      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                FILED
      this Memorandum Decision shall not be
                                                                       Feb 22 2018, 7:46 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                          CLERK
                                                                        Indiana Supreme Court
      the defense of res judicata, collateral                              Court of Appeals
                                                                             and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Darin Higgs                                              Robin R. Craig
      Evansville, Indiana                                      Evansville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Michelle Schum,                                          February 22, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               82A01-1708-DR-1893
              v.                                               Appeal from the Vanderburgh
                                                               Superior Court
      Morgan Schum,                                            The Honorable Robert J. Tornatta,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               82D05-1503-DR-319



      May, Judge.


[1]   Michelle Schum (“Mother”) appeals the trial court’s denial of her motion for

      relief from judgment. She makes multiple arguments, only one of which we

      need address: whether the trial court abused its discretion when it denied her

      motion for relief from its order. Because Mother has demonstrated neither the

      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-DR-1893 | February 22, 2018   Page 1 of 10
      excusable neglect nor the meritorious defense required to obtain the relief she

      requested, we affirm.



                              Facts and Procedural History                                    1




[2]   On March 16, 2017, Morgan Schum (“Father”) filed a “Petition to Modify

      Custody, Parenting Time & Support and for Supervised Parenting Time.”

      (Appellant’s App. Vol. II at 14) (formatting revised). Father’s Petition alleged

      Mother was cohabiting with an individual who was physically abusive towards

      her, creating a “substantial and continuing change in circumstances,” (id.), such

      that it would be “in the best interest of the minor children” to change the

      custody, child support, and parenting time arrangements. (Id.) The trial court

      scheduled a hearing for 8:00 a.m. on April 4, 2017. Mother was duly served

      with notice and does not contest that service.


[3]   On April 4, 2017, at 8:18:28 a.m., Mother was called in open court but did not

      appear. Father’s counsel, Robin Craig, went to the hall to call Mother but she

      did not respond. Under oath, Father testified as to his request for modification

      of custody, support, and parenting time. At 8:23:27 a.m., at the conclusion of

      Father’s testimony, the trial court called for Mother again but she did not




      1
        Appellate Rule 46(A)(6) provides that an appellant’s statement of facts “shall describe the facts relevant to
      the issues presented for review [and] shall be stated in accordance with the standard of review appropriate to
      the judgment or order being appealed.” Here, Mother’s statement of facts omits and/or misstates facts
      related to Mother’s failure to appear, Mother’s filings, and the alleged withdrawal of Father’s counsel.
      Father’s inability to agree with Mother’s statement of facts is well taken, and we appreciate Father’s efforts to
      clarify the relevant procedural and factual history.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-DR-1893 | February 22, 2018            Page 2 of 10
      respond. At 8:25:16 a.m., the trial court ruled in Father’s favor and the matter

      was concluded. Later that morning, before Father’s counsel had left the

      building, Mother arrived at the courthouse. Father’s counsel and Mother went

      to the courtroom, and the trial court advised Mother of its ruling and of

      Mother’s rights to consult counsel and to appeal.


[4]   On April 6, 2017, Mother obtained counsel who then filed a Motion for Relief

      from Judgment. 2 Pursuant to Indiana Trial Rule 60(B), Mother argued the

      ruling should be set aside “due to [her] mistake, surprise, or excusable

      neglect[.]” (Appellee’s App. Vol. II at 3.) On May 16, 2017, Mother amended

      her motion to add the allegation Father’s petition to modify was not verified

      and, therefore, was facially defective. On July 19, 2017, the court held a

      hearing on Mother’s amended motion for relief from judgment and took the

      matter under advisement. Later that day, the trial court denied Mother’s

      motion.



                                 Discussion and Decision
[5]   Mother asserts the trial court abused its discretion when it denied her motion

      for relief under Indiana Trial Rule 60(B). Indiana Trial Rule 60(B) says a court

      may, upon motion by a party, relieve the party from the judgment if “mistake,

      surprise, or excusable neglect” are shown. A movant alleging mistake, surprise,




      2
       This document, pertinent to the issues at hand, was not provided by Mother in her Appendix. Father filed
      an Appendix that included the document.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-DR-1893 | February 22, 2018      Page 3 of 10
      or excusable neglect “must allege a meritorious claim or defense.” Ind. Trial

      Rule 60(B). Mother claimed her confusion about the time of the April 4

      hearing constituted excusable neglect and she had a meritorious defense

      because Father’s petition was not verified. 3 However, the trial court denied her

      motion.


[6]   We review a denial of a motion for relief from judgment for an abuse of

      discretion. Thompson v. Thompson, 811 N.E.2d 888, 903 (Ind. Ct. App. 2004),

      reh’g denied, trans. denied. An abuse of discretion occurs if the trial court’s ruling

      is clearly against the logic and effect of the facts and inferences supporting the

      judgment, or if the court has misinterpreted the law. Id. To prevail, Mother

      “must establish (1) excusable neglect and (2) a meritorious basis to set aside the

      judgment—also referred to as prejudice.” Id. The burden to establish relief is

      on the movant. Id. “Because the facts and circumstances of each case differ,

      there are no fixed rules or standards for determining what constitutes excusable

      neglect pursuant to Trial Rule 60(B)(1).” Id. Thus, the trial court was required

      to “balance the need for an efficient judicial system against the judicial

      preference for resolving disputes on their merits.” Id.




      3
       On appeal, Mother also alleges the evidence Father submitted on April 4, in favor of his petition for change
      of custody, was inadmissible hearsay. Mother did not raise this argument before the trial court at the hearing
      on her motion to set aside the default judgment; thus, any allegations as to Father’s alleged hearsay evidence
      are waived. See Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (waiver of the error on appeal if objection
      or argument not raised at trial).

      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-DR-1893 | February 22, 2018          Page 4 of 10
[7]   Mother claims the fact she was late to the April 4 hearing was excusable, and

      she analogizes her case to Butler v. State, 933 N.E.2d 33 (Ind. Ct. App. 2010). In

      Butler, we reversed a default judgment against Butler because court staff had

      told Butler the hearing time was 1:00 p.m., when in fact it was 9:30 a.m. Id. at

      35. Here, Mother was served with notice that indicated the hearing on Father’s

      petition would begin at 8:00 a.m., but, she admits, she “thought that the court

      date was 9, 9:00” until she checked the notice on the morning of the hearing.

      (7/19/2017 Tr. at 18.) Mother admits she did not arrive until, “Um, maybe,

      8:20ish[.]” (Id.) Butler does not control because Butler had been told the wrong

      time by court personnel, while Mother was served with proper notice and that

      notice had the correct information on it for the hearing. Accordingly, Mother’s

      failure to arrive for the hearing was neglect that was not excusable. 4 See Smith v.

      Johnston, 711 N.E.2d 1259, 1262 (Ind. 1999) (doctor’s failure to open his mail

      did not equate to excusable neglect when he failed to respond to a lawsuit and

      default judgment was entered against him).


[8]   Notwithstanding Mother’s failure to show excusable neglect, she also does not

      present a meritorious defense. She argues Indiana Code section 31-16-2-4

      requires Father’s petition to modify be verified, and in support thereof Mother




      4
        Mother also claims the trial court did not treat the parties equally because it did not default Father when he
      failed to appear for a hearing on May 24, 2017. However, we find no evidence in the record that Father was
      to attend a hearing and failed to appear. The CCS indicates both parents’ counsel appeared on May 24,
      2017, for a scheduling conference with the court. Because the record does not seem to support Mother’s
      argument, we cannot address it. See Ind. Appellate Rule 46(A)(8)(a) (failure to present cogent argument
      supported by legal authority and citations to the record waives issue for appellate review).

      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-DR-1893 | February 22, 2018            Page 5 of 10
      relies on Bunch v. Himm, 879 N.E.2d 632 (Ind. Ct. App. 2008). There, Bunch

      filed a petition to modify child support when Himm’s income increased due to

      her deployment to active duty military service. Bunch did not verify the

      petition, which was filed within twelve months of the last child support order.

      Himm did not appear at the hearing, and the trial court entered a default

      judgment in her absence. Subsequently, Himm moved for relief from judgment

      because she had not received notice of the hearing, and the trial court granted

      her relief.


[9]   Bunch appealed and, in our review of the circumstances, we listed “prevailing”

      meritorious defenses. Id. at 637. One of those was that, when seeking child

      support, Indiana Code section 31-16-2-4 requires the petition be verified. The

      second was the requirements for a petition to modify that are set out in Indiana

      Code section 31-16-8-1. We noted Bunch’s petition was not verified, was filed

      within one year of the last order, and did not allege any other grounds for such

      a modification beyond Himm’s purported salary increase. As our Indiana

      Supreme Court had previously held that without a substantial and continuing

      change of circumstances, a difference in income alone is not sufficient to

      change a support order if twelve months had not elapsed since the last order,

      MacLafferty v. MacLafferty, 829 N.E.2d 938, 942 (Ind. 2005), we held Himm had

      made a “prima facie showing of a meritorious defense” and affirmed the trial

      court’s decision to set aside the default judgment against her. Bunch, 879

      N.E.2d at 637. Although the fact an unverified petition seeking child support

      was stated as a meritorious defense, to affirm the trial court’s order of relief


      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-DR-1893 | February 22, 2018   Page 6 of 10
       from judgment, we relied on the fact Bunch had not alleged a substantial and

       continuing change in circumstances that would justify the modification prior to

       the one-year mark.


[10]   While Indiana Code section 31-16-2-4 requires a petition to establish child

       support be verified, the requirements for filing a petition to modify child support

       are set out in a different chapter of the Indiana Code, specifically section 31-16-

       8-1. That statute requires a petitioner requesting modification to show 1)

       “changed circumstances so substantial and continuing as to make the terms

       unreasonable” or 2) a 20% difference from the previous order and that more

       than 12 months have elapsed since the last order. Ind. Code § 31-16-8-1(b)

       (1997). Nothing in this statute, or any other statute in chapter 8 of Indiana

       Code article 31-16, requires a petition to modify child support to be verified.

       Mother does not allege the requirements Indiana Code section 31-16-8-1 have

       not been met. Instead, she relies wholly on the fact the petition to modify was

       not verified. As that is not a requirement for a petition to modify, Mother’s

       argument that she has a meritorious defense fails.


[11]   Because Mother has shown neither excusable neglect nor a meritorious defense,

       the trial court did not abuse its discretion when it denied her motion for relief

       from judgment, and we affirm.


[12]   Affirmed.


       Altice, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-DR-1893 | February 22, 2018   Page 7 of 10
Vaidik, C.J., concurs in result with separate opinion.




Court of Appeals of Indiana | Memorandum Decision 82A01-1708-DR-1893 | February 22, 2018   Page 8 of 10
       ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
       Darin Higgs                                              Robin R. Craig
       Evansville, Indiana                                      Evansville, Indiana



                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Michelle Schum,                                          Court of Appeals Case No.
                                                                82A01-1708-DR-1893
       Appellant-Respondent,
                                                                Appeal from the Vanderburgh
               v.                                               County Superior Court
                                                                The Honorable Robert J. Tornatta,
       Morgan Schum,                                            Judge
       Appellee-Petitioner                                      Trial Court Cause No.
                                                                82D05-1503-DR-319




       Vaidik, Chief Judge, concurring in result.


[13]   Here, the trial court “defaulted” Mother because she appeared approximately

       thirty minutes late for the modification-of-custody hearing. Appellant’s App.

       Vol. II p. 6. I am deeply inclined to find excusable neglect in these

       circumstances because the lives of two minor children are at stake. See Young v.

       Elkhart Cty. Office of Family & Children, 704 N.E.2d 1065, 1068 (Ind. Ct. App.

       1999) (“Generally, default judgments are not favored in Indiana, and they are

       especially undesirable in the context of divorce or custody proceedings because

       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-DR-1893 | February 22, 2018   Page 9 of 10
       of the grave importance of the matters decided therein. Any doubt as to the

       propriety of a default judgment is to be resolved in favor of the defaulted party.”

       (citations omitted)); see also Walker v. Kelley, 819 N.E.2d 832, 837 (Ind. Ct. App.

       2004) (“[W]e do not see how the best interests of the children could be

       ascertained without a hearing that affords both parents the opportunity to

       present evidence and cross-examine witnesses . . . .” (emphasis added)).


[14]   However, Mother has given no meritorious defense. She claimed only that the

       testimony from Father was hearsay and that his petition was unverified. She

       did not deny Father’s allegations that the police arrested her live-in boyfriend

       after he beat her up in the presence of the children. She did not claim that the

       boyfriend was no longer living with her or that the children would be better off

       with her. As a result, I concur in the result reached by the majority.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-DR-1893 | February 22, 2018   Page 10 of 10
