Thomas L. Marshall, Appellant-Petitioner v. MaryJane S. Marshall, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] Thomas Marshall appeals following the entry of a final decree dissolving his marriage to MaryJane Marshall. During the dissolution proceedings, Thomas was scheduled to depose MaryJane, but her attorney failed to appear, and the deposition did not proceed. Afterward, Thomas filed a motion for sanctions under Indiana Trial Rule 37(D) for the attorney's failure to appear, which the trial court ultimately denied.¹ On appeal, Thomas argues that the trial court abused its discretion in denying this motion and his subsequent motion for reconsideration. Because we agree the court abused its discretion, we reverse and remand.

Facts and Procedural History

[2] In October 2021, Thomas and MaryJane entered into a premarital agreement and were married.² A year later, Thomas petitioned to dissolve the marriage, and MaryJane filed a counter-petition in February 2023. Both parties were originally represented by counsel. In May, the parties appeared for a status conference, after which the court made an entry noting the potentially conflicting provisions in the parties’ premarital agreement. The court struck the final hearing scheduled for September after MaryJane indicated that the parties would submit a settlement agreement. When the parties failed to do so, the court rescheduled the final hearing. Ultimately, it was reset for September 11, 2024.

[3] In March 2024, Thomas filed a motion to enforce the premarital agreement between the parties. In August—after little had occurred in their case—Thomas filed a motion asking the court to convert the final hearing to a status conference because MaryJane had not expressed whether she intended to challenge the enforceability of the premarital agreement, and her position on that issue would determine whether any discovery would be necessary. The motion sought an attorney case management conference to discuss those concerns. After the court granted his motion, Thomas asked it to impose a deadline by which MaryJane would be required to specify the extent to which she believed the premarital agreement was enforceable, if at all. The court advised that it would address that issue with the attorneys at the September 11 case management conference. After their conference, the court made an entry that the attorneys had appeared and agreed to attend mediation before the January 29, 2025 final hearing.

[4] On January 11, 2025, Thomas filed a motion to continue the January 29 final hearing and a motion for sanctions under Trial Rule 37(D) because MaryJane's attorney had been perpetually unresponsive throughout the proceedings and MaryJane had still not indicated whether she intended to contest the premarital agreement. His motion for sanctions stated that in an effort to promote a resolution, he had served MaryJane's attorney (in December 2024) with a subpoena to depose MaryJane on January 10, 2025. On that date, MaryJane appeared and acknowledged her attorney had informed her of the subpoena, but her attorney failed to appear and could not be reached. Thomas’ attorney made a record that he would not question MaryJane because she was represented and it was an “ethical trap ․ if [he] were to do a deposition without her counsel.” Appellant's Appendix Vol. 2 at 35. In his motion for sanctions, Thomas stated that because he still didn't know where MaryJane stood on the issue of their premarital agreement, he had been forced to reschedule their mediation.

[5] On January 15, the trial court granted Thomas’ motion for a continuance. On January 27, a new attorney entered an appearance on behalf of MaryJane. In March, her original attorney withdrew, Thomas’ attorney withdrew, and Thomas began representing himself. That same month, Thomas filed a motion for change of judge. The magistrate who had presided over the dissolution case recused in April, and a special judge was assigned to the case in May.

[6] Thomas represented himself for the remainder of the proceedings and during that time he filed a litany of motions, notices, and other documents, many of which sought overly expansive discovery, further sanctions and attorney's fees, and resolution of issues not related to the dissolution. On July 15, the trial court held an evidentiary hearing at which the parties agreed the premarital agreement was valid and enforceable. On September 2, the court found that the parties were bound by the premarital agreement and entered an order directing MaryJane's attorney to file a proposed decree of dissolution consistent with the agreement's terms. The court also found that “attorney fees for [MaryJane's] prior counsel's lack of cooperation in discovery [were] not required[,]” and that “the conduct [was not] so egregious to justify a shifting of attorney fees, particularly when [MaryJane] retained new counsel to resolve this matter expeditiously.” Id. at 62 (citing Ind. Trial Rule 37(A)).

[7] On September 4, Thomas filed a motion to clarify the September 2nd order because it appeared to address “a broader attorney-fee request” and “did not expressly adjudicate the discrete, itemized Trial Rule 37 request for expenses arising from the January 10, 2025 deposition nonappearance.” Id. at 18. On September 19, the court entered the following order:

The Motion to Clarify is GRANTED and [Thomas’] Trial Rule 37(D) motion for expenses for Respondent's failure to attend a deposition is DENIED as being unjust. The parties signed a premarital agreement without objection by either party [ ] that this Court was able to enforce without extensive discovery between the parties. [Thomas’] attempts at drawn out discovery were unnecessary to address the issues between the parties, the deposition was wholly unnecessary and an attempt to harass [MaryJane].

Id. at 17. Thomas then filed a motion to reconsider which the court summarily denied. The next month, the court entered a final decree of dissolution which provided that the premarital agreement was valid and enforceable and that the “division of assets, liabilities, and property rights shall be governed exclusively by the terms of that agreement.” Id. at 64. Thomas appeals, pro se.³

Discussion and Decision

[8] Thomas argues the trial court erred by denying his motion for sanctions under former Trial Rule 37(D). Given our trial courts’ tremendous caseloads, Indiana's rules of discovery “are specifically intended to minimize the need for judicial involvement.” Wright v. Miller, 989 N.E.2d 324, 327 (Ind. 2013). “However, when the goals of this system break down” and the court is asked to weigh in on a discovery dispute such as a request for sanctions under Trial Rule 37, it is afforded broad discretion in ruling on the matter. Hatfield v. Edward J. DeBartolo Corp., 676 N.E.2d 395, 399 (Ind. Ct. App. 1997), reh'g denied, trans. denied. And when the court rules on a subsequent motion to reconsider its decision, as it did here, we review that ruling for an abuse of discretion. In re Estate of Lewis, 123 N.E.3d 670, 673 (Ind. 2019). A trial court abuses its discretion when its decision is “clearly against the logic and effect of the facts and circumstances before the court[.]”⁴ In re Contempt of Myers, 191 N.E.3d 912, 915 (Ind. Ct. App. 2022). Finally, to the extent our review implicates an interpretation of our trial rules, that is a question of law which we consider de novo. CSX Transp., Inc. v. Poluciano, 272 N.E.3d 1009, 1012 (Ind. Ct. App. 2025).

[9] At the time of the relevant proceedings, Trial Rule 37(D) provided:

Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Requests for Inspection. If a party or an officer, director, or managing agent of a party or an organization, including without limitation a governmental organization, or a person designated under Rule 30(B)(6) or 31(A) to testify on behalf of a party or an organization, including without limitation a governmental organization, fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (a), (b), and (c) of subdivision (B)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(C).

(emphases added).

[10] The rule applies to an attorney's failure to appear at his client's duly noticed deposition. See Contempt of Myers, 191 N.E.3d at 915 (upholding Rule 37(D) sanctions imposed against an attorney). Rule 37(D) requires expense shifting when a party fails to appear for his deposition “unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” T.R. 37(D).⁵ Under the plain language of the rule, one can only show “substantial justification” in relation to the underlying failure. See Ledden v. Kuzma, 858 N.E.2d 186, 189 (Ind. Ct. App. 2006) (noting “substantially justified” under Rule 37(A)(4) means that “reasonable persons could conclude that a genuine issue existed as to whether a person was bound to comply with or entitled to resist the requested discovery”). A party may also attempt to show, and the trial court found here, that “other circumstances make an award of expenses unjust.” T.R. 37(D).

[11] Thomas primarily argues that the trial court's decision to deny his Rule 37(D) motion for sanctions “rest[ed] on hindsight disagreement with [his] decision to” depose MaryJane. Appellant's Reply Br. at 7. In contrast, MaryJane argues that “the court was entitled to conclude that [Thomas’] claimed expenses resulted from his own litigation decisions rather than sanctionable conduct by [MaryJane].” Appellee's Br. at 7. We agree with Thomas.

[12] For months prior to the January 10, 2025 deposition, Thomas’ attorney had emphasized that the enforceability of the premarital agreement was a significant issue in the case and would impact the need to conduct discovery. Because MaryJane had not confirmed her position on the agreement, it was appropriate under the discovery rules for Thomas to request her deposition be taken. See T.R. 26(B) (“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of the party seeking discovery or the claim or defense of any other party ․”); see also T.R. 30(A) (“After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination.”). Thus, the court erred in reasoning that the January 10 “deposition was wholly unnecessary and an attempt to harass” MaryJane. Appellant's App. Vol. 2 at 17.

[13] The court also abused its discretion in reasoning that sanctions would have been unjust because Thomas’ “attempts at drawn out discovery were unnecessary[.]” Appellant's App. Vol. 2 at 17. On this point, we acknowledge that Thomas began representing himself in March 2025 and subsequently filed many unnecessary or even vexatious motions, including a motion to compel seeking expansive discovery into MaryJane's personal and financial situation after the parties had agreed the premarital agreement was enforceable. However, Thomas’ excessive pro se tactics started two months after his attorney filed the Rule 37(D) motion, and that conduct did not bear on whether it was unjust to shift expenses related to the discreet discovery failure for which Thomas sought sanctions.

[14] That said, MaryJane should not be faulted for her attorney's failure to appear for the deposition. Indeed, it is unfortunate she had to defend against this appeal. The rule provides that the trial court “shall require the party failing to act or the attorney advising [her] or both to pay the reasonable expenses, including attorney's fees, caused by the failure[.]” T.R. 37(D) (emphasis added). Our Supreme Court has found that compelling a party to pay the opposing party's attorney's fees under Rule 37(D) would be unjust if the order “would punish the [client] for their counsel's conduct.” Outback Steakhouse of Fla., Inc. v. Markley, 865 N.E.2d 65, 82 (Ind. 2006). Here, there is no evidence that MaryJane had any fault in her attorney's failure to appear. She appeared for her deposition, acknowledged her attorney had notified her of the event, and promptly secured new counsel after her attorney failed to appear. Cf. Contempt of Myers, 191 N.E.3d at 914-15 (affirming decision holding an attorney and his clients jointly and severally liable for Rule 37(D) sanctions when both failed to appear for a deposition and the trial court found only the clients responsible for expenses caused by their failure to appear for a different deposition the attorney attended). Moreover, the attorney withdrew from the case at a time when he knew he could be found liable under the pending motion for sanctions, and there is no evidence in the record that he ever attempted to explain his failure to appear. Under these circumstances, the attorney is culpable for the expenses caused by his failure to appear, not MaryJane.⁶

Conclusion

[15] For the foregoing reasons, we reverse the trial court's decision to deny Thomas’ motion for sanctions under Rule 37(D). On remand, we instruct the trial court to calculate and enter an award in favor of Thomas and against MaryJane's original attorney in an amount equal to the reasonable expenses caused by the attorney's failure to appear for his client's January 10, 2025 deposition.

[16] Reversed and remanded with instructions.

FOOTNOTES

1.   Rule 37 was amended effective January 1, 2026, and the provision under which Thomas brought this motion is now Rule 37(C). Minor changes were made to the provision, but it is substantively the same. Our citations to Rule 37 throughout this decision refer to the pre-2026 version of the rule.

2.   We note that because Thomas’ appendix did not include various relevant documents from the parties’ underlying dissolution case, Cause No. 49D16-2210-DN-7978, we accessed the documents through our Odyssey Case Management system. See Ind. Appellate Rule 27 (“The Record on Appeal shall consist of the Clerk's Record and all proceedings before the trial court ․, whether or not transcribed or transmitted to the Court on Appeal.”).

3.   “It is well settled that pro se litigants are held to the same legal standards as licensed attorneys” and must accept the consequences of their failure to follow established rules of procedure. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016), reh'g denied. Although we've identified multiple issues with Thomas’ appeal, such as his failure to include a transcript or statement of the evidence, provide pinpoint citations to the cases he cited in his briefs, and include all necessary and relevant documents for our review in his appendix, “we prefer to decide issues on the merits” and his noncompliance with our appellate rules has not been “so substantial as to impede our consideration of the issues[.]” Id.; see also Ind. Appellate Rules 31(A), 46(A)(8)(a), 50(A); Maw v. Pringle, 263 N.E.3d 790, 793-94 (Ind. Ct. App. 2025) (noting that the failure to include a transcript or otherwise produce a verified statement of the evidence results in waiver of issues which depend upon the evidence). Here, Thomas neither paid the court reporter for production of the transcript nor complied with Rule 31(A) in his attempt to produce an alternative statement of the record. Nevertheless, we do not need a record of the hearings to conclude that the trial court's order denying his motion for Rule 37(D) sanctions was an abuse of discretion. We also note that MaryJane does not argue that Thomas waived any issues or that his briefs otherwise lack cogency. See App. R. 46(A)(8)(a).

4.   We note that our Supreme Court has observed that abuse of discretion review operates differently when the trial court issued a “summary denial” versus when “the trial court's articulated reasoning is contrary to law or otherwise in error, thus warranting reversal.” DePuy Orthopaedics, Inc. v. Brown, 29 N.E.3d 729, 731 n.2 (Ind. 2015) (“On an appeal which questions the exercise of judicial discretion it is necessary to evaluate the action of the trial court upon the reasons it specifically articulated, rather than to attribute to it some legitimate but unexpressed reason.” (quoting City of Elkhart v. Middleton, 356 N.E.2d 207, 210 (Ind. 1976))), reh'g denied. Accordingly, we limit our review to the trial court's expressed reasons for denying Thomas’ motion for sanctions under Rule 37(D).

5.   MaryJane mistakenly asserts on appeal that Rule 37(D) uses permissive language in providing for expense shifting. See Appellee's Br. at 7 (“Trial Rule 37(D) provides that a court may require payment of reasonable expenses[.]”). It is also relevant to note here that MaryJane did not provide a page number on the cover page of her brief. In this respect, she failed to comply with Appellate Rule 43(F), which instructs that “[a]ll pages of the brief, including the front page ․ shall be consecutively numbered at the bottom beginning with numeral one.” When citing her brief, we reference the page number she provided.

6.   Thomas also argues that the trial court improperly characterized his attempt to depose MaryJane as “wholly unnecessary” and “an attempt to harass[.]” Appellant's App. Vol. 2 at 17. Specifically, he cites Trial Rule 12(F) and asks this Court to strike that language from the court's order as “impertinent and prejudicial surplusage[.]” Appellant's Br. at 8. Because we reverse on other grounds, we address this argument only to explain that Rule 12(F) is not a vehicle for appellate courts to strike language from judicial orders; rather, it permits a trial court to strike “any insufficient claim or defense or any redundant, immaterial, impertinent, or scandalous matter” from pleadings. Ind. Trial Rule 12(F).

DeBoer, Judge.

Brown, J., and Altice, J., concur.