MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Jun 12 2020, 9:18 am
regarded as precedent or cited before any
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.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Cindy L. Kenworthy                                       William O. Harrington
Indianapolis, Indiana                                    Danville, Indiana

Randall L. Parr
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Gerardo Avila-Arroyo,                                    June 12, 2020
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-DR-2723
        v.                                               Appeal from the Hendricks
                                                         Superior Court
Tania Torres,                                            The Honorable Rhett M. Stuard,
Appellee-Petitioner                                      Judge
                                                         Trial Court Cause No.
                                                         32D02-1603-DR-177



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020                   Page 1 of 13
                                             Case Summary
[1]   Forty-two months after Tania Torres filed a petition for dissolution of marriage

      from Gerardo Avila-Arroyo, the trial court held a final hearing at Tania’s

      request. Gerardo did not attend. Thereafter, the trial court entered a

      dissolution decree, custody order, and property settlement based on the

      information submitted by Tania. Claiming he did not have timely and

      sufficient notice of the final hearing, Gerardo filed a motion to correct error and

      Ind. Trial Rule 60(B) motion to set aside, both of which the trial court denied.

      Gerardo now appeals, presenting two issues for our review:


              1. Did the trial court abuse its discretion in denying his T.R.
              60(B) motion for relief from judgment?


              2. Did the trial court abuse its discretion in denying his motion
              to correct error?


[2]   We affirm in part, reverse in part, and remand with instructions.


                                   Facts & Procedural History
[3]   Tania and Gerardo were married on December 12, 2003. They have one child

      together, who was born in May 2005, and Tania has an older child who lived

      with them in the marital residence. Tania filed a petition for dissolution on

      March 23, 2016. At the time, she was represented by Attorney Charles Engel.

      During the pendency of the proceedings, the parties continued to reside in the

      marital residence.



      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020   Page 2 of 13
[4]   A preliminary hearing was scheduled for May 17, 2016, and the Hendricks

      County Clerk (the Clerk) issued a summons via certified mail to Gerardo at the

      marital residence. An entry in the chronological case summary (CCS) states

      that the certified mail was delivered to and signed for by Gerardo. The

      preliminary hearing was continued two separate times because the parties were

      trying to work out an agreement, and a third scheduled hearing was

      “cancelled”. Appellant’s Appendix Vol. II at 9. In March 2017, the action was

      dismissed without prejudice pursuant to Ind. Trial Rule 41(E), but later

      reinstated upon Tania’s motion in which she noted that the parties were

      “circulating a final agreement.” Appellee’s Appendix Vol. Two at 15. The matter

      was again subject to T.R. 41(E) dismissal in November 2017, but Tania

      requested that the matter remain on the court’s docket. Shortly thereafter,

      Attorney Engel withdrew his appearance. In May 2018, the matter was subject

      to T.R. 41(E) dismissal for a third time. After Tania responded asking that the

      matter not be dismissed, the trial court scheduled a final hearing for August 14,

      2018, and issued notice to the parties.


[5]   Tania and Gerardo, both pro se, appeared for the August 14 hearing. The

      hearing was continued to October 2, 2018, to give the parties “additional time

      for settlement negotiations.” Appellant’s Appendix Vol. II at 12. Tania appeared

      for the October 2 hearing, but Gerardo did not. The court ordered the parties to

      submit to mediation, and the CCS reflects that notice was issued to Gerardo.

      In all, the trial court issued four separate orders for Tania and Gerardo to attend

      mediation. Tania and Gerardo appeared for three separate mediation


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020   Page 3 of 13
      sessions 1—November 19, 2018, March 25, 2019, and May 21, 2019—but were

      unable to reach an agreement.


[6]   On June 11, 2019, Tania filed a motion asking the trial court to set the matter

      for a final hearing. The trial court granted the motion the same day and

      scheduled the final hearing for August 13, 2019. The court sent notice of the

      final hearing to Gerardo via certified mail on June 12, 2019. The CCS notes

      that the certified mail was delivered on June 14, 2019 and that the signature

      was “illegible”. Id. at 15.


[7]   The final hearing was held as scheduled. Tania was present, but Gerardo failed

      to appear. At the start of the hearing, Tania informed the court that Gerardo

      was aware of the hearing but was unable to attend because he had to work. She

      told the court that the day before, Gerardo had asked her to request a

      continuance of the hearing and that she had faxed something to the court,

      although there was no record thereof. Gerardo did not personally contact the

      court. When asked how she wanted to proceed, Tania stated that she wanted to

      go ahead with the hearing and finalize the divorce. The court moved forward

      with the final hearing and permitted Tania to testify and present her evidence.


[8]   Tania began by explaining that the delay in finalizing the divorce was because

      she and Gerardo could not agree on how to divide the marital property, which

      included two homes (their marital home in Pittsboro and a duplex in



      1
          A fourth mediation session was continued by agreement of the parties.


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020   Page 4 of 13
       Brownsburg) and two restaurants. Tania further explained that Gerardo

       controlled their finances and that she had no access to information about the

       businesses. The little evidence Tania did present included property tax records

       for their two houses, a stock purchase agreement for one of their restaurants,

       and a payroll check ledger.


[9]    With regard to the marital residence, tax records showed that Gerardo

       purchased the home in 2007 for $105,000. As of March 2019, the house was

       valued at $168,400 for tax purposes. Tania believed the mortgage had been

       paid off. The duplex was in both of their names and was purchased in 2011 for

       $113,498. In 2019, the duplex was valued at $213,700 for tax purposes. Tania

       testified that Gerardo’s family rented both units of the duplex and that she

       believed the rent was $700 a month per unit.


[10]   Tania also testified that she and Gerardo owned two restaurants—Elegance,

       located in Brownsburg, and Flap Jack’s Pancake House in Indianapolis. Tania

       submitted a stock purchase agreement dated August 24, 2015, by which

       Gerardo had purchased all of the shares for Flap Jack’s for $115,000. 2 With

       regard to Elegance, Tania testified that the seller could not locate the

       documents but told her that they purchased Elegance in December 2008 for

       $100,000. Tania did not have any information concerning the income from

       either of the restaurants, explaining that Gerardo did not let her have access to




       2
        The stock purchase agreement provided that Gerardo would pay $50,000 at closing and that thereafter he
       would make 65 monthly payments of $1000, with the last payment due in March 2021.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020                Page 5 of 13
       that information. She testified, however, that she did not think the restaurants

       were profitable.


[11]   As to their respective incomes, Tania testified she works at Elegance as a

       hostess, scheduler, and front manager, and that for fifty hours worked over a

       two-week period, she takes home about $314. She explained that Gerardo

       would give her extra money to cover expenses for the children and other things.

       She estimated that between her paycheck and the money Gerardo gave her, she

       received about $2000 a month. Tania told the court that Gerardo works at both

       restaurants in an ownership/managerial/fill-in-cook capacity and that he

       receives checks from both restaurants. She submitted a check ledger for May

       2019 indicating that for a two-week period, Gerardo received a check for

       $952.78 from Elegance and a check for $797.08 from Flap Jack’s.


[12]   Tania told the court that she wanted sole legal and primary physical custody of

       their son and explained that she and Gerardo had been working together to

       make sure his needs were met. She requested that they both be responsible for

       the credit cards in their own names and that she receive one of the three cars

       they owned. With regard to personal belongings, Tania testified that she

       wanted to keep her bedroom furniture, the bedroom furniture used by the boys,

       the televisions in the boys’ rooms, a television in the living room, a personal

       computer, and the lawn mower, if she got to keep the house. She told the court

       that Gerardo could have any other personal belongings he wanted. In the end,

       she asked the court to divide the marital property 50/50. In closing, Tania told

       the court that they initially hired Attorney Engel because they wanted to “get it

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020   Page 6 of 13
       over with” but because they were not making any progress, they stopped using

       him. Transcript Vol. II at 38. She claimed that Gerardo had agreed to pay half

       of the attorney fees and she submitted a bill showing that there was an

       outstanding balance of $4381 for legal services rendered. The court took the

       matter under advisement.


[13]   The trial court issued its Findings and Final Order of Dissolution (the

       Dissolution Order) on August 28, 2019. The court noted that Gerardo

       “received proper notice” of the hearing but did not attend. Appellant’s Appendix

       Vol. II at 20. The court also acknowledged that Tania presented minimal

       evidence thereby leaving the court “in the position of trying to value the

       properties based on very little information.” Id. at 21. The court valued the

       marital home at $150,000 and the duplex at $125,000 and awarded both to

       Tania. The court valued the two restaurants at a combined total of $275,000

       and awarded both businesses to Gerardo. The court awarded Tania sole legal

       and physical custody of the couple’s son and ordered Gerardo to pay $198 per

       week in child support. The court also ordered Gerardo to pay the outstanding

       balance owed to Attorney Engel.


[14]   On September 26, 2019, Gerardo, by counsel, filed a motion to correct error

       and a T.R. 60(B) motion to set aside the Dissolution Order and attached thereto

       documents concerning the valuation of the two homes and the two restaurants

       as well as documents relating to his income. The trial court summarily denied

       Gerardo’s motion to correct error without a hearing. The court did, however,

       hold a hearing on October 29, 2019 on Gerardo’s T.R. 60(B) motion. At the

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020   Page 7 of 13
       outset, the court informed Gerardo that it would be denying his request for

       relief. The court explained:


               [T]here’s no mistakes, surprise, excusable neglect or fraud or
               misrepresentation here. Your client had notice of the hearing.
               He had notice of the final hearing and opted not to show up, that
               was his choice. Uh, it was entirely his choice. He made no effort
               to call the court. He made no effort to, uh, discuss it with us, uh,
               . . . he just didn’t want to be here, uh, and, uh, that’s on him. . . .
               [Tania] did tell us that morning that he had asked her to ask for a
               continuance, uh, but that’s not her responsibility to do. That’s
               his responsibility to do. He has to ask for a continuance not her.
               He didn’t bother to call. He did not bother to file anything.


       Transcript Vol. 2 at 46-47. The court based its finding of notice on the certified

       mail card returned to the Clerk and the fact that Gerardo asked Tania to request

       a continuance. Gerardo’s attorney was then permitted to argue to the court that

       he did not have timely and/or sufficient notice of the nature of the hearing. At

       the conclusion of the hearing, the trial court denied Gerardo’s request for relief.

       Gerardo now appeals. Additional facts will be provided below as necessary.


                                        Discussion & Decision
                                             Standard of Review

[15]   The discretion of the trial court lies at the heart of this case. We review a trial

       court’s denial of a motion for relief from judgment for an abuse of discretion.

       Dillard v. Dillard, 889 N.E.2d 28, 34 (Ind. Ct. App. 2008). Likewise, we review

       a trial court’s denial of a motion to correct error for an abuse of discretion.

       Principal Life Ins. Co. v. Needler, 816 N.E.2d 499, 502 (Ind. Ct. App. 2004). “An

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020   Page 8 of 13
       abuse of discretion occurs when the trial court’s decision is clearly against the

       logic and effect of the facts and circumstances before the court, or when the trial

       court has misinterpreted the law.” Pfaffenberger v. Jackson County Regional Sewer

       Dist., 785 N.E.2d 1180, 1183 (Ind. Ct. App. 2003).


                                   1. Motion for Relief from Judgment

[16]   T.R. 60(B) provides, in pertinent part, as follows:


               On motion and upon such terms as are just the court may relieve
               a party ... from an entry of default, final order, or final judgment
               ... for the following reasons:


               (1) mistake, surprise, or excusable neglect; [or]


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


       In addition, “[a] movant filing a motion for reasons (1), (2), (3), (4), and (8)

       must allege a meritorious claim or defense.” T.R. 60(B) “affords relief in

       extraordinary circumstances which are not the result of any fault or negligence

       on the part of the movant.” Dillard, 889 N.E.2d at 34. Although Gerardo

       requests relief under subsections (1) and (3), his arguments address only

       whether his failure to attend the final hearing was excusable neglect.


[17]   “A Trial Rule 60(B)(1) motion does not attack the substantive, legal merits of a

       judgment, but rather addresses the procedural, equitable grounds justifying the

       relief from the finality of a judgment.” Kmart Corp. v. Englebright, 719 N.E.2d

       1249, 1254 (Ind. Ct. App. 1999) (citation omitted). Because “[t]here is no
       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020   Page 9 of 13
       general rule as to what constitutes excusable neglect under Trial Rule 60(B)(1),”

       “[e]ach case must be determined on its particular facts.” Id. (citations omitted).

       In this vein, we are guided by the words of the late Judge Michael Barnes,

       subsequently adopted by our Supreme Court, stating that excusable neglect is

       “not just neglect”, but rather it is “something that can be explained by an

       unusual, rare, or unforeseen circumstance.” Huntington Nat. Bank v. Car-X

       Assoc. Corp., 39 N.E.3d 652, 656 (Ind. 2015) (quoting Huntington Nat. Bank v.

       Car-X Assoc. Corp., 22 N.E.3d 687, 694 (Ind. Ct. App. 2014) (Barnes, J.,

       dissenting), trans. granted).


[18]   Gerardo’s motion for relief from judgment is based on his claim that he did not

       have notice of the “nature and scope” or the “gravity” of the hearing.

       Appellant’s Brief at 16, 23. He maintains that had he been so apprised by the

       court or Tania, he would have secured counsel and attended the final hearing

       and presented his evidence. To support his claim that he did not have adequate

       notice of the final hearing, Gerardo points to the entry on the CCS where it was

       noted that the certified mail card attached to the notice of the hearing addressed

       to him was returned and that the signature was “illegible.” Appellant’s Appendix

       Vol. II at 15. He also faults Tania for failing to tell him about the nature of the

       hearing and for failing to obtain a continuance.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020   Page 10 of 13
[19]   The illegible signature is of no consequence here. Gerardo admits that he had

       actual notice of the August 13 hearing. 3 As to the nature of the hearing,

       Gerardo stated that he “did not even necessarily believe [Tania]” because he

       had not received notice from the court and he “assumed the matter was a

       compliance hearing following unsuccessful mediation.” Appellant’s Brief at 39,

       40. Gerardo took no responsibility for his failure to appear, asserting that

       because he had no reason to believe a hearing had been set, he “bore no

       obligation to ask the trial court for a continuance.” Id. at 39. He also asserts

       that under the circumstances, he “did all that was required of him”. Id.


[20]   Gerardo was pro se throughout the entire proceedings. A pro se litigant “is

       held to the same standards as a trained attorney and is afforded no inherent

       leniency simply by virtue of being self-represented.” See Zavodnik v. Harper, 17

       N.E.3d 259, 266 (Ind. 2014). To that end, we note our longstanding rule that

       “attorneys have a general duty to regularly check court records and monitor the

       progress of their pending cases.” M & J Servs., Inc. v. VMK, Inc., 561 N.E.2d

       827, 830 (Ind. Ct. App. 1990). These proceedings had been pending for over

       three and a half years. The final hearing had been set for two months. As a pro

       se litigant, Gerardo had a duty to stay apprised of the proceedings. Indeed,

       Gerardo also acknowledges on appeal that he “could have, and in hindsight,

       perhaps should have contacted the court” the morning of the final hearing.




       3
        Gerardo claims that he became aware of the hearing the night before. Tania asserts that they discussed the
       hearing as many as three days prior to the scheduled date.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020                  Page 11 of 13
       Appellant’s Brief at 21. Instead, he improperly put the burden on Tania to

       request a continuance and relied on his own assumptions that the hearing was

       of no significant consequence. The trial court found that under the

       circumstances, Gerardo’s failure to appear for the final hearing did not amount

       to excusable neglect. His claim on appeal that had he known of the significance

       of the final hearing he would have secured counsel is self-serving. Indeed,

       Gerardo did not find it prudent to secure counsel prior to attending the first

       scheduled final hearing or mediations. Gerardo has not shown that the trial

       court abused its discretion in denying his motion for relief from judgment.


                                         2. Motion to Correct Error

[21]   Gerardo argues that the trial court erred in deciding child custody, valuing and

       dividing the marital property (i.e., the parties’ homes and restaurants), and

       calculating income and child support. A motion to correct error cannot be used

       to present evidence to the court that could have been presented during the

       proceedings giving rise to the court’s decision. See Johnson v. Rutoskey, 472

       N.E.2d 620, 623 (Ind. Ct. App. 1984) (noting that “Trial Rule 59(H)(1)

       affidavits cannot be used to present evidence that a party neglected to present”

       during proceedings before the court). Except for the calculation of child

       support, the evidence on which Gerardo predicates his claims of error could

       have been presented at the final hearing had he appeared. Indeed, Gerardo

       attached to his motion to correct error his own affidavit containing averments

       that he could have presented through his own testimony as well as documents

       that were readily available at the time of the final hearing. The trial court did

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020   Page 12 of 13
       not abuse its discretion in summarily denying Gerardo’s motion to correct error

       as to its custody determination, income calculation, and valuation and division

       of marital assets.


[22]   There is one error alleged by Gerardo that is based on evidence that was

       presented to the court during the final hearing. With regard to the court’s

       calculation of child support, consistent with Tania’s testimony at the final

       hearing, the court found in its order that Tania’s income was $314 every two

       weeks and that Gerardo’s income was $1750 every two weeks. On the child

       support worksheet, however, the court used these figures for the parties’

       respective weekly incomes. Clearly the figures used by the court were

       established as the parties’ biweekly income. The trial court therefore erred in

       calculating child support. We reverse the trial court’s child support order and

       remand for recalculation based on the parties’ respective weekly incomes.


[23]   Judgment affirmed in part, reversed in part, and remanded with instructions for

       the trial court to recalculate child support.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2723 | June 12, 2020   Page 13 of 13
