MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                              FILED
court except for the purpose of establishing                      Mar 24 2020, 8:57 am
the defense of res judicata, collateral                                CLERK
estoppel, or the law of the case.                                  Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Angela Field Trapp                                      Stephenie K. Gookins
Trapp Law LLC                                           Cate, Terry & Gookins LLC
Indianapolis, Indiana                                   Carmel, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Denny W. Zook,                                          March 24, 2020
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        19A-DN-1248
        v.                                              Appeal from the Hamilton
                                                        Superior Court
Jennifer E. Zook,                                       The Honorable David Najjar,
Appellee-Respondent.                                    Special Judge
                                                        Trial Court Cause No.
                                                        29D05-1603-DR-1890



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DN-1248 | March 24, 2020             Page 1 of 10
[1]   Denny W. Zook (“Husband”) appeals the trial court’s order dissolving his

      marriage to Jennifer E. Zook (“Wife”). Husband contends that the trial court

      abused its discretion by denying his motion to correct error and requests to

      continue the hearing for final dissolution and for spousal maintenance. Finding

      no abuse of discretion by the trial court, we affirm.


[2]   Husband and Wife were married on June 3, 2006. Husband filed a verified

      petition for dissolution of the parties’ marriage on March 3, 2016. Numerous

      delays and continuances of the proceedings occurred, with some being

      attributed to Wife and others to Husband. During the three-year pendency of

      the parties’ divorce proceedings, Husband was represented by three different

      attorneys and Wife by two different attorneys. On January 3, 2019, Husband’s

      third attorney filed a motion to withdraw his appearance. In requesting

      permission to withdraw his appearance, Husband’s counsel confirmed that

      Husband was aware that the final hearing was scheduled to commence on

      March 19, 2019. Husband did not retain new representation in the

      approximately two and one-half months between his counsel’s withdrawal and

      the final hearing.


[3]   The trial court conducted a telephonic conference with the parties on March 12,

      2019. During this conference, the trial court questioned Husband about

      “whether he would be retaining counsel and confirm[ed] with Husband that the

      final hearing would proceed beginning on March 19, 2019.” Appellee’s App.

      Vol. II, p. 6. Husband did not request a continuance during this conference,



      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1248 | March 24, 2020   Page 2 of 10
      and the trial court informed the parties that it would not entertain any future

      requests for a continuance.


[4]   The final dissolution hearing commenced as scheduled on March 19, 2019,

      with Wife appearing with counsel and Husband appearing pro se. At the

      beginning of the hearing, the trial court and Husband engaged in the following

      colloquy:


              THE COURT:               Mr. Zook, are you ready to proceed here
              today?

              MR. ZOOK:                I am not. Your Honor, I have, as I said in
              our ——

              THE COURT:               Why are you not prepared to go to trial, sir?

              MR. ZOOK:            I am not a pro se litigant, and I have been
              trying repeatedly to obtain counsel and I’ve not been able to do
              that. And when I say I’ve tried repeatedly, I can provide you
              with a list. I have not been able to do that.

              THE COURT:        Well, sir, we had a conversation about a
              week ago in which I told you what was going to happen, didn’t I?

              MR. ZOOK:                You were clear that we had a trial scheduled,
              absolutely.

              THE COURT:               [Wife’s Counsel], are you ready to proceed?

              [Wife’s Counsel]: I am.

              THE COURT:               Then we will proceed.



      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1248 | March 24, 2020   Page 3 of 10
Tr. Vol. 2, p. 8. The trial court reiterated that it had considered Husband’s oral

request for a continuance but that the final hearing would proceed as scheduled.

After addressing other preliminary matters, the trial court engaged Husband in

the following colloquy:


        THE COURT:        All right. Mr. Zook, would you like to make
        an opening statement or do you wish to proceed with evidence at
        this time?

        MR. ZOOK:             No, Your Honor. I would just like to remind
        you that I am disabled, and I also have intervenors that were
        allowed into this matter that are present in the courtroom today
        with litigation that’s been pending for eight years that’s very
        critical to my future. And there are reasons that, because I’m not
        pro se, that I can’t go into or I don’t feel I can go into that I’m
        not prepared and not able to bring forward to you today, for
        reasons that I don’t have the attorney here present that I think
        that you would find very reasonable and understanding, but ——

        THE COURT:            Mr. Zook, you may or may not be disabled, I
        don’t know, that evidence has not yet been presented. It may be
        presented at some point during this time. That is a different
        question than whether or not you have the capacity to go forward
        to trial. You are not, and there has been no indication that has
        previously been made, that you are incapacitated and you are not
        able to go to trial. That has not been presented to the Court at
        any time. This matter has been set, this matter has been pending
        for three years. This case, this trial date has been set since
        October of last year. You have been, this matter has been set for
        final hearing several times before this date. At each time
        something has happened to cause the matter to be continued.
        One side or the other, whichever wasn’t moving, has objected at
        almost every turn to a continuance of whatever hearing. When
        we set this matter, we said we were going to proceed and
        everybody needed to be ready to go forward. When your

Court of Appeals of Indiana | Memorandum Decision 19A-DN-1248 | March 24, 2020   Page 4 of 10
              attorney withdrew, he warned you in his letter withdrawing that
              you needed to be prepared to go forward for trial at your trial
              date. When we had a conversation a week ago, I told you you
              had to be prepared to go forward for trial at your trial date. This
              is the trial date. If you are not prepared, that is not the fault of
              [Wife’s Counsel], that is not the fault of your wife, and that is not
              the fault of the Court.


      Id. at 10-11. During her presentation of the evidence, Wife requested an

      unequal distribution of the parties’ assets in favor of Husband and

      acknowledged that Husband was receiving monthly social security and

      disability checks and that he would likely continue to do so “for the foreseeable

      future.” Id. at 27. Husband did not provide any argument or evidence during

      the hearing.


[5]   On March 20, 2019, the trial court entered an order dissolving the parties’

      marriage. In deviating from an equal distribution of the marital estate, the trial

      court found, in relevant part, as follows:


              The income of the parties and the income earning potential of the
              parties greatly favors the Wife in this case over the Husband.
              Therefore, the evidence is sufficient to overcome the presumption
              for a 50-50 distribution. The marital estate should be divided
              unequally in Husband’s favor. . . . The property division
              submitted by Wife in this case gives nearly all the assets of the
              marriage to Husband with relatively small amount of debt, and
              allocates a relatively small amount of the assets to Wife with a
              large amount of the debt of the parties, resulting in a negative
              distribution to Wife and a positive distribution to Husband, or an
              unusually phrased ‘more than 100% of the net estate’ allocated to
              Husband.


      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1248 | March 24, 2020   Page 5 of 10
      Appellant’s App. Vol. II, pp. 35, 36. Additionally, in denying Husband’s

      request for spousal maintenance, the trial court found as follows:


              No evidence was presented by Husband regarding his disability.
              The Court finds there is evidence, testified to by Wife, that
              Husband is receiving income from Social Security and private
              disability insurance, and therefore, there is evidence that
              Husband is disabled, at least currently. The Court[, ]however,
              does not find this evidence is sufficient for an award of spousal
              maintenance, either rehabilitative or otherwise in this matter.
              The unequal distribution of the marital assets and liabilities
              should compensate Husband.


      Id. at 37.


[6]   On April 19, 2019, Husband filed a motion to correct error. In this motion, he

      claimed that the trial court abused its discretion by denying his requests to

      continue the final hearing and for spousal maintenance. The trial court denied

      Husband’s motion to correct error on May 6, 2019. On appeal, Husband

      contends that the trial court abused its discretion by denying his motion to

      correct error and requests to continue the final hearing and for spousal

      maintenance.


                                 1. Motion to Correct Error
[7]   Husband contends that the trial court abused its discretion by denying his

      motion to correct error. “The trial court’s decision on a motion to correct error

      comes to an appellate court cloaked in a presumption of correctness, and the

      appellant has the burden of proving that the trial court abused its discretion.”


      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1248 | March 24, 2020   Page 6 of 10
      Page v. Page, 849 N.E.2d 769, 771 (Ind. Ct. App. 2006). In reviewing the trial

      court’s decision, “we look at the record to determine if: (a) the trial court

      abused its judicial discretion; (b) a flagrant injustice has been done to the

      appellant; or (c) a very strong case for relief from the trial court’s order has been

      made by the appellant.” Id. (internal quotation omitted).


[8]   In his motion to correct error, Husband challenged the trial court’s denial of his

      requests for a continuance and spousal maintenance. In support, Husband filed

      numerous documents relating to his alleged disability, all of which were

      available at the time of the final hearing. Despite their availability, none of

      these documents were filed in the trial court during the pendency of the divorce

      proceedings. Consequently, after the trial court determined that the documents

      were not properly before the court, the documents were stricken from the record

      and were not considered by the trial court in relation to the motion to correct
             1
      error. For the reasons discussed below, we agree with the trial court’s

      determination that Husband was not entitled to a continuance of the final

      hearing or to an award of spousal maintenance. Husband, therefore, has failed

      to carry his burden of proving that the trial court abused its discretion in

      denying his motion to correct error.




      1
        Husband included the stricken documents in the record on appeal. In an order issued simultaneously with
      this decision, we grant Wife’s motion to strike these documents as they are not properly before the court. See
      GKC Ind. Theatres, Inc. v. Elk Retail Inv’rs, LLC, 764 N.E.2d 647, 651 (Ind. Ct. App. 2002) (stating well-
      established rule that we may not consider evidence or arguments not properly presented to trial court).

      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1248 | March 24, 2020                    Page 7 of 10
                                            2. Continuance
[9]    Husband also contends that the trial court abused its discretion in denying his

       request for a continuance. “A trial court’s decision to grant or deny a motion to

       continue a trial date is reviewed for an abuse of discretion, and there is a strong

       presumption the trial court properly exercised its discretion.” Gunashekar v.

       Grose, 915 N.E.2d 953, 955 (Ind. 2009). “An abuse of discretion may be found

       in the denial of a motion for a continuance when the moving party has shown

       good cause for granting the motion.” Riggin v. Rea Riggin & Sons, Inc., 738

       N.E.2d 292, 311 (Ind. Ct. App. 2000). “The withdrawal of counsel does not

       entitle a party to an automatic continuance.” Danner v. Danner, 573 N.E.2d

       934, 937 (Ind. Ct. App. 1991), trans. denied (1992). The moving party must

       show diligence in procuring counsel. Fetner v. Maury Boyd & Assocs., Inc., 563

       N.E.2d 1334 (Ind. Ct. App. 1990), trans. denied (1991).


[10]   Husband claims that he demonstrated good cause for the trial court to grant his

       request for a continuance, arguing that he was diligent in making numerous

       attempts to retain counsel. The record, however, lacks any evidence

       demonstrating that Husband was diligent in attempting to retain counsel in the

       approximately two and one-half months between his counsel’s withdrawal and

       the final hearing. While Husband indicated that he could provide the court

       with a list of the attorneys he contacted, he did not actually provide this list to

       the trial court. Further, despite allegedly experiencing an ongoing difficulty in

       retaining counsel, Husband did not request a continuance due to his alleged

       ongoing difficulty during a telephonic conference with the court a week before

       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1248 | March 24, 2020   Page 8 of 10
       the scheduled hearing date. Instead, Husband waited until the start of the final

       hearing to verbally request a continuance. Given the complete lack of evidence

       in the record to show that Husband was diligent in attempting to procure

       counsel, we conclude that the trial court acted within its discretion when it

       denied Husband’s oral request for a continuance. See Fetner, 563 N.E.2d 1334

       (concluding that trial court did not abuse its discretion in denying Appellant’s

       request for continuance given Appellant’s lack of diligence during time

       immediately approaching trial coupled with deference due to trial court’s

       decision on matter).


                                    3. Spousal Maintenance
[11]   Husband also contends that the trial court abused its discretion in denying his

       request for spousal maintenance. In his dissolution petition, Husband claimed

       to be disabled, indicated that he had “not been in the workforce for many

       years,” and sought “an award of disability maintenance.” Appellant’s App.

       Vol. II, pp. 40-41. A trial court may make an award of spousal maintenance

       “[i]f the court finds a spouse to be physically or mentally incapacitated to the

       extent that the ability of the incapacitated spouse to support himself or herself is

       materially affected[.]” Ind. Code § 31-15-7-2(1) (1997). “If the trial court

       makes that finding, it may order maintenance.” Campbell v. Campbell, 118

       N.E.3d 817, 819 (Ind. Ct. App. 2019), trans. denied. “Because such an award is

       designed to help provide for the incapacitated spouse’s sustenance and support,

       the essential inquiry is whether the spouse can support [him]self.” Id. “An

       award of incapacity maintenance is within the trial court’s discretion.” Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1248 | March 24, 2020   Page 9 of 10
       “The spouse seeking maintenance has the burden of proving that he or she is

       entitled to maintenance.” Lesley v. Lesley, 6 N.E.3d 963, 967 (Ind. Ct. App.

       2014).


[12]   During the final hearing, Wife testified that Husband was receiving income

       from Social Security and private disability insurance. Husband, however,

       presented no other evidence relating to his claimed disability. The trial court

       concluded that despite Wife’s testimony establishing that Husband was, at least

       temporarily disabled, the evidence was insufficient to support an award of

       spousal maintenance. Given the lack of evidence relating to the severity or

       perpetual nature of Husband’s claimed disability, we cannot say that the trial

       court abused its discretion in concluding that Husband failed to meet his burden

       of proving that he should receive spousal maintenance. The trial court,

       therefore, did not abuse its discretion in denying Husband’s claim for spousal

       maintenance.


[13]   Judgment affirmed.


       Najam, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1248 | March 24, 2020   Page 10 of 10
