Jeffery Allen Bell v. Leslie Ann Bell (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 29 2016, 10:25 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Andrew J. Sickmann Boston Bever Klinge Cross & Chidester Richmond, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeffery Allen Bell, November 29, 2016 Appellant-Respondent, Court of Appeals Case No. 89A01-1607-DR-1594 v. Appeal from the Wayne Superior Court Leslie Ann Bell, The Honorable David A. Kolger, Appellee-Petitioner. Special Judge Trial Court Cause No. 89D02-1211-DR-424

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 89A01-1607-DR-1594 | November 29, 2016 Page 1 of 5

Case Summary [1] Jeffery Bell (“Husband”) appeals the trial court’s denial of his Indiana Trial

Rule 60(B) petition to set aside a provision of the Dissolution of Marriage

Decree concerning Husband and Leslie Bell (“Wife”). Husband contends that

the trial court erred in failing to terminate his spousal-maintenance obligation

because Husband’s agreement to pay was unconscionable and the product of

duress, undue influence, and fraudulent inducement. Concluding sua sponte

that Husband did not timely seek relief from the maintenance obligation

incorporated into the Dissolution of Marriage Decree, we affirm on other

grounds.

Facts and Procedural History [2] When Husband and Wife divorced in 2006, they entered into a settlement

agreement, which the trial court incorporated and merged into its Dissolution

of Marriage Decree. The agreement—which itself allowed modification only

by written agreement—provided, inter alia, that Husband would pay Wife

spousal maintenance. In 2007, Husband and Wife modified their agreement,

with one modification reducing Husband’s maintenance obligation. The trial

court, in turn, incorporated the modification into its decree. In 2008, other

aspects of the agreement underwent changes, but the trial court’s modified

maintenance order remained in effect.

Court of Appeals of Indiana | Memorandum Decision 89A01-1607-DR-1594 | November 29, 2016 Page 2 of 5 [3] On September 30, 2013, and then as amended on March 31, 2015, Husband

petitioned to modify the trial court’s decree. In part, Husband sought to have

his maintenance obligation terminated, alleging that the underlying agreement

to pay maintenance was unconscionable and fraught with issues of fraudulent

inducement, duress, and undue influence. Following a hearing, the trial court

denied Husband’s petition. [4] Husband now appeals.

Discussion and Decision [5] “To promote the amicable settlements of disputes,” parties to a dissolution of

marriage proceeding may agree, in writing, to the maintenance of either party.

Ind. Code § 31-15-2-17(a). Where they have done so, “the terms of the

agreement, if approved by the court, shall be incorporated and merged into the

decree and the parties shall be ordered to perform the terms.” I.C. § 31-15-2-

17(b)(1). In general, “we will presume the parties intended their agreement to

be final and non-modifiable unless they specifically provided otherwise.” Pohl

v. Pohl, 15 N.E.3d 1006 (Ind. 2014). When a trial court reviews a proposed

agreement or modification, the court “should concern itself only with fraud,

duress, and other imperfections of consent . . . or with manifest inequities,

particularly those deriving from great disparities in bargaining power.” Voigt v.

Voigt, 670 N.E.2d 1271, 1278-80 (Ind. 1996) (citation omitted).

Court of Appeals of Indiana | Memorandum Decision 89A01-1607-DR-1594 | November 29, 2016 Page 3 of 5 [6] Husband independently sought modification of his spousal-maintenance

obligation arising from his original and modified agreement with Wife, which

the trial court had approved and merged into its decree. At the hearing on

Husband’s petition, Husband alleged that Wife made threats that vitiated his

consent to the underlying agreement. Although neither Husband’s petition nor

the trial court’s order denying the petition refers to Indiana Trial Rule 60(B),

Husband now characterizes his petition as a Trial Rule 60(B) motion and we

agree with this characterization. Trial Rule 60(B) provides certain grounds for

relief from an order. Among them, Trial Rule 60(B)(3) provides that the trial

court may relieve a party from an order due to fraud, misrepresentation, “or

other misconduct of an adverse party.” However, where a party seeks relief

under Trial Rule 60(B)(3), the party must do so within one year of the order’s

entry. Ind. Trial Rule 60(B); Stonger v. Sorrell, 776 N.E.2d 353, 357 (Ind. 2002). [7] All of Husband’s arguments for Trial Rule 60(B) relief stemmed from Wife’s

purported misconduct. Therefore, Husband sought relief under Trial Rule

60(B)(3) and was subject to the one-year deadline. The trial court ordered

Husband to comply with the original maintenance terms in its 2006 decree and

the modified terms in its 2007 decree. However, Husband did not seek relief

from any order until 2013. Husband’s petition was untimely. [8] We will reverse the denial of a Trial Rule 60(B) motion only where the trial

court abuses its discretion, Stonger, 776 N.E.2d at 358, and the trial court did

not abuse its discretion in denying Husband’s untimely request for relief.

Court of Appeals of Indiana | Memorandum Decision 89A01-1607-DR-1594 | November 29, 2016 Page 4 of 5

Conclusion [9] The trial court did not err in denying Husband’s untimely Trial Rule 60(B)

request to modify his spousal-maintenance obligation. [10] Affirmed.

Najam, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 89A01-1607-DR-1594 | November 29, 2016 Page 5 of 5