      MEMORANDUM DECISION
      ON REHEARING
                                                                       Feb 10 2015, 10:09 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any 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
      Preston T. Breunig                                       Christopher M. Gilley
      Martha L. Westbrook                                      Anderson, Indiana
      Buck Berry Landau & Breunig, P.A.
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Richard R. Hogshire,                                     February 10, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               06A01-1312-DR-513
              v.                                               Appeal from the Boone Superior
                                                               Court.

      Ursula Hoover,                                           The Honorable Matthew C. Kincaid,
                                                               Judge.
      Appellee-Respondent.
                                                               Cause No. 06D01-1202-DR-74




      Riley, Judge.

                      MEMORANDUM DECISION ON REHEARING

[1]   Appellant-Petitioner, Richard R. Hogshire (Husband) brought an interlocutory

      appeal challenging the trial court’s Findings of Fact, Conclusions of Law and

      Judgment (Judgment), in which it held Husband in contempt for failing to

      Court of Appeals of Indiana | Memorandum Decision on Rehearing| 06A01-1312-DR-513 |
      February 10, 2015                                                                         Page 1 of 4
      abide by several provisional orders concerning the dissolution of his marriage to

      Appellee-Respondent, Ursula Hoover. In a memorandum decision, our court

      affirmed the finding of contempt and remanded the case to the trial court with

      instructions to recalculate Husband’s obligations. Hogshire v. Hoover, No.

      06A01-1312-DR-513 (Ind. Ct. App. Oct. 9, 2014). Husband has petitioned for

      rehearing, which we now grant for the limited purpose of clarifying our

      standard of review.


[2]   In claiming that the trial court erred by holding him in contempt, Husband

      argued that the trial court’s findings of fact were “lacking, incomplete,

      inadequate in form or content or do not cover the issues raised by the pleadings

      or evidence.” Ind. Trial Rule 52(B)(2). Trial Rule 52(B) provides that the trial

      court—either on its own motion prior to the deadline for filing a motion to

      correct error, or at the request of a party “with or as part of a motion to correct

      errors”—may “amend or make new findings of fact” if the required findings are

      inadequate. T.R. 52(B)(2). Because neither the trial court moved sua sponte to

      amend its findings, nor did Husband file a motion for new or modified findings,

      we found Husband’s reliance on Trial Rule 52(B) to be misplaced. Instead, we

      applied the customary Trial Rule 52(A) standard for reviewing a trial court’s

      special findings: whether the evidence supports the findings, and whether those

      findings support the judgment. T.R. 52(A). Under Trial Rule 52(A), we

      uphold the trial court’s findings and judgment unless clearly erroneous.


[3]   On rehearing, Husband contends that it was error for our court to apply the

      clearly erroneous standard of review, instead asserting that a de novo review is

      Court of Appeals of Indiana | Memorandum Decision on Rehearing| 06A01-1312-DR-513 |
      February 10, 2015                                                                     Page 2 of 4
      appropriate. He directs our attention to the following excerpt from our

      decision: “In the present case, Husband did not seek redress by raising the issue

      of incomplete or inadequate findings in a motion to correct error and requesting

      that the trial court amend its findings; thus, Trial Rule 52(B) is inapplicable.”

      Hogshire, slip op. at 9. As Husband explains, Appellate Procedure Rule 14(A)

      does not provide for the filing of a motion to correct error in an interlocutory

      appeal. See Young v. Estate of Sweeney, 808 N.E.2d 1217, 1221 & n.6 (Ind. Ct.

      App. 2004) (filing a motion to correct error does not extend the thirty-day

      deadline to file a Notice of Appeal from an interlocutory order). Thus, he

      argues that our court cannot require him to file a motion to correct error when

      doing so would have resulted in waiving his right to file an interlocutory appeal.


[4]   Contrary to Husband’s assertion, our opinion does not hold that he was

      required to file a motion to correct error or otherwise fault him for failing to do

      so. Rather, Rule 52(B) specifies that a party must move for an amendment of

      findings “with or as part of a motion to correct errors.” Notwithstanding

      whether Husband would have procedurally defaulted in his interlocutory appeal

      by first filing a motion to correct error, Trial Rule 52(B) is inapposite. It is

      apparent that Trial Rule 52(B) is intended to afford the trial court an

      opportunity to amend its own findings prior to the filing of an appeal. Hubbard

      v. Hubbard, 690 N.E.2d 1219, 1221-22 (Ind. Ct. App. 1998). Thus, absent sua

      sponte action by trial court, Rule 52(B) only applies if a party directly requests

      the trial court to modify its findings. It is not a mechanism by which an

      appellate court may amend the trial court’s special findings.


      Court of Appeals of Indiana | Memorandum Decision on Rehearing| 06A01-1312-DR-513 |
      February 10, 2015                                                                     Page 3 of 4
[5]   Here, Husband did not (or procedurally could not) move for the trial court to

      correct its own findings of fact. Instead, he properly challenged the propriety of

      those findings via an interlocutory appeal. See T.R. 52(B) (declining to pursue

      modification of findings directly with the trial court does not waive the right to

      challenge those findings on appeal). It is well-established that when a trial

      court’s factual findings are challenged on appeal, our court applies Trial Rule

      52(A) and will reverse only if clearly erroneous. Hart v. Steel Products, Inc., 666

      N.E.2d 1270, 1278 (Ind. Ct. App. 1996), trans. denied. Husband correctly posits

      that a failure to find a material fact may not be resolved by presumption. T.R.

      52(D). However if a trial court fails to render findings on all of the issues

      requested by a party, the appropriate remedy on appeal is to remand for specific

      findings. Id. In this case, no such remand is necessary as we found that the

      trial court issued sufficient findings to support its determination of contempt.

      Accordingly, because the trial court did not have an opportunity to amend its

      own findings prior to appeal, Trial Rule 52(B) does not apply, and Trial Rule

      52(A) is the appropriate standard of review.


                                             CONCLUSION

[6]   We grant Husband’s petition for rehearing for the limited purpose of clarifying

      the basis for utilizing Trial Rule 52(A) as the standard of review. We affirm our

      opinion in all other respects.


[7]   Mathias, J. and Crone, J. concur




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      February 10, 2015                                                                     Page 4 of 4
