Nicholaus Griesemer and Alexander Griesemer, Minor Children, By Next Friend, Pamela Griesemer v. Brian Griesemer (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Jun 28 2016, 8:22 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
F. Anthony Paganelli Arend J. Abel
Thomas D. Perkins TaKeena M. Thompson
Stephanie L. Grass Cohen & Malad, LLP
Paganelli Law Group Indianapolis, Indiana
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Nicholaus Griesemer and June 28, 2016
Alexander Griesemer, Minor Court of Appeals Case No.
Children, By Next Friend, 49A04-1512-CT-2130
Pamela Griesemer, Appeal from the
Appellants-Plaintiffs, Marion Superior Court
The Honorable
v. James A. Jovan, Judge
The Honorable
Brian Griesemer, Kimberly Dean Mattingly,
Magistrate
Appellee-Defendant.
Trial Court Cause No.
49D13-1507-CT-24508

Kirsch, Judge.

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[1] Nicholaus Griesemer and Alexander Griesemer (“the Children”), by next friend

Pamela Griesemer (“Mother”) (collectively, “the Appellants”), appeal the trial

court’s order denying their motion to correct error. The Appellants raise several

issues for our review, which we consolidate and restate as: whether the trial

court erred in dismissing the Appellants’ complaint on the basis that the trial

court did not have subject matter jurisdiction over the case and because the

Appellants’ claim was the same action as one pending in another court.

[2] We affirm.

Facts and Procedural History
[3] On January 14, 2013, Mother filed a petition for dissolution of her marriage to

Brian Griesemer (“Father”). The dissolution action was assigned to Marion

County Superior Court, Civil Division Number 6 (“the Dissolution Court”),

and on June 13, 2014, the Dissolution Court issued the dissolution decree (“the

Decree”). The Decree divided the parties’ marital property and liabilities,

including several accounts Mother and Father had created for the benefit of the

Children; the Decree also ordered support for the Children and provided how

the Children’s education was to be funded. During the marriage, Mother and

Father had set up several educational trust accounts for the benefit of the

Children. Concerning these educational accounts, the Decree set forth the

following provisions:

24. [Father] already received as his sole and separate property
the Wells Fargo Advantage Funds Coverdell Education Savings

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 Accounts . . . each of which were owned by him for benefit of the
individual Children . . .

25. [Father] already received as his sole and separate property
the Scottrade Coverdell Education Savings Account . . . each of
which were owned by him for benefit of the individual Children .
..

26. [Father] already received as his sole and separate property
the Scottrade Coverdell Education Savings Account . . . each of
which were owned by him for benefit of the individual Children .
..

27. [Father] already received as his sole and separate property
the Scottrade UTMA account . . . which was owned by him for
benefit of the individual Children . . .

....

32. The CollegeChoice 529 Direct Savings Plans . . . shall be
maintained for the benefit of the child named as beneficiary. In
addition, neither party shall or will take any of the following
actions with regard to the CollegeChoice 529 Direct Savings
Plans . . .:

a. Borrow against, cancel, transfer, remove, withdraw, or
dispose of any funds for any purpose other than qualified
higher education expenses, except as otherwise provided
herein;

b. Delete, change, modify, or add to a beneficiary
designation; or

c. Contribute any funds.
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 33. [Father] shall retain all right, title, and interest he has in the
Trustco accounts . . . which are owned by him as custodian for
the individual Children . . .

Appellants’ App. at 45-48.

[4] On July 24, 2015, the Children and Mother, acting as their next friend, filed a

complaint in Marion County Superior Court, Civil Division Number 13 (“the

trial court”), alleging that Father misappropriated over $55,000 from the

educational accounts disposed of in the Decree. On August 17, 2015, Father

filed a motion to dismiss the Appellants’ complaint for lack of subject matter

jurisdiction pursuant to Indiana Trial Rule 12(B)(1) and on the basis that the

same action is pending in another Indiana state court pursuant to Indiana Trial

Rule 12(B)(8). On September 4, 2015, the trial court granted Father’s motion to

dismiss; also, on the same date, the Appellants filed their response to Father’s

motion to dismiss and a proposed order denying the motion to dismiss. On

September 16, 2015, the trial court returned the proposed order and made an

entry in the CCS, stating “Order Denying Motion to Dismiss denied as Moot;

case has been dismissed. Deadline to respond was 9/2/2015.” Id. at 2. On

October 5, 2015, the Appellants filed a motion to correct error, which the trial

court denied on November 10, 2015. The Appellants now appeal.

Discussion and Decision
[5] The Appellants appeal from the denial of their motion to correct error. The

standard of appellate review of trial court rulings on motions to correct error is

abuse of discretion. Dunno v. Rasmussen, 980 N.E.2d 846, 849 (Ind. Ct. App.

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 2012) (citing Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1055 (Ind.

2003)). An abuse of discretion occurs when the decision is clearly against the

logic and effect of the facts and circumstances before the court, including any

reasonable inferences therefrom. Id.

[6] In the present case, the trial court dismissed the Appellants’ complaint pursuant

to Indiana Trial Rule 12(B)(1), lack of subject matter jurisdiction, and Indiana

Trial Rule 12 (B)(8), due to prior pending litigation. The standard of review for

a motion to dismiss for lack of subject matter jurisdiction is dependent upon

what occurred in the trial court. Jennings v. St. Vincent Hosp. & Health Care Ctr.,

832 N.E.2d 1044, 1050 (Ind. Ct. App. 2005), trans. denied. Where, as here, the

trial court rules on a paper record without conducting an evidentiary hearing,

the standard of review is de novo. Id. No deference is afforded the trial court’s

factual findings or judgment because this court on review is in as good a

position as the trial court to determine whether the court has subject matter

jurisdiction. Id. Similarly, our review of the trial court’s dismissal of the

Appellants’ complaint under Trial Rule 12(B)(8) is de novo. Beatty v. Liberty

Mut. Ins. Grp., 893 N.E.2d 1079, 1084 (Ind. Ct. App. 2008).

[7] The Appellants argue that the trial court erred in granting Father’s motion to

dismiss pursuant to both Trial Rule 12(B)(1) and Trial Rule 12(B)(8). The

Appellants contend that it was error to dismiss their case under 12(B)(1) and to

conclude that the trial court lacked subject matter jurisdiction because their

complaint concerned conversion of property misappropriated by Father and

the fact that property was initially awarded to Father in the Decree has no

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 bearing on the Appellants’ contentions. The Appellants maintain that the

Dissolution Court’s jurisdiction should not be eternal and the resolution of their

complaint did not require any review or enforcement of the Decree. The

Appellants also argue that it was error to dismiss their complaint under 12(B)(8)

because there is no similarity of parties, subject matter, or remedies between the

present action and the dissolution.

[8] It is a firmly established rule that a court that issues a dissolution decree retains

exclusive and continuing jurisdiction to hear issues seeking clarification,

interpretation, and enforcement of the dissolution decree. Fackler v. Powell, 839

N.E.2d 165, 167-68 (Ind. 2005). See also Russell v. Russell, 693 N.E.2d 980, 982

(Ind. Ct. App. 1998) (determining that a dissolution court retains jurisdiction to

clarify and enforce a property settlement agreement that was part of the

dissolution decree), trans. denied; Anderson v. Anderson, 399 N.E.2d 391, 400

(Ind. Ct. App. 1979) (holding that a dissolution court maintains exclusive

jurisdiction to decide questions pertaining to marital property).

[9] Father asserts that Fackler v. Powell is directly on point with the present case.

We agree. In Fackler, after a property settlement agreement was approved by

the dissolution court and incorporated into the dissolution decree, the wife later

filed an action in a different trial court, which alleged that the husband owed

her money pursuant to the decree; the wife also named the husband’s living

trust as a named party. 839 N.E.2d at 166. The husband filed a motion to

dismiss the action filed by the wife, contending that the dissolution court held

exclusive jurisdiction over the subject matter at issue in the wife’s complaint,

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 but the trial court disagreed and held that it possessed subject matter jurisdiction

over the action, denying the husband’s motion. Id. On transfer, our Supreme

Court held that the dissolution court retained jurisdiction to interpret the terms

of its property settlement agreements and to enforce them and determined that

the trial court lacked jurisdiction to decide the rights of the parties under the

dissolution decree. Id. at 167. Although the wife argued that her claim was

brought against two separate legal entities, her husband and his living trust, and

that the dissolution court would have no jurisdiction over the living trust, the

Supreme Court was not persuaded by her argument, and held that the wife had

not proven that it would be improper to join the living trust in an enforcement

action through the dissolution court or that she would not otherwise be able to

enforce a judgment obtained through the dissolution court against the living

trust. Id. at 170.

[10] Here, the educational accounts at issue and how they were to be handled were

dealt with in the Decree issued by the Dissolution Court. Of concern to the

Appellants’ claims was Father’s alleged dissipation of the funds in the accounts

and the proper way Father was to handle the funds. In order to determine the

merits of what happened with the funds in the accounts and how Father used

the funds, an interpretation of the Decree was needed. As the Dissolution

Court was in the best position to properly interpret the Decree and because,

pursuant to Fackler, it retained jurisdiction to interpret the terms of the Decree

and to enforce it, proper jurisdiction for the Appellants’ contentions rested with

the Dissolution Court.

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[11] The Appellants contend that their lawsuit is not a case where they are

requesting the trial court to interpret, modify, or enforce the Decree issued by

the Dissolution Court; instead, they are seeking to redress Father’s alleged

misappropriation of property he was awarded under the Decree as custodian of

the property. However, in order to award damages for conversion, which is

what the Appellants are seeking, the portion of the Decree that awarded the

educational accounts to Father would need to be interpreted and enforced, and

if an award of damages is denied, this would likewise involve the interpretation

and enforcement of part of the Decree. Because of the Dissolution Court’s

continuing jurisdiction, such actions need to occur in that court and not the trial

court.

[12] The Appellants also assert that their claims were not required to be filed in the

Dissolution Court because the Children were not parties to the dissolution

proceedings and have no standing to seek interpretation or enforcement of the

Decree. However, several provisions of the Decree relate to the support and

care of the Children, and although not named partied to the dissolution

proceedings, these provisions, including the ones at issue, make clear that they

were intended beneficiaries of parts of the Decree. Mother, who was a named

party to the dissolution and joined the current lawsuit as next friend to the

Children, can stand in and represent the Children in the dissolution action and

request interpretation and enforcement of the pertinent provisions of the Decree

in the same fashion as she could request interpretation and enforcement of child

support provisions in the Decree.

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[13] The Appellants also argue that it was error to grant Father’s motion to dismiss

based on Trial Rule 12(B)(8). Under Trial Rule 12(B)(8), dismissal of an action

is permitted when the “same action [is] pending in another state court of this

state.” This rule employs the general principle that, when an action in pending

in an Indiana court, other Indiana courts must defer to that court’s authority

over the case. Bosley v. NIKTOB, LLC, 973 N.E.2d 602, 605 (Ind. Ct. App.

2012), trans. denied. “The rule applies where the parties, subject matter, and

remedies are precisely the same, and it also applies when they are only

substantially the same.” Beatty, 893 N.E.2d at 1084.

[14] In the present case, the Appellants’ action filed in the trial court and the

dissolution action are at least substantially the same. The subject matter in both

actions related to the educational accounts and the proper way they were to be

handled pursuant to the Decree. The ability of the Appellants’ to be able to

recover any misappropriated funds depends on the interpretation of the

provisions in the Decree concerning the educational accounts. Therefore, both

actions require interpretation and enforcement of certain provisions in the

Decree dealing with the educational accounts.

[15] As for the parties under both actions, Mother was a party to the dissolution

action and joined the action in the trial court as the next friend of the Children.

Although the Children were not named parties to the dissolution action, they

are minors and numerous provisions in the Decree were set forth for their

benefit, specifically the provisions relating to the educational accounts that were

to be “owned by [Father] for the benefit of the individual children.” Appellants’

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 App. at 45. Mother, as their next friend, was able to join the action filed in the

trial court to represent the Children’s interests and should also be able to seek to

have the pertinent provisions of the Decree interpreted and enforced on their

behalf in the dissolution action. Therefore, the parties under both actions are

substantially the same.

[16] Concerning the remedies, as part of the dissolution proceedings, the Dissolution

Court divided the marital estate and established the rights of each of the parties

to the marital property, including the educational accounts; as part of the

dissolution action, these provisions can be interpreted and enforced. The

conversion action filed in the trial court sought a determination that Father

committed conversion by misappropriating the funds in the educational

accounts, which would necessitate interpreting and enforcing the provisions in

the Decree dealing with the educational accounts. We, therefore, conclude that

the remedies in both actions are substantially the same. Because the parties,

subject matter, and remedies are substantially the same, the trial court did not

err in dismissing the Appellants’ action pursuant to Trial Rule 12(B)(8).

[17] The Appellants additionally argue that the trial court erred in granting Father’s

motion to dismiss without considering their timely-filed response to the motion.

Assuming without deciding that the trial court erred in not considering the

Appellants’ response, “[Indiana] Appellate Rule 66(A) makes clear that an error

in the trial court does not warrant reversal on appeal ‘where its probable impact,

in light of all the evidence in the case, is sufficiently minor so as not to affect the

substantial rights of the parties.’” LaPorte Cmty. Sch. Corp. v. Rosales, 963 N.E.2d

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 520, 525 (Ind. 2012) (quoting Ind. Appellate Rule 66(A)). Because we have

concluded that the trial court properly dismissed the Appellants’ action, we find

that any error in not considering the Appellants’ response did not affect their

substantial rights. Further, the Appellants do not set forth how they were

prejudiced by the trial court’s failure to consider their response. We, therefore,

conclude the trial court did not commit reversible error in not considering the

Appellants’ response.

[18] Affirmed.

[19] Riley, J., and Pyle, J., concur.

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