,

       appealed the belated grant of Hall’s motion. In response to Cavinder’s brief,

       Hall cross-appealed seeking review on the merits of the issues presented in his

       motion to correct error.


[13]   On transfer, our supreme court allowed Hall’s cross-appeal, stating:

               When a trial court considers and grants a motion to correct error,
               even if done belatedly, we perceive that such a decision will
               typically be correct on the merits and will result in expeditious
               further proceedings, without an intervening appeal. Sound
               judicial administration thus counsels against requiring a party
               whose motion to correct error is belatedly granted nevertheless to
               perfect an appeal from the superseded but “deemed denied”
               motion. These same concerns also counsel against permitting a
               belated grant of a motion to correct error long after its deemed
               denial has concluded the case as a final judgment from which an
               appeal was taken. Although we conclude that [Hall’s]
               abandonment of his timely-commenced appeal should not
               preclude him from asserting by cross-error under Trial Rule
               59(G) the issues presented in his motion to correct error, we hold
               that the rule does not authorize resort to cross-error as a device to
               raise claims abandoned by the failure to initiate a timely appeal
               upon the deemed denial of a motion pursuant to Rule 53.3(A).


       Id. at 288.


[14]   Our supreme court held:
       Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017   Page 6 of 11
               [T]he belated grant of the motion to correct error in this case is
               not necessarily a nullity but rather is voidable and subject to
               enforcement of the “deemed denied” provision of Trial Rule
               53.3(A) in the event the party opposing the motion to correct
               error promptly appeals. Had the defendant failed to promptly
               appeal this belated grant, such failure would constitute waiver
               and would have precluded a subsequent appellate claim that the
               motion to correct error was deemed denied under Trial Rule
               53.3(A).


       Id.


[15]   Justice Sullivan, dissenting, argued that the majority’s reasoning left “open-

       ended the time a trial court has to rule on a motion to correct error.” Id. at 291.

       Justice Sullivan believed the correct analysis would have found that the belated

       grant was a nullity under Trial Rule 53.3(A) for the reason that the proponent

       of the motion to correct error abandoned his appeal of the deemed denial. As a

       nullity, our court would have lacked jurisdiction, and the appeal would

       necessarily have been dismissed. Id. at 292.


[16]   The Cavinder majority responded to the concerns of the dissent, stating:


               [T]his application of Rule 53.3(A) does not create an open-ended
               time in which the trial court may rule. It applies only if, within
               thirty days after the motion is deemed denied, the party filing the
               motion timely initiates an appeal, and if the trial court belatedly
               grants the motion to correct error before the record of proceedings is filed,




       Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017   Page 7 of 11
               transferring jurisdiction to the appellate tribunal.[ ] If a belated grant
                                                                           4


               occurs, the opposing party may accept the ruling or may appeal
               to invalidate it as deemed denied pursuant to Rule 53.3(A). The
               party filing the motion may not thereafter assert as cross-error the
               issues presented in the “deemed denied” motion to correct error
               if the time for filing [the notice of appeal] has expired and the
               party failed to commence an appeal.


       Id. at 288-89 (original footnotes omitted) (emphasis added). Hall’s timely

       appeal of the deemed denial preserved for appeal the issues originally raised in

       his motion to correct error. Absent that appeal, Hall would have been

       precluded from raising as cross-error the issues first raised in his motion to

       correct error.


[17]   The procedural history of the case before us is almost identical to Cavinder. On

       July 11, 2016, the trial court issued findings and conclusions thereon, finding

       that the parties’ marital assets should be divided equally. Wife filed a motion to

       correct error. After her motion was deemed denied, she timely initiated an

       appeal. The Amended Notice of Completion of Clerk’s Record for Wife’s

       Appeal was noted in the trial court’s CCS on October 26, 2016. On that day,

       this court acquired jurisdiction over the matter. See App. R. 8. Well after this

       court acquired jurisdiction, on November 17, 2016, the trial court issued its

       order modifying the division of the parties’ marital assets, finding that an




       4
        The Rules of Appellate Procedure have been revised, and this court now acquires jurisdiction over an
       appeal on the date the Notice of Completion of Clerk’s Record is noted in the chronological case summary.
       Ind. Appellate Rule 8.

       Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017           Page 8 of 11
       unequal division of the marital assets was warranted. Wife dismissed her

       appeal, and then Husband timely appealed the trial court’s belated grant of

       Wife’s motion to correct error. The distinction between Cavinder and the

       instant case, however, is that in Cavinder the trial court must have ruled on

       Hall’s motion to correct error before this court acquired jurisdiction over the

       appeal; in this case, the trial court did not.


[18]   Cavinder says that its holding “applies only if, within thirty days after the

       motion is deemed denied, the party filing the motion timely initiates an appeal,

       and if the trial court belatedly grants the motion to correct error before

       [jurisdiction is transferred] to the appellate tribunal.” Cavinder, 726 N.E.2d at

       289 (footnotes omitted). As just noted, in the instant case, the trial court

       granted Wife’s motion to correct error after this court acquired jurisdiction over

       Wife’s Appeal. We are bound by our supreme court and cannot contravene its

       precedent. The exception created by Cavinder does not apply.


[19]   We now determine whether this appeal must be dismissed because due to a

       procedural error, the trial court lacked authority to rule on Wife’s motion to

       correct error. Under Indiana Appellate Rule 8, when a party initiates an appeal

       from a trial court order, this court “acquires jurisdiction on the date the Notice

       of Completion of Clerk’s Record is noted in the Chronological Case
                       5
       Summary.” Orders issued by a trial court after this date generally are void. See




       5
        In light of the use of the word “jurisdiction” in Indiana Appellate Rule 8, and the procedural error that is
       presented in this appeal, we are mindful of our supreme court’s instruction regarding the “law of jurisdiction”

       Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017              Page 9 of 11
       Jernigan v. State, 894 N.E.2d 1044, 1046 (Ind. Ct. App. 2008). “The policy

       underlying the rule is to facilitate the efficient presentation and disposition of

       the appeal and to prevent the simultaneous review of a judgment by both a trial

       and appellate court.” Id. There are exceptions to this rule, such as to allow a

       trial court “‘to reassess costs, correct the record, enforce a judgment, continue

       with a trial during an interlocutory appeal concerning venue, or preside over

       matters which are independent of and do not interfere with the subject matter of

       the appeal.’” Id. (quoting Clark v. State, 727 N.E.2d 18, 21 (Ind. Ct. App.

       2000), trans. denied; but cf. In re Marriage of Bartley, 712 N.E.2d 537, 547 (Ind. Ct.

       App. 1999) (holding trial court order, which purportedly “corrected” divorce

       decree to alter marital property division, was void because it was entered after

       this court obtained jurisdiction).


[20]   Here, the trial court’s November 17, 2016 order did not merely correct the

       record, enforce a judgment, or decide issues that were independent of the

       matters presented in Wife’s Appeal. To the contrary, the November order

       materially altered the trial court’s original order such that this court and the trial

       court were engaged in simultaneous review of the trial court’s initial judgment.

       Because the trial court materially altered its original findings and conclusions

       thereon after this court acquired jurisdiction over the appeal of the matter, that

       alteration was void, and it is of no effect. See Schumacher v. Radiomaha, Inc., 619




       and what constitutes “[r]eal jurisdictional problems” as opposed to “procedural defects.” See In re Adoption of
       O.R., 16 N.E.3d 965, 970 (Ind. 2014).

       Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017              Page 10 of 11
       N.E.2d 271, 273 (Ind. 1993) (holding trial court does not have jurisdiction to

       continue with case concerning matter from which appeal is taken, so long as

       appeal is pending). As determined above, the exception set forth by our

       supreme court in Cavinder does not apply. See Garrison v. Metcalf, 849 N.E.2d

       1114, 1116 (Ind. 2006) (stating courts should not read Cavinder too broadly).

       Accordingly, we dismiss this appeal because the order Husband seeks to appeal

       is void.


                                                 Conclusion
[21]   After the trial court clerk issued its Amended Notice of Completion of Clerk’s

       Record for Wife’s Appeal, the trial court was without authority to rule on a

       motion that challenged its original findings and conclusions thereon regarding

       the division of the parties’ marital assets. The trial court’s belated ruling on

       Wife’s motion to correct error is void. Because Husband’s appeal is from a void

       order, we hereby dismiss this appeal and order the trial court to vacate that

       order and, thus, the trial court’s July 11, 2016 findings of fact and conclusions

       thereon stand as the judgement in this case.


[22]   Dismissed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 67A01-1612-DR-2753 | July 28, 2017   Page 11 of 11
