MEMORANDUM DECISION                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                       08/28/2017, 10:14 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
Jane G. Cotton                                           Ralph E. Dowling
Anderson, Indiana                                        Dowling Law Office



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jolyn Hensley,                                           August 28, 2017
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         80A05-1611-DR-2567
        v.                                               Appeal from the Tipton Circuit
                                                         Court
Daniel Lee Hensley,                                      The Honorable Thomas Lett,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         80C01-1503-DR-77



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 80A05-1611-DR-2567 | August 28, 2017           Page 1 of 8
                                 Case Summary and Issue
[1]   Daniel Hensley (“Husband”) and Jolyn Hensley (“Wife”) signed a property

      settlement agreement and the trial court incorporated it into its summary decree

      of dissolution of marriage. Thereafter, Wife filed a motion for relief from

      judgment alleging fraud, misrepresentation, and misconduct by Husband.

      Husband then filed a motion to dismiss, which the trial court granted. Wife

      now appeals, raising two issues for our review which we consolidate and restate

      as whether the trial court abused its discretion in dismissing Wife’s motion for

      relief from judgment. Concluding the trial court did not abuse its discretion, we

      affirm.



                            Facts and Procedural History                                 1




[2]   Husband filed a petition for dissolution of marriage on March 12, 2015. On

      May 15, 2015, Husband and Wife signed a property settlement agreement.

      Wife signed the property settlement agreement without the benefit of counsel.

      On May 19, 2015, the trial court entered a summary decree of dissolution of

      marriage which incorporated the property settlement agreement.


[3]   On June 22, 2015, Wife filed a motion for relief from judgment pursuant to

      Indiana Rule of Trial Procedure 60(B)(3) and requested an emergency




      1
       Husband filed two motions to strike portions of Wife’s brief and appendix. We have, by separate order,
      denied Husband’s motions to strike.

      Court of Appeals of Indiana | Memorandum Decision 80A05-1611-DR-2567 | August 28, 2017          Page 2 of 8
injunction and hearing. Wife’s motion for relief from judgment alleged fraud

and misconduct on the part of Husband in the following ways:


        10. That Husband committed fraud or at the least
        misrepresentation in several aspects of facilitating the settlement
        agreement in the divorce which include the following:


        a.      The parties had an investment account worth over
                $250,000 in 2014. The parties had never touched this
                investment account to Wife’s knowledge and belief. After
                the divorce she learned that Husband had withdrawn
                funds from the account and it was depleted all the way
                down to $100,000. The property settlement agreement
                says the parties are awarded the accounts in their name.
                This investment account was in the joint names of both
                parties.


        b.      The parties own two pieces of real estate in Indiana. One
                in Carmel, Indiana has been rented out. The second house
                in Milford, Indiana, is being sold on contract. The Decree
                of Dissolution awards the parties joint ownership of both
                properties.


        c.      Husband insisted that Wife and the children move to the
                Carmel house as soon as the divorce was final in May,
                2015, as the tenants were supposed to be moving out of the
                house. Wife had everything in the Texas house packed
                and ready to be shipped. Wife and the children came to
                Carmel, Indiana, only to learn that the tenants were not
                leaving the house until August, 2015, and never had any
                intention to leave in May. . . .


        d.      After Wife learned she could not move into the Carmel
                house, she could no longer receive the property that was

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                ready to be shipped. Wife has since learned that Husband
                has been taking various items of property, even though
                Wife was awarded all of these items in the Decree of
                Dissolution of Marriage.


        e.      Husband makes a lot of money in his job, however, as
                soon as his paycheck is deposited he withdraws the entire
                amount. He sent Wife and the children to Indiana to live
                with less than $100. When Wife was desperate for money
                so that she could not supply food and housing for herself
                and her children, Husband forced her to perform sex acts
                on him in order to be paid money.


        f.      Husband has given Wife none of the money from the
                rental property in Carmel, Indiana, nor has he paid child
                support that he was ordered in the sum of $400 per week.
                Section 3.1(b) of the Decree contains unconscionable
                language that states the $400 per week shall be reduced by
                the sum of $57.14 for each day that Husband keeps the
                children overnight. Husband has interpreted this language
                to include times that his mother in Muncie keeps the
                children overnight. Therefore, Husband has manipulated
                it so that Wife owes Husband at least as much child
                support as Husband owes Wife.


        g.      The Decree says that Husband is going to sell the parties[’]
                boat and the parties are going to divide the profits. Wife
                believes the boat is worth $25,000. Husband has informed
                her that he sold the boat for $7,000. He will not show her
                any bill of sale or receipt, nor has he paid her any portion
                of the sales proceeds.


        h.      Wife agreed that Husband would have visitation every
                weekend and every holiday, based on representation that
                he would be home with her and the children every

Court of Appeals of Indiana | Memorandum Decision 80A05-1611-DR-2567 | August 28, 2017   Page 4 of 8
                      weekend and every holiday. Husband had no intention to
                      follow through with that, and so he willfully misled Wife
                      into signing the agreement. Therefore, visitation needs to
                      be revised to something reasonable.


      Corrected Appellant’s Appendix at 49-50. In response, Husband filed a motion

      to dismiss contending Wife failed to allege fraud or misconduct supporting the

      granting of relief from judgment. On October 13, 2016, the trial court granted

      Husband’s motion and dismissed Wife’s motion for relief from judgment. On

      October 27, 2016, Wife filed a motion to reconsider, which the trial court

      denied. Wife now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[4]   A trial court’s dismissal of a Trial Rule 60(B) motion is effectively a denial.

      Falatovics v. Falatovics, 72 N.E.3d 472, 477 (Ind. Ct. App. 2017). We review a

      trial court’s denial of a motion to set aside judgment for an abuse of discretion.

      Id. An abuse of discretion occurs if the trial court’s decision was against the

      logic and effect of the facts and circumstances before the court. McCullough v.

      Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993).


                 II. Indiana Rule of Trial Procedure 60(B)(3)
[5]   Indiana Rule of Trial Procedure 60(B)(3) states,




      Court of Appeals of Indiana | Memorandum Decision 80A05-1611-DR-2567 | August 28, 2017   Page 5 of 8
              On motion and upon such terms as are just the court may relieve
              a party or his legal representative from a judgment, including a
              judgment by default, for the following reasons:

              ***

                      (3) fraud (whether heretofore denominated intrinsic or
                      extrinsic), misrepresentation, or other misconduct of an
                      adverse party . . . .

              ***

              A movant filing a motion [alleging fraud, misrepresentation, or
              misconduct] must allege a meritorious claim or defense.


      A meritorious claim is “a showing that will prevail until contradicted and

      overcome by other evidence.” Munster Cmty. Hosp. v. Bernacke, 874 N.E.2d 611,

      614 (Ind. Ct. App. 2007) (quotation omitted). “A meritorious defense is one

      showing, if the case was retried on the merits, a different result would be

      reached.” In re Paternity of Baby Doe, 734 N.E.2d 281, 284 (Ind. Ct. App. 2000).


[6]   Wife contends the trial court erred in dismissing her motion for relief from

      judgment because her motion “alleges a great deal of misrepresentation and

      misconduct by Husband which harmed Wife.” Brief of Appellant at 9.

      However, Wife also admits her “motion (and amended motion) did not allege

      that Husband had made a material misrepresentation of past or existing fact,

      with knowledge that it was untrue or reckless ignorance of its falsity, with intent

      to deceive and upon which Wife reasonably relie[d].” Id. We agree with Wife




      Court of Appeals of Indiana | Memorandum Decision 80A05-1611-DR-2567 | August 28, 2017   Page 6 of 8
      that her motion failed to allege any fraud or misrepresentation by Husband that

      would support relief from judgment.2


[7]   Further, Wife has not alleged any misconduct by Husband supporting relief

      from judgment. Although the alleged conduct, if true, is reprehensible, it does

      not allege a meritorious claim that would “prevail until contradicted and

      overcome by other evidence.” Bernacke, 874 N.E.2d at 611. Wife’s allegations

      in her motion for relief from judgment regarding Husband’s conduct before the

      dissolution of the marriage could have been investigated during the dissolution

      proceedings had she chosen to hire an attorney and Wife has failed to allege or

      present any evidence indicating she was prevented from discovering the merits

      of the allegations prior to the dissolution of marriage. See In re Marriage of

      Bradach, 422 N.E.2d 342, 350 (Ind. Ct. App. 1981) (noting where the wife did

      not utilize her own attorney or other experts to investigate her suspicions or

      substantiate her claims, the resulting situation “does not necessarily lead to the

      conclusion that she was defrauded”). Wife’s allegations regarding Husband’s

      conduct since the dissolution, however, may support a finding of contempt if

      Husband has failed to live up to the terms of the property settlement agreement.




      2
       The elements of actual fraud which a plaintiff must prove are: (1) a material misrepresentation of a past or
      existing fact which (2) was untrue, (3) was made with knowledge of or in reckless ignorance of its falsity, (4)
      was made with the intent to deceive, (5) was rightfully relied upon by the complaining party, and (6) which
      proximately caused the injury or damage complained of. Wheatcraft v. Wheatcraft, 825 N.E.2d 23, 30 (Ind. Ct.
      App. 2005).

      Court of Appeals of Indiana | Memorandum Decision 80A05-1611-DR-2567 | August 28, 2017             Page 7 of 8
[8]    Because Wife has failed to allege any fraud, misrepresentation, or misconduct

       supporting a relief from judgment, we conclude the trial court did not abuse its

       discretion in dismissing her motion.



                                               Conclusion
[9]    We conclude the trial court did not abuse its discretion in dismissing Wife’s

       motion for relief from judgment. Accordingly, we affirm.


[10]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 80A05-1611-DR-2567 | August 28, 2017   Page 8 of 8
