Richard Hoffman v. Rhonda Hoffman (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 16 2016, 10:33 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Richard Hoffman Roberta L. Renbarger
Hoagland, Indiana Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard Hoffman, June 16, 2016
Appellant-Respondent, Court of Appeals Cause No.
02A03-1511-DR-1996
v. Appeal from the Allen Superior
Court
Rhonda Hoffman, The Honorable Charles F. Pratt,
Appellee-Petitioner. Judge
Trial Court Cause No.
02D08-1408-DR-1165
Barnes, Judge.
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Case Summary
[1] Richard Hoffman appeals the denial of his petition to annul his marriage to
Rhonda Hoffman. We dismiss.
Issue
[2] The sole issue we need address is whether this court has jurisdiction to consider
Richard’s appeal.
Facts
[3] Richard and Rhonda were married in 2009. On the parties’ marriage license
application, Rhonda stated that she had previously been married four times and
that her last marriage had ended by annulment. Rhonda had previously been
married five times. Her last marriage to Curtis Lohr was annulled in 2003 as
void because Lohr was still married to another person at the time of his
purported marriage to Rhonda.
[4] Rhonda petitioned for divorce from Richard in September 2014. On February
27, 2015, Richard filed a petition to annul his marriage to Rhonda; the petition
was filed as part of the dissolution proceedings and under the same cause
number. In the petition, Richard alleged his marriage to Rhonda was void due
to fraud. Specifically, Richard claimed Rhonda had misled him into thinking
she had previously been married four times rather than five. On October 22,
2015, after conducting a hearing on the matter, the trial court denied Richard’s
annulment petition. Richard then initiated an appeal from this ruling.
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According to the trial court’s docket, the parties’ final dissolution hearing is to
be held on September 6, 2016.
Analysis
[5] Richard contends the evidence is clear that Rhonda entered misleading
information on the parties’ marriage license application regarding the number
of times she previously had been married, thus rendering their marriage void.
Rhonda responds that, because her last marriage was ended by annulment, it is
considered a legal nullity and her statement on the license application that she
previously had been married four times, not five, was accurate.
[6] We will not resolve the merits of this dispute at this time. By rule, this court
“shall have jurisdiction in all appeals from Final Judgments of Circuit,
Superior, Probate, and County Courts, notwithstanding any law, statute or rule
providing for appeal directly to the Supreme Court of Indiana.” Ind. Appellate
Rule 5(A). We also have jurisdiction to entertain interlocutory appeals in
accordance with Indiana Appellate Rule 14. Ind. App. R. 5(B). According to
Indiana Appellate Rule 2(H):
A judgment is a final judgment if:
(1) it disposes of all claims as to all parties;
(2) the trial court in writing expressly determines under Trial
Rule 54(B) or Trial Rule 56(C) that there is no just reason for
delay and in writing expressly directs the entry of judgment (i)
under Trial Rule 54(B) as to fewer than all the claims or parties,
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or (ii) under Trial Rule 56(C) as to fewer than all the issues,
claims or parties;
(3) it is deemed final under Trial Rule 60(C);
(4) it is a ruling on either a mandatory or permissive Motion to
Correct Error which was timely filed under Trial Rule 59 or
Criminal Rule 16; or
(5) it is otherwise deemed final by law.
[7] “Whether an order is a final judgment governs this court’s subject matter
jurisdiction.” In re Estate of Botkins, 970 N.E.2d 164, 166 (Ind. Ct. App. 2012)
(citing Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003)). The lack of
appellate subject matter jurisdiction may be raised at any time, and we may
consider the issue sua sponte even if not raised by the parties. Id.[8] Here, Richard filed his petition for annulment as part and parcel of the
dissolution proceedings initiated by Rhonda. After denial of the annulment
petition, those proceedings are ongoing. Final resolution of the rights and
responsibilities between the parties remains incomplete. In other words, denial
of the annulment petition did not dispose of all the claims between the parties.
The trial court did not use the “magic language” of Trial Rule 54(B) needed for
an order to be deemed final, and thus denial of the annulment petition was
interlocutory in nature. See id. at 167. Although certain interlocutory orders
are appealable as of right, denial of the annulment petition does not fall within
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any of those categories.1 And, Richard did not follow the dictates of Indiana
Appellate Rule 14(B) to pursue a discretionary interlocutory appeal. We lack
subject matter jurisdiction to consider Richard’s appeal and must dismiss. See
id. at 168.
Conclusion
[9] The denial of Richard’s annulment petition was not a final appealable order,
nor subject to interlocutory appeal as of right, and he did not seek permission to
file a discretionary interlocutory appeal. We dismiss.
[10] Dismissed.
Vaidik, C.J., and Mathias, J., concur.
1
Indiana Appellate Rule 14(A) lists the following types of interlocutory orders that are appealable as of right:
(1) For the payment of money;
(2) To compel the execution of any document;
(3) To compel the delivery or assignment of any securities, evidence of debt, documents or
things in action;
(4) For the sale or delivery of the possession of real property;
(5) Granting or refusing to grant, dissolving, or refusing to dissolve a preliminary injunction;
(6) Appointing or refusing to appoint a receiver, or revoking or refusing to revoke the
appointment of a receiver;
(7) For a writ of habeas corpus not otherwise authorized to be taken directly to the Supreme
Court;
(8) Transferring or refusing to transfer a case under Trial Rule 75; and
(9) Issued by an Administrative Agency that by statute is expressly required to be appealed as a
mandatory interlocutory appeal.
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