Denny W. Zook v. Jennifer E. Zook (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Mar 24 2020, 8:57 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Angela Field Trapp Stephenie K. Gookins
Trapp Law LLC Cate, Terry & Gookins LLC
Indianapolis, Indiana Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Denny W. Zook, March 24, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-DN-1248
v. Appeal from the Hamilton
Superior Court
Jennifer E. Zook, The Honorable David Najjar,
Appellee-Respondent. Special Judge
Trial Court Cause No.
29D05-1603-DR-1890
Friedlander, Senior Judge.
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[1] Denny W. Zook (“Husband”) appeals the trial court’s order dissolving his
marriage to Jennifer E. Zook (“Wife”). Husband contends that the trial court
abused its discretion by denying his motion to correct error and requests to
continue the hearing for final dissolution and for spousal maintenance. Finding
no abuse of discretion by the trial court, we affirm.
[2] Husband and Wife were married on June 3, 2006. Husband filed a verified
petition for dissolution of the parties’ marriage on March 3, 2016. Numerous
delays and continuances of the proceedings occurred, with some being
attributed to Wife and others to Husband. During the three-year pendency of
the parties’ divorce proceedings, Husband was represented by three different
attorneys and Wife by two different attorneys. On January 3, 2019, Husband’s
third attorney filed a motion to withdraw his appearance. In requesting
permission to withdraw his appearance, Husband’s counsel confirmed that
Husband was aware that the final hearing was scheduled to commence on
March 19, 2019. Husband did not retain new representation in the
approximately two and one-half months between his counsel’s withdrawal and
the final hearing.
[3] The trial court conducted a telephonic conference with the parties on March 12,
2019. During this conference, the trial court questioned Husband about
“whether he would be retaining counsel and confirm[ed] with Husband that the
final hearing would proceed beginning on March 19, 2019.” Appellee’s App.
Vol. II, p. 6. Husband did not request a continuance during this conference,
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and the trial court informed the parties that it would not entertain any future
requests for a continuance.
[4] The final dissolution hearing commenced as scheduled on March 19, 2019,
with Wife appearing with counsel and Husband appearing pro se. At the
beginning of the hearing, the trial court and Husband engaged in the following
colloquy:
THE COURT: Mr. Zook, are you ready to proceed here
today?
MR. ZOOK: I am not. Your Honor, I have, as I said in
our ——
THE COURT: Why are you not prepared to go to trial, sir?
MR. ZOOK: I am not a pro se litigant, and I have been
trying repeatedly to obtain counsel and I’ve not been able to do
that. And when I say I’ve tried repeatedly, I can provide you
with a list. I have not been able to do that.
THE COURT: Well, sir, we had a conversation about a
week ago in which I told you what was going to happen, didn’t I?
MR. ZOOK: You were clear that we had a trial scheduled,
absolutely.
THE COURT: [Wife’s Counsel], are you ready to proceed?
[Wife’s Counsel]: I am.
THE COURT: Then we will proceed.
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Tr. Vol. 2, p. 8. The trial court reiterated that it had considered Husband’s oral
request for a continuance but that the final hearing would proceed as scheduled.
After addressing other preliminary matters, the trial court engaged Husband in
the following colloquy:
THE COURT: All right. Mr. Zook, would you like to make
an opening statement or do you wish to proceed with evidence at
this time?
MR. ZOOK: No, Your Honor. I would just like to remind
you that I am disabled, and I also have intervenors that were
allowed into this matter that are present in the courtroom today
with litigation that’s been pending for eight years that’s very
critical to my future. And there are reasons that, because I’m not
pro se, that I can’t go into or I don’t feel I can go into that I’m
not prepared and not able to bring forward to you today, for
reasons that I don’t have the attorney here present that I think
that you would find very reasonable and understanding, but ——
THE COURT: Mr. Zook, you may or may not be disabled, I
don’t know, that evidence has not yet been presented. It may be
presented at some point during this time. That is a different
question than whether or not you have the capacity to go forward
to trial. You are not, and there has been no indication that has
previously been made, that you are incapacitated and you are not
able to go to trial. That has not been presented to the Court at
any time. This matter has been set, this matter has been pending
for three years. This case, this trial date has been set since
October of last year. You have been, this matter has been set for
final hearing several times before this date. At each time
something has happened to cause the matter to be continued.
One side or the other, whichever wasn’t moving, has objected at
almost every turn to a continuance of whatever hearing. When
we set this matter, we said we were going to proceed and
everybody needed to be ready to go forward. When your
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attorney withdrew, he warned you in his letter withdrawing that
you needed to be prepared to go forward for trial at your trial
date. When we had a conversation a week ago, I told you you
had to be prepared to go forward for trial at your trial date. This
is the trial date. If you are not prepared, that is not the fault of
[Wife’s Counsel], that is not the fault of your wife, and that is not
the fault of the Court.
Id. at 10-11. During her presentation of the evidence, Wife requested an
unequal distribution of the parties’ assets in favor of Husband and
acknowledged that Husband was receiving monthly social security and
disability checks and that he would likely continue to do so “for the foreseeable
future.” Id. at 27. Husband did not provide any argument or evidence during
the hearing.
[5] On March 20, 2019, the trial court entered an order dissolving the parties’
marriage. In deviating from an equal distribution of the marital estate, the trial
court found, in relevant part, as follows:
The income of the parties and the income earning potential of the
parties greatly favors the Wife in this case over the Husband.
Therefore, the evidence is sufficient to overcome the presumption
for a 50-50 distribution. The marital estate should be divided
unequally in Husband’s favor. . . . The property division
submitted by Wife in this case gives nearly all the assets of the
marriage to Husband with relatively small amount of debt, and
allocates a relatively small amount of the assets to Wife with a
large amount of the debt of the parties, resulting in a negative
distribution to Wife and a positive distribution to Husband, or an
unusually phrased ‘more than 100% of the net estate’ allocated to
Husband.
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Appellant’s App. Vol. II, pp. 35, 36. Additionally, in denying Husband’s
request for spousal maintenance, the trial court found as follows:
No evidence was presented by Husband regarding his disability.
The Court finds there is evidence, testified to by Wife, that
Husband is receiving income from Social Security and private
disability insurance, and therefore, there is evidence that
Husband is disabled, at least currently. The Court[, ]however,
does not find this evidence is sufficient for an award of spousal
maintenance, either rehabilitative or otherwise in this matter.
The unequal distribution of the marital assets and liabilities
should compensate Husband.
Id. at 37.
[6] On April 19, 2019, Husband filed a motion to correct error. In this motion, he
claimed that the trial court abused its discretion by denying his requests to
continue the final hearing and for spousal maintenance. The trial court denied
Husband’s motion to correct error on May 6, 2019. On appeal, Husband
contends that the trial court abused its discretion by denying his motion to
correct error and requests to continue the final hearing and for spousal
maintenance.
1. Motion to Correct Error
[7] Husband contends that the trial court abused its discretion by denying his
motion to correct error. “The trial court’s decision on a motion to correct error
comes to an appellate court cloaked in a presumption of correctness, and the
appellant has the burden of proving that the trial court abused its discretion.”
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Page v. Page, 849 N.E.2d 769, 771 (Ind. Ct. App. 2006). In reviewing the trial
court’s decision, “we look at the record to determine if: (a) the trial court
abused its judicial discretion; (b) a flagrant injustice has been done to the
appellant; or (c) a very strong case for relief from the trial court’s order has been
made by the appellant.” Id. (internal quotation omitted).
[8] In his motion to correct error, Husband challenged the trial court’s denial of his
requests for a continuance and spousal maintenance. In support, Husband filed
numerous documents relating to his alleged disability, all of which were
available at the time of the final hearing. Despite their availability, none of
these documents were filed in the trial court during the pendency of the divorce
proceedings. Consequently, after the trial court determined that the documents
were not properly before the court, the documents were stricken from the record
and were not considered by the trial court in relation to the motion to correct
1
error. For the reasons discussed below, we agree with the trial court’s
determination that Husband was not entitled to a continuance of the final
hearing or to an award of spousal maintenance. Husband, therefore, has failed
to carry his burden of proving that the trial court abused its discretion in
denying his motion to correct error.
1
Husband included the stricken documents in the record on appeal. In an order issued simultaneously with
this decision, we grant Wife’s motion to strike these documents as they are not properly before the court. See
GKC Ind. Theatres, Inc. v. Elk Retail Inv’rs, LLC, 764 N.E.2d 647, 651 (Ind. Ct. App. 2002) (stating well-
established rule that we may not consider evidence or arguments not properly presented to trial court).
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2. Continuance
[9] Husband also contends that the trial court abused its discretion in denying his
request for a continuance. “A trial court’s decision to grant or deny a motion to
continue a trial date is reviewed for an abuse of discretion, and there is a strong
presumption the trial court properly exercised its discretion.” Gunashekar v.
Grose, 915 N.E.2d 953, 955 (Ind. 2009). “An abuse of discretion may be found
in the denial of a motion for a continuance when the moving party has shown
good cause for granting the motion.” Riggin v. Rea Riggin & Sons, Inc., 738
N.E.2d 292, 311 (Ind. Ct. App. 2000). “The withdrawal of counsel does not
entitle a party to an automatic continuance.” Danner v. Danner, 573 N.E.2d
934, 937 (Ind. Ct. App. 1991), trans. denied (1992). The moving party must
show diligence in procuring counsel. Fetner v. Maury Boyd & Assocs., Inc., 563
N.E.2d 1334 (Ind. Ct. App. 1990), trans. denied (1991).
[10] Husband claims that he demonstrated good cause for the trial court to grant his
request for a continuance, arguing that he was diligent in making numerous
attempts to retain counsel. The record, however, lacks any evidence
demonstrating that Husband was diligent in attempting to retain counsel in the
approximately two and one-half months between his counsel’s withdrawal and
the final hearing. While Husband indicated that he could provide the court
with a list of the attorneys he contacted, he did not actually provide this list to
the trial court. Further, despite allegedly experiencing an ongoing difficulty in
retaining counsel, Husband did not request a continuance due to his alleged
ongoing difficulty during a telephonic conference with the court a week before
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the scheduled hearing date. Instead, Husband waited until the start of the final
hearing to verbally request a continuance. Given the complete lack of evidence
in the record to show that Husband was diligent in attempting to procure
counsel, we conclude that the trial court acted within its discretion when it
denied Husband’s oral request for a continuance. See Fetner, 563 N.E.2d 1334
(concluding that trial court did not abuse its discretion in denying Appellant’s
request for continuance given Appellant’s lack of diligence during time
immediately approaching trial coupled with deference due to trial court’s
decision on matter).
3. Spousal Maintenance
[11] Husband also contends that the trial court abused its discretion in denying his
request for spousal maintenance. In his dissolution petition, Husband claimed
to be disabled, indicated that he had “not been in the workforce for many
years,” and sought “an award of disability maintenance.” Appellant’s App.
Vol. II, pp. 40-41. A trial court may make an award of spousal maintenance
“[i]f the court finds a spouse to be physically or mentally incapacitated to the
extent that the ability of the incapacitated spouse to support himself or herself is
materially affected[.]” Ind. Code § 31-15-7-2(1) (1997). “If the trial court
makes that finding, it may order maintenance.” Campbell v. Campbell, 118
N.E.3d 817, 819 (Ind. Ct. App. 2019), trans. denied. “Because such an award is
designed to help provide for the incapacitated spouse’s sustenance and support,
the essential inquiry is whether the spouse can support [him]self.” Id. “An
award of incapacity maintenance is within the trial court’s discretion.” Id.
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“The spouse seeking maintenance has the burden of proving that he or she is
entitled to maintenance.” Lesley v. Lesley, 6 N.E.3d 963, 967 (Ind. Ct. App.
2014).
[12] During the final hearing, Wife testified that Husband was receiving income
from Social Security and private disability insurance. Husband, however,
presented no other evidence relating to his claimed disability. The trial court
concluded that despite Wife’s testimony establishing that Husband was, at least
temporarily disabled, the evidence was insufficient to support an award of
spousal maintenance. Given the lack of evidence relating to the severity or
perpetual nature of Husband’s claimed disability, we cannot say that the trial
court abused its discretion in concluding that Husband failed to meet his burden
of proving that he should receive spousal maintenance. The trial court,
therefore, did not abuse its discretion in denying Husband’s claim for spousal
maintenance.
[13] Judgment affirmed.
Najam, J., and Tavitas, J., concur.
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