Stacey L. (Berg) Wietfeldt, Appellant-Petitioner v. Russell G. Berg, Appellee-Respondent (2025)

MEMORANDUM DECISION

[1] Stacey Wietfeldt (“Wife”) appeals the Allen Circuit Court's interlocutory order denying her request for attorney's fees. However, we do not reach Wietfeldt's arguments on the merits because this interlocutory appeal is not properly before us.

[2] For this reason, we dismiss without prejudice.

Facts and Procedural History

[3] In a prior appeal, our Supreme Court set out the relevant facts and procedural history of this case as follows:

In 2017, [Wife] sued [Husband] for dissolution of marriage. After limited discovery, Wife and Husband participated in mediation and signed a settlement agreement (the Agreement) under which each party retained all stock accounts in their respective names and Husband received all jointly held stock accounts. The Agreement contains a warranty stating, “[e]ach of the parties further represent and warrant one to the other that all assets and debts owned or owed by the parties, either individually or jointly, have been correctly and truly revealed to the other and reflected within this [A]greement.” Appellant's App. Vol. 2, pp. 21-22. The trial court approved the Agreement and incorporated it into the dissolution decree.

One year later, Wife filed a Trial Rule 60(B) motion for relief from judgment, alleging that the Agreement shouldn't be enforced because it was procured through fraud, constructive fraud, misrepresentation, mutual mistake, or other misconduct. Wife's motion rested on the omission of a stock account from the balance sheet that the parties had used in determining the division of assets. Husband had identified that account to Wife's lawyer during their exchange of information. The lawyers discussed getting together to reconcile the parties’ balance sheets. When Wife's attorney gave Husband's attorney her version of the balance sheet, Husband's attorney pointed out one of Wife's accounts that was missing but said nothing about Husband's missing account. After Wife added her missing account to the balance sheet, Husband's attorney said they would use her balance sheet at mediation. Wife maintains that the parties used her sheet, which omitted Husband's account, when determining the division of assets at mediation.

Husband moved to strike the evidence submitted by Wife as inadmissible mediation evidence. The trial court overruled Husband's objection and initially denied relief to Wife. Wife then filed a motion to correct error[ ], which the trial court granted. Because the trial court found that fraud, constructive fraud, mutual mistake, or misrepresentation had occurred and that Husband had breached the Agreement's warranty provision, it awarded Wife half of the value of the account.

Berg v. Berg, 170 N.E.3d 224, 226-27 (Ind. 2021) (“Berg I”). Husband appealed, and this Court reversed the trial court. On transfer, our Supreme Court reinstated the trial court's judgment, noting that “[t]he trial court incorrectly determined that fraud, constructive fraud, mutual mistake, or misrepresentation had occurred, but because the trial court didn't abuse its discretion in finding that Husband had breached the warranty clause of the Agreement, we affirm the trial court.” Id. at 232.

[4] In July 2021, Wife filed a motion in the trial court to enforce the Supreme Court's opinion or, in the alternative, for a motion for judgment against Husband and a request for attorney's fees. During a hearing on the motion in September 2024, the trial court noted that certain child-related issues remained pending between the parties but would not be addressed during the hearing. In January 2025, the trial court entered a “judgment in favor of Wife and against Husband in the amount of $94,129.19, which includes statutory interest through January 24, 2025,” for Husband's breach of contract. Appellant's App. Vol. 2, p. 173. But the trial court denied Wife's request for attorney's fees. Wife filed a motion to correct error, which the trial court also denied.

[5] This appeal ensued.

Discussion and Decision

[6] In her notice of appeal, Wife alleges that she is appealing from the trial court's order denying her request for attorney's fees under Indiana Appellate Rules 2(H) and 9(I). In other words, Wife purports to appeal from a final judgment. As our Supreme Court has explained, “a final judgment disposes of all issues as to all parties thereby ending the particular case” and “leaves nothing for future determination.” Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003) (citations omitted).

[7] Whether an order is a final judgment governs the appellate court's subject matter jurisdiction. Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 757 (Ind. 2014) (citing Georgos, 790 N.E.2d at 451). The lack of appellate subject matter jurisdiction may be raised at any time, and where the parties do not raise the issue, this court may consider it sua sponte. Indy Auto Man, LLC v. Keown & Kratz, LLC, 84 N.E.3d 718, 719-20 (Ind. Ct. App. 2017).

[8] Here, during the opening remarks of the September 2024 hearing, the parties’ attorneys acknowledged that there were “still some pending [child-related] issues” that were not part of that hearing. Tr. p. 6. A review of the Chronological Case Summary for this case on the Odyssey Case Management System shows that there have not been any court orders since September 2024 regarding any issues other than those at issue in this appeal. Thus, the court's order following the September 2024 hearing did not dispose of all issues pending before the court. See Georgos, 790 N.E.2d at 451. Neither does the court's order on appeal include language that would render it a final judgment under Appellate Rule 2(H)(2).

[9] Hence, Wife's appeal of the trial court's order denying her request for attorney's fees is a discretionary interlocutory appeal under Indiana Appellate Rule 14(B). As our Supreme Court has explained, “[a] discretionary interlocutory appeal is proper so long as the party timely and successfully moves (1) the trial court to certify the order and (2) the Court of Appeals to accept jurisdiction over the appeal.” Nat'l Collegiate Athletic Ass'n v. Finnerty, 191 N.E.3d 211, 218 (Ind. 2022). Those requirements were not met here, and this appeal therefore is not properly before us.

[10] Dismissed without prejudice.

Mathias, Judge.

Altice, C.J., and May, J., concur.