Wright v. Wright, 782 N.E.2d 363 (Ind. Ct. App. 2002)

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Gerald Franklin Wright ("Husband") appeals the trial court's denial of his motion to correct error. He presents two issues for our review, which we restate as:

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

Husband and Wife, Kimberly Vanars-dale Wright, were married and had four children together. In 1999, Wife filed a petition for dissolution of the marriage. Husband and Wife reached an agreement regarding the division of marital property

and custody and visitation of their four children. On August 9, 2001, at the final hearing regarding the dissolution petition, the parties read into the record portions of the agreement and submitted a copy of the written agreement to the trial court.1 The court approved the agreement, without the parties' signatures, and agreed to sign the dissolution decree after the parties submitted one.

When Husband's attorney did not file a copy of the settlement agreement with the court, Wife's attorney filed one. In its dissolution decree, the court approved the agreement "in all respects and without the signatures of the parties or their attorneys as stipulated and approved in open court." The parties' agreement, signed by the trial court on November 26, 2001, states, in relevant part, as follows:

Wife subsequently filed a motion to correct error, seeking to amend several provisions contained in the parties' agreement, including the provision regarding visitation. Specifically, Wife argued that Husband would be responsible for pick up and delivery of the children during every weeknight visitation. Wife also stated that Husband would always be responsible for delivery of the children following an extended overnight visitation (when the children were not in school). At the hearing on Wife's motion, Husband disputed Wife's contentions and argued that their agreement on the visitation issue was properly set out in the agreement approved by the trial court in its decree.

The trial court granted Wife's motion to correct error and issued an order thereon, amending the dissolution decree, in relevant part, as follows:

to avoid confusion concerning parenting time.

DISCUSSION AND DECISION

Standard of Review

Wife has filed no appellee's brief in this case. Where the appellee fails to file a brief on appeal, we may in our discretion reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. Hubbard v. Hubbard, 690 N.E.2d 1219, 1220 (Ind.Ct.App.1998). This rule was established for our protection so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Id.

We review the trial court's decision to grant or deny a motion to correct error for abuse of discretion. Sears Roebuck and Co. v. Noppert, 705 N.E.2d 1065, 1067 (Ind.Ct.App.1999), trans. denied. An abuse of discretion will be found when the trial court's action is against the logic and effect of the facts and cireumstances before it and the inferences which may be drawn therefrom. Gregor v. State, 646 N.E.2d 52, 53 (Ind.Ct.App.1994). An abuse of discretion also results from a trial court's decision that is without reason or is based upon impermissible reasons or considerations. Id.

Issue One: Service on Trial Court

Husband first contends that, despite Wife's assertion to the contrary, he obtained proper service of his motion to correct error on the trial court.2 Thus, Husband maintains that the trial court should not have denied his motion on that basis. We must agree. In Unishops Inc. v. May's Family Centers, Inc., 176 Ind.App. 406, 375 N.E.2d 1135, 1136-38 (1978), this court addressed this issue and held that delivery to the clerk of the court was sufficient to satisfy the requirement under Trial Rule 59 that a motion to correct error be served on the trial court. See also Ind. Trial Rule 5. Thus, here, when Husband filed his motion with the clerk on March 18, 2002, he properly served the trial court.

Issue Two: Visitation

Husband next maintains that the trial court abused its discretion when it denied his motion to correct error. Specifically, Husband contends that the trial court erred when, after first approving the parties' settlement agreement in all respects, it granted Wife's motion to correct error and modified the terms of the visitation provision without Husband's consent. In effect, Husband contends that there was no error in the visitation provision of the dissolution decree, and Wife's motion to correct error was tantamount to a petition to modify visitation.3

Indiana Code Section 81-15-2-17 provides in relevant part:

(Emphasis added). Husband maintains that the trial court essentially adopted the parties' agreement under Indiana Code Section 31-15-2-17(b)(1), but subsequently made provisions regarding visitation not contained in that agreement under Section (b)(2). Husband contends that the statute only authorizes the trial court to choose one or the other course of action.

We agree with Husband that, in the dissolution decree, the trial court unequiv-ccally "approved and ordered [the agreement] in all respects without the signatures of the parties or their attorneys as stipulated and approved in open court." As such, under the statute, the court was prohibited from subsequently making provisions regarding visitation not contained in the parties' agreement.

We also note that, while the version of the agreement incorporated into the decree was not the same as that submitted to the trial court at the final hearing, both versions were consistent on the transportation issue. In particular, the version submitted to the trial court on August 9, 2001 stated the following regarding visitation:

Moreover, during the final hearing, Husband's attorney read the parties' agreed provision regarding visitation aloud to the court as follows:

8:00 there because there may be a daycare.

(Emphasis added). Thus, Wife had an opportunity to object to Husband's statement regarding the visitation provision, which clearly indicated that Husband would only be responsible for returning the children following an extended overnight visitation if Wife was working at the return time and that the Parenting Time Guidelines would apply the rest of the time.5 But Wife objected only to the use of the word "home" with respect to where Husband would return the children following an extended overnight visitation.

If the visitation provision contained in the decree was error, it was invited error. We addressed a similar situation in Stolberg v. Stolberg, 538 N.E.2d 1, 5 (Ind.Ct.App.1989). There, the wife attempted to repudiate the parties' property settlement agreement some six months after the trial court had approved it and incorporated it into the dissolution decree. We noted, as here, that the wife had several opportunities to object to the agreement's provisions: at the final hearing, where she requested that the court approve the settlement as testified to by her husband; during the two weeks thereafter, where the parties were preparing a written agreement per the court's order; and when she received an unsigned copy of the decree for her review. Id. We held that the wife had invited any error of which she complained when she clearly agreed, without objection, to the settlement agreement and acquiesced in the procedure used in drawing up the agreement. Id.

Likewise, here, we hold that any error Wife alleged to have existed in the dissolution decree was invited error. See id. As we have noted, Husband read the visitation provision at the final hearing, and Wife only objected to one word. Thereafter, Wife did not object to any part of the agreement submitted to the trial court to be incorporated into the decree. Thus, Wife was precluded from taking advantage of the invited error, see id., and the trial court abused its discretion when it granted Wife's motion and modified the visitation provision.

In sum, none of the evidence regarding the parties' agreement that was before the trial court, written or oral, supports the trial court's order granting Wife's motion to correct error with respect to the visitation provision. And the error, if any, was invited error. As such, we conclude that the trial court abused its discretion when it denied Husband's motion to correct error. We reverse the trial court's order denying that motion, and we remand this matter to the trial court with instructions to issue a new order regarding visitation, imncorporat-ing, verbatim, Article II, paragraph 8 of the parties' agreement approved and signed by the court on November 26, 2001.

Reversed and remanded with instructions.

VAIDIK, J., and KIRSCH, J., concur.

ORDER

This Court having heretofore handed down its opinion in this appeal on December 12, 2002, marked Memorandum Decision, Not for Publication;

Comes now the Appellant, by counsel, and files herein Motion to Publish, requesting this Court to publish said opinion on the grounds that it clarifies Indiana Statutory Law on trial court discretion in accepting and then attempting to modify dissolution settlement agreements and also provides guidance on a legal issue of substantial public importance in the ability of parties to settle reliably among themselves, disputes in dissolution actions.

The Court having examined said Motion, having reviewed its opinion in this case, and being duly advised, now finds that the Appellant's said Motion to Publish should be granted.

IT IS THEREFORE ORDERED that the Appellant's Motion to Publish Opinion is granted and this Court's opinion heretofore handed down in this cause on December 12, 2002, marked Memorandum Decision, Not for Publication is now ordered published.

All Panel Judges coneur.