                                                                FILED
                                                           Jan 13 2017, 8:04 am

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Katherine A. Harmon                                        Christopher P. Jeter
Jared S. Sunday                                            Amy O. Carson
Mallor Grodner LLP                                         Massillamany & Jeter LLP
Indianapolis, Indiana                                      Fishers, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Samuel W. Koonce,                                          January 13, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           32A04-1604-CT-806
        v.                                                 Appeal from the Hendricks
                                                           Superior Court
Kim M. Finney,                                             The Honorable Rhett M. Stuard,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           32D02-1503-CT-37



May, Judge.




Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017             Page 1 of 22
[1]   Samuel W. Koonce (“Husband”) appeals an order denying his Verified Motion

      for Relief from Judgment Pursuant to Trial Rule 60(B)(6) and his Verified

      Motion to Clarify Dissolution Decree. We affirm.



                                Facts and Procedural History
[2]   Husband and Kim M. Finney (“Wife”) were married on March 31, 1985, and

      divorced on August 7, 1998. 1 For all but approximately two months of the

      parties’ marriage, Husband served in the United States Army. The dissolution

      court (hereinafter, “Dissolution Court”) divided Husband’s military pension

      benefits in the Dissolution Decree and ordered:


                 13. This Court has jurisdiction over the distribution and division
                 of Husband’s military pension benefits pursuant to I.C [sic] 31-9-
                 2-42.


                 14. The Wife is entitled to direct payment from the Defense
                 Finance and Accounting Services by virtue of 10 U.S.C. section
                 1408(d)(2) inasmuch as the parties [sic] marriage has continued
                 for more than ten (10) years during which Husband has accrued
                 active military service creditable for retirement benefits. Further,
                 as the wife of an active duty military serviceman married for at
                 least ten (10) years, Wife shall be entitled to all statutory benefits
                 afforded her.


                 15. During the period from the date of marriage to the date of
                 separation (March 31, 1985 to March 27, 1998) Husband
                 accumulated 156 months of active Federal service for retirement;


      1
          One child was born of the marriage in 1996 but the issues herein do not involve her custody or support.


      Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017                         Page 2 of 22
              Husband has accumulated a total of 156 months of active Federal
              service for retirement from his original enlistment date to the date
              of separation.


              16. The Wife shall receive 50% of the Member’s disposable
              retired pay, before taxes, as defined by 10 USC 1408 (a)(4) and
              reduced by the cost of Husband’s enrollment in the Survivor
              Benefit Plan (SBP) for spouse. Wife shall be responsible for the
              payment of income taxes on her distributive share of Husband’s
              military retired pay. Wife’s share shall be payable to the
              Wife/Former Spouse in the month the military member FIRST
              receives retired or disability retired pay; further, Husband shall be
              responsible for making monthly payment directly to Wife for any
              month in which Husband received retired or disability retired pay
              where such payment to Wife has not been deducted and paid via
              monthly allotment.


              17. Husband shall at the time of retirement elect and enroll in
              the spouse’s option of the Survivor’s Benefit Plan (SBP) and
              make Wife the beneficiary thereof; and the monthly cost of such
              SBP election shall be deducted from Husband’s gross disposable
              retirement pay prior to calculation and payment of Wife’s
              retirement distribution.


              18. Wife’s entitlement to a distribution of Husband’s military
              retired pay shall be documented by a duly executed and ordered
              Qualified Domestic Relations Order. Husband and Wife shall
              each execute any necessary documents to effectuate this
              provision.


      (App. Vol. II (hereinafter “App.”) at 30-1) (emphasis in original).


[3]   Husband retired from the military in May 2005. Upon his retirement, he paid

      Wife $325.00 per month out of his retirement pay. In July 2014, Wife sent the

      Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 3 of 22
      Defense Finance and Accounting Service (“DFAS”) a copy of the parties’

      Dissolution Decree in order to begin receiving payments directly from DFAS as

      indicated in the Dissolution Decree. On October 1, 2014, DFAS sent Wife a

      check for $1,039.68, an amount which represented “31.7073% of Husband’s

      gross monthly retirement pay.” (Id. at 13.) Wife continued to receive payment

      from DFAS, which “included increases for cost-of-living and inflation.” (Id.)


[4]   On December 22, 2014, Husband filed with the Dissolution Court a request for

      modification of child support under the original dissolution cause number

      (“Dissolution Action”). On March 9, 2015, Wife filed in a different court

      (hereinafter, “Civil Court”) a separate civil action (“Civil Action”) alleging


              fraud, constructive fraud, negligent misrepresentation, and unjust
              enrichment aimed at [Wife], over the course of nearly a decade,
              during which [Husband] deprived her of tens-of-thousands of
              dollars in military retired pay for which she was entitled per: (1)
              federal law; and (2) an order of this Court. Instead of fulfilling
              his legal obligations, [Husband] orchestrated a web of deceit to
              enrich himself at the expense of his ex-wife and minor child. He
              maintained this scheme through misrepresentations and/or
              omissions relating to retired pay calculations, child support, and
              the ability for [Wife] to obtain payment directly from the federal
              government without his consent. [Wife] only recently became
              aware of [Husband’s] falsehoods and immediately worked with
              the federal government to obtain direct and accurate payments.
              Since that time, [Husband] has threatened to slander, intimidate,
              and shame [Wife].


      (Id. at 39.) On March 17, 2015, Husband filed a Motion for Rule to Show

      Cause and/or Request for Clarification of the Dissolution Decree in the


      Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 4 of 22
      Dissolution Action, requesting the Dissolution Court clarify the terms of the

      Dissolution Decree regarding Husband’s military pension.


[5]   On March 19, 2015, Husband filed a motion to dismiss Wife’s Civil Action,

      and the Civil Court denied his motion. Husband filed a motion to correct

      errors, which the Civil Court also denied. On December 8, 2015, while the

      motions in the Dissolution Action were still pending, Husband filed a Motion

      to Clarify Dissolution Decree as part of the Civil Action, asking the Civil Court

      to clarify the terms of the Dissolution Decree regarding Husband’s military

      pension. Wife filed her answer thereto on January 4, 2016, and requested a

      hearing on the issue.


[6]   On January 7, 2015, Husband filed a motion in the Dissolution Court for relief

      from judgment under Indiana Trial Rule 60(B)(6), alleging the portion of the

      Dissolution Decree dividing Husband’s military pension was void. On January

      12, 2016, by agreement of both parties, the Civil Court consolidated all issues,

      except Husband’s request for modification of child support, from the

      Dissolution Action into the Civil Action. Wife filed her response to Husband’s

      Rule 60(B)(6) motion on January 28, 2016, in Civil Court.


[7]   The Civil Court held a hearing on Husband’s motion to clarify and Rule

      60(B)(6) motion on February 16, 2016. Husband requested findings of fact and

      conclusions of law by motion the same day. On March 17, 2016, the Civil

      Court issued its order on Husband’s motions, denying them both.




      Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 5 of 22
[8]   On April 6, 2016, Husband requested the Civil Court certify its order for

      interlocutory appeal and the Civil Court did so on April 11, 2016. On April 15,

      2016, Husband filed two appeals: one indicating the Civil Court’s order was a

      final judgment, and the other requesting our court assume jurisdiction over the

      Civil Court’s order as a permissive interlocutory appeal. We accepted

      jurisdiction over the interlocutory appeal on May 13, 2016, and ordered the

      appeals consolidated.



                                  Discussion and Decision
[9]   Husband requested the Civil Court enter written findings and conclusions in

      support of its judgment. In such a circumstance, we apply a two-tiered standard

      of review. Maddux v. Maddux, 40 N.E.3d 971, 974 (Ind. Ct. App. 2015), reh’g

      denied.


                First, we determine whether the evidence supports the findings,
                and second whether the findings support the judgment. We will
                reverse only if there is no evidence supporting the findings or the
                findings fail to support the judgment. We review the findings of
                fact using a clearly erroneous standard. Clear error occurs when
                our review of the evidence most favorable to the judgment leaves
                us firmly convinced that a mistake has been made. We review
                the conclusions of law using a de novo standard.


      Id. at 974-75 (footnote and internal citations omitted).




      Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 6 of 22
                                     Trial Rule 60(B)(6) Motion
[10]   Under Indiana Trial Rule 60(B)(6), the trial court may relieve a party from a

       judgment if “the judgment is void.” Id. A motion requesting relief under Rule

       60(B)(6) “shall be filed within a reasonable time.” T.R. 60(B). Our standard of

       review regarding a motion for relief from judgment pursuant to Rule 60(B)(6)

       “requires no discretion on the part of the trial court because either the judgment

       is void or it is valid” and, thus, our review is de novo. Rice v. Com’r, Indiana Dept.

       of Envtl. Mgmt., 782 N.E.2d 1000, 1003 (Ind. Ct. App. 2003) (quoting Hotmix &

       Bituminous Equip. Inc. v. Hardrock Equip. Corp., 719 N.E.2d 824, 826 (Ind. Ct.

       App. 1999)). To prevail under Rule 60(B)(6), the party must demonstrate the

       prior judgment was void, and not merely voidable. Id.


[11]   “The distinction between the terms ‘void’ and ‘voidable’ is critical in this

       context.” Chapin v. Hulse, 599 N.E.2d 217, 220 (Ind. Ct. App. 1992), trans.

       denied. A decision that is void “has no legal effect at any time and cannot be

       confirmed or ratified by subsequent action or inaction” and “is subject to a

       collateral attack.” Id. A decision which is voidable “has legal effect until such

       time as challenged in the appropriate manner and can be ratified or confirmed

       by subsequent action or inaction” and “may only be attacked through a direct

       appeal.” Id.


[12]   We further note our Indiana Supreme Court’s commentary regarding the

       misuse of jurisdiction arguments as a ploy to escape a waiver of direct appeal.




       Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 7 of 22
        Far too often there is an inclination in a law suit [sic] to attempt
        to convert a legal issue into one of “jurisdiction” and from that
        point contend all actions of the court are void, and that the
        question of jurisdiction may be raised at any time or that the
        proceedings are subject to collateral attack and are a matter for
        original writs in this court.


J.I. Case Co. v. Sandefur, 245 Ind. 213, 217-18, 197 N.E.2d 519, 521 (1964). In

R.L. Turner Corp. v. Town of Brownsburg, the Court provided a tutorial in

jurisdiction:


        To act in a given case, a trial court must possess both subject
        matter jurisdiction and personal jurisdiction. Subject matter
        jurisdiction exists when the Indiana Constitution or a statute
        grants the court the power to hear and decide cases of the general
        class to which any particular proceeding belongs. Personal
        jurisdiction exists when a defendant both has sufficient minimum
        contacts within the state to justify a court subjecting the
        defendant to its control, and has received proper notice of a suit
        against him in that court.


963 N.E.2d 453, 457 (Ind. 2012). The Court provided an example of this

confusion between legal issues and true jurisdiction problems in K.S. v. State:


        Thus, while we might casually say, “Judge Flywheel assumed
        jurisdiction,” or “the court had jurisdiction to impose a ten-year
        sentence,” such statements do not have anything to do with the
        law of jurisdiction, either personal or subject matter. Real
        jurisdictional problems would be, say, a juvenile delinquency
        adjudication entered in a small claims court, or a judgment
        rendered without any service of process. Thus, characterizing
        other sorts of procedural defects as “jurisdictional”
        misapprehends the concepts.


Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017     Page 8 of 22
       849 N.E.2d 538, 541-2 (Ind. 2006).


[13]   In this case, the Civil Court found:

               41. The “void” requirement of Trial Rule 60(B)(6) has been
               interpreted to mean that the trial court lacked jurisdiction when it
               issued the judgment in question. Gourley v. L.Y., 657 N.E.2d 448,
               449 (Ind. Ct. App. 1995), trans. denied.


               42. Indiana Courts have rejected arguments, similar to that made
               by [Husband] in this case, which seek to expand the limited
               scope of Rule 60(B)(6). See Dusenberry v. Dusenberry, 625 N.E.2d
               458, 461-62 (Ind. Ct. App. 1993) (dismissing wife’s claim that
               dissolution decree was void because it improperly included a
               personal injury settlement as property, and holding that such
               relief was not available to wife under Trial Rule 60(B)(6) since
               the wife’s argument was not “jurisdictional,” but a claim “that
               the Decree was erroneous, as a matter of law . . .”).


               43. Just as with the former spouse in Dusenberry, [Husband] does
               not challenge this Court’s jurisdiction, but claims that it
               improperly included items as marital property which should not
               have been included. It thus follows that the Decree is not void,
               but merely voidable, and [Husband] is not entitled to relief under
               Rule 60(B)(6).


       (App. at 16.) As the Civil Court found, Dusenberry is essentially on point with

       the facts of this case.


[14]   In Dusenberry, the parties, Gerald and Carolyn, divided the settlement from a

       pending personal injury suit as part of their Divorce Settlement. The decree

       provided “for an equal division of the net settlement proceeds from the suit.”


       Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 9 of 22
       Dusenberry, 625 N.E.2d at 459. When the personal injury suit concluded,

       Carolyn had incurred additional expenses not considered when the parties

       agreed to an equal division of the net settlement proceeds from the personal

       injury suit. She petitioned the trial court under Rule 60(B)(6) to modify or

       rescind the part of the Divorce Decree addressing the settlement proceeds to

       take into account the change in circumstances. She argued as part of her Rule

       60(B)(6) motion “that the trial court lacked ‘jurisdiction’ over the pending tort

       claim and, therefore, that the division of the settlement proceeds was void.” Id.

       at 461. Our court noted the well-established rule that “[r]elief from a ‘void

       judgment’ is available when the trial court lacked either personal or subject

       matter jurisdiction.” Id. at 461-2. Our court rejected Carolyn’s argument “the

       Decree was erroneous, as a matter of law, because the value of the personal

       injury settlement was contingent and was not a marital asset which could be

       divided. [Thus] [t]he error alleged is not jurisdictional. The Decree is not

       void.” Id. at 462.


[15]   Like in Dusenberry, Husband argues his military retirement pension should not

       have been included as part of the marital estate. He does not question the

       personal or subject matter jurisdiction of the Civil Court. However, he cites

       case law subsequent to Dusenberry to support his argument that a judgment can

       be declared void for a reason outside of personal and subject matter jurisdiction.

       We examine that case law and Husband’s argument now.


[16]   In Beanblossom v. State, our court declared: “A judgment may be void for want

       of authority in a court to render the particular judgment though the court may

       Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 10 of 22
       have jurisdiction over the subject matter and the parties.” 637 N.E.2d 1345,

       1349 (Ind. Ct. App. 1994), trans. denied. Based thereon, Husband argues:


               In a dissolution case, a trial court has authority to divide marital
               assets, but does not have authority to divide assets outside of the
               marital pot. . . . [Husband’s] military retired pay did not exist at
               the time of the dissolution, so there was nothing for the trial court
               to have jurisdiction over. . . . As the trial court did not have any
               authority to enter the Decree, it must be found to be void ab
               initio.


       (Br. of Appellant at 24.)


[17]   The issue in Beanblossom involved sentence modification under Ind. Code § 35-

       38-1-17(a) (1994), which permitted a trial court to modify a sentence within a

       365-day window, provided certain circumstances were met. However, the

       statute provided, “[i]f more than three hundred sixty-five (365) days have

       elapsed since the defendant began serving the sentence and after a hearing at

       which the convicted person is present, the court may reduce or suspend the

       sentence, subject to the approval of the prosecuting attorney.” Indiana Code §

       35-38-1-17(b) (1994). The trial court granted Beanblossom’s motion for

       modification of sentence approximately ten years after he began serving his

       sentence. The State filed a motion to correct error, invoking the provisions of

       Indiana Code § 35-38-1-17(b) (1994), because the prosecuting attorney had not

       approved any sentence modification and the petition was filed outside the 365-

       day window allowed in Indiana Code § 35-38-1-17(a) (1994). The trial court




       Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 11 of 22
       granted the State’s motion to correct error, and we affirmed that decision.

       Beanblossom, 637 N.E.2d at 1349.


[18]   We based our Beanblossom decision on an earlier case with similar facts,

       Christakis v. State, 493 N.E.2d 471, 472 (Ind. Ct. App. 1986). In Christakis, we

       reversed the trial court’s decision to grant Christakis’ request for probation

       pursuant to Indiana Code § 35-7-1-1 (1976), which provided a 180-day window

       for the trial court to grant probation. 793 N.E.2d at 472. Christakis relied on

       State ex rel. Abel v. Vigo Circuit Court, in which our Indiana Supreme Court, in

       examining the same statute in Christakis, stated:


               The clear intention of the legislature is to give the trial court an
               opportunity to sentence a defendant but keep reserved in his
               judgment an opportunity to review incarceration of the defendant
               up to 180 days within which time he may grant probation as
               though it were originally done at the time of sentencing. Prior to
               the enactment of this provision, a trial court had no authority
               over a defendant after he pronounced a sentence. The
               jurisdiction over the defendant then went to the Department of
               Correction. This statute gave the trial judge an additional 180
               days to consider or reconsider the probation aspect of the
               sentencing. . . . We hold the grant of such power by the
               legislature is jurisdictional and that upon the expiration of the
               180 days notwithstanding any petitions filed by the defendant,
               the court loses further jurisdiction over the defendant so far as the
               alteration of his sentence is concerned.


       462 N.E.2d 61, 63 (Ind. 1984). Thus, in Beanblossom, Christakis, and Abel, the

       judgments were void because, while the trial court had authority to modify the

       sentences at one time, the court’s judgment was rendered outside the limited


       Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 12 of 22
       time in which the legislature had granted the court authority to act.                              Thus, at

       the time the court acted, there was no longer a justiciable question before the

       court. 2


[19]   This reasoning was extended to relief from civil judgments in Alexander v. Cole,

       697 N.E.2d 80, 82-3 (Ind. Ct. App. 1998), superseded by statute on other grounds.

       In Alexander, the father sought relief from the dissolution court’s ex parte order

       awarding mother legal custody of the couple’s two older children. The father

       filed a motion for relief under Rule 60(B)(6), alleging the dissolution court’s

       order was void because there was a Child in Need of Services (CHINS) petition

       pending and the CHINS court retained jurisdiction over the children until that

       action ceased. The statutes at issue provided, in relevant part: “A juvenile court

       has exclusive original jurisdiction . . . [in] (2) Proceedings in which a child,

       including a child of divorced parents, is alleged to be a child in need of services

       under IC 31-34[,]” Ind. Code § 31-30-1-1(2) (1997), and “the juvenile court’s

       jurisdiction over . . . a child in need of services and over the child’s parent . . .

       continues until: (1) the child becomes twenty-one (21) years of age, unless the

       court discharges the child and the child’s parent . . . at an earlier time[.]” Ind.

       Code § 31-30-2-1 (1997).


[20]   We cited Beanblossom for the premise “a judgment may be void for a court’s

       lack of authority to render the particular judgment even though the court may



       2
        Justiciability is: “The quality, state, or condition of being appropriate or suitable for adjudication by a court.
       See MOOTNESS DOCTRINE; RIPENESS. Cf. STANDING.” BLACK’S LAW DICTIONARY (10th Ed. 2014) at 997.

       Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017                           Page 13 of 22
       have jurisdiction over the subject matter and the parties.” Alexander, 697

       N.E.2d at 83. We held the dissolution court was without authority to make the

       custody determination because the CHINS court retained jurisdiction until

       “that court discharged the parties or transferred the case.” Id. at 82. As in

       Beanblossom and the related cases, Indiana Code §§ 31-30-1-1 & 31-30-2-1

       allowed no latitude in interpretation of the dissolution court’s authority - if a

       pending CHINS case gave the CHINS court exclusive jurisdiction over the

       child at issue, the dissolution court could not adjudicate any question regarding

       that child.


[21]   Similarly, in In re Guardianship of A.J.A., 991 N.E.2d 110, 115 (Ind. 2013), our

       Indiana Supreme Court found the trial court’s grandparent visitation order void

       because grandmother did not have standing to pursue a grandparent visitation

       order under Indiana Code § 31-17-5-1, which allows a grandparent to seek

       visitation if “(1) the child’s parent is deceased; (2) the marriage of the child’s

       parents has been dissolved in Indiana; or (3) subject to subsection (b), the child

       was born out of wedlock.” While A.J.A.’s mother was dead, her father was

       alive and incarcerated for her mother’s murder. The parents were married

       when A.J.A. was born and did not dissolve their marriage prior to mother’s

       murder. As such, the controlling statute did not grant the court any authority to

       render a judgment providing visitation for grandmother.


[22]   The facts here are distinct from those in the cases above where a judgment was

       held void because the court lacked authority to render its decision. In

       Beanblossom, Christakis, and Abel, the trial court had authority at one point, but

       Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 14 of 22
       that authority expired after a certain time limit. Similarly, in Alexander and

       A.J.A., the trial court had authority to rule in certain circumstances, but that

       authority was limited by another court’s exclusive jurisdiction, in the case of

       Alexander, or the party’s lack of standing, as in A.J.A. The authority vested or

       rescinded in each of these cases was apparent on the face of the complaint,

       without the court needing to address the merits of any underlying factual issue

       or legal argument in the case. The trial court simply did not have statutory

       authority to act under the circumstances that existed.


[23]   In contrast, it is undisputed the Dissolution Court here had authority to

       adjudicate the property division requested by the parties as part of its

       Dissolution Order. See Ind. Code § 31-15-7-4 (providing terms by which the

       court “shall” divide the property of the parties in a dissolution action).

       Whether Husband’s military pay is “property” under Indiana Code § 31-9-2-

       98(3) is subject to interpretation, as is evident from the complexity of the

       arguments set forth by the parties and the variety of holdings in precedent.

       However, none of the parties’ current arguments regarding Husband’s military

       pay could deny the Dissolution Court of its authority to adjudicate the property

       division under Indiana Code Section 31-15-7-4 at the time the decree was

       entered.


[24]   We decline Husband’s invitation to examine the merits of his underlying legal

       argument in order to determine whether the Dissolution Court had authority to

       render any judgment at all. As the Seventh Circuit Court of Appeals stated in a

       recent similar matter, if we were to consider such a circular argument, “then

       Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 15 of 22
       appeal waivers would lose all effect. That’s because we would have to consider

       an appeal’s merits in every case.” United States v. Worthen, 2016 WL 6936553

       (7th Cir., November 28, 2016). 3


[25]   Husband’s opportunity to contest the terms of the Dissolution Decree involving

       his military pension passed almost twenty years ago. He cannot now attempt to

       revive this waiver by filing a Rule 60(B)(6) motion. See R.L. Turner, 963 N.E.2d

       at 457 (“[A] party who was asleep at the wheel has a powerful incentive to

       couch a claim of procedural error as a jurisdictional defect either to circumvent

       the doctrine of waiver or to open up an avenue for collateral attack.”). The

       Civil Court did not err when it denied Husband’s motion for relief from

       judgment under Rule 60(B)(6).




       3
        In Worthen, the appellant sought modification of his sentence by challenging the validity of his underlying
       conviction after he pled guilty to the crimes. The Seventh Circuit explained:

                To be clear, the crux of Worthen’s argument is that the validity of his appeal waiver
                depends on the validity of his conviction. That argument is entirely circular. Indeed, to
                determine whether Worthen’s crime-of-violence conviction is invalid, we would have to
                take the appeal in the first place. Then, only if we agree with Worthen and conclude that
                his conviction is in fact invalid would we find that Worthen’s sentence exceeds the
                statutory maximum, which in turn would mean that Worthen did not waive his appeal
                rights. So the rule would be that an appeal waiver is enforceable unless the appellant
                would succeed on the merits of his appeal. That cannot be the law.


       Worthen, slip op. at 2.



       Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017                       Page 16 of 22
                                             Motion to Clarify
[26]   Husband filed a motion for clarification of the Dissolution Decree. The

       legislature provided that “orders concerning property disposition entered under

       this chapter (or [Indiana Code §] 31-1-11.5-9 before its repeal) may not be

       revoked or modified, except in case of fraud.” Ind. Code § 31-15-7-9.1(a).

       However, the trial court may “entertain a petition the nature of which is to seek

       clarification of a prior order.” Thomas v. Thomas, 577 N.E.2d 216, 219 (Ind.

       1991)).


[27]   The Indiana Trial Rules do not provide for a motion for clarification; however,

       we have held, “it would elevate form over substance to treat a ‘motion to

       clarify’ as anything other than a motion to correct error.” Hedrick v. Gilbert, 17

       N.E.3d 321, 326 (Ind. Ct. App. 2014). In Hedrick, Gilbert filed a “motion to

       clarify” over thirty days after the trial court’s final judgment. The trial court

       granted the “motion to clarify.” Hedrick appealed following the trial court’s

       order on Gilbert’s “motion to clarify” and Gilbert argued Hedrick’s appeal was

       untimely. Our court likened Gilbert’s “motion to clarify” as a “motion to

       correct error,” stating


               Indiana Trial Rule 59(F) plainly states that “[a]ny modification . . .
               following the filing of a Motion to Correct Error shall be an
               appealable final judgment or order.” (Emphasis added). Here,
               the trial court unquestionably modified its original order by
               adding new terms to it. Because Hedrick filed his Notice of
               Appeal within thirty days of the trial court’s order issued in
               response to the motion for clarification, we find that this appeal
               is timely and will address the issues raised herein.

       Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 17 of 22
       Id. (emphasis in original). While we ultimately hold the Civil Court’s denial of

       Husband’s Motion to Clarify did not modify terms of the agreement, we find

       the reasoning used in Hedrick appropriate to determine our standard of review.


[28]   A trial court has broad discretion in ruling on a motion to correct error.

       Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 658 (Ind. Ct.

       App. 2001). We will reverse only for an abuse of that discretion. Id. An abuse

       of discretion occurs if the decision was against the logic and effect of the facts

       and circumstances before the court or if the court misapplied the law. Id.


[29]   Here, Husband argues the Civil Court’s denial of his Motion to Clarify resulted

       in an impermissible modification of the Dissolution Decree. He argues the

       circumstances in Pherson v. Lund, 997 N.E.2d 367 (Ind. Ct. App. 2013), are

       “almost identical” to those before us. (Br. of Appellant at 27.) Pherson is

       distinguishable.


[30]   In Pherson, the parties, Michael and Judith, were married in 1979 and divorced

       by settlement agreement in 1991. During the entirety of the marriage Michael

       worked for a railroad. The settlement agreement provided:

               Husband . . . is presently entitled to benefits provided under the
               Railroad Retirement Act. Section 14 of the Act as amended
               provides that the “Tier II Component” may be subject to division
               by a Dissolution of Marriage Decree. The Wife shall be awarded
               and is entitled to one-half of the Husband’s “Tier II” portion of
               benefits subject to division under Section 14 of the Railroad
               Retirement Act as amended, and if available at the time of
               distribution the Railroad Retirement Board will pay directly to


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               the Wife said 50% portion of the “Tier II” benefits as set out
               above.


       Pherson, 997 N.E.2d at 368. The court further explained:


               Judith Lund, Petitioner, is awarded and the Railroad Retirement
               Board is directed to pay an interest in the portion of Michael T.
               Lund, social security number XXX, benefits under the Railroad
               Retirement Act (45 U.S.C. Section 231, et seq.) which may be
               divided as provided by Section 14 of that Act (45 U.S.C. Section
               231m). Judith Lund’s share shall be fifty percent (50%) of the
               Tier II portion of the benefits of Michael T. Lund.


       Id. at 368-9. After dissolution, Michael worked for eighteen and a half years at

       the railroad. When he retired, Judith received half of his pension as directed by

       the settlement agreement. Michael sought clarification of the settlement

       agreement, arguing Judith was entitled only to the value of his pension at the

       time they entered into the settlement agreement, not to the value of his pension

       after an additional eighteen years of post-dissolution employment.


[31]   The trial court agreed with Michael and concluded Judith was entitled to only

       fifty percent of the value of Michael’s pension at the time of dissolution:

               It is clear that property acquired by one spouse in his or her own
               right after final separation should not be considered a marital
               asset subject to division. In the case at bar, the Respondent
               worked at his job, earning 18 ½ additional years’ worth of Tier II
               benefits after the parties were divorced. That portion of the Tier
               II benefits normally would not be subject to division by the
               divorce court, since the benefits had not been earned and did not
               exist at the time of final separation.


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       Id. at 370 (internal citations omitted). Judith appealed, and we agreed with the

       trial court:

               The agreement in this case simply failed to assign a value to the
               vested pension exclusive of future contributions. It fell to the trial
               court to do so. Generally, a dissolution court may, when valuing
               a marital asset, select a date between the filing of the dissolution
               petition and the date of the final hearing. Here, the valuation
               date ultimately selected by the trial court to correspond to the
               50/50 split was that most favorable to Wife, the date of the final
               hearing on property distribution. The coverture fraction reflects
               this valuation date; we find no error.


       Id. at 371 (internal citation and footnote omitted).


[32]   In the present case, the terms regarding Husband’s pension are not as

       ambiguous and take into account the fact Husband and Wife were married for

       only a portion of the time used to determine Husband’s final pension amount.

       To address that issue, the Dissolution Decree noted, “during the period from

       the date of marriage to the date of separation (March 31, 1985 to March 27,

       1998) Husband accumulated 156 months of active Federal service for

       retirement[.]” (App. at 30.) Based thereon, the Dissolution Court ordered,

       “Wife shall receive 50% of [Husband’s] disposable retired pay, before taxes[.]”

       (Id. at 31.)


[33]   In its order denying Husband’s Motion to Clarify, the Civil Court found,

       regarding the disbursement of Husband’s pension to Wife:


               15. DFAS is charged with the administration of Department of
               Defense payments, including retirement benefits.
       Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 20 of 22
               16. In October 2014, DFAS sent $1,039.68 directly to [Wife],
               representing 31.7073% of [Husband’s] gross monthly military
               retirement pay.


               17. This 31.7% number is arrived at by calculating the
               percentage of [Husband’s] military service that occurred while
               married to [Wife] (63.4% of his total service occurred during the
               marriage OR 156 months out of total service of 246 months), and
               then giving [Wife] 50% of that amount as ordered by the Court in
               the Decree. (.634 x .5 = .31707).


                                                      *****


               54. DFAS deals with decrees from various courts from all over
               the country every day. They were able to interpret and give full
               effect to the Decree as written in 1998 and asked no questions
               and raised no red flags.


                                                      *****


               56. DFAS . . . interpreted the Decree in a manner reasonably
               calculated to give effect to every provision of the Decree related
               to the pension.


               57. This is a strong signal to the Court that its 1998 decree was
               correct when issued and remains so now.


       (Id. at 13, 17-18.)


[34]   Although the Civil Court denied Husband’s motion to clarify, it examined the

       process DFAS used to determine Wife’s share of Husband’s pension, and in

       doing so, the Civil Court explained why Wife was receiving the legally


       Court of Appeals of Indiana | Opinion 32A04-1604-CT-806 | January 13, 2017   Page 21 of 22
       appropriate amount of Husband’s pension. Unlike the initial pension allocation

       in Pherson, the DFAS calculation herein takes into account the fact Husband

       worked for seven years post-dissolution by giving Wife half of the pension

       Husband earned during their marriage. Because the DFAS calculation is

       consistent with the terms of the Dissolution Decree and provides Wife with

       only half of the pension Husband earned during the marriage, we find no abuse

       of discretion in the Civil Court’s denial of Husband’s motion to clarify.



                                                Conclusion
[35]   Because the Dissolution Court’s Divorce Decree was not void, Husband is not

       entitled to relief from the judgment under Rule 60(B)(6). The Civil Court did

       not abuse its discretion when it denied Husband’s motion to clarify. We

       accordingly affirm.


[36]   Affirmed.


       Kirsch, J., and Crone, J., concur.




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