MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                        Aug 31 2020, 8:58 am

court except for the purpose of establishing                                         CLERK
                                                                                 Indiana Supreme Court
the defense of res judicata, collateral                                             Court of Appeals
                                                                                      and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
William O. Harrington                                    Denise F. Hayden
Harrington Law, P.C.                                     Lacy Law Office, LLC
Danville, Indiana                                        Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Pamela Anne Langguth,                                    August 31, 2020
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         20A-DC-441
        v.                                               Appeal from the Hendricks
                                                         Superior Court
Michael Langguth,                                        The Honorable Robert W. Freese,
Appellee-Movant                                          Judge
                                                         Trial Court Cause No.
                                                         32D01-1803-DC-164



Baker, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020        Page 1 of 10
[1]   Pamela Langguth appeals the trial court’s order granting Michael Langguth’s

      motion to set aside a 2009 court order acceptable for processing that was tied to

      the decree of dissolution of their marriage. Pamela argues that (1) the trial

      court did not have subject matter jurisdiction to consider Michael’s motion;

      (2) the trial court erred by granting the motion absent any evidence of fraud;

      and (3) the trial court erred by finding implicitly that Michael met his burden

      under Trial Rule 60(B). Finding that the trial court had subject matter

      jurisdiction and finding no error, we affirm.


                                                       Facts
[2]   On September 26, 2007, the trial court entered a decree of dissolution of

      marriage between Pamela and Michael; it later entered an amended decree

      following Michael’s motion to correct errors. During and after the parties’

      marriage, Michael was employed as an air traffic controller for the FAA. Part

      of his compensation was a retirement pension.


[3]   In the amended dissolution decree, the trial court held that Michael’s FAA

      pension was a marital asset but that the parties did not, at that time, know the

      value of the pension. The trial court ordered that Pamela would receive “80%

      of [Michael’s] pension as of 12/31/06[.]”1 Tr. Ex. Vol. p. 56. On February 9,




      1
       There was some debate over the course of proceedings as to the correct date of calculation. In the end, the
      parties agreed that the correct date was December 31, 2005, rather than 2006.

      Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020                   Page 2 of 10
      2009, the trial court entered a court order acceptable for processing (COAP).2

      In the COAP, which was an order directed to the United States Office of

      Personnel Management (OPM), the trial court ordered as follows:


      [Pamela] is entitled to and is hereby assigned and awarded the amount
      of Eighty Percent (80%) of [Michael’s] gross monthly annuity as of December
      31, 2005, under the Federal Employee’s Retirement System (FERS).
      The [OPM] is directed to pay [Pamela’s] share directly to [Pamela].
      [Pamela] shall receive a pro-rata share (Eighty Percent (80%)) of any
      Cost of Living Adjustment as well as any other increases in [Michael’s]
      gross monthly annuity.


      Id. at 67 (emphasis original).


[4]   In June 2017, Michael retired as an air traffic controller. On November 28,

      2017, OPM sent a letter to Pamela explaining the calculation of their respective

      shares of Michael’s FERS benefit:


      By court order your marital share of your former spouse’s retirement
      benefit is 80% of 199 months of service during the marriage divided by
      337 months of Federal service or 47.24% of your former spouse’s
      retirement benefit. The marital shares times your former spouse’s gross
      annuity benefit of $7,180 provides for a $3,391.83 monthly payment for
      you. This includes the FERS Supplement of $1377; which may end at any
      time reducing your share of your former spouse’s retirement annuity.


      Id. at 72 (emphasis original).




      2
       The term “court order acceptable for processing,” used by the United States Office of Personnel
      Management, is essentially synonymous with what is more commonly referred to in Indiana as a qualified
      domestic relations order (QDRO).

      Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020               Page 3 of 10
[5]   On July 11, 2018, Michael filed a motion to set aside the COAP and a motion

      to stay the distributions to Pamela. On March 29, 2019, following a hearing,

      the trial court entered an order holding, in relevant part, as follows:


              1.       The Court has jurisdiction over the parties and the issues
                       presented . . . .


                                                      ***


              6.       Clearly the Judge at [the time of the amended dissolution
                       decree] intended to award Wife 80% (with a couple of
                       exceptions) of the MARITAL ASSETS to Wife.


              7.       The Court did not and could not intend or order that Wife
                       receive assets acquired by Husband after the marriage
                       ended.


              8.       The current division of Husband’s retirement provides a
                       substantial windfall for Wife in that she is receiving
                       payment for pension accrual that occurred over a period of
                       time in excess of a decade after the marriage was
                       dissolved. Thus, providing to her post-marital assets that
                       were not a result of the marriage in any manner.


              9.       The Court therefore sets asides and vacates the [COAP]
                       dated February 9, 2009.


      First Appealed Order p. 2-3 (emphasis original). The trial court held another

      hearing on December 17, 2019, to determine the correct monthly amount owed

      to Pamela. On January 28, 2020, the trial court issued an order following that

      hearing that holds, in relevant part, as follows:

      Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020   Page 4 of 10
        13.      [An expert who testified at the hearing] was able to
                 establish that [Michael] was entitled, on December 31,
                 2005, to receive a gross monthly annuity, through FERS,
                 of $1,735.


        14.      [Pamela] should therefore be entitled to 80% of $1,735, per
                 month, which equals $1,388.


                                                ***


        16.      [Pamela] is currently receiving 80% of [Michael’s] FERS
                 supplement.


        17.      [Pamela] was not entitled to the FERS supplement on
                 December 31, 2005.


        18.      There was no mention of the FERS supplement in the
                 Decree or Amended Decree.


        19.      [Pamela] should not receive a portion of [Michael’s] FERS
                 supplement as it was not vested at the time of dissolution.


        20.      Counsel for [Michael] shall prepare a [COAP] that directs
                 the [O PM] to award and assign [Pamela] the gross
                 monthly amount of $1,388. Further, the [COAP] shall
                 specifically exclude [Michael’s] FERS supplement from
                 division.


        21.      A revised [COAP] does not constitute a review of the
                 OPM calculation.




Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020   Page 5 of 10
              22.      OPM cannot, under its Rules and Regulations, calculate
                       80% of [Michael’s] gross monthly annuity as of December
                       31, 2005.


              23.      Absent a revised [COAP], awarding [Pamela] 80% of
                       [Michael’s] gross monthly annuity as of December 31,
                       2005 is an impossibility.


              24.      The terms of the Order carry out the intent of the original
                       Decree and Amended Decree and provide an equitable
                       resolution.


      Second Appealed Order p. 2-3. Pamela now appeals.


                                   Discussion and Decision
[6]   At the outset, we note that while Pamela raises multiple procedural arguments

      herein, she does not make any substantive ones. In other words, she does not

      argue that she was actually entitled, under the amended decree, to 80% of

      Michael’s retirement benefits that accrued after the marriage was dissolved.

      Nor does she contest the trial court’s conclusion that, absent a clarified COAP,

      she is receiving a windfall.


[7]   Instead, she argues as follows: (1) the trial court did not have subject matter

      jurisdiction to consider Michael’s motion to set aside; (2) the trial court’s

      modification of the 2009 COAP was erroneous because there was no evidence

      of fraud; and (3) the trial court erred by concluding that Michael met his burden

      under Trial Rule 60(B) to show grounds for relief from judgment.



      Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020   Page 6 of 10
                                I. Subject Matter Jurisdiction
[8]    Pamela contends that the trial court lacked subject matter jurisdiction. When,

       as here, there are no disputed issues of fact, we apply a de novo standard of

       review to the issue of the trial court’s subject matter jurisdiction. Johnson v.

       Patriotic Fireworks, Inc., 871 N.E.2d 989, 992 (Ind. Ct. App. 2007).


[9]    In arguing that the trial court lacked subject matter jurisdiction to consider

       Michael’s motions, Pamela frames Michael’s argument as an attack on the

       OPM’s calculation of the amount to which she is entitled. If this were, indeed,

       what Michael was arguing, Pamela would be correct. To appeal an OPM

       calculation, a claimant must exhaust all administrative remedies within the

       OPM and then, if still unhappy with the result, seek judicial review in federal

       court. Fornaro v. James, 416 F.3d 63, 64 (D.C. Cir. 2005). In this case, it is

       undisputed that Michael did not follow that process.


[10]   Michael is not arguing, however, that OPM made a miscalculation. Instead, he

       argues that OPM has incorrectly interpreted and applied the original COAP,

       which needs to be clarified as a result. The Code of Federal Regulations (CFR)

       contemplates that a trial court could amend or supersede a COAP:


       OPM must honor a court order acceptable for processing that appears
       to be valid and that the former spouse has certified is currently in force
       and has not been amended, superseded, or set aside, until OPM receives
       a court order . . . amending or superseding the court order submitted by
       the former spouse.




       Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020   Page 7 of 10
       5 C.F.R. 838.224(b). In other words, the CFR implicitly permits the trial court

       to retain subject matter jurisdiction to issue a new COAP superseding the old

       one. Here, that is precisely what occurred, and we find no fault with the trial

       court’s conclusion that it retained subject matter jurisdiction over these matters.


                                  II. Modification of COAP
[11]   Next, Pamela argues that the trial court erred by modifying the original COAP

       because there is no evidence of fraud. She directs our attention to Indiana Code

       section 31-15-7-9.1(a), which states that orders concerning property disposition

       in a marriage dissolution action “may not be revoked or modified, except in

       case of fraud.”


[12]   In this case, the trial court did not modify or revoke the property distribution as

       contained in the amended dissolution decree. Instead, it set aside and amended

       the COAP—not the property distribution itself. Pamela will still receive

       precisely what was awarded to her in the amended dissolution decree, which

       includes 80% of Michael’s pension as of December 2005. The trial court did

       not intend to award Pamela any share of Michael’s property that he would

       accrue post-dissolution—nor does she argue that she is entitled to the same—

       and the trial court’s decision to issue a new COAP merely serves to correct an

       error in OPM’s interpretation of the original COAP. Therefore, the above

       statute does not apply and the trial court need not have found fraud to award

       the relief sought by Michael.




       Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020   Page 8 of 10
                                     III. Relief From Judgment
[13]   Finally, Pamela argues that Michael was not entitled to relief under Trial Rule

       60(B). Initially, we note that neither Michael’s motion nor the trial court’s

       orders reference Trial Rule 60. But we agree with Pamela that this rule is the

       most likely basis of the trial court’s orders.


[14]   While Pamela focuses on Trial Rule 60(B), we agree with Michael that the

       provision that aligns most directly with this case is actually Trial Rule 60(A):

       “Of its own initiative or on the motion of any party . . . , clerical mistakes in

       judgments, orders or other parts of the record and errors therein arising from

       oversight or omission may be corrected by the trial court at any time[.]”3


[15]   Here, it is apparent that the trial court believed that an omission in the original

       COAP—specifically, the omission of a specific statement that Pamela would

       not be entitled to a portion of Michael’s pension that accrued after the marriage

       was dissolved—led to an error in its interpretation and application by the OPM.

       The trial court explicitly noted that in the original COAP, the court “did not

       and could not intend or order that Wife receive assets acquired by Husband

       after the marriage ended.” First Appealed Order p. 2. We note, again, that

       Pamela does not argue that she is actually entitled to this money; she merely

       seeks to retain it based on procedural grounds. See, e.g., Citizens Action Coalition




       3
        There is a slight alteration of the general rule that applies when an appeal has been filed before the error is
       corrected by the trial court, but that does not apply here.

       Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020                       Page 9 of 10
       of Ind., Inc. v. N. Ind. Public Serv. Co., 76 N.E.3d 144, 157 n.4 (Ind. Ct. App.

       2017) (observing that Indiana courts disapprove of “gotcha” litigation).


[16]   Because OPM’s interpretation of the original COAP led to a result that the

       original trial court did not and could not have intended, the trial court elected to

       revise the COAP so that its original intent could be realized. Under these

       circumstances, we find that the trial court did not err by setting aside the

       original COAP based on the error in that order. See Drost v. Prof’l Bldg. Serv.

       Corp., 176 Ind. App. 172, 175, 375 N.E.2d 241, 244 (1978) (holding that the

       reason for Trial Rule 60(A) “is that in the case of clearly demonstrable

       mechanical error the interests of fairness outweigh the interests of finality which

       attend the prior adjudication”).


[17]   The judgment of the trial court is affirmed.


       Bailey, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020   Page 10 of 10
