FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
J. MICHAEL KATZ KATHRYN D. SCHMIDT
Goodman, Katz, Scheele & Bauswell Burke Costanza & Cuppy LLP
Highland, Indiana Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
PETER L. BENJAMIN, )
)
Appellant-Respondent, )
)
vs. ) No. 64A03-0211-CV-386
)
DENISE MARIE BENJAMIN, )
)
Appellee-Petitioner. )
APPEAL FROM THE PORTER SUPERIOR COURT 2
The Honorable Thomas W. Webber, Sr., Judge
Cause No. 64D02-0107-DR-6113
November 19, 2003
OPINION - FOR PUBLICATION
SULLIVAN, Judge
Appellant, Peter Benjamin (“Husband”), appeals following the trial
court’s order denying in part his Verified Petition to Set Aside
Dissolution Decree of May 3rd, 2002. Husband also appeals from the trial
court’s dissolution decree. Upon appeal, Husband presents two issues for
our review, which we renumber and restate as: (1) whether the trial court
properly determined that fees from legal services contracts which Husband
had assigned to another law firm were marital assets subject to equal
distribution, (2) whether the trial court properly awarded wife
rehabilitative maintenance, and (3) whether the trial court abused its
discretion in denying in part Husband’s motion for relief from judgment.
We affirm.
Denise Benjamin (“Wife”) and Husband were married on May 31, 1980.
On July 26, 2001, Wife filed a petition for dissolution of marriage from
Husband in the Porter Superior Court. At the time of the filing, both
Husband and Wife were residents of Lake County. On August 13, 2001,
Husband, pro se, filed an acknowledgment of residency, service of summons,
and consent to the jurisdiction of the Porter Superior Court. In March
2002, the trial court, at Wife’s request, set the matter for a final
hearing on April 25, 2002. Wife’s counsel sent notice of the final hearing
to Husband at a post-office box which Husband apparently had requested be
used for correspondence relating to the divorce proceedings. Husband,
however, did not appear at the final hearing.
Nevertheless, the court conducted the final hearing as scheduled,
hearing testimony from Wife concerning the marital assets and debts and
Husband’s conduct with regard to dissipation of the assets. Specifically,
Wife testified and presented evidence that in the year prior to her
petition for dissolution, the marital estate consisted of the following
assets: a condominium in Marco Island, Florida worth $535,000, with
$520,000 in equity;[1] a vacant lot in Schererville, Indiana worth
$150,000; a home in Schererville, Indiana worth $537,000, with $200,000 in
equity; Husband’s various individual retirement accounts (collectively
“IRAs”) totaling $41,267; Husband’s deferred compensation account with
Nationwide Retirement Solutions totaling $97,731; Wife’s deferred
compensation account with Nationwide Retirement Solutions totaling $96,287;
Husband’s account with the Public Employee’s Retirement Fund (“PERF”)
totaling $22,044; Wife’s account with PERF totaling $28,317; and Husband’s
life insurance policy with Northwestern Mutual with a cash surrender value
of $92,166. In total, Wife estimated that the marital assets totaled
approximately $1.2 million. Additionally, Wife testified that Husband had
a law practice which she claimed was an asset that was developed during the
course of the marriage and which produced an income of $200,000 to $250,000
a year.
As to Husband’s dissipation of the marital assets, Wife testified that
Husband sold the condominium in Marco Island, Florida.[2] Wife further
testified and presented evidence that Husband dissipated many of the
marital assets such that at the time of the final hearing, Wife estimated
that the marital assets totaled approximately $150,000. Of this amount,
$96,000 was in Wife’s deferred compensation account and $28,000 was in
Wife’s PERF account. Of Husband’s accounts, the $22,000 remained in his
PERF account and approximately $7,000, of what once totaled over $97,000,
remained in his deferred compensation account. Wife further testified that
Husband’s withdrawals from his deferred compensation account occurred after
the trial court’s July 26, 2001 restraining order prohibiting Husband and
Wife from dispensing or disposing of marital assets. Additionally,
approximately one month prior to Wife filing the petition for dissolution,
Husband withdrew all monies, over $41,000, from his IRAs. Wife explained
that she was never consulted about the withdrawals and that she did not
know where the money went. Wife further testified that Husband took out
loans against the full cash value of his life insurance policy.[3]
With regard to Husband’s law practice, Wife testified that Husband
“gave it up.” Appendix at 23. Wife explained that the Indiana Supreme
Court Disciplinary Commission had filed a Verified Complaint for
Disciplinary Action against Husband in the fall of 2000 and that Husband
had hired Saul Ruman of the law firm of Ruman, Clements, Tobin & Holub P.C.
(“the Ruman law firm”) to represent him in that matter. Upon the advice of
counsel, Husband tendered his resignation from the bar of this State to the
Indiana Supreme Court. The Supreme Court accepted Husband’s resignation on
October 22, 2001. In re Benjamin, 756 N.E.2d 967, 968 (Ind. 2001). As
consideration for representing Husband with regard to the disciplinary
action, the Ruman law firm agreed to accept from Husband an assignment of
fees from several of Husband’s existing legal services contracts. Wife
claimed that in assigning the fees Husband essentially assigned a marital
asset and thus argued that she was entitled to one-half of the fees Husband
had assigned to the Ruman law firm.
On May 3, 2002, the trial court issued a dissolution decree dissolving
the marriage and dividing the marital estate. As to the division of the
marital assets, the trial court awarded Wife all sums of money in her PERF
and deferred compensation accounts. The trial court further awarded wife
all monies contained in Husband’s PERF account, any sums remaining in
Husband’s deferred compensation account, and any sums available from
Husband’s Northwestern Mutual life insurance policy. With respect to
Husband’s assignment of legal fees, the court, in the dissolution decree,
found and concluded as follows:
“The Court finds that during the course of the parties [sic] marriage,
[Husband] assigned various legal cases to Saul Ruman and to the Ruman
Law Firm. By doing so [Husband] essentially assigned a marital asset
to the Ruman Law Firm without [Wife’s] consent or approval. The Court
now awards [Wife] one-half of any and all entitlements, for costs on
[sic] any other expenses that [Husband] has have [sic] or may have had
in or resulting from all such cases.” Appendix at 132.
The court also awarded Wife $400,000 as “rehabilitative maintenance.”[4]
Appendix at 161.
On June 11, 2002, Husband filed his Verified Petition to Set Aside
Dissolution Decree of May 3rd, 2002, alleging as grounds for relief from
judgment that he did not have notice of the final hearing and that Wife had
made fraudulent representations to the trial court in obtaining the
dissolution decree.[5] On August 12, 2002, Wife filed a verified response
to Husband’s petition and also filed a motion pursuant to Trial Rule 60(A)
asking the trial court to amend the dissolution decree to include a page
which she claimed was erroneously omitted from the court’s original
decree.[6] A hearing on Husband and Wife’s respective motions was set for
August 15, 2002. Upon Husband’s request for a continuance, the trial court
rescheduled the hearing for October 15, 2002.
On October 2, 2002, Husband’s attorney sent a letter addressed to the
trial court wherein he indicated that he and Wife’s attorney “agreed that
there [were] certain discovery issues which need[ed] to be resolved” and
that “[i]t was [their] intention, with acquiescence of the Court, to appear
on October 15th at 10:00 a.m. for the purpose of presenting [their]
respective positions on these issues to the Court.” Supplemental Appendix
at 8-9. Husband’s attorney further indicated that “[t]he preliminary issue
to be resolved is whether or not both parties are entitled to take the
discovery depositions of witnesses on substantive issues prior to the
hearing.” Id. at 8. Husband and Wife, by their respective counsel,
appeared for the hearing on October 15. At the hearing, the primary issue
which was presented to the court concerned discovery. Husband’s attorney
explained to the court that he wanted to take depositions of certain
individuals for purposes of establishing his fraud allegations and a
meritorious defense as required for his motion to set aside the dissolution
decree. Wife’s attorney opposed further discovery and requested that the
court issue a protective order pursuant to Trial Rule 26(C)(1) or (2).[7]
On October 21, 2002, the court entered its order granting Wife’s
motion pursuant to T.R. 60(A) and thereby adopted as its judgment the
complete dissolution decree which was set forth as Exhibit A to Wife’s
motion.[8] Additionally, the court’s order denied Husband’s motion for
relief from judgment “with respect to all issues raised in its [sic]
Verified Petition . . . with the exception of the allegation of fraudulent
representations perpetrated on the Court by [Wife].” Appendix at 8. The
court ordered that the issue of fraud on the part of Wife should proceed to
hearing on November 18, 2002.[9] The court further ordered that pursuant
to T.R. 26(C)(1), a protective order be issued prohibiting any further
discovery. It is from this order[10] and from the entry of the dissolution
decree which Husband now appeals.
Husband first challenges the propriety of portions of the dissolution
decree. Husband contends that it was error for the trial court to
designate as a marital asset the legal fees to be earned from particular
legal cases which he had assigned to the Ruman law firm. Specifically,
Husband argues that the court’s award is in violation of Indiana
Professional Conduct Rule 5.4(a) and (b) in that the court essentially
considered Wife, a non-lawyer, a partner in Husband’s law firm and
permitted her to share in the legal fees from the legal services contracts.
Wife, however, argues that the fees which Husband assigned were a marital
asset and thus, the trial court properly awarded her half of any sums which
Husband was entitled to receive.
Pursuant to the assignment agreement, Husband assigned:
“so much of the right, title, and interest . . . in and to any and all
distributions of money or property, payments or returns of capital of
any kind or nature whatsoever which [Husband] is entitled to receive
from time to time pursuant to the [listed] legal services contracts or
agreements, as may be necessary to pay fees for legal services
rendered to [Husband] by [the Ruman law firm].” Appendix at 75.
To the extent the amounts received were not sufficient to pay for the
legal services rendered by the Ruman law firm, Husband was required to pay
the sums not satisfied by the assignment of fees. To the extent the
amounts received were in excess of the sums due the Ruman law firm for its
representation of Husband, Husband was entitled to an amount of the excess
to be determined on a case-by-case basis.
Husband acknowledges that it would have been proper for the trial
court to consider the value of his law practice for purposes of marital
asset distribution, but argues that the court misinterpreted the law when
it awarded Wife an equal share of the fees that Husband was entitled to
receive from specific legal cases. Husband further asserts that Wife
presented no evidence as to the value of his law practice. We disagree on
both counts.
A professional practice may have value for purposes of marital asset
distribution. Landau v. Bailey, 629 N.E.2d 264, 266 (Ind. Ct. App. 1994).
Where a professional corporation has an economic value, it is subject to
equal distribution as a marital asset. Id. at 267. Here, the economic
value of Husband’s law practice, and the only part of which remained, was
embodied within the legal fees Husband was entitled to receive under the
legal services contracts. Thus, in assigning the fees to Ruman law firm,
Husband encumbered a marital asset. At the final hearing, the court
explained that, as a marital asset, Wife was entitled to half of the fees
Husband had assigned to the Ruman law firm and that such an award was
necessary to help compensate her for the money and other assets Husband had
dissipated. We therefore conclude that the trial court properly awarded
Wife half of any amount Husband was entitled to receive under the terms of
the assignment agreement.
Husband also argues that the trial court erred in awarding Wife
$400,000 in rehabilitative maintenance. Husband asserts that Wife did not
request rehabilitative maintenance in her petition for dissolution, nor did
she provide evidence to satisfy the statutory requirements for an award of
rehabilitative maintenance. Wife concedes that the $400,000 award may not
be deemed rehabilitative maintenance, but argues that the award should be
sustained as a valid property division.
At the final hearing, after hearing testimony about the marital
assets and debts and Husband’s conduct with regard to dissipation of the
assets, Wife requested that the trial court award her an “alimony judgment”
in the sum of $400,000, which she asserted represented her half of the
marital pot. As Indiana does not have provisions for an award of alimony,
the court suggested that the award be labeled as “a maintenance award.”
Appendix at 39. In the divorce decree, the court referred to the $400,000
award as “rehabilitative maintenance.” Id. at 161. The court further
ordered that Husband was to pay the award within twenty days of the date of
the dissolution decree.
We begin by noting that characterizing an award as maintenance does
not make it so. See Millar v. Millar, 581 N.E.2d 986, 987 n.1 (Ind. Ct.
App. 1991), trans. granted rev’d as to remedy ordered 593 N.E.2d 1182, 1183
(Ind. 1992). Here, notwithstanding the label attached, it is clear that
from the record that the $400,000 award was intended to be an award
representing Wife’s distribution of the marital estate. In requesting the
$400,000 award, Wife indicated that such represented a portion of her share
of the marital pot. Further, Wife had testified that, prior to filing her
petition for dissolution, the marital estate was valued at approximately
$1.2 million. Assuming an equal distribution, Wife would have been
entitled to $600,000. In addition to awarding wife $400,000 as
“rehabilitative maintenance,” the trial court awarded wife the
approximately $150,000 remaining in Husband and Wife’s various accounts
which had been shown to be marital assets. The court also awarded Wife
unspecified amounts in bank and credit union accounts and the personal
property in her possession. The trial court ordered Husband to be
responsible for the majority of the marital debt, including tax liabilities
and credit card balances. To the extent the distribution was in favor of
Wife, the trial court stated that Husband’s dissipation of assets justified
its distribution of the marital assets and debts.
Wife asserts that we need not remand to the trial court for correction
of the dissolution decree, but that we may simply hold that the $400,000
award was a valid property settlement. In Millar, a panel of this court
considered whether an award in a dissolution decree was properly labeled as
a maintenance award. The majority opinion remanded to the trial court to
either set forth findings to support an award of maintenance or to vacate
the finding of maintenance and enter a property distribution award. 581
N.E.2d at 988. Chief Judge Ratliff dissented as to the majority’s remand
to the trial court, asserting that because the trial court’s award was
clearly a property settlement, the court should so hold, thus making remand
unnecessary. Our Supreme Court granted transfer and agreed with Chief
Judge Ratliff. The Court held that remand was unnecessary and therefore
affirmed the trial court’s judgment as a property division, not a
maintenance award. Millar v. Millar, 593 N.E.2d 1182, 1183 (Ind. 1992).
We therefore hold that the $400,000 award in favor of Wife is a property
settlement, not a maintenance award.[11]
Finally, Husband argues that the trial court abused its discretion in
denying in part his motion to set aside the dissolution decree on the issue
of lack of notice without first conducting a hearing thereon. Husband
further argues that the trial court abused its discretion in prohibiting
him from conducting further discovery for purposes of meeting the
requirements of T.R. 60(B). Husband asserts that pursuant to T.R. 60(D),
the trial court was required to conduct a hearing on the merits of his
motion and allow discovery.
We first consider whether the trial court was required to hold a
hearing as to Husband’s claim of lack of notice. Husband argues that the
hearing on October 15 was as to discovery issues as they pertained to his
motion to set aside the dissolution decree and that it was not a hearing on
the merits of his motion. It was after this hearing that the trial court
denied his motion as to his claim of lack of notice.
The plain language of T.R. 60(D) requires the trial court to conduct a
hearing in passing upon a motion for relief from judgment under T.R. 60(B).
Specifically, T.R. 60(D) provides:
“In passing upon a motion allowed by subdivision (B) of this rule the
court shall hear any pertinent evidence, allow new parties to be
served with summons, allow discovery, grant relief as provided by Rule
59 or otherwise as permitted by subdivision (B) of this rule.”
(emphasis supplied).
However, where there is no “pertinent evidence,” a hearing is unnecessary.
Rothschild v. Devos, 757 N.E.2d 219, 223 (Ind. Ct. App. 2001).
We agree with Husband that the hearing on October 15 primarily
concerned discovery. Nevertheless, at that hearing, Husband’s motion to
set aside the dissolution decree was pending before the court and Husband’s
attorney acknowledged that fact. We cannot think of anything which would
have prevented Husband from arguing that the dissolution decree should be
set aside upon grounds that he did not have notice of the final hearing.
Husband did not indicate that he needed to conduct discovery or depose
witnesses before presenting his argument as to his lack of notice claim.
Additionally, we note that at the October 15 hearing, Wife argued that
Husband’s claim of lack of notice was without merit and reviewed for the
court the evidence which was presented at the final hearing which tended to
show that Husband was notified of the final hearing. In response to Wife’s
argument, Husband argued to the court that he did not have notice. Thus,
although Husband claims that the October 15 hearing was not on the merits
of his lack of notice claim, it is apparent that the evidence pertinent to
such claim was presented to the court. Therefore, we conclude that the
trial court did not abuse its discretion in denying Husband’s motion to set
aside the dissolution decree upon grounds of lack of notice.
Husband also argues that discovery is mandatory pursuant to the plain
language of T.R. 60(D) and therefore asserts that the trial court abused
its discretion when it prohibited him from engaging in discovery for
purposes of gathering evidence in support of his motion. Wife opposed
further discovery, asserting that she would be prejudiced by further delay
and the added expense of conducting additional discovery.
In Keystone Square Shopping Center Co. v. Marsh Supermarkets, Inc.,
459 N.E.2d 420, 425 (Ind. Ct. App. 1984), a panel of this court held that
Keystone’s argument that the plain language of T.R. 60(D) mandated that the
court permit discovery was “unsound.”[12] While the language of the rule
may be read as requiring the trial court to allow discovery for purposes of
a motion for relief from judgment, it remains that discovery is an issue
within the sound discretion of the trial court. See id. See also In re
Paternity of T.M.Y., 725 N.E.2d 997 (Ind. Ct. App. 2000) (holding that
discovery under T.R. 60(D) is permissive rather than mandatory), trans.
denied. Limitations are necessarily placed upon discovery to prevent it
from becoming a tool of oppression and harassment. Keystone, 459 N.E.2d at
425. We will reverse a trial court’s grant or denial of a discovery
request for an abuse of discretion. Id.
We begin by noting that Husband consented to the jurisdiction of the
Porter Superior Court, and thus, it is clear that he at least had notice of
the pendency of the dissolution action. During the course of the divorce
proceedings, however, Husband failed to comply with Wife’s discovery
requests and never filed with the court a financial declaration. Further,
in violation of a restraining order, Husband dissipated the vast majority
of marital assets. Finally, Husband did not appear for the final hearing.
While Husband argued that his failure to appear at the final hearing was
excusable because he did not have notice of such, the trial court did not
credit his argument in light of evidence presented by Wife indicating that
Husband had notice of the final hearing and yet chose not to appear. Under
the circumstances of this case, especially Husband’s conduct during the
course of the proceedings, the trial court could well have concluded that
Husband’s request to conduct discovery at this late stage in the
proceedings would pose undue burden or expense upon Wife or that Husband’s
request was another way to delay the proceedings and serve as an annoyance.
We therefore conclude that the trial court was thus well within its
discretion in issuing a protective order prohibiting Husband from
conducting further discovery.
The judgment of the trial court is affirmed.
RILEY, J., and MAY, J., concur.
-----------------------
[1] Wife testified that she and Husband were co-owners of the
condominium with her grandparents. Wife’s grandparents provided the entire
$70,000 down payment, but Wife and Husband jointly paid the mortgage
payments and maintenance fees thereafter. Wife’s grandparents were to live
in the condominium for the rest of their natural lives. The down payment
provided by the grandparents was intended to be Wife’s inheritance from her
grandparents.
[2] As an exhibit, Wife submitted a copy of Husband’s emergency
request for deferred compensation proceeds. In a handwritten note Husband
attached to the emergency application, Husband indicated that he sold the
condominium in Marco Island, Florida and that he used the proceeds of the
sale to pay off a financial debt in the amount of $500,000. Wife testified
that she had no knowledge of the loan which Husband repaid with the
condominium proceeds.
[3] Apparently the vacant lot and the home in Schererville were sold.
It is unclear as to what happened with the proceeds from the sale of each.
[4] The marital debts consisted of numerous credit card balances. In
the dissolution decree, the trial court ordered Husband to assume the debt
of two joint accounts totaling over $35,000, and any credit card balances
which were in Husband’s name. Wife was ordered to pay on the credit cards
for Kohl’s, Carsons, Ayres, Bloomingdale’s, Saks Fifth Avenue, and Wickes,
with the exception of any charges made by Husband.
[5] Husband’s verified petition to set aside the dissolution decree
is a motion for relief from judgment pursuant to Trial Rule 60(B).
[6] Indeed, the original dissolution decree entered by the trial court
included five unnumbered pages containing seven enumerated findings
paragraphs followed by nine complete and a tenth incomplete paragraph
ordering the division of marital assets and debts. The tenth incomplete
paragraph ends at the bottom of the fourth page and is followed by the
signature page of the magistrate and judge.
[7] Indiana Trial Rule 26(C) provides in pertinent part:
“Upon motion by any party . . . and for good cause shown, the court .
. . may make any order which justice requires to protect a party . . .
from annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following:
(1) that discovery not be had;
(2) that the discovery may be had only on specified terms and
conditions, including the designation of the time and place . .
. .”
[8] The dissolution decree as adopted by the trial court includes the
page omitted from the original decree. The missing page included the
conclusion of the tenth paragraph as well as two additional paragraphs
regarding the distribution of marital assets and debts.
[9] Husband filed his notice of appeal on November 7, 2002. As of
November 14, 2002, when the Notice of Completion of Clerk’s Record was
filed with this court, the trial court was deprived of further
jurisdiction. Consequently, no action could be taken upon Husband’s motion
to set aside the dissolution decree upon grounds of fraud. See Ind.
Appellate Rule 8.
[10] Trial Rule 60(C) provides that “A ruling or order of the court
denying or granting relief, in whole or in part, by motion under
subdivision (B) of this rule shall be deemed a final judgment, and an
appeal may be taken therefrom as in the case of a judgment.”
[11] Husband does not challenge the amount of the award or the
propriety of such as a division of the marital property. However, in his
reply brief, Husband argues that whether the $400,000 award could
effectively be deemed a valid property division is subject to the ruling of
the trial court with regard to the issue of fraud raised in his motion to
set aside and which is still pending before the trial court. While the
dissolution decree, including the $400,000 award, may be set aside if the
trial court determines that Husband should be granted such relief, it
remains that the $400,000 award is not a valid rehabilitative maintenance
award, but rather was intended to represent Wife’s share of the marital
property. Our decision does not affect whether the trial court may
eventually set aside the award upon consideration of Husband’s fraud
allegations.
[12] The language of T.R. 60(D) has not changed since the court’s
decision in Keystone.
