Marriage of Minnick v. Minnick , 663 N.E.2d 1226 ( 1996 )

OPINION

HOFFMAN, Judge.

Michelle appeals the trial court's denial of her motion to rescind an order of the court which was entered in her absence. Michelle contends that she did not receive notice that a hearing had been set. The facts relevant to the appeal are recited below.

Michelle's marriage to David was dissolved in December 1987. The parties are the natural parents of Mindi R. Minnick. Michelle has another child, Heidi Stinemetz. In January 1993 Michelle's parents, the Stinemetzes, were granted temporary guardianship of the children.

In March 1998, David petitioned for custody of Mindi due to Michelle's hospitalization. The guardianship and custody proceedings were consolidated. In October 1994, Mindi began living with David.

On May 11, 1995, a hearing was held on the Stinemetzes' petition to terminate the guardianship and for determination of custody as to Mindi. The Stinemetzes, together with counsel, and David, together with counsel, appeared at the hearing in person. Neither Michelle nor her attorney appeared. The trial court terminated the guardianship and awarded custody of Mindi to David. Michelle was granted visitation and was ordered to pay support.

Subsequently, Michelle filed a motion to rescind the court's order based upon her alleged lack of notice of the proceedings. The trial court denied the motion. This appeal ensued.

As restated, Michelle presents one issue for review: whether the trial court abused its discretion in failing to grant relief from the order due to mistake or excusable neglect pursuant to the provisions of Ind.Trial Rule 60(B) and Ind.Trial Rule 72(E).

A motion for relief from a judgment under T.R. 60(B) is addressed to the equitable discretion of the trial court. Accordingly, the denial of a T.R. 60(B) motion will be reversed only for an abuse of discretion; that is, the trial court's decision is clearly against the logic and effect of the facts and inferences supporting the request for relief The movant must affirmatively demonstrate that relief is necessary and just. Additionally, Indiana requires a party seeking to set aside a judgment to make a prima facie showing of a good and meritorious defense such that if the case was retried on the merits a different result would be reached. Langdon v. Langdon, 641 N.E.2d 673, 674 (Ind.Ct.App.1994).

In pertinent part, TR. 72(E) states: "the Court, upon application for good cause shown, may grant an extension of any time limitation within which to contest such ruling, order or judgment to any party who was without actual knowledge, or who relied upon incorrect representations by Court personnel." Cf Markle v. Indiana State Teachers Ass'n, 514 N.E.2d 612, 618 (Ind.1987). A challenge to the mailing of notice is precluded when the docket clearly states that notice was mailed. See id. at 614. Michelle complains that the entry of notice was not noted on the Chronological Case Summary (CCS) when a representative of her counsel's office copied the court entries. Michelle suggests some impropriety. This Court will not engage in speculation. The official record contains the court's entry for April 7, 1995. The entry recites that the May 11, 1995 hearing is set and states: "(copy to Bush, Murphy and Starkes)."

Moreover, Michelle's challenge would fail inasmuch as she did not meet the second prong of TR. 60(B) requiring a showing that she has a meritorious defense to the judgment. Michelle contends that had she received notice of the hearing, she could have developed evidence to demonstrate that, in the best interest of Mindi, custody should have been awarded to Michelle.: Further, Michelle complains that she suffered prejudice due to her inability to present evidence. Neither contention rises to the level of a meritorious defense. The rule requires something more than allegations of the possibility of evidence and prejudice.

The trial court's judgment denying relief is affirmed.

Affirmed.

GARRARD, J., concurs. STATON, J., dissents with separate opinion.