Pamela Anne Langguth v. Michael Langguth (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be FILED

regarded as precedent or cited before any Aug 31 2020, 8:58 am

court except for the purpose of establishing CLERK

Indiana Supreme Court

the defense of res judicata, collateral Court of Appeals

and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE

William O. Harrington Denise F. Hayden

Harrington Law, P.C. Lacy Law Office, LLC

Danville, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Pamela Anne Langguth, August 31, 2020

Appellant-Respondent, Court of Appeals Case No.

20A-DC-441

v. Appeal from the Hendricks

Superior Court

Michael Langguth, The Honorable Robert W. Freese,

Appellee-Movant Judge

Trial Court Cause No.

32D01-1803-DC-164

Baker, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020 Page 1 of 10

[1] Pamela Langguth appeals the trial court’s order granting Michael Langguth’s

motion to set aside a 2009 court order acceptable for processing that was tied to

the decree of dissolution of their marriage. Pamela argues that (1) the trial

court did not have subject matter jurisdiction to consider Michael’s motion;

(2) the trial court erred by granting the motion absent any evidence of fraud;

and (3) the trial court erred by finding implicitly that Michael met his burden

under Trial Rule 60(B). Finding that the trial court had subject matter

jurisdiction and finding no error, we affirm.

Facts

[2] On September 26, 2007, the trial court entered a decree of dissolution of

marriage between Pamela and Michael; it later entered an amended decree

following Michael’s motion to correct errors. During and after the parties’

marriage, Michael was employed as an air traffic controller for the FAA. Part

of his compensation was a retirement pension.

[3] In the amended dissolution decree, the trial court held that Michael’s FAA

pension was a marital asset but that the parties did not, at that time, know the

value of the pension. The trial court ordered that Pamela would receive “80%

of [Michael’s] pension as of 12/31/06[.]”1 Tr. Ex. Vol. p. 56. On February 9,

1

There was some debate over the course of proceedings as to the correct date of calculation. In the end, the

parties agreed that the correct date was December 31, 2005, rather than 2006.

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2009, the trial court entered a court order acceptable for processing (COAP).2

In the COAP, which was an order directed to the United States Office of

Personnel Management (OPM), the trial court ordered as follows:

[Pamela] is entitled to and is hereby assigned and awarded the amount

of Eighty Percent (80%) of [Michael’s] gross monthly annuity as of December

31, 2005, under the Federal Employee’s Retirement System (FERS).

The [OPM] is directed to pay [Pamela’s] share directly to [Pamela].

[Pamela] shall receive a pro-rata share (Eighty Percent (80%)) of any

Cost of Living Adjustment as well as any other increases in [Michael’s]

gross monthly annuity.

Id. at 67 (emphasis original).

[4] In June 2017, Michael retired as an air traffic controller. On November 28,

2017, OPM sent a letter to Pamela explaining the calculation of their respective

shares of Michael’s FERS benefit:

By court order your marital share of your former spouse’s retirement

benefit is 80% of 199 months of service during the marriage divided by

337 months of Federal service or 47.24% of your former spouse’s

retirement benefit. The marital shares times your former spouse’s gross

annuity benefit of $7,180 provides for a $3,391.83 monthly payment for

you. This includes the FERS Supplement of $1377; which may end at any

time reducing your share of your former spouse’s retirement annuity.

Id. at 72 (emphasis original).

2

The term “court order acceptable for processing,” used by the United States Office of Personnel

Management, is essentially synonymous with what is more commonly referred to in Indiana as a qualified

domestic relations order (QDRO).

Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020 Page 3 of 10

[5] On July 11, 2018, Michael filed a motion to set aside the COAP and a motion

to stay the distributions to Pamela. On March 29, 2019, following a hearing,

the trial court entered an order holding, in relevant part, as follows:

1. The Court has jurisdiction over the parties and the issues

presented . . . .

***

6. Clearly the Judge at [the time of the amended dissolution

decree] intended to award Wife 80% (with a couple of

exceptions) of the MARITAL ASSETS to Wife.

7. The Court did not and could not intend or order that Wife

receive assets acquired by Husband after the marriage

ended.

8. The current division of Husband’s retirement provides a

substantial windfall for Wife in that she is receiving

payment for pension accrual that occurred over a period of

time in excess of a decade after the marriage was

dissolved. Thus, providing to her post-marital assets that

were not a result of the marriage in any manner.

9. The Court therefore sets asides and vacates the [COAP]

dated February 9, 2009.

First Appealed Order p. 2-3 (emphasis original). The trial court held another

hearing on December 17, 2019, to determine the correct monthly amount owed

to Pamela. On January 28, 2020, the trial court issued an order following that

hearing that holds, in relevant part, as follows:

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13. [An expert who testified at the hearing] was able to

establish that [Michael] was entitled, on December 31,

2005, to receive a gross monthly annuity, through FERS,

of $1,735.

14. [Pamela] should therefore be entitled to 80% of $1,735, per

month, which equals $1,388.

***

16. [Pamela] is currently receiving 80% of [Michael’s] FERS

supplement.

17. [Pamela] was not entitled to the FERS supplement on

December 31, 2005.

18. There was no mention of the FERS supplement in the

Decree or Amended Decree.

19. [Pamela] should not receive a portion of [Michael’s] FERS

supplement as it was not vested at the time of dissolution.

20. Counsel for [Michael] shall prepare a [COAP] that directs

the [O PM] to award and assign [Pamela] the gross

monthly amount of $1,388. Further, the [COAP] shall

specifically exclude [Michael’s] FERS supplement from

division.

21. A revised [COAP] does not constitute a review of the

OPM calculation.

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22. OPM cannot, under its Rules and Regulations, calculate

80% of [Michael’s] gross monthly annuity as of December

31, 2005.

23. Absent a revised [COAP], awarding [Pamela] 80% of

[Michael’s] gross monthly annuity as of December 31,

2005 is an impossibility.

24. The terms of the Order carry out the intent of the original

Decree and Amended Decree and provide an equitable

resolution.

Second Appealed Order p. 2-3. Pamela now appeals.

Discussion and Decision

[6] At the outset, we note that while Pamela raises multiple procedural arguments

herein, she does not make any substantive ones. In other words, she does not

argue that she was actually entitled, under the amended decree, to 80% of

Michael’s retirement benefits that accrued after the marriage was dissolved.

Nor does she contest the trial court’s conclusion that, absent a clarified COAP,

she is receiving a windfall.

[7] Instead, she argues as follows: (1) the trial court did not have subject matter

jurisdiction to consider Michael’s motion to set aside; (2) the trial court’s

modification of the 2009 COAP was erroneous because there was no evidence

of fraud; and (3) the trial court erred by concluding that Michael met his burden

under Trial Rule 60(B) to show grounds for relief from judgment.

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I. Subject Matter Jurisdiction

[8] Pamela contends that the trial court lacked subject matter jurisdiction. When,

as here, there are no disputed issues of fact, we apply a de novo standard of

review to the issue of the trial court’s subject matter jurisdiction. Johnson v.

Patriotic Fireworks, Inc., 871 N.E.2d 989, 992 (Ind. Ct. App. 2007).

[9] In arguing that the trial court lacked subject matter jurisdiction to consider

Michael’s motions, Pamela frames Michael’s argument as an attack on the

OPM’s calculation of the amount to which she is entitled. If this were, indeed,

what Michael was arguing, Pamela would be correct. To appeal an OPM

calculation, a claimant must exhaust all administrative remedies within the

OPM and then, if still unhappy with the result, seek judicial review in federal

court. Fornaro v. James, 416 F.3d 63, 64 (D.C. Cir. 2005). In this case, it is

undisputed that Michael did not follow that process.

[10] Michael is not arguing, however, that OPM made a miscalculation. Instead, he

argues that OPM has incorrectly interpreted and applied the original COAP,

which needs to be clarified as a result. The Code of Federal Regulations (CFR)

contemplates that a trial court could amend or supersede a COAP:

OPM must honor a court order acceptable for processing that appears

to be valid and that the former spouse has certified is currently in force

and has not been amended, superseded, or set aside, until OPM receives

a court order . . . amending or superseding the court order submitted by

the former spouse.

Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020 Page 7 of 10

5 C.F.R. 838.224(b). In other words, the CFR implicitly permits the trial court

to retain subject matter jurisdiction to issue a new COAP superseding the old

one. Here, that is precisely what occurred, and we find no fault with the trial

court’s conclusion that it retained subject matter jurisdiction over these matters.

II. Modification of COAP

[11] Next, Pamela argues that the trial court erred by modifying the original COAP

because there is no evidence of fraud. She directs our attention to Indiana Code

section 31-15-7-9.1(a), which states that orders concerning property disposition

in a marriage dissolution action “may not be revoked or modified, except in

case of fraud.”

[12] In this case, the trial court did not modify or revoke the property distribution as

contained in the amended dissolution decree. Instead, it set aside and amended

the COAP—not the property distribution itself. Pamela will still receive

precisely what was awarded to her in the amended dissolution decree, which

includes 80% of Michael’s pension as of December 2005. The trial court did

not intend to award Pamela any share of Michael’s property that he would

accrue post-dissolution—nor does she argue that she is entitled to the same—

and the trial court’s decision to issue a new COAP merely serves to correct an

error in OPM’s interpretation of the original COAP. Therefore, the above

statute does not apply and the trial court need not have found fraud to award

the relief sought by Michael.

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III. Relief From Judgment

[13] Finally, Pamela argues that Michael was not entitled to relief under Trial Rule

60(B). Initially, we note that neither Michael’s motion nor the trial court’s

orders reference Trial Rule 60. But we agree with Pamela that this rule is the

most likely basis of the trial court’s orders.

[14] While Pamela focuses on Trial Rule 60(B), we agree with Michael that the

provision that aligns most directly with this case is actually Trial Rule 60(A):

“Of its own initiative or on the motion of any party . . . , clerical mistakes in

judgments, orders or other parts of the record and errors therein arising from

oversight or omission may be corrected by the trial court at any time[.]”3

[15] Here, it is apparent that the trial court believed that an omission in the original

COAP—specifically, the omission of a specific statement that Pamela would

not be entitled to a portion of Michael’s pension that accrued after the marriage

was dissolved—led to an error in its interpretation and application by the OPM.

The trial court explicitly noted that in the original COAP, the court “did not

and could not intend or order that Wife receive assets acquired by Husband

after the marriage ended.” First Appealed Order p. 2. We note, again, that

Pamela does not argue that she is actually entitled to this money; she merely

seeks to retain it based on procedural grounds. See, e.g., Citizens Action Coalition

3

There is a slight alteration of the general rule that applies when an appeal has been filed before the error is

corrected by the trial court, but that does not apply here.

Court of Appeals of Indiana | Memorandum Decision 20A-DC-441 | August 31, 2020 Page 9 of 10

of Ind., Inc. v. N. Ind. Public Serv. Co., 76 N.E.3d 144, 157 n.4 (Ind. Ct. App.

2017) (observing that Indiana courts disapprove of “gotcha” litigation).

[16] Because OPM’s interpretation of the original COAP led to a result that the

original trial court did not and could not have intended, the trial court elected to

revise the COAP so that its original intent could be realized. Under these

circumstances, we find that the trial court did not err by setting aside the

original COAP based on the error in that order. See Drost v. Prof’l Bldg. Serv.

Corp., 176 Ind. App. 172, 175, 375 N.E.2d 241, 244 (1978) (holding that the

reason for Trial Rule 60(A) “is that in the case of clearly demonstrable

mechanical error the interests of fairness outweigh the interests of finality which

attend the prior adjudication”).

[17] The judgment of the trial court is affirmed.

Bailey, J., and Vaidik, J., concur.

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