                                                                              FILED
                                                                         May 09 2018, 8:12 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Bryan L. Ciyou                                            Andrea L. Ciobanu
Darlene R. Seymour                                        Indianapolis, Indiana
Ciyou & Dixon, PC
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Marriage of:                                    May 9, 2018

Angela R. Bello,                                          Court of Appeals Case No.
                                                          49A02-1711-DR-2516
Appellant-Petitioner,
                                                          Appeal from the Marion Superior
        v.                                                Court
                                                          The Honorable John M.T. Chavis,
Clement A. Bello,                                         Judge
                                                          The Honorable Caryl Dill,
Appellee-Respondent.
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49D12-0902-DR-4946



Riley, Judge.




Court of Appeals of Indiana | Opinion 49A02-1711-DR-2516 | May 9, 2018                            Page 1 of 9
                                STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Angela R. Bello (Mother), appeals the trial court’s denial

      of her motion for relief from the trial court’s Order finding her in contempt and

      from the trial court’s award of attorney’s fees in favor of Appellee-Respondent,

      Clement A. Bello (Father).


[2]   We affirm.


                                                     ISSUE
[3]   Mother presents us with one issue on appeal, which we restate as: Whether the

      trial court abused its discretion in denying her motion for relief from judgment

      pursuant to Indiana Trial Rules 60(B) and 60(C).


                      FACTS AND PROCEDURAL HISTORY
[4]   Mother and Father were married on May 22, 2005. During the marriage, one

      child, K.B., was born on July 1, 2007. On November 23, 2010, a decree of

      dissolution of marriage was issued, awarding Mother sole physical custody of

      K.B., with the parties sharing legal custody. The trial court granted Father

      parenting time with an overnight stay every Wednesday and alternating

      weekends. Father was entitled to alternating weeks during the summer and all

      other parenting time would follow the Indiana Parenting Time Guidelines.

      Father was ordered to pay a weekly child support obligation of $75.


[5]   On February 18, 2016, Father filed a verified motion for rule to show cause,

      modification in child custody/parenting time, and reimbursement of attorney’s

      Court of Appeals of Indiana | Opinion 49A02-1711-DR-2516 | May 9, 2018   Page 2 of 9
fees. In his motion, Father contended that Mother was deliberately “hindering

the [F]ather-son relationship” and interfering with his parenting time.

(Appellant’s App. Vol. II, p. 28). After a hearing on Father’s motion, the trial

court issued its Order on June 28, 2016, concluding, in pertinent part:


        3. The child was in preschool or day care at the time of the
        dissolution and the decree was silent on the issue of
        extracurricular activities and the expense related thereto.
        However, the term “upbringing” as set forth in the decree is very
        broad and all-encompassing. Therefore, decisions regarding
        health, education, religion and extracurricular activities should
        be made jointly and paid for jointly according to each parties’
        share of income.


        ****


        5. Father alleged that Mother withheld parenting time for a
        month prior to the date of filing of the petition. He alleges that
        the child is signed up for so many sports that the practices and
        games interfere with his parenting time. . . . . Father alleges that
        Mother told him he could not have parenting time if he does not
        take [K.B.] to practices.


        6. Mother did not dispute that the child has been involved in
        indoor and outdoor soccer, karate and self-defense classes,
        swimming, flag football, basketball, scouting and summer camps
        since he was two or three years old. While she testified that the
        sports have seasons, some activities do overlap and result in
        games or practices or meetings almost every night of the week
        and weekends. According to Mother’s testimony, she provides
        Father with information about school events and conferences as
        well as all of the activities including, the cost, practice schedules
        and game schedules and coach meetings, but Father does not
        participate in the decision making, financing or attending the
Court of Appeals of Indiana | Opinion 49A02-1711-DR-2516 | May 9, 2018          Page 3 of 9
              activities. Father stated that he did not agree to enroll their son
              in all of these activities, he just didn’t complain until now. His
              acquiescence is considered a waiver.


              7. Father expressed concern that [K.B.] is not doing well in
              school because of the emphasis on sports and extracurricular
              activities. He was concerned about [K.B.’s] scores on the
              pass/fail ISTEP and I READ tests. As a result, he has engaged a
              tutor for [K.B.], adding one more thing to an already over-
              booked schedule.


              ****


              12. It is clear that both parties have the best interest of the minor
              child at heart and want the best for him. At least they agree that
              academics should take precedence over athletics.


              ****


              14. The [c]ourt finds that [K.B.] is over-involved in sports and
              extracurricular activities for his age. The [c]ourt finds that he
              should not be signed up for more than one sport and one other
              activity per sports season. The parents shall discuss the options
              with each other and with [K.B.] to agree upon which activities he
              will participate in. []


      (Appellant’s App. Vol. II, pp. 34-36). Based on these findings, the trial court

      denied Father’s request to hold Mother in contempt or to modify custody

      and/or parenting time.


[6]   On March 1, 2017, Father filed his second verified motion for rule to show

      cause, alleging that Mother continued to refuse to consult Father and obtain his

      Court of Appeals of Indiana | Opinion 49A02-1711-DR-2516 | May 9, 2018          Page 4 of 9
agreement prior to enrolling K.B. in extracurricular activities. Father claimed

that by overscheduling K.B., Mother is more concerned with the child “playing

sports than she is [with] his academic performance.” (Appellant’s App. Vol. II,

p. 42). K.B.’s participation in numerous extracurricular activities resulted in a

significant loss of parenting time for Father. After a hearing, the trial court

issued its Order on August 11, 2017, concluding, in pertinent part:


        5. Despite the [c]ourt’s orders and admonitions in the 2016
        Order, Mother continues to enroll the child in soccer, swimming,
        basketball, karate, conditioning and training, scouts, and multiple
        camps all of which interfere with Father’s parenting time and
        usurp his authority to practice in decision making. In addition,
        Mother has taken [K.B.] on trips and allowed him to attend
        parties or sleepovers that have prevented Father’s parenting time.


        6. Father’s decision not to attend games and practices hurts him
        and the child because it deprives him of being with the child and
        watching him participate in activities. Father can make an
        objection or note that he is not acquiescing or condoning the
        activities by attending.


        7. As a result of Mother overscheduling [K.B.] as well as
        Father’s refusal to attend activities, Father has missed 42
        overnights. Father shall be entitled to exercise parenting time
        one additional weekend per month until the 42 overnights are
        made up. The parties shall agree on which weekend that will
        occur.


        8. Mother is in contempt of court for failure to abide by this
        court’s order of June 28, 2016 as well as the joint legal custody
        provision of the decree.



Court of Appeals of Indiana | Opinion 49A02-1711-DR-2516 | May 9, 2018      Page 5 of 9
              9. Mother’s overscheduling of [K.B.] has also had a negative
              effect on his academic performance necessitating tutoring and
              academic enrichment classes which causes additional
              overcommitment.


              10. All none [sic] school activities for [K.B.] are ordered
              terminated unless agreed to by both parties in writing before he is
              enrolled.


              11. In any event, [K.B.] shall not participate in any activity that
              requires more than one evening per week unless it is
              academically necessary tutoring agreed to by the parties. []


              13. As a result of Mother’s contempt, Father is entitled to a
              reasonable attorney fee. Counsel is directed to submit an
              attorney fee affidavit within five days. If it is not submitted,
              Father waives contribution to his attorney fees.


      (Appellant’s App. Vol. II, pp. 51-52). By Order of September 1, 2017, the trial

      court required Mother to pay $2,500 towards Father’s attorney’s fees. On

      September 8, 2017, Mother filed a motion for relief from the trial court’s Orders

      pursuant to Indiana Trial Rule 60(B) and 60(C). The trial court summarily

      denied Mother’s motion on October 3, 2017.


[7]   Mother now appeals. Additional facts will be provided if necessary.


                              DISCUSSION AND DECISION
[8]   Indiana Trial Rule 60(B) provides a mechanism by which a party may obtain

      relief from the entry of a final judgment. Laflamme v. Goodwin, 911 N.E.2d 660,

      664 (Ind. Ct. App. 2009). In ruling on a T.R. 60(B) motion, the trial court is

      Court of Appeals of Indiana | Opinion 49A02-1711-DR-2516 | May 9, 2018        Page 6 of 9
       required to “balance the alleged injustice suffered by the party moving for relief

       against the interests of the winning party and society in general in the finality of

       litigation.” Indiana Ins. Co. v. Ins. Co. of N. Am., 734 N.E.2d 276, 278 (Ind. Ct.

       App. 2000), trans. denied. Thus, “[a] motion made under T.R. 60(B) is

       addressed to the equitable discretion of the trial court, and we will reverse only

       upon an abuse of that discretion.” Brimhall v. Brewster, 864 N.E.2d 1148, 1152-

       53 (Ind. Ct. App. 2007), trans. denied. An abuse of discretion occurs when the

       judgment is clearly against the logic and effect of the facts and inferences

       supporting the judgment. Indiana Ins. Co., 734 N.E.2d at 278. When the trial

       court’s action is clearly erroneous, an abuse of discretion will be found.

       Brimhall, 864 N.E.2d at 1153.


[9]    Under a motion for relief from judgment, “the trial court’s discretion is

       circumscribed and limited by the eight categories listed in T.R. 60(B).” Indiana

       Ins. Co., 734 N.E.2d at 278. As such, T.R. 60(B) is meant to afford relief from

       circumstances which could not have been discovered during the period a

       motion to correct error could have been filed; it is not meant to be used as a

       substitute for direct appeal or to revive an expired attempt to appeal. Snider v.

       Gaddis, 413 N.E.2d 322, 324 (Ind. Ct. App. 1980). The burden is on the

       movant to establish grounds for relief under T.R. 60(B). Indiana Ins. Co., 734

       N.E.2d at 279.


[10]   In her motion for relief from judgment, filed before the trial court on September

       8, 2017, Mother requested a generic relief “from Order(s), pursuant to Indiana

       Trial Rule 60(B) . . ., of August 11, 2017 and September 1, 2017[.]”

       Court of Appeals of Indiana | Opinion 49A02-1711-DR-2516 | May 9, 2018       Page 7 of 9
       (Appellant’s App. Vol. II, p. 58). Failing to specify the specific category of

       T.R.60(B), Mother claimed:


               3. In its Order of August 11, 2017, the court found Mother in
               contempt relating to Father’s missed parenting time associated
               with the parties’ minor child participating in extracurricular
               activities, and also awarded Father, attorney fees relating to the
               contempt proceedings.


               4. In making its ruling, the court did not consider evidence
               relating to Father’s intentional and continuous absence and
               neglect of his own parenting time, nor of his efforts to utilize the
               court to try to avoid his financial support obligations of the child.


       (Appellant’s App. Vol. II, p. 58). The trial court summarily denied Mother’s

       motion on October 3, 2017.


[11]   Mother filed her notice of appeal on November 2, 2017, contending to appeal

       the “Order on Motion for Relief from Orders,” dated October 3, 2017.

       However, rather than developing her argument on the specific categories of

       T.R. 60(B) in her appellate brief, her brief abandons all references to the motion

       and instead proceeds as if she filed a direct appeal against the trial court’s

       Orders of August 11, 2017 and September 1, 2017. Mother fails to point to any

       mistake, surprise, newly discovered evidence, fraud, or any other ground which

       could support her motion for relief from judgment and her appeal of the trial

       court’s denial thereof. As Mother cannot use Indiana Trial Rule 60(B) as a

       substitute for direct appeal and she failed to make a cogent argument in support




       Court of Appeals of Indiana | Opinion 49A02-1711-DR-2516 | May 9, 2018          Page 8 of 9
       of her appeal to the trial court’s denial of her T.R. 60(B) motion, we must affirm

       the trial court’s decision. 1


                                              CONCLUSION
[12]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       in denying her motion for relief from judgment.


[13]   Affirmed.


[14]   May, J. and Mathias, J. concur




       1
        Even though the trial court also denied Mother’s motion for relief based on T.R. 60(C), Mother did not
       pursue this ground on appeal.

       Court of Appeals of Indiana | Opinion 49A02-1711-DR-2516 | May 9, 2018                          Page 9 of 9
