      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                              FILED
      regarded as precedent or cited before any
      court except for the purpose of establishing                               Jun 18 2019, 7:26 am

      the defense of res judicata, collateral                                            CLERK
                                                                                     Indiana Supreme Court
      estoppel, or the law of the case.                                                 Court of Appeals
                                                                                          and Tax Court




      ATTORNEY FOR APPELLANT
      David W. Stone IV
      Anderson, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Herschel E. Hartley, Sr.,                                June 18, 2019
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               19A-DR-207
              v.                                               Appeal from the
                                                               Blackford Superior Court
      Sharon K. Hartley,                                       The Honorable
      Appellee-Petitioner                                      Dean A. Young, Special Judge
                                                               Trial Court Cause No.
                                                               05D01-1608-DR-39



      Vaidik, Chief Judge.



                                          Case Summary
[1]   More than one year after the trial court entered a decree dissolving the parties’

      marriage, the wife filed a motion to modify the decree alleging that the husband


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-207 | June 18, 2019                           Page 1 of 5
      did not disclose a retirement account. The trial court granted the wife relief on

      the basis that the parties made a mistake and awarded her one-half of the

      account. But because such motions must be filed within a year of the decree’s

      entry and the wife did not do so here, we reverse the trial court.



                            Facts and Procedural History
[2]   On August 9, 2017, the trial court entered a decree dissolving the marriage of

      Sharon K. Hartley (“Wife”) and Herschel E. Hartley, Sr. (“Husband”).

      Appellant’s App. Vol. II p. 18. In the decree, the court noted that Husband had

      two retirement accounts through his employer, one with Vanguard and the

      other with Merrill Lynch. Id. at 21. The court equally divided the Vanguard

      account and awarded the Merrill Lynch account to Husband.


[3]   More than a year later, on October 25, 2018, Wife filed a “Motion for

      Modification of Decree.” Id. at 65. Specifically, Wife alleged that “at the time

      of the Court’s decree the parties indicated they had disclosed all marital debts

      and assets” but she believed that Husband had a third retirement account that

      “was not disclosed prior to dissolution nor was it presented to the court for

      consideration when dividing the marital estate.” Id. Wife, without citing any

      authority, claimed that she was “entitled” to funds from this account. Id.

      Husband objected, alleging that “it is well established that a final division of

      property may not be modified.” Id. at 67.


[4]   A hearing was then held on Wife’s motion. Wife’s attorney argued as follows:


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-207 | June 18, 2019   Page 2 of 5
              [A]fter the conclusion of the proceedings it was discovered by
              [Wife] that there may have been a small pension that existed.
              Specifically, that a Steel Workers Pension Trust that would have
              been awarded to [Husband] and would have included a monthly
              benefit of $205.36 that would have been initialized in December
              of 2015, and at the time of dissolution, Your Honor, we
              submitted financial disclosures and request for division of asset[s]
              and the Court had asked if that was the entire disclosure of each
              party. We’re not suggesting necessarily that it was fraud, per
              se, but even if it was a mistake on [Husband’s] part, that was
              an amount that was not included amongst the assets for
              division and we think the amount should be considered and
              allowable for division since it has not already been ruled upon.


      Tr. pp. 4-5 (emphasis added). Husband argued that the trial court should deny

      Wife’s motion because it was filed outside the one-year time limit provided by

      Indiana Trial Rule 60(B). The trial court gave the parties seven days to submit

      authority, but only Husband did so. The trial court ultimately issued an order

      awarding Wife one-half of Husband’s retirement account:


              In this case, the 401K was unknown to either party. The Court
              accepts [Husband’s] representation that he was not aware of his
              entitlement to the 401K from a previous employment. [Wife]
              does not allege[] that he engaged in fraud. Simply put, both
              parties made a mistake as to the existence of the 401K asset. In
              effect, [Wife] is not asking the Court to modify the Court’s
              Decree. Rather, [Wife] is requesting the Court to divide an asset
              that has never been part of the Court’s Dissolution Decree.


      Appellant’s App. Vol. II p. 16 (emphasis added).


[5]   Husband now appeals.


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-207 | June 18, 2019   Page 3 of 5
                                 Discussion and Decision
[6]   We first note that Wife did not file an appellee’s brief. When the appellee fails

      to submit a brief, we will not develop an argument on her behalf but, instead,

      we may reverse the trial court’s judgment if the appellant’s brief presents a case

      of prima facie error. GEICO Ins. Co. v. Graham, 14 N.E.3d 854, 857 (Ind. Ct.

      App. 2014).


[7]   Husband contends that the trial court erred in awarding Wife one-half of his

      retirement account. Indiana Code section 31-15-7-9.1(a) provides that “orders

      concerning property disposition . . . may not be revoked or modified, except in

      the case of fraud.” Indeed, a strong policy favors the finality of property-

      division orders. Shepherd v. Tackett, 954 N.E.2d 477, 480 (Ind. Ct. App. 2011).

      One purpose of this policy is to eliminate vexatious litigation that often

      accompanies dissolution of marriages. Rohrer v. Rohrer, 734 N.E.2d 1077, 1082

      (Ind. Ct. App. 2000). If fraud is alleged, it must be asserted not later than six

      years after the property-division order is entered. Ind. Code § 31-15-7-9.1(b).


[8]   Here, however, Wife did not allege fraud. In fact, she conceded that there was

      no evidence of fraud. While Section 31-15-7-9.1 generally prohibits

      modification of property-division orders except in the case of fraud, a party may

      still seek relief under Indiana Trial Rule 60(B) in certain circumstances. See

      generally Ryan v. Ryan, 972 N.E.2d 359 (Ind. 2012). Specifically, Trial Rule

      60(B)(1) allows relief from judgment by reason of “mistake, surprise, or

      excusable neglect.” Although not citing Trial Rule 60(B)(1), the trial court


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-207 | June 18, 2019   Page 4 of 5
      found that the parties made a “mistake.” But as Husband points out, Trial Rule

      60(B) provides that motions pursuant to Rule 60(B)(1) must be made “not more

      than one year after the judgment, order, or proceeding was entered or taken.”

      Because Wife filed her “Motion for Modification of Decree” more than one

      year after the decree was entered, she is not entitled to relief under Trial Rule

      60(B)(1). See Dusenberry v. Dusenberry, 625 N.E.2d 458, 462 (Ind. Ct. App. 1993)

      (holding that because more than one year elapsed between the date the decree

      of dissolution was entered and the date the wife filed her petition to modify, she

      could not seek relief on the basis of mistake). Husband has established prima

      facie error. We therefore reverse the trial court.


[9]   Reversed.


      Kirsch, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-DR-207 | June 18, 2019   Page 5 of 5
