MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                      Jul 21 2020, 8:40 am

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


ATTORNEY FOR APPELLANT
Stephen P. Rothberg
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Thomas Zachary,                                          July 21, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         20A-DC-329
        v.                                               Appeal from the Kosciusko
                                                         Superior Court
Amanda Suzanne Nesbitt,                                  The Honorable David C. Cates,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         43D01-1804-DC-131



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020                       Page 1 of 12
                                             Case Summary
[1]   Thomas Zachary (“Husband”) appeals the trial court’s denials of his motion to

      correct error and motion for relief from judgment regarding his dissolution

      proceedings with Amanda Suzanne Nesbitt (“Wife”). We affirm.


                                                     Issues
[2]   Husband raises two issues, which we restate as:


              I.       Whether the trial court properly denied Husband’s motion
                       to correct error.

              II.      Whether the trial court properly denied Husband’s motion
                       for relief from judgment.


                                                     Facts
[3]   Husband and Wife were married in 2006 and have three children. Husband

      filed a petition for dissolution of marriage in April 2018. The trial court entered

      a provisional order, which required in part: “[Husband] shall transfer the sum

      of $68,000.00 in savings from the parties’ joint banking account back to that

      joint banking account [(“Lake City Joint Account”)] where the sums shall

      remain and neither party shall make use of the same absent agreement of the

      parties or prior approval of the Court.” Appellant’s App. Vol. II p. 26.


[4]   On August 26, 2019, the trial court entered a decree of dissolution of marriage.

      The trial court valued the Lake City Joint Account at $63,029.00 and awarded

      the account to Husband as part of the equal division of marital property. The

      trial court also ordered:

      Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020   Page 2 of 12
              Assuming Mother does not relocate from Kosciusko County,
              commencing the first Friday after entry of the Decree for
              Dissolution of Marriage, and continuing until the dependent
              children of the marriage are emancipated or reach the age of
              nineteen (19) years or until further Order of the Court, Father
              shall pay the sum of $654.00 per week for child support.


      Id. at 45. Accordingly, Husband’s child support obligation of $654.00 per week

      began on August 30, 2019. The trial court also ordered the following regarding

      the parties’ 2018 tax returns:


              Mother filed a tax return for 2018 electing a “married filing
              separate” status and received a refund. The parties should and
              shall divide any tax refunds in equal shares and shall pay any
              liability in equal shares as well. The Court, for purposes of
              distribution, relies on Father’s evidence and finds the net value of
              the marital asset occasioned by the income tax refund in the
              amount of $2,542.00, which is awarded to Mother.


      Id. at 41.


[5]   In September 2019, Husband filed a motion to correct error pursuant to Indiana

      Trial Rule 59. Husband argued, in part, that Wife removed $16,380.00 from

      the Lake City Joint Account without disclosing the withdrawal.


[6]   Additionally, in December 2019, Husband filed a motion for relief from

      judgment pursuant to Indiana Trial Rule 60. Husband argued that he

      involuntarily overpaid child support when his employer improperly deducted

      an extra $2,834.00 in October after a delay in processing the Income

      Withholding Order. Husband also argued that he paid $6,907.00 in 2018


      Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020   Page 3 of 12
      federal taxes and received a refund of $2,253.00 in 2018 state taxes, and he was

      entitled to $2,327.00 from Wife pursuant to the tax return provisions of the

      decree.


[7]   After a joint hearing on all pending motions, the trial court entered an order

      denying Husband’s motion to correct error without specifically addressing the

      Lake City Joint Account. The trial court also denied Husband’s motion for

      relief from judgment as follows:


              By application of this Court’s Orders as to Petitioner’s support
              obligation and income withholding orders, Petitioner alleges an
              overpayment of support. The Court finds the difference between
              provisional and final support herein to be de minimus and,
              accordingly, DENIES Petitioner’s motion in that regard.


      Id. at 20. The trial court denied Husband’s argument regarding the 2018 taxes

      without a specific finding. Husband now appeals.


                                                   Analysis
[8]   At the outset, we note that the appellee did not file a brief in this case. “When

      an appellee fails to submit a brief, we apply a less stringent standard of review

      with respect to the showing necessary to establish reversible error.” In re

      Paternity of S.C., 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), aff’d on reh’g, 970

      N.E.2d 248 (Ind. Ct. App. 2012), trans. denied. “In such cases, we may reverse

      if the appellant establishes prima facie error, which is an error at first sight, on

      first appearance, or on the face of it.” Id. “Moreover, we will not undertake the

      burden of developing legal arguments on the appellee’s behalf.” Id.

      Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020   Page 4 of 12
                                         I. Motion to Correct Error

[9]    Husband argues that the trial court erred by denying his motion to correct error

       regarding the Lake City Joint Account. In general, we review a trial court’s

       ruling on a motion to correct error for an abuse of discretion. City of Indianapolis

       v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied. To the extent,

       however, the issues raised are purely questions of law, our review is de novo.

       Id. An abuse of discretion occurs when the decision is “clearly against the logic

       and effect of the facts and circumstances before the court or if the court has

       misinterpreted the law.” Fulp v. Gilliland, 998 N.E.2d 204, 210 (Ind. 2013).


[10]   Husband’s motion was filed pursuant to Indiana Trial Rule 59, which provides

       that a motion to correct error is a prerequisite for appeal when the party seeks to

       address “[n]ewly discovered material evidence . . . capable of production within

       thirty (30) days of final judgment which, with reasonable diligence, could not

       have been discovered and produced at trial.” Trial Rule 59(H) provides, in

       part:


               (1) When a motion to correct error is based upon evidence
               outside the record, the motion shall be supported by affidavits
               showing the truth of the grounds set out in the motion and the
               affidavits shall be served with the motion.


               (2) If a party opposes a motion to correct error made under this
               subdivision, that party has fifteen [15] days after service of the
               moving party’s affidavits and motion, in which to file opposing
               affidavits.




       Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020   Page 5 of 12
[11]   The decision to grant a Trial Rule 59 motion to correct error on the basis of

       newly discovered evidence trial “is an equitable one, and requires the court to

       balance the alleged injustice suffered by the party moving for relief against the

       interest of the winning party and society in general in the finality of litigation.”

       Faulkinbury v. Broshears, 28 N.E.3d 1115, 1122 (Ind. Ct. App. 2015) (internal

       citations omitted). To prevail on a motion to correct error based on newly

       discovered evidence, a party must


               demonstrate that the evidence could not have been discovered
               and produced at trial with reasonable diligence; that the evidence
               is material, relevant, and not merely cumulative or impeaching;
               that the evidence is not incompetent; that he exercised due
               diligence to discover the evidence in time for the final hearing;
               that the evidence is worthy of credit; and, that the evidence raises
               the strong presumption that a different result would have been
               reached upon retrial.


       Scales v. Scales, 891 N.E.2d 1116, 1120 (Ind. Ct. App. 2008) (quoting Matzat v.

       Matzat, 854 N.E.2d 918, 920 (Ind. Ct. App. 2006)).


[12]   According to Husband, after the dissolution decree was entered, Husband

       discovered that Wife removed $16,379.00 from the Lake City Joint Account in

       violation of the trial court’s provisional order. In support of his argument,

       Husband submitted an affidavit pursuant to Rule 59(H), which provided:


               3. Included in the court’s final judgment is set off of Lake City
               Bank account ***4078 to Affiant in the amount of $63,029.00.


               4. Affiant, upon review of the court’s judgment and order, caused
               liquidation/transfer of the account in which at that time the sum
       Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020   Page 6 of 12
               of $46,650.00 remained, leaving a shortfall in the amount of
               $16,379.00. Pursuant to the court’s provisional order Affiant
               periodically replenished the account with sufficient deposits to
               bring level that auto-payment obligation on the account set off to
               Affiant.


               5. During the pendency of the action and pursuant to the court’s
               provisional order, Affiant routinely reimbursed the account for
               those debts and obligations set off to him by the court through
               auto pay from said account that he would remain in compliance.
               The shortfall is predicated on Respondent’s use of the account
               and failure to reimburse or replenish so as to maintain the asset.


       Appellant’s App. Vol. II pp. 57-58. At the hearing on the motion to correct

       error, Wife argued that both parties used this joint account during the

       dissolution proceedings to pay provisional debts, including household expenses,

       extracurricular activity expenses for the children, and child support.


[13]   Husband presented no evidence that this evidence could not have been

       discovered and produced at trial with reasonable diligence. On appeal,

       Husband makes no argument concerning this requirement. This account was a

       joint account that apparently both parties used throughout the dissolution

       proceedings, and Husband presented no evidence regarding when Wife

       allegedly withdrew the funds. Husband could have presented evidence

       concerning the alleged shortfall in the account during the final hearing. As

       such, the alleged shortfall does not qualify as “newly discovered evidence,” and

       the trial court did not abuse its discretion by denying Husband’s motion to

       correct error. See, e.g., Scales, 891 N.E.2d at 1121 (“We will not now allow


       Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020   Page 7 of 12
       [Husband] to circumvent the trial rules by claiming that he could not have

       discovered these retirement account figures before the final hearing. The trial

       court acted within its discretion in denying Husband’s motion to correct

       error.”).


                                  II. Motion for Relief from Judgment

[14]   Husband argues that the trial court erred by denying Husband’s motion for

       relief from judgment pursuant to Indiana Trial Rule 60(B). “Whether to grant a

       motion for relief from judgment under Indiana Trial Rule 60(B) is within the

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

       Coles v. McDaniel, 117 N.E.3d 573, 576 (Ind. Ct. App. 2018). An abuse of

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

       facts and circumstances before the court or if the court has misinterpreted the

       law.” Fulp, 998 N.E.2d at 210.


[15]   Trial Rule 60(B) provides, in part:


               On motion and upon such terms as are just the court may relieve
               a party or his legal representative from a judgment, including a
               judgment by default, for the following reasons:


                                                     *****


               (2) any ground for a motion to correct error, including without
               limitation newly discovered evidence, which by due diligence
               could not have been discovered in time to move for a motion to
               correct errors under Rule 59; [or]



       Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020   Page 8 of 12
                                                     *****


               (8) any reason justifying relief from the operation of the
               judgment, other than those reasons set forth in sub-paragraphs
               (1), (2), (3), and (4).


               The motion shall be filed within a reasonable time for reasons
               (5), (6), (7), and (8), and not more than one year after the
               judgment, order or proceeding was entered or taken for reasons
               (1), (2), (3), and (4). A movant filing a motion for reasons (1),
               (2), (3), (4), and (8) must allege a meritorious claim or defense.


[16]   According to Husband, the trial court abused its discretion by denying his

       motion for relief from judgment regarding: (1) Husband’s alleged involuntary

       overpayment of child support in October 2019; and (2) Wife’s failure to

       reimburse Husband for his 2018 tax liability when his tax returns were filed

       after the decree was issued.


                            A. Involuntary Overpayment of Child Support

[17]   Husband argues that he involuntarily overpaid his child support obligation.

       Where an overpayment of child support is not voluntary, the amount may be

       credited to future child support payments. Carpenter v. Carpenter, 891 N.E.2d

       587, 601 (Ind. Ct. App. 2008).


[18]   Husband’s child support obligation of $654.00 per week began on August 30,

       2019. According to Husband, he timely paid the child support despite a delay

       in his employer processing the Income Withholding Order. Husband argues




       Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020   Page 9 of 12
       that, when his employer started deducting child support from his earnings, his

       employer improperly deducted an extra $2,834.00.


[19]   The documents submitted by Husband demonstrate that Husband regularly

       paid his weekly child support of $654.00 in cash from August 30, 2019, through

       October 24, 2019. On October 28, 2019, an electronic funds transfer of

       $2834.00 occurred. No additional payments were made until December 2,

       2019, when another electronic funds transfer of $2834.00 occurred. Husband

       then filed his motion for relief from judgment on December 10, 2019.


[20]   It is not evident from the documents submitted by Husband that he overpaid his

       child support. Rather, it appears that the October 28, 2019 electronic funds

       transfer was meant to pay all of the November 2019 child support due.

       Although Husband argues the $2834.00 payment “covered that same period of

       time [Husband] had continued to pay child support,” the evidence Husband

       presented does not support this claim. Appellant’s Br. p. 13.


[21]   Moreover, we also note that the purpose of a Trial Rule 60(B) motion is to

       relieve a party from a final judgment for certain specified reasons. See Ind. T.R.

       60(B). Husband is not requesting the trial court to relieve him from a final

       judgment or modify the final judgment in any way. Rather, Husband is merely

       requesting the trial court to enforce the decree. As such, Husband’s arguments

       should have been presented in a contempt proceeding or in a motion to enforce

       the decree. For these reasons, the trial court did not abuse its discretion by




       Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020   Page 10 of 12
       denying Husband’s motion for relief from judgment regarding the child support

       claim.


                                      B. 2018 Tax Return Provisions

[22]   Next, Husband argues the trial court erred by denying his motion for relief from

       judgment regarding the decree’s 2018 tax return provisions. The decree

       provided:


                Mother filed a tax return for 2018 electing a “married filing
                separate” status and received a refund. The parties should and
                shall divide any tax refunds in equal shares and shall pay any
                liability in equal shares as well. The Court, for purposes of
                distribution, relies on Father’s evidence and finds the net value of
                the marital asset occasioned by the income tax refund in the
                amount of $2,542.00, which is awarded to Mother.


       Appellant’s App. Vol. II p. 41.


[23]   According to Husband, his 2018 tax returns “had not yet been prepared or filed

       as of the date of the court’s order.” Appellant’s Br. p. 19. Wife’s 2018 tax

       refund was included in the marital estate and was awarded to Wife as part of

       the equal division of marital property. Although Husband’s tax liability also

       could have been considered during the dissolution proceedings, Husband, for

       whatever reason, chose not to timely file his 2018 tax returns. Husband’s

       returns were prepared in the fall of 2019, after the trial court issued the decree.

       Husband paid $6,907.00 in 2018 federal taxes and received a refund of

       $2,253.00 in 2018 state taxes, resulting in a net liability of $4,654.00. Husband



       Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020   Page 11 of 12
       argues that he is entitled to half of the liability, $2,327.00, from Wife pursuant

       to the decree.


[24]   We agree that the language of the decree—“The parties should and shall divide

       any tax refunds in equal shares and shall pay any liability in equal shares as

       well”—seemingly supports Husband’s argument that he is entitled to

       reimbursement from Wife for half of his 2018 tax liability. Appellant’s App.

       Vol. II p. 41. Again, however, Husband is not requesting that the trial court

       relieve him from a final judgment or modify the final judgment in any way.

       Rather, Husband is merely requesting the trial court to enforce the 2018 tax

       provision of the decree. Accordingly, Husband has failed to demonstrate that

       he is entitled to “relief” from a judgment, and the trial court did not abuse its

       discretion by denying Husband’s motion for relief from judgment regarding the

       tax liability claim. Husband does, however, have the availability of contempt

       proceedings or a motion to enforce the decree.


                                                 Conclusion
[25]   The trial court properly denied Husband’s motion to correct error and motion

       for relief from judgment. Accordingly, we affirm.


[26]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-DC-329 | July 21, 2020   Page 12 of 12
