                                                                         FILED
                                                                     Oct 19 2016, 5:49 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Kristina J. Jacobucci                                      Robert A. Plantz
      Nicholas T. Otis                                           Merrillville, Indiana
      La Porte, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kevin L. Snyder,                                           October 19, 2016
      Appellant-Respondent,                                      Court of Appeals Case No.
                                                                 46A03-1510-DR-1792
              v.                                                 Appeal from the La Porte Circuit
                                                                 Court
      Anastasia Snyder,                                          The Honorable Thomas J.
      Appellee-Petitioner.                                       Alevizos, Judge
                                                                 The Honorable W. Jonathan
                                                                 Forker, Special Judge
                                                                 Trial Court Cause No.
                                                                 46D01-1201-DR-1



      Altice, Judge.


                                                 Case Summary


[1]   Kevin L. Snyder (Husband) appeals from the trial court’s order dissolving his

      marriage to Anastasia Snyder (Wife). Concluding sua sponte that this appeal is

      untimely, we dismiss.


      Court of Appeals of Indiana | Opinion 46A03-1510-DR-1792 | October 19, 2016            Page 1 of 8
                                        Facts & Procedural History


[2]   Husband and Wife were married in 1997 and have two children together. Prior

      to their marriage, Husband and Wife executed an antenuptial agreement (the

      Agreement). On January 3, 2011, Wife filed a petition for legal separation,

      which was dismissed approximately one month later when Husband filed a

      petition for dissolution. During the pendency of the dissolution proceedings,

      the parties submitted an agreed order providing that the Agreement would be

      enforced subject to a few deletions and revisions.


[3]   The case proceeded to a final hearing on June 18, 2013, at which Husband and

      Wife disputed, among many other things, the Agreement’s impact on the

      distribution of five antique cars, a motorcycle, and two trailers (collectively, the

      Vehicles), which had been acquired during the marriage and were titled in

      Husband’s name only. Husband argued that pursuant to the language of the

      Agreement, the Vehicles were his separate property. Wife, on the other hand,

      argued that the Vehicles fell outside the Agreement’s definition of separate

      property, and that they were therefore marital property subject to equitable

      distribution by the trial court. No evidence was presented at the hearing as to

      the valuation of the Vehicles. At the conclusion of the hearing, the trial court

      took the matter under advisement.




      Court of Appeals of Indiana | Opinion 46A03-1510-DR-1792 | October 19, 2016   Page 2 of 8
[4]   On March 30, 2015, the trial court issued its dissolution decree, which was

      accompanied by written findings and conclusions.1 The court dissolved the

      marriage, resolved issues of custody and child support, distributed the bulk of

      the marital estate, and ordered Husband to pay a portion of Wife’s attorney

      fees. The trial court also concluded that under the terms of the Agreement, the

      Vehicles were not Husband’s separate property and were therefore marital

      property subject to equitable division. Because no evidence had been presented

      regarding the value of the Vehicles, the trial court declined to distribute them at

      that time. Instead, the trial court reserved that issue for a later date, pending the

      presentation of further evidence.


[5]   Husband filed what he called a “Motion to Correct Error” on April 29, 2015.

      Appellant’s Appendix at 121. After holding a hearing, the trial court issued a

      written ruling on Husband’s motion on September 29, 2015. In the order, the

      trial court clarified the effective dates of certain orders in the March 30, 2015

      order, vacated a portion of that order dealing with college expenses, and denied

      Husband’s motion in all other respects. Husband filed his Notice of Appeal on

      October 28, 2015, and this appeal ensued.


                                            Discussion & Decision




      1
       We are troubled by the inordinate delay between the final hearing and the issuance of the dissolution
      decree. As our Supreme Court has noted, “[t]ime is of the essence in matters involving children[.]” In re
      Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013). Trial courts should make every effort to avoid such
      protracted uncertainty in matters of child custody and child support.

      Court of Appeals of Indiana | Opinion 46A03-1510-DR-1792 | October 19, 2016                       Page 3 of 8
[6]   Although neither party presents the timeliness of Husband’s appeal as an issue,

      this court regularly addresses such issues sua sponte. See Blinn v. Dyer, 19 N.E.3d

      821, 822 (Ind. Ct. App. 2014). “Failure to timely file a notice of appeal, while

      not a jurisdictional matter, nevertheless forfeits the right to an appeal absent

      ‘extraordinarily compelling reasons.’” Id. at 822. (quoting In re Adoption of O.R.,

      16 N.E.3d 965, 971 (Ind. 2014)); see also Ind. Appellate Rule 9(A)(5).


[7]   Unlike issues of timeliness, issues concerning the finality of appealed judgments

      are jurisdictional in nature. Ind. Appellate Rule 5; Whittington v. Magnante, 30

      N.E.3d 767, 768 (Ind. Ct. App. 2015). “Whether an order is a final judgment

      governs the appellate courts’ subject matter jurisdiction.” Front Row Motors,

      LLC v. Jones, 5 N.E.3d 753, 757 (Ind. 2014) (citing Georgos v. Jackson, 790

      N.E.2d 448, 451 (Ind. 2003)). “The lack of appellate subject matter jurisdiction

      may be raised at any time, and where the parties do not raise the issue, this

      court may consider it sua sponte.” In re Estate of Botkins, 970 N.E.2d 164, 166

      (Ind. Ct. App. 2012).


[8]   A final judgment is one that “disposes of all claims as to all parties[.]” Ind.

      Appellate Rule 2(H)(1); see also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind.

      Ct. App. 2002) (explaining that a final judgment “disposes of all issues as to all

      parties, to the full extent of the court to dispose of the same, and puts an end to

      the particular case as to all of such parties and all of such issues” (quoting

      Hudson v. Tyson, 383 N.E.2d 66, 69 (Ind. 1978)). Additionally, a trial court may

      convert an otherwise interlocutory order into an appealable final judgment by



      Court of Appeals of Indiana | Opinion 46A03-1510-DR-1792 | October 19, 2016   Page 4 of 8
       including certain “magic language” set forth in Ind. Trial Rule 54(B). App. R.

       2(H)(3); Botkins, 970 N.E.2d at 167.


[9]    Because the March 30, 2015 order left the valuation and distribution of the

       Vehicles for a later date, it was not a final judgment within the meaning of App.

       R. 2(H)(1). Nor did the order contain the “magic language” set forth in T.R.

       54(B). Accordingly, we must determine whether it was an appealable

       interlocutory order.


[10]   Ind. Appellate Rule 14(A) provides that certain interlocutory orders are

       appealable as a matter of right. Among them are orders “[f]or the payment of

       money[.]” App. R. 14(A)(1). This court has held that child support orders and

       orders to pay attorney fees are orders for the payment of money within the

       meaning of App. R. 14(A)(1). Rowe v. Ind. Dep’t of Correction, 940 N.E.2d 1218,

       1220 (Ind. Ct. App. 2011), trans. denied. Thus, Husband was entitled to appeal

       the March 30, 2015 order, provided he filed a notice of appeal “within thirty

       (30) days after the notation of the interlocutory order in the Chronological Case

       Summary[.]” App. R. 14(A).


[11]   Husband did not, however, file his notice of appeal within the allotted time.

       Instead, he filed what he styled a “Motion to Correct Error” with the trial court.

       Appellant’s Appendix at 121. But, as this court has noted, motions to correct

       error are proper only after the entry of final judgment; any such motion filed

       prior to the entry of final judgment must be viewed as a motion to reconsider.

       See Citizens Indus. Group v. Heartland Gas Pipeline, LLC, 856 N.E.2d 734, 737


       Court of Appeals of Indiana | Opinion 46A03-1510-DR-1792 | October 19, 2016   Page 5 of 8
(Ind. Ct. App. 2006) (explaining that “a party can only file a motion to

reconsider with the court if the action remains in fieri” and “[i]f the trial court

has issued a final judgment, the party must file a motion to correct errors rather

than a motion to reconsider”), trans. denied; Stephens v. Irvin, 730 N.E.2d 1271,

1277 (Ind. Ct. App. 2000) (treating a motion labeled a “Motion to Correct

Error” filed before the entry of final judgment as a motion to reconsider), trans.

denied; Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998)

(holding that a “motion to reconsider” filed after the entry of final judgment

must be considered a motion to correct error). This distinction is important

because unlike motions to correct error, motions to reconsider do not toll the

thirty-day timeframe within which a party wishing to undertake an appeal must

do so. See App. R. 9(A) (providing that the thirty-day deadline to file a notice

of appeal is tolled “if any party files a timely motion to correct error”); Ind.

Trial Rule 53.4(A) (providing that a motion to reconsider “shall not . . . extend

the time for any further required or permitted action, motion, or proceedings

under these rules); Johnson v. Estate of Brazill, 917 N.E.2d 1235, 1239 (Ind. Ct.

App. 2009) (explaining that “a motion to reconsider does not toll the time

period within which an appellant must file a notice of appeal” (quoting Citizens

Indus. Grp., 856 N.E.2d at 737)). Indeed, this court has noted that filing a

motion to reconsider following the entry of an appealable interlocutory order is

an act “fraught with danger” because such a motion does not extend the

deadline for filing a notice of appeal. Id. (quoting Hudson, 383 N.E.2d at 72

n.9).


Court of Appeals of Indiana | Opinion 46A03-1510-DR-1792 | October 19, 2016   Page 6 of 8
[12]   Thus, because the March 30, 2015 order was an appealable interlocutory order

       as opposed to a final judgment, Husband could not file a motion to correct

       error. Instead, his April 29, 2015 motion must be viewed as a motion to

       reconsider, which does not extend the thirty-day deadline for filing a notice of

       appeal from an interlocutory order. Because Husband did not file his notice of

       appeal until October 28, 2015—nearly seven months after the trial court issued

       the March 30, 2015 order—his interlocutory appeal of that order is untimely.

       Because the issues Husband raises in this appeal will remain available to him

       after the trial court enters final judgment in this case, we find no extraordinarily

       compelling reasons to restore his forfeited right to seek interlocutory appeal of

       the March 30, 2015 order.


[13]   Thus, we are left to consider whether Husband may nevertheless appeal from

       the trial court’s September 29, 2015 ruling on his motion to reconsider. In

       short, he cannot. As an initial matter, T.R. 53.4(B) provides that a motion to

       reconsider that is not ruled upon within five days “shall be deemed denied.”

       Husband filed his motion to reconsider on April 29, 2015, but he waited until

       after the trial court issued its September 29, 2015 ruling thereon to file his notice

       of appeal. Because Husband’s motion to reconsider was deemed denied

       months earlier, his notice of appeal therefrom was untimely. Timeliness aside,

       the September 29, 2015 order was neither a final judgment nor an appealable

       interlocutory order. The order was not a final judgment for the same reason as

       the March 30, 2015 order—it left the valuation and distribution of the Vehicles

       for a later date and it did not include the “magic language” set forth in T.R.


       Court of Appeals of Indiana | Opinion 46A03-1510-DR-1792 | October 19, 2016   Page 7 of 8
       54(B). Nor does the September 29, 2015 order fall within any of the App. R.

       14(A) categories for interlocutory appeals as of right—unlike the March 30,

       2015 order, the trial court’s ruling on the motion to reconsider did not include

       an order for the payment of money. Finally, Husband has not sought or

       obtained the requisite authorization to pursue a discretionary interlocutory

       appeal pursuant to App. R. 14(B). Thus, to the extent this is an appeal from the

       September 29, 2015 order, we lack jurisdiction to entertain it.


[14]   Appeal dismissed.


[15]   Bailey, J. and Bradford, J., concur.




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