ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JENNIFER KALAS LARRY D. STASSIN
RUMAN, CLEMENTS, TOBIN & HOLUB, P.C. SACHS & HESS, P.C.
Hammond, Indiana Hammond, Indiana
COURT OF APPEALS OF INDIANA
IN RE: THE MARRIAGE OF )
WAYNE P. ROSENTRATER, )
vs. ) No. 45A03-9807-CV-303
MARILYN ROSENTRATER. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable James Danikolas, Judge
Cause No. 45D01-9306-DR-886
April 12, 1999
OPINION - FOR PUBLICATION
HOFFMAN, Senior Judge
Appellant Wayne P. Rosentrater (Wayne) appeals from an order issued by the trial
court in the matter of the dissolution of his marriage to Marilyn Rosentrater (Marilyn).
Our review of the record reveals these relevant facts:
Wayne and Marilyn were married on May 6, 1966. During the marriage Wayne had
various jobs, including employment at Ford Motor Company, where he acquired a savings
and stock investment plan (the Ford Plan). Two children were born of the marriage, but
they were both adults by the time Wayne filed his Verified Petition for Dissolution of
Marriage (the Verified Petition) on June 11, 1993. Although he filed the Verified Petition
in 1993, the final hearing in the matter did not occur until October 3, 1996. On that date, the
trial court ordered the parties to file their respective Findings of Fact and Conclusions of
Law, which Wayne did on November 4, 1996, and Marilyn did on November 15, 1996. In
addition to memorializing the parties' stipulations valuing marital property, such as the Ford
Plan at issue, the parties agreed, in their respective Proposed Findings of Fact and
Conclusions of Law, that for purposes of property division, the valuation date for all the
assets would be June 11, 1993, the date Wayne had filed his Verified Petition. The Decree
of Dissolution was entered by the trial court on February 6, 1998, and reads in pertinent part:
The Court having heard and concluded all evidence in this matter, and having
received proposed findings of fact and conclusions of law from both parties,
and having reviewed the evidence and proposed findings and conclusions as
submitted, and being duly advised in the premises, now enters the following
findings of fact, conclusions of law and order:
[* * *]
7. During testimony in this matter, the parties stipulated to the following:
[* * *]
c. The valuation of the following assets and debts are agreed as
[* * *]
Wayne's Ford Savings and Stock Investment [$]61,898.42
On March 6, 1998, Marilyn filed a pleading titled, Motion to Correct Errors and/or Motion
to Correct Scrivener's Error and Memorandum in Support of Motion to Correct Errors and/or
Motion to Correct Scrivener's Error. On that same date, the trial court entered the following
Order granting Marilyn's motion:
This Court, having reviewed the Respondent's Motion to Correct Errors and/or
Motion to Correct Scrivener's Errors and Memorandum in Support thereof and
being duly advised in the premises, hereby finds that scrivener[']s errors have,
in fact, occurred and the Decree of Dissolution granted February 6, 1998, is
hereby corrected as follows:
'That in order to effectuate a true 60% division of all of the assets, the
increased value of the stocks must be included as part of the marital pot
calculation. The Husband shall provide to the Wife documentation as
to the value of each and every stock awarded to him, as of the date of
the Decree of Dissolution (to-wit: February 6, 1998). Such
information shall, within thirty days, be tendered to the Wife, with a
check equal to 60% of said increase in value, after deduction to the
Husband for any properly documented post-filing contributions.'
[* * *].
SO ORDERED this 6th day of March, 1998, nunc pro tunc to February 6, 1998.
Wayne filed a Response to Motion to Correct Errors and/or Motion to Correct
Scrivener's Error on March 16, 1998, but the record does not contain any ruling by the court
other than the March 6 nunc pro tunc entry. It is from that entry that Wayne appeals.
Wayne raises several issues in his brief to this court, which can be summarized and
restated as: whether it was error for the trial court to grant Marilyn's motion, when the error
to be corrected was not mathematical or an omission, but rather one of a substantive nature.
Marilyn's Memorandum in support of her Motion to Correct Errors and/or Motion
to Correct Scrivener's Error asserts,
a scrivener's error was committed by former counsel of the Respondent
[Marilyn] . . . . That scrivener's error was in Wife's proposed findings of fact
and resulted in a certain portion of marital property being unintentionally
excluded from consideration. To ignore a significant portion of an asset is
unfair and greatly impacts upon the distribution ordered by this Court, after its
careful deliberation of the facts and circumstances. (R. 108).
To decide this appeal on its merits, we must first examine whether, procedurally, Marilyn's
motion was indeed a Motion to Correct Error, or a Motion to Correct Scrivener's Error,
each of which would be governed by different trial rules.
A Motion to Correct Error is a creature of Ind. Trial Rule 59. Section (A)(1) of T.R.
59 provides that [a] Motion to Correct Error is not a prerequisite for appeal, except when
a party seeks to address . . . [n]ewly discovered material evidence . . . capable of production
within thirty (30) days of final judgment which, with reasonable diligence, could not have
been discovered and produced at trial . . . . T.R. 59(D) and (E) set forth the errors properly
raised in such a motion, as well as the procedural possibility of opposition to the motion:
Where used, a Motion to Correct Error need only address those errors found
in Trial Rule 59(A)(1) and (2). Any error raised however shall be stated in
specific rather than general terms and shall be accompanied by a statement of
facts and grounds upon which the error is based. The error claimed is not
required to be stated under, or in the language of the bases for the motion
allowed by this rule, by statute, or by other law.
Following the filing of a motion to correct error, a party who opposes the
motion may file a statement in opposition to the motion to correct error not
later than fifteen (15) days after service of the motion. The statement in
opposition may assert grounds which show that the final judgment or
appealable final order should remain unchanged, or the statement in opposition
may present other grounds which show that the party filing the statement in
opposition is entitled to other relief.
Marilyn's motion does not aver that the Ford Plan or any increase in its value was [n]ewly
discovered material evidence . . . capable of production within thirty (30) days of final
judgment which, with reasonable diligence, could not have been discovered and produced
at trial, as contemplated by T.R. 59(A)(1). In fact, she not only clearly knew of the
existence of the Ford Plan, but moreover submitted proposed findings of fact to the trial court
as to its value and to the valuation date upon which the parties had agreed.
If Marilyn's motion was a Motion to Correct Error as contemplated by T.R. 59,
Wayne was entitled to fifteen days in which to respond to it, under the plain language of T.R.
59(E). In fact, he did timely file a response, on March 19, but at that point, the court had
already summarily granted Marilyn's motion, and the record shows no subsequent
reconsideration of the matter. The court's entry of judgment on the same day the motion was
filed shows that the court treated the motion only as one to correct a scrivener's error, and
not as a Motion to Correct Errors as contemplated by T.R. 59.
Thus, Marilyn's motion was tantamount to a T.R. 60(A) motion, seeking relief from
judgment due to a clerical mistake. This court has held,
The office of a T.R.60(A) motion is to correct 'clerical mistakes' and 'errors
therein arising from oversight and omission.' Clerical errors and mechanical
matters involved in making computations are included in this area. A T.R.
60(A) motion is not to be used for the purpose of correcting errors of
First Bank of Madison v. Bank of Versailles, 451 N.E.2d 79, 81 (Ind. Ct. App. 1983), trans.
denied (quoting 4 Harvey & Townsend, Indiana Practice, §§ 60.3, 205). A clerical
error has been defined as a mistake by a clerk, counsel, judge or printer which is not a result
of judicial function and cannot reasonably be attributed to the exercise of judicial
consideration or discretion. Sarna v. Norcen Bank, 530 N.E.2d 113, 115 (Ind. Ct. App.
1988), reh'g denied, trans. denied (citing Alamo Irr. Co. v. U.S., 81 Nev. 390, 404 P.2d 5
(1965)). The purpose of T.R. 60(A) is to recognize that in the case of clearly demonstrable
mechanical errors the interests of fairness outweigh the interests of finality which attend the
prior adjudication. On the other hand, where the 'mistake' is one of substance the finality
principle controls. Id. (internal cites omitted).
Wayne argues, correctly, that the error in question is more properly characterized as
one of substance than as one which is clerical. The burden of producing evidence
concerning the valuation of the assets lies with the parties to the proceedings. In Re the
Marriage of Lewis, 638 N.E.2d 859, 860 (Ind. Ct. App. 1994). The only evidence before the
court of the value of the Ford Plan was that submitted by the parties in their respective
proposed findings of fact and conclusions of law -- i.e., $61,898.42. Marilyn's argument in
response to Wayne's appeal is that she raised the issue of the increased value of the Ford
Plan at the final dissolution hearing. She was asked by Wayne's counsel, Is it true for the
purpose of this case you are valuing your marital assets as of June of 1993? She responded,
Yes. Except for accruals on accounts. This excerpt of oral testimony, however, does not
constitute evidence as to the value of the Ford Plan. At no time did either party submit to
the court any evidence as to accrual in the value of the Ford Plan; Marilyn had her
opportunity to do so both in her proposed findings of fact and conclusions of law, and at the
final dissolution hearing. The trial court cannot enter a new judgment based on evidence not
before it; nor can it reopen a case using an alleged scrivener's error as its basis for so doing.
Remanded with instructions to reinstate that portion of the trial court's Decree of
Dissolution entered on February 6, 1998, which lists the value of the Ford Plan as
RUCKER, J., and DARDEN, J., concur.
1 Marilyn's Motion to Correct Errors and/or Motion to Correct Scrivener's Error also prayed for the
trial court to correct the mathematical calculations relating to the award of rehabilitative maintenance such
that the total award of rehabilitative maintenance and the termination date of such payments are consistent and
mathematically correct. (R. 107). Although Wayne addressed that prayer in his Response to Marilyn's
motion, he did not raise the court's grant of it in his brief on appeal. Accordingly, we do not address it in this
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