MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Jun 13 2017, 7:30 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT
Lisa M. Joachim
Mann Law, P.C.
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Marriage of                                   June 13, 2017

Wendi L. Lanford,                                        Court of Appeals Case No.
                                                         49A02-1702-DR-239
Appellant-Respondent/
                                                         Appeal from the Marion Superior
Counter-Petitioner,
                                                         Court
       v.
                                                         The Honorable David J. Dreyer,
                                                         Judge
Stuart D. Lanford,                                       The Honorable Patrick Murphy,
Appellee-Petitioner/                                     Magistrate
Counter-Respondent                                       Trial Court Cause No.
                                                         49D10-1504-DR-12545



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1702-DR-239 | June 13, 2017         Page 1 of 3
[1]   Wendi and Stuart Lanford were married and, on April 16, 2015, Stuart filed a

      petition to dissolve the marriage. Following a final hearing, the trial court

      issued a final order and decree of dissolution on August 30, 2016. On

      September 29, 2016, Wendi and Stuart each filed a motion to correct error.

      Over three months later, on January 6, 2017, the trial court granted Stuart’s

      motion to correct error. The order was signed only by a magistrate and not

      approved by a judge. Appealed Order p. 2. Wendi now appeals from that

      order.


[2]   Motions to correct error are governed by Indiana Trial Rule 53.3, which

      provides, in relevant part, as follows:

               In the event a court fails for forty-five (45) days to set a Motion to
               Correct Error for hearing, or fails to rule on a Motion to Correct
               Error within thirty (30) days after it was heard or forty-five (45)
               days after it was filed, if no hearing is required, the pending
               Motion to Correct Error shall be deemed denied. Any appeal
               shall be initiated by filing the notice of appeal under Appellate
               Rule 9(A) within thirty (30) days after the Motion to Correct
               Error is deemed denied.


      Ind. Trial Rule 53.3(A) (emphases added). There are limited exceptions to this

      general rule, none of which are relevant to this case. See T.R. 53.3(B)

      (exceptions where party failed to serve the judge personally, parties stipulated

      that time limitation set forth in section (A) does not apply, or time limitation is

      extended by section (D)); T.R. 53.3(D) (trial court may extend time limitation

      up to thirty days by filing an entry in the chronological case summary before

      expiration of original time period).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-DR-239 | June 13, 2017   Page 2 of 3
[3]   Here, the trial court did not rule on Stuart’s motion within thirty days or set it

      for a hearing within forty-five days of the date it was filed. As such, the motion

      was deemed denied on November 14, 2016, and Stuart’s thirty-day window to

      appeal that deemed denial lapsed on December 14, 2016. The trial court’s

      order granting the motion was not issued until January 6, 2017; therefore, the

      order was belated.


[4]   In this case, after Stuart’s motion was deemed denied, he did not file a notice of

      appeal within thirty days of the deemed denial. As such, the trial court had no

      authority to rule on the motion months after it was filed, and the order is a

      nullity.1


[5]   The judgment of the trial court is reversed.


      Barnes, J., and Crone, J., concur.




      1
        Additionally, we note that the order on the motion to correct error was signed only by a magistrate and not
      approved by a judge. See Ind. Code §§ 33-23-5-5 (listing powers of magistrates, which does not include
      entering a final order on a motion to correct error), -8 (magistrate may not enter a final appealable order
      unless sitting as a judge pro tempore or a special judge with limited exceptions), -9 (magistrate may enter
      final order in a criminal proceeding).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-DR-239 | June 13, 2017               Page 3 of 3
