STATEMENT OF THE CASE
Terry W. Hubbard ("Father") appeals the trial court's findings, conclusions and order on his petitions to modify child custody and to modify child support and his former wife's, Linda Hubbard ("Mother"), petitions for contempt. Father presents several issues for our review, one of which we find dispositive: whether the trial court erred when it granted Mother's motion to reconsider and vacated its final judgment.
We reverse and remand with instructions.
DISCUSSION AND DECISION
Standard of Review
Initially, we note that Mother chose not to file an appellee's brief. Where the appellee fails to file a brief on appeal, it is within our discretion to reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. Phegley v. Phegley, 629 N.E.2d 280, 282 (Ind.Ct. App.1994), trans. denied. This rule is not for the benefit of the appellant. Rather, it was established for the protection of the court so that the court might be relieved of the burden of controverting the arguments advanced for reversal where such burden rests with the appellee. Id. We need not reach the merits of the instant case, as Father has made a prima facie showing of procedural error which we conclude requires reversal.
Motion to Reconsider Final Judgment
Following two hearings and after taking the parties' various petitions under advisement, the trial court entered its findings, conclusions and final order on all petitions pending before the court on January 24, 1997. On January 30, 1997, Mother filed what was denominated as a "motion to reconsider." Without allowing Father to respond to Mother's motion, the trial court granted Mother's motion to reconsider on the same day it was filed, vacating its January 24, 1997, findings, conclusions and order.
We agree with Father that because this case had proceeded to final judgment prior to Mother's filing of her "motion to reconsider," Mother's motion cannot be considered a true motion to reconsider, as the court no longer had the power to rule on such a motion. Our review of the trial rules reveals that motions to reconsider are properly made and ruled upon prior to the entry of final judgment. See Ind.Trial Rule 53.4(A).
As such, Father should have been given notice and an opportunity to respond to Mother's motion to correct error prior to the trial court's ruling on the motion. Ind.Trial Rule 59(E). Because the trial court granted Mother's motion without following the procedural requirements of Trial Rule 59, we must conclude that the trial court abused its discretion when it granted Mother's motion, vacated its prior order and entered a new judgment.
We note that the trial court is given a similar and related power to revise or vacate its decisions pursuant to Indiana Trial Rule 52(B). See Ind.Trial Rule 59(J)(4). Trial Rule 52(B) provides that in a case tried without a jury, the court may, at any time before a motion to correct error is required to be made, or with or as part of a motion to correct error by any party, take additional testimony, amend or make new findings of fact and enter a new judgment, or any combination thereof. See W & W Equipment Co., Inc. v. Mink, 568 N.E.2d 564, 570 (Ind.Ct. App.1991), trans. denied. Thus, at least up to and including the ruling on a motion to correct error, the trial court is permitted to alter, amend or modify its judgment without limitation. Indiana & Michigan Elec. Co. v. Harlan, 504 N.E.2d 301, 308 (Ind.Ct.App. 1987), trans. denied; see State ex rel. Jackson v. Owen Circuit Court, 160 Ind.App. 685, 314 N.E.2d 73, 76 (trial court may change its record at any time until it rules on a motion to correct error).
We conclude that Mother filed a motion to correct error following the trial court's entry of final judgment. Because the procedural requirements for Trial Rule 59 were not met, the trial court abused its discretion when it granted Mother's motion, vacated its prior judgment and entered a new judgment. Therefore, we vacate the trial court's judgment of April 23, 1997, and remand with instructions for the court to permit Father to respond to Mother's motion to correct error and then to conduct such further proceedings consistent with the Trial Rules as may be necessary.
Reversed and remanded.
RUCKER, J., concurs.
STATON, J., concurs in result with separate opinion.
STATON, Judge, concurring in result.
I concur in result for a somewhat different and more simplified reason than the Majority. The factual posture here is as follows:
1. Final judgment had been entered January 24, 1997.
2. Later, a pleading was filed January 30, 1997 by Mother which had to be considered a motion to correct error.
3. The trial court ruled on the motion to correct error the same day it was filed.
4. Ind. Trial Rule 59(E) provides that the Father had fifteen (15) days after service of the motion to respond.
5. Father had no time to respond before the ruling.
Therefore, the trial court abused its discretion when it failed to follow Ind. Trial Rule 59(E). It should have withheld its ruling until Father responded or the fifteen days had expired.