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                           Dec 11 2019, 9:11 am

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




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Sheldon C. McAuley                                       Curtis T. Hill, Jr.
Clyde, North Carolina                                    Attorney General of Indiana
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of                        December 11, 2019
Sheldon Contrell Woods, Jr.,                             Court of Appeals Case No.
and Tayja Monae Woods, By                                19A-JP-748
Next Friend,                                             Appeal from the
Sheldon C. McAuley,                                      Allen Superior Court
                                                         The Honorable
Appellant-Respondent,
                                                         Andrea R. Trevino, Judge
        v.                                               The Honorable
                                                         Carolyn S. Foley, Magistrate
                                                         Trial Court Cause No.
Tameka R. Woods,
                                                         02D07-9808-JP-248
Appellee-Petitioner,

and
State of Indiana,
Appellee-Intervenor.



Court of Appeals of Indiana | Memorandum Decision 19A-JP-748 | December 11, 2019                Page 1 of 9
      Kirsch, Judge.


[1]   Sheldon C. McAuley (“McAuley”) appeals the trial court’s order denying his

      motion for relief from judgment, specifically an order finding McAuley’s child

      support arrearage to be $30,621.84. McAuley raises the following restated issue

      for our review: whether the trial court abused its discretion when it denied his

      motion for relief from judgment.


[2]   We affirm.


                                 Facts and Procedural History
[3]   McAuley has two children with Tameka Woods (“Woods”): Sheldon Contrell

      Woods, Jr. (“Sheldon”), born July 13, 1997, and Tayja Monae Woods

      (“Tayja”), born January 8, 1999. Appellant’s App. Vol. 2 at 45. On January 10,

      2007, the trial court ordered McAuley to pay child support in the amount of

      $57.00 per week plus $13.00 per week towards his arrearage. Appellee’s App. Vol.

      2 at 2. The trial court also ordered the parties to immediately notify the clerk of

      the Allen Circuit Court in writing of any change in address. Id. at 3.


[4]   On September 30, 2010, at a review hearing, McAuley was served in open court

      with a Petition for Contempt and was advised of his rights regarding the

      contempt proceedings. Id. at 5-6. On October 13, 2010, the trial court ordered

      the parties to appear for a contempt hearing scheduled for January 20, 2011. Id.

      at 6. On January 24, 2011, the trial court entered an order indicating that

      McAuley failed to appear at the January 20 hearing and finding that McAuley

      was incarcerated at that time in the Indiana Department of Correction (“the
      Court of Appeals of Indiana | Memorandum Decision 19A-JP-748 | December 11, 2019   Page 2 of 9
      DOC”) with an earliest possible release date of April 13, 2014. Appellant’s App.

      Vol. 2 at 47.


[5]   Sheldon was emancipated on July 13, 2016, and Tayja was emancipated on

      January 8, 2018. Id. at 45. On April 11, 2018, the State filed a motion to

      determine arrears and stated that Tayja was emancipated on January 8 and that

      McAuley’s child support obligation ceased to accrue at that time. Appellee’s

      App. Vol. 2 at 7. The motion set forth the State’s calculation of McAuley’s

      arrearage to be $30,564.84 as of April 10, 2018. Id.


[6]   The trial court scheduled a hearing on the State’s motion to determine arrears

      for June 13, 2018. Id. at 13. The notice of hearing, dated April 11, 2018, was

      sent to McAuley at an address in Fort Wayne, Indiana. Id. On May 31, 2018,

      McAuley filed a “Motion for Telephonic Hearing and Waiver of Personal

      Appearance,” stating that appearing in person would be an undue hardship

      because he lived in Clyde, North Carolina and was suffering from an eye injury

      that made it difficult for him to drive. Id. at 15-16.


[7]   On June 13, 2018, a hearing was held on the State’s motion to determine

      arrears, and McAuley appeared telephonically at the hearing. Appellant’s App.

      Vol. 2 at 41. On June 28, 2018, the trial court issued an order, finding that

      McAuley owed a child support arrearage in the amount of $30,621.84 (“the

      Arrearage Order”), and that order was mailed to McAuley at his North

      Carolina address. Id. at 42. On February 22, 2019, McAuley filed a motion for




      Court of Appeals of Indiana | Memorandum Decision 19A-JP-748 | December 11, 2019   Page 3 of 9
      relief from judgment, which the trial court denied on March 4, 2019. Id. at 21,

      18-20. McAuley now appeals.


                                     Discussion and Decision
[8]   McAuley argues that the trial court abused its discretion when it denied his

      motion for relief from judgment. McAuley sought relief from the trial court

      pursuant to Indiana Trial Rule 60(B)(6) and (8). Trial Rule 60(B) provides in

      pertinent part:


              On motion and upon such terms as are just the court may relieve
              a party or his legal representative from a judgment, including a
              judgment by default, for the following reasons:


              ....


              (6) the judgment is void; [or]


              ....


              8) any reason justifying relief from the operation of the judgment,
              other than those reasons set forth in sub-paragraphs (1), (2), (3),
              and (4).


      Ind. Trial Rule 60(B)(6), (8). The burden is on the movant to establish grounds

      for Trial Rule 60(B) relief. In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind.

      2010). A motion made under Trial Rule 60(B) is addressed to the “equitable

      discretion” of the trial court, and the grant or denial of the motion “will be

      disturbed only for an abuse of that discretion. Id. at 740-41. An abuse of


      Court of Appeals of Indiana | Memorandum Decision 19A-JP-748 | December 11, 2019   Page 4 of 9
      discretion occurs when the trial court’s judgment is against the logic and effect

      of the facts before it and the inferences that may be drawn therefrom. Id. at

      741.


[9]   McAuley contends that it was an abuse of discretion for the trial court to deny

      his motion for relief from judgment. Specifically, he argues that the trial court

      violated his due process rights when it failed to serve him with the January 24,

      2011 order issued after a contempt hearing, at which McAuley failed to appear,

      which found that McAuley was incarcerated at that time in the DOC with an

      earliest possible release date of April 13, 2014. Appellant’s App. Vol. 2 at 47.

      Because the trial court was aware that he was incarcerated at the time, he

      asserts that the trial court should have served the order to him in the DOC, and

      the failure to do so caused him to miss an opportunity to be heard on the

      contempt issue. McAuley further argues that he should be relieved from his

      arrearage because, at the hearing held on September 30, 2010, he “impliedly

      litigated” a substantial change in his circumstances necessitating a modification

      of child support when he advised the trial court that he was incarcerated.

      Appellant’s Br. at 12-13.1




      1
        McAuley also argues that he had a due process right to be notified at least every three years of his right to
      review his case, and he was a “victim of a . . . seven year undisturbed order that caused punitive measures
      that imposed a large arrearage on him upon release from prison.” Appellant’s Br. at 13. To support his
      contention, he cites to 42 United States Code section 666(a)(10)(C), which requires States to have laws
      requiring certain procedures to improve the effectiveness of child support enforcement, including procedures
      under which parties to child support actions are notified every three years that they may request a review of
      their cases. However, there is no private right of action under that section as the United States Supreme
      Court has held that the Title IV-D program “was not intended to benefit individual children and custodial
      parents,” and does not create “an individual entitlement to services”; instead it is “simply a yardstick . . . to

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-748 | December 11, 2019                      Page 5 of 9
[10]   Trial Rule 60(B) affords relief from circumstances that could not have been

       discovered during the period a motion to correct error could have been filed.

       Bello v. Bello, 102 N.E.3d 891, 894 (Ind. Ct. App. 2018). “[I]t is not meant to be

       used as a substitute for direct appeal or to revive an expired attempt to appeal.”

       Id. “Trial Rule 60(B) motions address only the procedural, equitable grounds

       justifying relief from the legal finality of a final judgment, not the legal merits.”

       In re Paternity of P.S.S., 934 N.E.2d at 740. Here, McAuley’s motion for relief

       from judgment only addressed the legal merits of the Arrearage Order and

       provided no explanation as to why his Trial Rule 60(B) motion was not filed

       until nearly eight months later.


[11]   Because the Arrearage Order was an order for the payment of money, it was an

       interlocutory appeal as of right. See Ind. Appellate Rule 14(A)(1) (“Appeals

       from the following interlocutory orders are taken as a matter of right by filing a

       Notice of Appeal with the Clerk within thirty (30) days after the notation of the

       interlocutory order in the Chronological Case Summary: (1) For the payment

       of money . . . .”). McAuley, therefore, was required to file either a notice of

       appeal or a motion to correct error within thirty days of the Arrearage Order.

       App. R. 9(A); App. R. 14(A)(1); T.R. 59(C). he did neither. Instead, he filed a

       motion for relief from judgment eight months after the Arrearage Order was

       issued; his motion did not provide any basis as to why he was unable to file a




       measure the systemwide performance of a State’s Title IV-D program.” Blessing v. Freestone, 520 U.S. 329, 343
       (1997) (emphasis in original).

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-748 | December 11, 2019                  Page 6 of 9
       timely appeal or motion to correct error. Appellant’s App. Vol. 2 at 21-28. The

       Arrearage Order was sent to McAuley at his North Carolina address, and his

       motion did not include a claim that he did not timely receive notice of the

       Arrearage Order. Under Trial Rule 60(B)(6) and (8), a motion for relief from

       judgment must be filed within a reasonable time. McAuley has not shown that

       his delay of eight months in filing his motion was a reasonable time.


[12]   McAuley asserts that his due process rights were violated when the trial court

       failed to serve him with the January 24, 2011 order issued after the contempt

       hearing even though the trial court and the Allen County Clerk were aware that

       he was incarcerated in the DOC. Although the January 24 order showed that

       the trial court was aware that McAuley was incarcerated, McAuley has not

       shown that he provided the trial court with written notice of any change in

       address as he was required to do under the child support order. Appellee’s App.

       Vol. 2 at 3. Therefore, even though the trial court knew that McAuley was

       incarcerated, there is no evidence that the trial court was aware of McAuley’s

       actual address in the DOC. Additionally, McAuley alleges that the January 24

       order found him to be in indirect contempt due to his failure to appear at the

       hearing; however, the order does not make such a finding. It merely stated that

       McAuley failed to appear, that he was currently incarcerated in the DOC, and

       that the case was continued “to be reset.” Appellant’s App. Vol. 2 at 47.


[13]   McAuley also contends that he “impliedly litigated” a substantial change in his

       circumstances necessitating a modification of child support when he advised the

       trial court that he was incarcerated at the hearing held on September 30, 2010.

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-748 | December 11, 2019   Page 7 of 9
Appellant’s Br. at 12-13. In its order denying McAuley’s motion for relief from

judgment, the trial court found that McAuley did not file a written motion to

modify his child support. Appellant’s App. Vol. 2 at 19. Incarceration may

constitute a substantial change in circumstances warranting a modification of

an existing child support obligation, but such modification may not take effect

on a date earlier than the date on which the petition to modify the child support

obligation is filed. Becker v. Becker, 902 N.E.2d 818, 820-21 (Ind. 2009). Here,

nothing in the record supports McAuley’s argument that he impliedly litigated

the issue of modification of his child support due to incarceration. There is no

evidence that he filed a written petition to modify child support or that he even

orally raised the issue at the September 30, 2010 hearing when he merely

advised the trial court that he was incarcerated at that time and had been for the

previous six months.2 McAuley cites to O’Campo v. O’Campo, 597 N.E.2d 1314

(Ind. Ct. App. 1992) to support his contention that modification of child

support can occur in the absence of a written petition upon the oral motion of

either party. Id. at 1316. However, there is nothing in the record to support

McAuley’s assertion that he orally moved to modify his child support and

stated grounds upon which he sought relief when he informed the trial court of

his incarceration. Because he never filed a petition to modify his child support,

the existing support order remained in force until Sheldon and Tayja became

emancipated. We, therefore, conclude that McAuley has not shown that the




2
    We have not been provided with a transcript from the September 30, 2010 hearing.


Court of Appeals of Indiana | Memorandum Decision 19A-JP-748 | December 11, 2019       Page 8 of 9
       trial court abused its discretion when it denied his motion for relief from

       judgment.


[14]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-748 | December 11, 2019   Page 9 of 9
