                                                                                      FILED
                                                                                  Mar 10 2017, 9:14 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Lori B. Schmeltzer                                        Kristina J. Jacobucci
      Schmeltzer Law PLLC                                       Newby, Lewis, Kaminski & Jones,
      Traverse City, Michigan                                   LLP
                                                                La Porte, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Imre L. Falatovics,                                       March 10, 2017
      Appellant-Respondent,                                     Court of Appeals Case No.
                                                                46A04-1605-DR-1161
              v.                                                Appeal from the La Porte Superior
                                                                Court
      Amy L. Falatovics,                                        The Honorable Michael S.
      Appellee-Petitioner                                       Bergerson, Judge
                                                                Trial Court Cause No.
                                                                46D01-1302-DR-59



      Crone, Judge.


                                             Case Summary
[1]   For the third time, this matter comes before us for review. Imre L. Falatovics

      (“Husband”) and Amy L. Falatovics (“Wife”) were divorced. Following the


      Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017                    Page 1 of 17
      issuance of the dissolution decree, Wife filed an appeal and Husband filed an

      Indiana Trial Rule 60(B) motion (“Trial Rule 60(B) Motion”) to set aside the

      dissolution decree. After this Court reversed a portion of the dissolution decree

      and remanded, another appeal ensued. Once this Court’s opinion was certified,

      Wife moved to dismiss Husband’s Trial Rule 60(B) Motion and his addendum

      to his Trial Rule 60(B) Motion (“Addendum”) (sometimes collectively referred

      to as “Trial Rule 60(B) Motions”). The trial court granted Wife’s motion and

      dismissed Husband’s Trial Rule 60(B) Motions.


[2]   Husband now appeals the dismissal of his Trial Rule 60(B) Motions. He argues

      that the trial court erred in finding that he failed to follow the proper procedure

      for bringing his Trial Rule 60(B) Motions. He also asserts that Wife is barred

      by the doctrines of laches and/or invited error from arguing that he failed to

      follow the proper procedure. Finally, he also contends that his constitutional

      rights were violated because he did not receive an evidentiary hearing on his

      motions. Wife contends that Husband’s appeal is frivolous and in bad faith and

      requests that we award her appellate attorney fees.


[3]   We conclude that trial court did not err in finding that Husband failed to follow

      the proper procedure. We further conclude that neither laches nor invited error

      applies and that Husband was not deprived of his constitutional rights. We

      affirm the judgment and deny Wife’s request for attorney’s fees.




      Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017   Page 2 of 17
                                  Facts and Procedural History
[4]   On December 19, 2013, the trial court issued the dissolution decree, dissolving

      the parties’ marriage and dividing the marital estate. On January 13, 2014,

      Wife appealed. On January 29, 2014, the Court of Appeals acquired

      jurisdiction when the notice of completion of clerk’s record was entered in the

      chronological case summary (“CCS”). Ind. Appellate Rule 8.


[5]   While the appeal was still pending, on May 7, 2014, Husband filed in the trial

      court his verified Trial Rule 60(B) Motion to set aside the dissolution decree,

      asserting that “Wife committed fraud to the court by not disclosing assets,

      vehicle(s) and bank accounts” owned during the divorce proceedings.

      Appellant’s App. at 26. The trial court set the matter for hearing on August 26,

      2014. On August 5, 2014, Wife filed a motion to continue the hearing, stating

      that her appeal was pending, and therefore the trial court had no jurisdiction to

      hear Husband’s Trial Rule 60(B) Motion “until after a decision on the Appeal

      has been rendered.” Id. at 28. The trial court granted Wife’s motion.


[6]   On August 14, 2014, this Court issued its opinion on Wife’s appeal. Falatovics

      v. Falatovics, 15 N.E.3d 108 (Ind. Ct. App. 2014) (“Falatovics 1”). In her appeal,

      Wife argued that the trial court erred in excluding from the marital estate

      Husband’s interest in two parcels of real estate (“Parcels 1 and 2”) that he held

      with his brother as joint tenants subject to a life estate in his mother. Husband

      did not file a brief, and therefore we reviewed the trial court’s judgment for

      prima facie error. We concluded that Husband held a present pecuniary

      interest in Parcels 1 and 2, and therefore the trial court improperly excluded his
      Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017   Page 3 of 17
      interest in them from the marital estate. In addition, we observed that the

      parties had agreed on the value of Husband’s interest in Parcels 1 and 2, and

      therefore, we reversed and remanded with instructions to the trial court to

      include Husband’s interest in Parcels 1 and 2 in the marital estate and divide

      the marital estate based on the new valuation in a manner it deemed fair. Id. at

      111-12. Neither Husband nor Wife sought rehearing or transfer of our opinion,

      and it was certified as final on September 26, 2014.


[7]   On October 29, 2014, the trial court held a status conference and addressed the

      remanded issues. On November 14, 2014, Husband filed his Addendum,

      claiming that the appraisals for Parcels 1 and 2 submitted by Wife “during the

      final hearing” were mistaken in fact and valuation. Appellant’s App. at 36. On

      November 25, 2014, the trial court issued its amended dissolution decree,

      wherein it included Husband’s interest in Parcels 1 and 2 in the marital estate,

      revised the value of the estate accordingly, and equally divided the marital

      estate based upon this revised valuation. On December 9, 2014, the trial court

      scheduled a hearing for all pending issues on March 2, 2015.


[8]   On December 23, 2014, Husband appealed the amended dissolution decree.

      On January 23, 2015, the notice of completion of clerk’s record was entered in

      the CCS.


[9]   On February 17, 2015, Wife filed in the trial court a motion for continuance of

      the hearing on Husband’s pending Trial Rule 60(B) Motions, declaring that his

      appeal was pending before the Court of Appeals, and therefore the trial court


      Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017   Page 4 of 17
       had no jurisdiction to hear the motions until after the appeal was rendered. Id.

       at 42. The same day, Husband filed an objection to continuance, claiming that

       the appeal briefing schedule was stayed and that “his pleadings before [the trial]

       Court must be heard prior to the appeal and it’s [sic] briefing schedule.” Id. at

       43. On February 23, 2015, Wife filed a response to Husband’s objection,

       asserting that the CCS did not show that the briefing schedule for the appeal

       had been stayed. The same day, the trial court granted Wife’s motion for

       continuance.


[10]   On March 12, 2015, Husband filed in the Court of Appeals a motion to stay

       appeal and remand jurisdiction to the trial court to consider his Trial Rule 60(B)

       Motions. Husband attached his Trial Rule 60(B) Motion and Addendum and

       averred that a ruling on these motions “may resolve some or all of the issues

       raised on appeal.” Appellee’s App. at 10. On March 30, 2015, Wife filed her

       objection to Husband’s motion to stay appeal, asserting that Husband waived

       all issues raised in his Trial Rule 60(B) Motions by failing to seek leave of the

       Court of Appeals to file his motions. Id. at 18. On April 10, 2015, this Court

       denied Husband’s motion to stay appeal. It did not provide the basis for its

       denial.


[11]   On November 5, 2015, this Court handed down its memorandum decision on

       Husband’s appeal of the amended dissolution decree. Falatovics v. Falatovics,

       No. 46A03-1412-DR-449, 2015 WL 6777221 (Ind. Ct. App. Nov. 5, 2015),

       trans. denied (2016) (“Falatovics 2”). In this appeal, Husband challenged the

       equal division of the marital estate. We concluded that the trial court did not

       Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017   Page 5 of 17
       abuse its discretion in equally dividing the martial estate. Id. at * 3. We also

       rejected Husband’s attempt to relitigate issues regarding his interest in Parcels 1

       and 2 and their valuation. Id. at * 2. Accordingly, we affirmed the amended

       dissolution decree. Husband petitioned for transfer, which was denied on

       February 11, 2016.


[12]   On February 15, 2016, the matter was certified back to the trial court. On

       March 14, 2016, Wife filed a motion to dismiss Husband’s Trial Rule 60(B)

       Motions. Husband filed a response. In April 2016, following a hearing, the

       trial court granted Wife’s motion to dismiss, finding that Husband failed to

       follow the appropriate procedure for bringing his Trial Rule 60(B) Motions, and

       that therefore he had waived his arguments and was not entitled to an

       evidentiary hearing. This appeal ensued.


                                      Discussion and Decision

            Section 1 – The trial court did not err in granting Wife’s
                               motion to dismiss.
[13]   Husband challenges the dismissal of his Trial Rule 60(B) Motions. His first

       Trial Rule 60(B) Motion alleged that Wife committed fraud in failing to disclose

       assets, and his Addendum alleged that Wife’s appraisals of Parcels 1 and 2 were

       based on mistakes of fact and valuation. Trial Rule 60(B) provides, “On

       motion and upon such terms as are just the court may relieve a party … from a

       judgment, including a judgment by default, for the following reasons: (1)

       mistake, … and (3) fraud (whether heretofore denominated intrinsic or


       Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017   Page 6 of 17
       extrinsic), misrepresentation, or other misconduct of an adverse party[.]” Trial

       Rule 60(D) states, “In passing upon a motion allowed by subdivision (B) of this

       rule the court shall hear any pertinent evidence.”


[14]   As an initial matter, we must resolve the parties’ dispute as to the proper

       standard of review. Husband claims that this is an appeal of the trial court’s

       decision on a motion to dismiss pursuant to Trial Rule 12(B), which we review

       de novo. Wife contends that the trial court’s dismissal of Husband’s Trial Rule

       60(B) Motions is effectively a denial, which we review for an abuse of

       discretion.


[15]   We conclude that the trial court’s dismissal of Husband’s Trial Rule 60(B)

       Motions is effectively a denial. See Jahangirizadeh v. Pazouki, 27 N.E.3d 1178,

       1181 (Ind. Ct. App. 2015) (equating dismissal of Trial Rule 60(B) motion with

       denial). In general, we review a trial court’s denial of a motion to set aside

       judgment for an abuse of discretion. Id. However, in this case the issue

       presented involves purely a question of law, which we review de novo. See

       Goodson v. Carlson, 888 N.E.2d 217, 220 (Ind. Ct. App. 2008) (observing that

       when appeal of trial court’s denial of motion to set aside judgment involves

       question of law, our review is de novo).


[16]   Husband first asserts that the trial court erred in finding that he failed to follow

       the appropriate procedure for bringing his Trial Rule 60(B) Motions and

       therefore waived his claims and is not entitled to an evidentiary hearing.

       Husband filed his Trial Rule 60(B) Motion after Wife appealed the dissolution


       Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017   Page 7 of 17
       decree. On January 29, 2014, the Court of Appeals obtained jurisdiction when

       the notice of completion of the clerk’s record was entered in the CCS. Husband

       filed his Trial Rule 60(B) Motion on May 7, 2014. Thus, when Husband filed

       his Trial Rule 60(B) Motion, the trial court did not have jurisdiction over the

       case.


[17]   In Logal v. Cruse, 267 Ind. 83, 368 N.E.2d 235 (1977), cert. denied (1978), our

       supreme court set forth the proper procedure to follow when a party wishes to

       pursue a Trial Rule 60(B) motion while an appeal is pending. There, the trial

       court dismissed Logal’s lawsuit because he failed to comply with a discovery

       order. Logal appealed the dismissal. During the pendency of the appeal, Logal

       filed in the trial court a motion to set aside the dismissal and reinstatement of

       the lawsuit. The trial court “overruled” Logal’s motion, and he appealed that

       ruling. Id. at 83, 368 N.E.2d at 236. Our supreme court consolidated Logal’s

       appeals and adopted the following procedure for bringing a motion to set aside

       while a judgment is on appeal (“the Logal Procedure”):


               (1) The moving party files with the appellate court an application
               for leave to file his 60(B) motion. This application should be
               verified and should set forth the grounds relied upon in a specific
               and non-conclusory manner.


               (2) The appellate court will make a preliminary determination of
               the merits of the movant’s 60(B) grounds. In so doing the
               appellate court will determine whether, accepting appellant’s
               specific, non-conclusory factual allegations as true there is a
               substantial likelihood that the trial court would grant the relief
               sought. Inasmuch as an appellate court is not an appropriate

       Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017    Page 8 of 17
               tribunal for the resolution of factual issues, the opposing party
               will not be allowed to dispute the movant’s factual allegations in
               the appellate court.


               (3) If the appellate court determines that the motion has sufficient
               merit, as described in the preceding paragraph, it will remand the
               entire case to the trial court for plenary consideration of the 60(B)
               grounds. Such remand order will terminate the appeal and the
               costs in the appellate court will be ordered taxed against the party
               procuring the remand. The decision to remand does not require
               the trial court to grant the motion. If the trial court denies the
               motion, the movant should file a motion to correct errors
               addressed to this denial, and appeal the denial. In this new
               appeal any of the issues raised in the original appeal may be
               incorporated, without being included in the second motion to
               correct errors.


               (4) If the trial court grants the motion, the opposing party may
               appeal that ruling under the same terms as described in
               paragraph (3). The original appeal shall be deemed moot.


       Id. at 86-87, 368 N.E.2d at 237 (citations omitted). The Logal court explained

       that “this procedure will allow full and fair consideration of grounds for relief

       from judgment with a minimum of disruption of the appellate process.” Id. at

       87, 368 N.E.2d at 237.


[18]   The Logal court then considered the issues raised in the two consolidated

       appeals. “For purposes of illustration and in the interests of fairness,” the Logal

       court considered Logal’s motion to set aside the dismissal as though he had

       followed the procedure set forth above. Id., 368 N.E.2d at 237. The court

       concluded that there was not a substantial likelihood that Logal would succeed

       Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017    Page 9 of 17
       in his claim that he did not have notice of the trial court’s discovery order. Id.,

       368 N.E.2d at 238. In addition, the court reviewed whether the trial court

       abused its discretion in dismissing the lawsuit and concluded that it had not. Id.

       at 88, 368 N.E.2d at 238. Accordingly, the Logal court affirmed the trial court’s

       dismissal of the action and the denial of Logal’s motion to set it aside. Id., 368

       N.E.2d at 238.


[19]   The Logal Procedure was enforced in Southwood v. Carlson, 704 N.E.2d 163 (Ind.

       Ct. App. 1999). There, Southwood brought a medical malpractice action

       against various medical care providers. The trial court granted the medical care

       providers’ summary judgment motion, and Southwood appealed. Before the

       trial clerk submitted the record of proceedings to the Court of Appeals,

       Southwood filed a motion for relief from judgment pursuant to Trial Rule 60(B)

       with the trial court. After the Court of Appeals obtained jurisdiction over the

       case, the trial court granted Southwood’s motion for relief from judgment and

       set aside its grant of summary judgment in favor of the medical care providers.

       The medical care providers appealed the grant of Southwood’s motion for relief

       from judgment.


[20]   The medical care providers’ appeal and Southwood’s appeal of the summary

       judgment ruling in favor of the medical care providers were consolidated. The

       Southwood court began by addressing the medical care providers’ argument that

       the trial court was without jurisdiction to grant Southwood’s motion for relief

       from judgment. The court rejected Southwood’s contention that because the

       Court of Appeals had not yet acquired jurisdiction over the case at the time he

       Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017   Page 10 of 17
       filed his motion, the Logal Procedure was inapplicable. Id. at 165. The court

       concluded that Southwood was obligated to follow the Logal Procedure when

       the Court of Appeals acquired jurisdiction, and he had not. Id. Therefore, the

       court concluded that the trial court was without jurisdiction to rule upon

       Southwood’s motion for relief from judgment and vacated the trial court’s ruling

       granting his motion. Id. at 166.


[21]   The Southwood court then considered the trial court’s summary judgment ruling

       in favor of the medical care providers. Southwood argued that there was a

       genuine issue of material fact precluding summary judgment and that the trial

       court erred by refusing to consider his designated affidavits. The Southwood

       court concluded that Southwood’s designation of evidence was untimely, and

       therefore the trial court correctly entered summary judgment in favor of the

       health care providers. Id. at 169.


[22]   Here, Husband concedes that he did not follow the Logal Procedure, but he

       contends that Logal and Southwood are distinguishable, and therefore the Logal

       Procedure is inapplicable. First, he asserts that in Logal and Southwood, the

       party seeking to have the trial court’s judgment set aside was also the appellant

       and the issue raised in the motion to set aside and the appeal was the same.

       Thus, according to Husband, the movant/appellant in those cases was seeking

       to have two bites of the same apple. Husband points out that he filed the Trial

       Rule 60(B) Motion, but Wife brought the first appeal, and he claims that the

       issue he raised in his Trial Rule 60(B) Motion was different from the issue

       raised in Wife’s appeal.

       Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017   Page 11 of 17
[23]   We reject the contention that the identity of the movant and the appellant is

       relevant to the rationale underlying the Logal Procedure; namely, to permit fair

       consideration of the motion without unduly disrupting the appeals process.

       The trial court loses jurisdiction over the case once the Court of Appeals obtains

       jurisdiction regardless of who initiated the appeal. We also reject Husband’s

       assertion that the issues must be the same. As long as the same judgment is the

       subject of the appeal and the motion for relief from judgment, the issues raised

       could result in the judgment or a portion of it being reversed or set aside. If a

       judgment is on appeal, and there are grounds to set aside that same judgment, it

       is a waste of the parties’ and the court’s resources to follow through with the

       appeals process only to have that same judgment set aside albeit for a different

       reason. The motion to set aside should be heard before the appeal proceeds so

       that all issues can be appealed at once. In fact, the circumstances of this case

       are a perfect illustration of this concept.


[24]   Here, Husband claims that the potential for competing results is not present

       because the issues presented to this Court and the trial court were different. We

       disagree. Wife’s appeal addressed the exclusion of Husband’s interest in

       Parcels 1 and 2 from the marital estate, and Husband’s Trial Rule 60(B) Motion

       addressed the exclusion of Wife’s assets as a result of her failure to disclose

       assets. Wife’s appeal and Husband’s Trial Rule 60(B) Motion both directly

       affected the same judgment. Each raised issues pertaining to the

       exclusion/inclusion of marital assets, which affects the ultimate determination

       of the value of the marital estate and the equitable distribution thereof. Thus,


       Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017   Page 12 of 17
       the failure to follow the Logal Procedure would result in piecemeal decisions

       regarding the same judgment and multiple appeals as to the fair distribution of

       the marital estate. Furthermore, Husband’s Addendum and the first appeal

       both addressed Husband’s interest in Parcels 1 and 2, and inclusion of

       Husband’s interest in that property was the reason for the issuance of the

       amended dissolution decree. Husband recognized in his motion to stay appeal

       that a ruling on his Trial Rule 60(B) Motions “may resolve some or all of the

       issues raised on appeal.” Appellee’s App. at 10.


[25]   Another distinction Husband attempts to make is that the movant/appellant in

       both Logal and Southwood had the issues in their motions to set aside heard on

       the merits, whereas he has not. However, Logal did not have his motion to set

       aside heard on the merits. The Logal court considered only whether there was a

       substantial likelihood that the trial court would grant the relief Logal sought in

       his motion to set aside in accordance with the procedure it had outlined. Thus,

       the Logal court did not hear evidence in support of Logal’s motion to set aside

       and the opposing party was not permitted to dispute the movant’s factual

       allegations. Logal, 267 Ind. at 86-87, 368 N.E.2d at 237-38.


[26]   Husband’s comparison to Southwood is also unavailing. In Southwood, although

       the trial court conducted an evidentiary hearing on Southwood’s motion for

       relief from judgment and issued a ruling, the appellate court vacated that ruling

       because the trial court did not have jurisdiction over the case. 704 N.E.2d at

       166. We fail to see the benefit of having a hearing on a motion when the ruling

       on the motion is vacated. Finally, we note that although Trial Rule 60(D)

       Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017   Page 13 of 17
       generally requires trial courts to hold a hearing on any pertinent evidence before

       granting Trial Rule 60(B) relief, a party is not always entitled to an evidentiary

       hearing. See Thompson v. Thompson, 811 N.E.2d 888, 904 (Ind. Ct. App. 2004)

       (concluding that appellant was not entitled to evidentiary hearing on his Rule

       60(B)(1) motion based on excusable neglect where he alleged that his attorney

       was negligent but attorney negligence will not support a finding of excusable

       neglect as a matter of law), trans. denied (2005). Accordingly, we are

       unpersuaded that the distinctions between this case and Logal and Southwood

       render the Logal Procedure inapplicable.


[27]   Next, Husband claims that Wife’s motion to dismiss is barred by the doctrines

       of laches and/or invited error. “Laches is an equitable defense that may be

       raised to stop a person from asserting a claim that he would normally be

       entitled to assert.” Ind. Real Estate Comm’n v. Ackman, 766 N.E.2d 1269, 1273

       (Ind. Ct. App. 2002). “Laches requires: ‘(1) inexcusable delay in asserting a

       known right; (2) an implied waiver arising from knowing acquiescence in

       existing conditions; and (3) a change in circumstances causing prejudice to the

       adverse party.’” SMDfund, Inc. v. Fort Wayne-Allen Cty. Airport Auth., 831

       N.E.2d 725, 729 (Ind. 2005) (quoting Shafer v. Lambie, 667 N.E.2d 226, 231

       (Ind. Ct. App. 1996)). Husband argues that he filed his Trial Rule 60(B)

       Motion on May 7, 2014, but Wife did not file her motion to dismiss until

       almost two years later on March 14, 2016, which constitutes inexcusable delay.

       Husband ignores that two appeals occurred during that time period. Wife filed

       her motion to dismiss within thirty days of the trial court resuming jurisdiction


       Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017   Page 14 of 17
       on February 15, 2016, when the decision in Falatovics 2 was certified. We

       cannot say that Wife inexcusably delayed in filing her motion to dismiss.


[28]   “The doctrine of invited error is grounded in estoppel.” Witte v. Mundy ex rel.

       Mundy, 820 N.E.2d 128, 133 (Ind. 2005). Under this doctrine, “a party may not

       take advantage of an error that she commits, invites, or which is the natural

       consequence of her own neglect or misconduct.” Evans v. Evans, 766 N.E.2d

       1240, 1245 (Ind. Ct. App. 2002). Husband argues that Wife invited the error by

       moving for two continuances, rather than dismissal, of the Trial Rule 60(B)

       Motions, indicating to the trial court that “the matter could not be adjudicated

       and heard until after the appeal was completed.” Appellant’s Br. at 28.

       Husband overstates the effect of Wife’s motions for continuance. In her

       motions, she merely informed the trial court that it lacked jurisdiction to

       entertain evidentiary hearings while the case was pending on appeal. That was

       not error. If the trial court had ruled on Husband’s Trial Rule 60(B) Motions

       when the appeals were pending, the judgment would have been void. See

       Southwood, 704 N.E.2d at 166. We conclude that the doctrine of invited error

       does not apply.


[29]   Finally, Husband claims that the dismissal of his Trial Rule 60(B) Motions

       without an evidentiary hearing violates his federal constitutional due process

       rights and his state constitutional right to open access to the courts. The

       Fourteenth Amendment of the United States Constitution prohibits any state

       from depriving a person of life, liberty, or property without due process of law.

       Article 1, Section 12 of the Indiana Constitution provides, “All courts shall be

       Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017   Page 15 of 17
       open; and every person, for injury done to him in his person, property, or

       reputation, shall have remedy by due course of law.” Indiana courts have

       consistently construed Article 1, Section 12 of the Indiana Constitution as

       analogous to the federal due process clause. Doe v. O’Connor, 790 N.E.2d 985,

       988 (Ind. 2003).


[30]   We observe that Husband had an opportunity to be heard on the issue raised in

       the Addendum—the valuation of Parcels 1 and 2—before the dissolution decree

       was issued, but at that time he apparently agreed to the valuation of properties

       in Wife’s appraisals. See Falatovics 1, 15 N.E.3d at 111 (“The parties agreed that

       the value of Husband’s interest in Parcels 1 and 2 was $106,700.”). As for his

       Trial Rule 60(B) Motion, parties are not entitled to evidentiary hearings when

       procedural requirements have not been satisfied. See Plank v. Cmty. Hosps. of

       Ind., Inc., 981 N.E.2d 49, 54 (Ind. 2013) (concluding that Plank forfeited

       opportunity for evidentiary hearing on his constitutional challenge to Medical

       Malpractice Act damages cap); Bunker v. Nat’l Gypsum Co., 441 N.E.2d 8, 14

       (Ind. 1982) (concluding that statute of limitations in Occupational Diseases Act

       was constitutional as applied to worker’s claim for permanent disability). Here,

       Husband would have received an evidentiary hearing on the merits of his

       motion if he had followed the proper procedure. Husband was not completely

       denied an opportunity to be heard merely by being required to follow the proper

       procedure. We find no violation of Husband’s constitutional rights.




       Court of Appeals of Indiana | Opinion 46A04-1605-DR-1161 | March 10, 2017   Page 16 of 17
          Section 2 - Wife is not entitled to appellate attorney’s fees.
[31]   As a final matter, we address Wife’s request for attorney’s fees pursuant to

       Indiana Appellate Rule 66, which permits this Court to assess damages,

       including attorney’s fees, if an appeal is frivolous or in bad faith. “Our

       discretion to award attorney fees under Indiana Appellate Rule 66(E) is limited

       to instances when an appeal is permeated with meritlessness, bad faith,

       frivolity, harassment, vexatiousness, or purpose of delay.” Thacker v. Wentzel,

       797 N.E.2d 342, 346 (Ind. Ct. App. 2003). “[W]e must use extreme restraint

       when exercising this power because of the potential chilling effect upon the

       exercise of the right to appeal.” Id. “A strong showing is required to justify an

       award of appellate damages and the sanction is not imposed to punish mere

       lack of merit but something more egregious.” Ballaban v. Bloomington Jewish

       Cmty., Inc., 982 N.E.2d 329, 339-40 (Ind. Ct. App. 2013). While we find

       Husband’s argument unpersuasive, his appeal is not permeated with frivolous

       claims or brought in bad faith. Therefore, we decline Wife’s request for

       attorney’s fees.


[32]   Based on the foregoing, we affirm the dismissal of Husband’s Trial Rule (60)(B)

       Motions.


[33]   Affirmed.


       Riley, J., and Altice, J., concur.




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