                                                                       FILED
                                                                  Sep 27 2018, 5:50 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




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



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Marriage of                                     September 27, 2018

Michael Hickey (Deceased),                                Court of Appeals Case No.
                                                          45A05-1710-DR-2535
Petitioner,
                                                          Appeal from the Lake Circuit
        v.                                                Court
                                                          The Honorable Marissa J.
Jackie L. Hickey,                                         McDermott, Judge
                                                          The Honorable Lisa A. Berdine,
Appellee-Respondent,
                                                          Magistrate
        v.                                                Trial Court Cause No.
                                                          45C01-0912-DR-990
ArcelorMittal USA LLC

Pension Plan,
Appellant-Intervenor



May, Judge.




Court of Appeals of Indiana | Opinion 45A05-1710-DR-2535 | September 27, 2018              Page 1 of 10
[1]   ArcelorMittal USA LLC Pension Plan (“ArcelorMittal”) appeals the trial

      court’s denial of its motion for relief from judgment, which had sought to set

      aside a May 23, 2014, order granting Jackie L. Hickey’s (“Wife”) motion for

      relief from the judgment that had declared void the trial court’s earlier order

      dissolving Wife’s marriage to Michael Hickey (“Husband”). ArcelorMittal

      submits multiple issues for our review, one of which we find dispositive:

      whether the trial court erred when it denied ArcelorMittal’s motion for relief

      from judgment because Wife invited any error upon which the trial court

      premised its earlier order granting Wife’s motion for relief from the dissolution

      order. We reverse and remand.



                             Facts and Procedural History
[2]   The pertinent facts were set forth in an earlier interlocutory appeal in this

      matter:


[3]            Husband and Wife were married in 1980. During the marriage,
               Husband worked at Inland Steel and earned a pension 1 which is
               administered by [ArcelorMittal]. 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



      1
        As stated in our earlier opinion, “The parties agree that if Wife is not deemed to be Husband’s widow, then
      she will receive no pension benefits. [ArcelorMittal] claims that this is because Wife expressly waived her
      right to the qualified survivor annuity at the time of Husband’s retirement.” ArcelorMittal USA, LLC Pension
      Plan v. Hickey, 45A03-1509-DR-1537 (Ind. Ct. App., June 30, 2016).

      Court of Appeals of Indiana | Opinion 45A05-1710-DR-2535 | September 27, 2018                    Page 2 of 10
              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.


[4]           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 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.


[5]           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.


[6]           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:




      Court of Appeals of Indiana | Opinion 45A05-1710-DR-2535 | September 27, 2018   Page 3 of 10
       [7]              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.


       [8]              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 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.


       [9]              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.


       [10]             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.


       [11]             FOUND and RECOMMENDED this 23 day of May,
                        2014, and entered NUNC PRO TUNC to April 16,
                        2012.


[12]             The Estate did not appeal this order.


         Court of Appeals of Indiana | Opinion 45A05-1710-DR-2535 | September 27, 2018   Page 4 of 10
[13]           On August 6, 2014, [ArcelorMittal] 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 [ArcelorMittal’s] motion to set aside.
               On March 17, 2015, [ArcelorMittal] 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 interlocutory appeal.
               This court subsequently accepted interlocutory jurisdiction, and
               this appeal ensued.


       ArcelorMittal USA, LLC Pension Plan v. Hickey, 45A03-1509-DR-1537 (Ind. Ct.

       App., June 30, 2016) (footnote added). On appeal, our court reversed the trial

       court’s denial of ArcelorMittal’s motion to intervene and remanded the matter

       to the trial court.


[14]   After briefing on ArcelorMittal’s motion to set aside judgment, the trial court

       held a hearing on July 10, 2017. At the direction of the trial court, the parties

       prepared proposed orders and submitted them to the trial court. On October 5,

       2017, the trial court denied ArcelorMittal’s motion to set aside the trial court’s

       May 23, 2014, order on the basis that the April 16, 2012, dissolution order was

       void because the bifurcation of the issues therein did not comply with the

       applicable statute, Indiana Code section 31-15-2-14.



                                  Discussion and Decision
       Court of Appeals of Indiana | Opinion 45A05-1710-DR-2535 | September 27, 2018   Page 5 of 10
[15]   Whether to grant a motion for relief from judgment under T.R. 60(B) is within

       the discretion of the trial court, and we reverse only for abuse of that discretion.

       Miller v. Moore, 696 N.E.2d 888, 889 (Ind. Ct. App. 1998). An abuse of

       discretion occurs when the decision is clearly against the logic and effect of the

       facts and circumstances before it, or if the trial court has misinterpreted the law.

       Id. When we review a trial court’s decision, we will not reweigh the evidence.

       Beike v. Beike, 805 N.E.2d 1265, 1267 (Ind. Ct. App. 2004).


[16]   Where, as here, the trial court enters findings sua sponte after a bench trial, the

       findings control our review and judgment only as to those issues specifically

       referenced in the findings. Samples v. Wilson, 12 N.E.3d 946, 949-50 (Ind. Ct.

       App. 2014). When the trial court does not make specific findings on an issue,

       we apply a general judgment standard, and we may affirm on any legal theory

       supported by the evidence adduced at trial. Id. at 950.


               A two-tier standard of review is applied to the sua sponte findings
               and conclusions made: whether the evidence supports the
               findings, and whether the findings support the judgment.
               Findings and conclusions will be set aside only if they are clearly
               erroneous, that is, when the record contains no facts or inferences
               supporting them. A judgment is clearly erroneous when a review
               of the record leaves us with a firm conviction that a mistake has
               been made. In conducting our review, we consider only the
               evidence favorable to the judgment and all reasonable inferences
               flowing therefrom. We will neither reweigh the evidence nor
               assess witness credibility.


       Id.



       Court of Appeals of Indiana | Opinion 45A05-1710-DR-2535 | September 27, 2018   Page 6 of 10
[17]   Indiana Code section 31-15-2-14 gives trial courts the authority to bifurcate the

       issues in a dissolution action “to provide for a summary disposition of

       uncontested issues and a final hearing on contested issues.” The statute

       specifies the filing requirements for bifurcation in a dissolution action:


               (1) a written waiver of a final hearing in the matter of:


                        (A) uncontested issues specified in the waiver; or


                        (B) contested issues specified in the waiver upon which the
                        parties have reached an agreement;


               (2) a written agreement made in accordance with section 17 of
               this chapter pertaining to contested issues settled by the parties;
               and


               (3) a statement:


                        (A) specifying contested issues remaining between the
                        parties; and


                        (B) requesting the court to order a final hearing as to
                        contested issues to be held under this chapter.


       Id.


[18]   ArcelorMittal argues the trial court erred when it denied its motion for relief

       from judgment because the court’s earlier decision to grant Wife’s motion for

       relief from the dissolution order was also error. In her motion for relief from

       the dissolution order, Wife argued the dissolution order was void because the

       Court of Appeals of Indiana | Opinion 45A05-1710-DR-2535 | September 27, 2018   Page 7 of 10
       requirements for bifurcation of the dissolution action were not met.

       Specifically, Wife contended the dissolution order was void because the

       bifurcation was entered sua sponte, without the parties signing a written waiver

       of final hearing.


[19]   Under the legal doctrine of invited error, a party may not take advantage of an

       error she commits, invites, or allows to happen as a natural consequence of her

       own neglect or misconduct. Batterman v. Bender, 809 N.E.2d 410, 412 (Ind. Ct.

       App. 2004). Invited error is not subject to review by this court. Id.


[20]   In the dissolution proceedings between Husband and Wife, when it was clear

       the parties had not brought with them to court sufficient evidence to determine

       the value of Husband’s pension and some other personal property, the trial

       court stated:


               [Court]:      Um, and then I think we should reconvene in about
               sixty days to see where we’re at.


               [Husband’s Attorney]:              Okay.


               [Court]:      In the mean time I’ll divorce these people. We’ll
               bifurcate it and we’ll get them divorced today. We’re making
               some headway on disposing of the property. And, until we know
               how much cash on hand they have, there’s really no way for me
               to go forward in, in making an equitable distribution of the
               property until I know, we know what cash is there. Do you
               understand what I’m saying?


               [Wife]:           Um - -


       Court of Appeals of Indiana | Opinion 45A05-1710-DR-2535 | September 27, 2018   Page 8 of 10
          [Court]:         There’s not way for me to divide the stuff up when –


          [Wife]:          Okay.


          [Court]:        - - I can’t divide the money that I don’t know what
          it’s, what it’s going to be.


          [Wife]:          Okay.


(Dissolution Tr. 2 at 49-50.) The trial court then directed Husband’s attorney to

prepare the dissolution order and a separate order of partial property

distribution. The trial court ordered Husband to pay for an evaluation of his

pension before the final hearing on the property distribution. The trial court

asked Wife if she would like her maiden name restored, and Wife answered in

the affirmative. The trial court then explained the process of property

distribution, and Wife verbally indicated she understood. The trial court then

stated:


          Okay. Based upon the evidence submitted, the Court will find
          that the marriage the statutory elements have been shown and
          that the petition for dissolution of marriage shall be granted, and
          we’ll bifurcate and we’ll grant the dissolution of marriage and
          restore both parties to the status of single persons.




2
  As a part of the interlocutory appeal, ArcelorMittal included the transcript from the original dissolution. It
is also part of the record in this case.

Court of Appeals of Indiana | Opinion 45A05-1710-DR-2535 | September 27, 2018                       Page 9 of 10
       (Id. at 62) (errors in original). Wife was actively involved in a dialogue with

       Husband and the court throughout the hearing.


[21]   Wife’s acquiescence to bifurcation was also evident in the facts that she

       participated without complaint in the two subsequent hearings regarding the

       distribution of marital property and that she did not request relief from the

       dissolution order until she discovered she was unable to benefit from Husband’s

       pension after his death. To the extent the statutory filing requirements for

       bifurcation were not met, the record indicates Wife expressly and implicitly

       invited the error and was supportive of the bifurcation when it appeared to suit

       her interests. A party that invites error may not then take advantage of that

       error. In re Marriage of Duckworth, 989 N.E.2d 352, 354 (Ind. Ct. App. 2013).



                                                Conclusion
[22]   The trial court abused its discretion when it denied ArcelorMittal’s motion for

       relief from the trial court’s order that vacated the original dissolution decree

       between Husband and Wife because the court also erred when it granted Wife’s

       earlier relief from judgment when she had invited any error in that judgment.

       Accordingly, we reverse the trial court’s denial of ArcelorMittal’s motion for

       relief from the trial court’s May 23, 2014, order. We remand for further

       proceedings consistent with this opinion.


[23]   Reversed and remanded.


       Riley, J., and Mathias, J., concur.
       Court of Appeals of Indiana | Opinion 45A05-1710-DR-2535 | September 27, 2018   Page 10 of 10
