MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Oct 20 2016, 9:41 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.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jennifer Jones Auger Jonathan R. Deenik
Franklin, Indiana Deenik Law, LLC
Greenwood, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric Leo Kamradt, October 20, 2016
Appellant-Petitioner, Court of Appeals Case No.
49A02-1603-DR-597
v. Appeal from the Marion Superior
Court
Theresa Ann Kamradt, The Honorable H. Patrick
Appellee-Respondent Murphy, Magistrate
Trial Court Cause No.
49D10-1404-DR-11793
Baker, Judge.
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[1] Eric Kamradt (Husband) appeals the trial court’s order, which modified the
asset distribution previously ordered by the trial court to give more property to
Theresa Kamradt (Wife). Husband argues that Wife’s motion to correct error
should have been deemed denied thirty days after the trial court held a hearing
on the matter. Finding that the trial court was, in substance, correcting a
clerical error, we affirm.
Facts
[2] Husband and Wife’s marriage ended on August 7, 2015, with a dissolution
decree dividing their marital property. The trial court intended to divide the
estate equally, but found that Wife had made $63,758 more in marital
expenditures than Husband during the pendency of the dissolution and that
Wife was entitled to $10,000 in attorney fees. Appellant’s Supp. App. p. 32.
These sums were factored into the property division such that, out of a total net
estate of $617,466.06, Wife received $345,711.69 and Husband received
$271,754.37. Id. at 36.
[3] On September 11, 2015, Husband filed a motion to correct error, alleging that
the trial court made several factual errors. On September 28, Wife filed a
statement in opposition to Husband’s motion along with her own motion to
correct error. Wife alleged that the trial court had awarded three items of
property—two cars and a motorcycle—to Husband and that, although the
values of these properties were included on the Marital Estate Summary
spreadsheet, their values had been inadvertently excluded from Husband’s asset
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total. As a result, Husband received assets that the trial court had valued at
$40,389 without those assets being counted toward his share of the marital
estate. Accordingly, Wife requested the trial court to award her Husband’s
401(k) retirement plan, worth $27,922.99, to make up for the difference.
[4] The trial court held a hearing on the competing motions on November 19,
2015. Roughly three months later, an order from the trial court on a separate
matter contained a handwritten note stating that the trial court would issue its
order on the motions to correct error on February 12, 2016. Husband received
this information on February 18, and he filed a motion for an enlargement of
time so that he could prepare and submit a proposed order. Wife filed an
objection to Husband’s request, arguing that the trial court did not have the
authority to grant either motion because they were deemed denied thirty days
after the November hearing pursuant to Indiana Trial Rule 53.3.
[5] On February 23, 2016, the trial court issued an order granting Wife’s motion to
correct error and denying Husband’s. Husband now appeals.
Discussion and Decision
[6] On appeal Husband has, somewhat ironically, adopted Wife’s position that the
motions to correct error were deemed denied thirty days after the November
2015 hearing. Wife counters that the trial court’s order was, in substance, a
correction of a clerical error pursuant to Indiana Trial Rule 60.
[7] Both parties made a motion to correct error. Indiana Trial Rule 59(C) provides
that “[t]he time at which the court is deemed to have ruled on the motion is set
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forth in T.R. 53.3.” That rule, in turn, explains: “In the event a court . . . fails
to rule on a Motion to Correct Error within thirty (30) days after it was heard . .
. the pending Motion to Correct Error shall be deemed denied.” Ind. Trial Rule
53.3(A).
[8] In contrast, Trial Rule 60(A) permits the trial court to correct “clerical mistakes
. . . at any time before the Notice of Completion of Clerk’s Record is filed under
Appellate Rule 8” (emphasis added). We have defined “clerical mistake” in
this context to refer to “a mistake by a clerk, counsel, judge, or printer that is
not a result of judicial function and cannot reasonably be attributed to the
exercise of judicial consideration or discretion.” KeyBank Nat’l Ass’n v. Michael,
770 N.E.2d 369, 375 (Ind. Ct. App. 2002). “Clerical errors and mechanical
matters involved in making computations are included in this area.” First Bank
of Madison v. Bank of Versailles, 451 N.E.2d 79, 81 (Ind. Ct. App. 1983). “The
reason for the rule is that in the case of clearly demonstrable mechanical errors
the interests of fairness outweigh the interests of finality which attend the prior
adjudication.” Drost v. Professional Bldg. Serv. Corp., 176 Ind. App. 172, 175, 375
N.E.2d 241, 244 (1978). Indeed, the “power to correct a clerical mistake . . . is
a necessary power in the administrative of every department” of government.
Bell v. Hearne, 60 U.S. 252, 262 (1856). On the other hand, where the mistake is
one of substance, the finality principle controls. Rooker v. Fidelity Trust Co., 202
Ind. 641, 177 N.E. 454 (1931). The trial court is permitted to correct clerical
mistakes “[o]f its own initiative,” and so the form of the parties’ request is not
dispositive. Ind. Trial Rule 60(A).
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[9] We believe that the trial court’s order corrected a mechanical error and did not
effect a change in the substance of its ruling.1 The dollar figures associated with
the two cars and the motorcycle were present on the trial court’s Marital Estate
Summary document. Appellant’s Supp. App. p. 35. Inadvertently, these values
were not added to Husband’s assets. Id. at 36. This was clearly either a
mechanical computational error or a human scrivener’s error, not a matter of
judicial consideration.
[10] Husband argues that the trial court’s order constitutes a change in substance
because it involves the transfer of assets from him to Wife. We note, first, that
the trial court actually ordered the following: “Parties may propose in pending
mediation any transfer of asset[s] that will accomplish this correction.
Otherwise, such will come from the Tom Wood 401(k) account.” Appellant’s
App. p. 16. Thus, the trial court did not order assets to be transferred, but
rather noted its error in calculation and allowed for the parties to shift assets
accordingly. But even if the trial court had ordered the transfer of the 401(k)
account, we believe that would be the inevitable result of any correction of a
miscalculation, which Trial Rule 60 permits.
1
Looking at the Marital Estate Summary spreadsheet, we cannot determine whether this was a mechanical
error made by Excel or whether it was a scrivener’s error made by the trial court. The three assets are listed,
along with their values, but each has an asterisk next to it. The total listed underneath then excludes their
values. Either way, our conclusion remains the same, as Trial Rule 60 permits the trial court to correct either
type of error.
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[11] Whether this was a computational malfunction or a scrivener’s error in omitting
to enter the data correctly, the error in this case is precisely the type of
mechanical error that Trial Rule 60 permits the trial court to fix. Moreover, we
cannot fault the trial court for the remedy it adopted.
[12] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
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Eric Leo Kamradt v. Theresa Ann Kamradt (mem. dec.)
Combined Opinion