Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
FILED
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. Jun 11 2012, 9:56 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JENNIFER BAYS BEINART GLENN E. DAVIS, JR.
Bays Family Law Kitley Law Office, P.C.
Indianapolis, Indiana Beech Grove, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KAREN D. McGUINNESS, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A02-1110-DR-937
)
MICHAEL F. McGUINNESS, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable John F. Hanley, Judge
Cause No. 49D11-0712-DR-53468
June 11, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Karen D. McGuinness (“Wife”) appeals the trial court’s decision setting aside the
Decree of Dissolution of Marriage and Property Settlement Agreement (“the Agreement”)
between her and Michael F. McGuinness (“Husband”) and denying her motion requesting the
court to appoint a commissioner over certain real estate disposed of by the Agreement.
We reverse and remand for further proceedings.
Issues
Wife presents several issues for review, which we restate as:
I. Whether Husband failed to file his petition for relief from the
Agreement in a reasonable period of time and is thus estopped from
pursuing relief from the Agreement; and
II. Whether the trial court abused its discretion when it set aside the
Decree of Dissolution of Marriage upon finding duress and thus
improperly denied Wife’s request that the trial court appoint a
commissioner to enforce the property distribution provisions of the
Decree.
Facts and Procedural History
Husband and Wife were married in 1989; the marriage produced four children.
Husband has a high school diploma and has worked hanging drywall and as a contractor or
subcontractor on construction projects. Wife has earned a Bachelor, Master of Business
Administration, and Juris Doctor Degrees, worked as an attorney for a State agency, and
completed coursework to become a Registered Nurse.
On Mother’s Day in 2007, Husband and Wife engaged in a domestic dispute during
which Husband threw a beer can at Wife. One of the parties’ children moved to protect
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Wife, and a dispute ensued between Husband and the child that led to Husband’s arrest, the
issuance of a protective order against Husband as to Wife and the children, and Wife’s
decision to seek a divorce from Husband.
In late November 2007, Husband became severely ill. In December 2007, Husband
was diagnosed with cirrhosis and hepatitis C. On December 17, 2007, Wife filed her Petition
for Dissolution of Marriage.
During the pendency of the proceedings, Husband’s health worsened so precipitously
that he was admitted to hospice care in late January or early February 2008. Husband and
Wife both believed that he would likely die soon and therefore discussed financial
arrangements for support of the children. Husband had received several parcels of land in
Pulaski County, Indiana, from several relatives, and wanted to be sure that the land would not
be lost upon his death.1 Husband was not represented by counsel in the divorce proceedings,
and he therefore asked Wife to instruct her attorney to draft an instrument to allow Wife to
obtain ownership of the property upon his death. In late May 2008, Wife visited Husband at
his home and presented him with paperwork to sign. Husband signed three documents—the
Agreement, a Waiver of Final Hearing, and a Child Support Worksheet—but recalled signing
only one and was unable to determine which document he signed. Husband did not attempt
to read the documents he signed, and instead relied upon Wife to obtain the documents he
had requested.
The Agreement provided for Husband to execute quitclaim deeds to the marital
1
Husband’s testimony does not make clear the precise nature of his concerns in this regard.
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residence and its adjacent real estate. It also provided, “Wife shall become the sole owner of
the five parcels of real estate located in Pulaski County, Indiana, presently titled in Husband’s
name individually,” and required Husband to “execute the deeds and necessary paperwork to
transfer all right, title and interest therein.” Appellant’s App. at 22. The Agreement also
provided for Wife’s ownership of a “1934 truck which has been in pieces in the parties’
garage for 25 years and has salvage value only,” and required Husband to execute any
documents required to place title to the vehicle in Wife’s name. Appellant’s App. at 23.
Husband agreed to assume all debts incurred since the couple’s date of legal separation and
to be solely responsible “for the debts and obligations in his individual name during the
marriage,” Appellant’s App. at 23, and to pay $34.18 weekly in child support. Appellant’s
App. at 24.
On June 2, 2008, Wife submitted these documents to the dissolution court. On June 3,
2008, the dissolution court entered its Decree of Dissolution of Marriage, which approved the
Agreement and ordered the parties to comply with its provisions.
Beginning in July 2008, Husband’s medical condition began to improve; by October,
he was released from hospice care. Sometime in July, Husband contacted Wife regarding
sale of the 1934 truck, and thought that her response to his plans to sell the truck was
unusual; he found particularly troubling Wife’s impression that she was entitled to all of the
marital assets. Husband was unsure whether the marriage had been dissolved and, though
Wife confirmed that to be the case, asked Wife to provide copies of the documents. It is
unclear whether Wife did so, and Husband failed to obtain documents on his own efforts.
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Husband did not obtain a copy of the Decree until June 2009 and did not review the decree
until a later date.
On October 20, 2009, Wife filed her Request for Appointment of Commissioner for
Purposes of Transferring Real Estate, seeking the appointment of a commissioner to execute
deeds on each of the parcels of land that the Agreement contemplated Husband would
transfer to Wife. In response, on December 28, 2009, Husband filed his Verified Petition to
Set Aside Decree of Dissolution of Marriage, which alleged that Wife obtained his signature
on the Agreement through fraud.
On August 10, 2011, the dissolution court conducted a hearing on Wife’s request for
appointment of a commissioner and Husband’s verified petition. On September 20, 2011, the
trial court issued its order, in which it found that Husband’s “ability to consent was
imperfect,” “the Agreement was manifestly inequitable,” and Husband “was under duress”
because of his poor health and lack of legal counsel at the time he signed the Agreement.
Appellant’s App. at 14. The court did not address Husband’s allegation of fraud in his
petition. The court therefore granted Husband’s petition to set aside the Decree and denied
Wife’s request for attorney fees. In a separate entry, the court also denied Wife’s request for
appointment of a commissioner.
This appeal followed.
Discussion and Decision
Estoppel
We turn first to Wife’s argument that Husband did not timely seek to set aside the
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Decree. “A party waives appellate review of an issue or argument unless the party raised that
issue or argument before the trial court.” M.S. v. C.S., 938 N.E.2d 278, 285 (Ind. Ct. App.
2010). This principle is particularly important where, as here, the question of what
constitutes “a reasonable time period to file [a] motion for relief from judgment” is so
dependent upon “the circumstances of each case, as well as” potential prejudice to the
opposing party and the basis for the movant’s delay in seeking relief. Parham v. Parham, 855
N.E.2d 722, 728 (Ind. Ct. App. 2006), trans. denied.
Here, we find nothing in the record indicating that Wife at any point argued that
Husband was estopped from pursuing his request for relief. While some of Husband’s
testimony related to why he did not submit his petition for relief before December 2009, Wife
advances her argument for estoppel for the first time in her Appellant’s Brief. We thus
conclude that Wife has waived this issue on appeal.
Moreover, we observe that Husband’s petition falls within Trial Rule 60(B), as it
seeks relief from the court’s Decree of Dissolution, in particular alleging that Wife obtained
Husband’s signature on the Agreement by fraud. We review a trial court’s decision under
Trial Rule 60(B) for an abuse of discretion, which occurs when the court’s decision is clearly
against the logic and effect of the facts and circumstances before it or is contrary to law.
Wheatcraft v. Wheatcraft, 825 N.E.2d 23, 30 (Ind. Ct. App. 2005).
The Rule provides:
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:
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(1) mistake, surprise, or excusable neglect;
(2) any ground for a motion to correct error, including without limitation newly
discovered evidence, which by due diligence could not have been discovered
in time to move for a motion to correct errors under Rule 59;
(3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
***
(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).
The motion shall be filed within a reasonable time for reasons (5), (6), (7), and
(8), and not more than one year after the judgment, order or proceeding was
entered or taken for reasons (1), (2), (3), and (4).
Ind. Trial Rule 60(B).
Pursuant to Indiana Code Section 31-15-7-9.1(a), where a party seeks the revocation
or modification of a property disposition order entered in an action for the dissolution of a
marriage, that order “may not be revoked or modified, except in case of fraud.” The statute
goes on to provide a six-year limitation on the period in which a party may seek to set aside a
property disposition order due to fraud. Ind. Code § 31-15-7-9.1(b).
Husband contended that his signature on the Agreement was obtained by fraud. His
petition to set aside the Agreement was filed on December 28, 2009—more than 1 ½ years
after the entry of the Decree. While this date falls outside the one-year period provided for
such petitions under Trial Rule 60(B)(3), it is well within the six-year period specified by
Section 31-15-7-9.1(b), and we decline to hold that there was error in the dissolution court’s
decision to reach the merits of Husband’s claim.
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Whether the Dissolution Court Abused its Discretion
The dissolution court’s decision to set aside the Decree, at least as to the Agreement,
is nonetheless erroneous. Husband’s motion sought to set aside the Decree of Dissolution,
but by its terms specifically challenged Husband’s signature to the Agreement. The trial
court’s order similarly set aside the Decree and not merely the portion of the Decree that
adopted the Agreement’s disposition of marital assets. To the extent that the dissolution
court set aside the entirety of the Decree, that decision was in error.
Further, Husband alleged fraud, though he did not specify whether Wife’s fraud was
actual or constructive. To succeed in a claim for actual fraud, a claimant must prove that an
opposing party made 1) a material misrepresentation of a past or existing fact; 2) the material
misrepresentation was untrue; 3) the opposing party knew or acted in reckless ignorance of
the misrepresentation’s falsity; 4) the opposing party intended to deceive the claimant; 5) the
claimant rightfully relied on the misrepresentation; and 6) the misrepresentation was the
proximate cause of the injury or damage complained of. Id. at 30 (citing Lawyers Title Ins.
Corp. v. Pokraka, 595 N.E.2d 244, 249 (Ind. 1992)). To establish the elements of
constructive fraud, a claimant must prove: 1) the opposing party owed the claimant a duty
due to the relationship between them; 2) the opposing party violated that duty by making
deceptive material misrepresentations of past or existing fact, or by remaining silent when a
duty to speak exists; 3) the claimant’s reliance upon the misrepresentations or silence; 4)
injury to the claimant as a proximate result of the reliance; and 5) the opposing party gained
an advantage at the expense of the claimant. Id. (citing Block v. Lake Mortgage Co., Inc.,
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601 N.E.2d 449, 451 (Ind. Ct. App. 1992)).
Rather than concluding that Husband established the elements of either actual or
constructive fraud, the dissolution court found that Husband signed the Agreement under
duress. To establish that a document was signed under duress, “‘the ultimate fact to be
determined is whether or not the purported victim was deprived of the free exercise of his
own will.’” Youngblood v. Jefferson County Div. of Family and Children, 838 N.E.2d 1164,
1170 (Ind. Ct. App. 2005) (quoting Raymundo v. Hammond Clinic Ass’n, 449 N.E.2d 276,
283 (Ind. 1983)), trans. denied. Indiana courts have generally required that the individual
seeking to avoid a contract on the basis of duress must be subject to “‘an actual or threatened
violence of restraint of a man’s person contrary to law, to compel him to enter into a contract
or discharge one.’” Carrasco v. Grubb, 824 N.E.2d 705, 711 (Ind. Ct. App. 2005) (quoting In
re Paternity of K.R.H., 784 N.E.2d 985, 990 (Ind. Ct. App. 2003)), trans. denied; Rutter v.
Excel Indus., Inc., 438 N.E.2d 1030, 1031 (Ind. Ct. App. 1982) (citing Williamson v. Bendix
Corp., 289 F.2d 389 (7th Cir. 1961); Adams v. Stringer, 78 Ind. 175 (1881); Bush v. Brown,
49 Ind. 573 (1875)).
Fraud—whether actual or constructive—and duress are not interchangeable, though
each relates to the voluntariness of an individual’s decision to enter into a contract. Duress is
not a basis upon which Section 31-15-7-9.1 affords relief from an order for the disposition of
marital property. The dissolution court here addressed itself to duress but not fraud, and thus
abused its discretion by misapplying the law. We therefore remand this matter to the
dissolution court for further proceedings not inconsistent with our opinion today.
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Conclusion
Wife’s argument that Husband is estopped from seeking relief from the Agreement on
the basis of fraud is waived. The dissolution court abused its discretion when it set aside the
Decree and concluded that Husband entered into the Agreement and other documents under
duress but failed to address the basis of Husband’s petition, which alleged fraud.
Reversed and remanded for further proceedings.
ROBB, C.J., and MATHIAS, J., concur.
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