MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Jan 28 2015, 10:02 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Julie Dixon Karen Celestino-Horseman
Lori B. Schmeltzer Austin & Jones, P.C.
Ciyou & Dixon, P.C. Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nina Ozuyener, January 28, 2015
Appellant-Petitioner, Court of Appeals Cause No.
49A02-1404-DR-238
v. Appeal from the Marion Superior
Court
The Hon. Patrick L. McCarty, Judge
Korkut Ozuyener, Cause No. 49D03-1303-DR-9657
Appellee-Respondent.
Bradford, Judge.
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Case Summary 1
[1] On March 11, 2013, Appellant-Petitioner Nina Sidibe Ozuyener (“Wife”) filed
a Petition for Dissolution of Marriage from her husband Appellee-Respondent
Korkut Ozuyener (“Husband”). On September 13, 2010, Husband and Wife
(collectively “the parties”) executed an estate planning package which included,
among other things, a document entitled “Post-Nuptial Agreement” (“the
Agreement”) which determined the distribution of marital assets in the event of
death or divorce. Wife requested that the trial court enforce the Agreement.
The trial court found that the Agreement was unenforceable due to a lack of full
disclosure to Husband regarding the nature of the Agreement. On appeal, the
parties dispute which Indiana statute governs the Agreement, whether the
Agreement was supported by consideration, and whether the trial court abused
its discretion in finding that the Agreement was unenforceable. Finding that
the trial court did not abuse its discretion by rejecting the Agreement, we
decline to address the additional issues. Affirmed.
Facts and Procedural History
1
We heard Oral Argument in this case on January 8, 2014 and we thank counsel for the quality of
their presentations.
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[2] On March 11, 1999, Husband and Wife married. The couple had two children
together. In July of 2010, the parties had an initial consultation with attorneys
Hannah Joseph and Carly Turow (collectively the “Attorneys”) of the law firm
of Joseph and Turow. Husband and Attorneys testified that the original
purpose of the meeting was to discuss an estate planning package. Wife
testified that the original purpose of the meeting was to discuss a prenuptial
(later termed a postnuptial) agreement and only then did the Attorneys
recommend a broader suite of estate planning documents. Turow and Wife
testified that Husband initiated the conversation about a postnuptial agreement
at the initial meeting and that he wanted a postnuptial agreement to prove to
Wife that he did not marry her for her family’s money. The Attorneys agreed
to represent both Husband and Wife in drafting the Agreement. On June 30,
2010, Joseph sent an engagement letter addressed to both Husband and Wife
confirming Attorneys’ representation of the parties. The engagement letter was
signed only by Wife as “Client.” Respondent’s Ex. A. It is unclear whether the
parties were orally advised of the potential for a conflict of interest and of the
benefits of obtaining separate counsel. There was no such written advisement.
Attorneys also represented Wife and her family in unrelated matters during the
same period of time.
[3] On September 13, 2010, the parties executed an estate planning package
consisting of a durable power of attorney, designation of health care
representative, last will and testament, funeral planning, and a document
entitled “Post-Nuptial Agreement.” The Agreement sets forth, among other
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things, how the parties’ assets would be divided in the event of divorce and
allocates significantly more of the marital assets to Wife. This disproportionate
allocation was intended to reflect the amount of assets contributed to the
marriage by the parties. Specifically, Wife’s family had contributed a $300,000
down payment on the couple’s family home (“the Diver’s Cove property”), and
had purchased a Chicago property of which a fifty-percent interest was gifted to
Wife.
[4] The Agreement states that, in the event of divorce, the parties’ property was to
be divided according to financial-declaration statements attached to the
Agreement. Attorneys gave the parties template financial-declaration forms
which Wife filled out for both parties and returned to Attorneys. The forms
were unsigned. It is unclear whether the financial statements were attached to
the executed agreement. The copy of the Agreement in the Attorneys’ file did
not contain the financial-declaration forms. According to the financial-
declaration statements, the Agreement purported to give Wife exclusive
ownership rights to the Diver’s Cove and Chicago properties, valued, in total, at
$875,000 ($359,500 was still owed on those properties at the time the financial-
declaration forms were completed). The Agreement gives Husband exclusive
rights to an Indianapolis property valued at $55,000. The Agreement also gives
Wife sole ownership of two savings accounts worth $340,000 and gives
Husband sole ownership of two savings accounts worth $8,500. Attorney
Turow stated that the Agreement was not so much a division of property as a
“clear allocation to the [Wife’s] side of the family.” Tr. p. 29.
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[5] The details of the Agreement were developed throughout several emails
between the Attorneys and the parties. Wife handled nearly all of the
communications with Attorneys. Although Husband was copied on the
majority of the email communications, he was left out of several emails
specifically pertaining to the Agreement, namely its distribution of marital
property. Although his signature and initials are on the Agreement, Husband
maintains that he was unaware that a postnuptial agreement had been prepared
for execution along with the other estate planning documents, that he did not
read or know that he was signing a postnuptial agreement, and that he was not
informed or aware of the financial-declaration statements. English is
Husband’s second language and he testified that he did not feel comfortable
with his language skills when it came to reading technical documents. As such,
throughout the course of the marriage, Husband relied heavily on Wife in
conducting their family business affairs. Wife admitted to preparing Husband’s
financial-declaration statement but stated that she sent it to Husband for review.
Husband claims he was not aware he had signed a postnuptial agreement until
Wife informed him of such after she filed for dissolution.
[6] On March 11, 2013, Wife filed a Petition for Dissolution of Marriage and
requested that the trial court enforce the Agreement. After a two-day hearing
concerning the validity of the Agreement, the trial court found that the
Agreement was invalid and unenforceable and issued the following findings:
4. [Husband] does not deny that [h]is initials and signature
appear[] on the post nuptial agreement but [claims] that he was
unaware that it was in a stack with the other documents at the time,
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that he did not read it, was not informed of it and did not see any
exhibits or attachments in the way of financial statements which
described and identified the property that each party would retain as
solely theirs.
5. [Husband] contends that he would not have signed the
agreement had he known of its existence, that he did not participate in
the preparation of any financial statements and the existence of same
was not disclosed to him. Furthermore, that he was unaware of the
agreement up to a point [in] time where [Wife] informed him of this
shortly [] before proceeding with a dissolution of marriage action.
6. [Husband] further testified that being unaware of the nature and
meaning of a postnuptial agreement he resorted to internet research to
determine such after being informed of the agreement’s existence by
[Wife].
7. Evidence in the way of testimony from [Attorneys] had
indicated that a discussion was had regarding a post nuptial agreement
which included [Husband] but neither recalled any specific details
about the discussions, questions asked if any by [Husband] with only
one of the attorneys being present at the execution of the documents.
8. Furthermore, there was no recall by the attorneys as to whether
financial statements identifying what would be the sole or separate
property of each party had been attached to the post nuptial agreement
at the time of signing.
9. The post nuptial agreement stipulated into evidence (previously
filed with the court by the [Wife]) contained what appeared to be
financial statements but unsigned by either party with a copy of the
same agreement entered into evidence from the preparing attorneys file
which was without said financial statements.
10. Also introduced into evidence were numerous emails on the
subject which [Husband] maintains he did not receive[] with some of
the emails not copied to him as [Wife] testified that some things
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deemed not important enough to copy him on regarding the
postnuptial.
11. [Husband] was further found to trust and rely greatly on [Wife]
in conducting their business affairs. While it is undisputed that
[Husband]’s initials and signature appear[] on the post nuptial
agreement it is not clear that he was aware of the agreement and its
existence at the time of signing while mixed in with other documents.
[Husband] also testified that [he] believes that he is entitled to a half
interest in the residential home which is titled to both parties. There
had also been a clear lack of full disclosure in the absence of the
financial statements identifying the property to remain the separate
and sole property of each along with [Husband] not being copied on
all emails. Such a lack of full disclosure also creates an unfairness,
unreasonableness manifest inequity.
The Court therefore find[s] that the postnuptial agreement
although signed by the [Husband] was the product of unfairness not
having an awareness of the meaning of a post nuptial agreement
along with a lack of full disclosure as [Husband] was unaware of it[s]
existence while signing other documents including the absence of the
financial statements as attachments or exhibits identifying the
property of each. The Court therefore determine[s] the post nuptial
agreement invalid or unenforceable with [Wife]’s request for legal
costs is denied.
Appellant’s App. pp. 8-10. Additional facts will be provided where necessary.
Discussion and Decision
I. Standard of Review
[7] Wife is appealing from a decision in which the trial court entered findings of
fact and conclusions thereon.
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In the instant case, the trial court entered special findings of fact
and conclusions of law pursuant to Ind. Trial Rule 52(A). Therefore,
our standard of review is two-tiered: we first determine whether the
evidence supports the trial court’s findings, and second, we determine
whether the findings support the judgment. Boonville Convalescent
Center, Inc. v. Cloverleaf Healthcare Services, Inc., 834 N.E.2d 1116, 1121
(Ind. Ct. App. 2005), reh’g denied, trans. denied. Findings of fact are
clearly erroneous when the record lacks any reasonable inference from
the evidence to support them, and the trial court’s judgment is clearly
erroneous if it is unsupported by the findings and the conclusions
which rely upon those findings. Id. In establishing whether the
findings or the judgment are clearly erroneous, we consider only the
evidence favorable to the judgment and all reasonable inferences to be
drawn therefrom. Id.
While conducting our review, we cannot reweigh the evidence
or judge the credibility of any witness, and must affirm the trial court’s
decision if the record contains any supporting evidence or inferences.
Id. However, while we defer substantially to findings of fact, we do
not do so for conclusions of law. Id. We evaluate conclusions of law
de novo and owe no deference to a trial court’s determination of such
questions. Id.
Briles v. Wausau Ins. Cos., 858 N.E.2d 208, 212 (Ind. Ct. App. 2006). “Sua
sponte findings control only as to the issues they cover, and a general judgment
will control as to the issues upon which there are no findings.” Morgal-Henrich
v. Henrich, 970 N.E.2d 207, 210 (Ind. Ct. App. 2012) (citing Yanoff v. Muncy, 688
N.E.2d 1259, 1262 (Ind. 1997)).
[A]ppellate courts give considerable deference to the findings of the
trial court in family law matters …. [T]rial courts must exercise
judgment, particularly as to credibility of witnesses, and we defer to
that judgment because the trial court views the evidence firsthand and
we review a cold documentary record. Thus, to the extent credibility
or inferences are to be drawn, we give the trial court’s conclusions
substantial weight. But to the extent a ruling is based on an error of
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law or is not supported by the evidence, it is reversible, and the trial
court has no discretion to reach the wrong result.
MacLafferty v. MacLafferty, 829 N.E.2d 938, 941 (Ind. 2005).
II. Enforceability of Postnuptial Agreement
[8] Both this court and the Indiana Supreme Court have addressed the validity of
postnuptial agreements several times. In each case, the reviewing court has
begun its analysis by classifying the disputed postnuptial agreement as either a
dissolution-settlement agreement or a reconciliation agreement. The outcome
of this analysis determines the amount of discretion the trial court has to accept
or reject the agreement.
Turning to the merits, our first guidepost in this case is Pond v.
Pond, 700 N.E.2d 1130 (Ind. 1998). There, the Indiana Supreme
Court discussed the difference between “reconciliation agreements”
and “dissolution settlements.” Id. at 1132. The former are agreements
(referred to as prenuptial, premarital, or antenuptial agreements)
entered into in contemplation of marriage or its continuance and that
generally must be enforced as written in the event of dissolution. Id.
The latter are agreements entered into as a consequence of dissolution
proceedings (post-nuptial agreements); they are governed by the
Indiana Dissolution of Marriage Act (“the Act”), and their acceptance
or rejection is within the trial court’s discretion.
Beaman v. Beaman, 844 N.E.2d 525, 529 (Ind. Ct. App. 2006). Wife argues that
the Agreement is a reconciliation agreement and, therefore, that the trial court’s
discretion to reject the Agreement was limited. Husband argues the Agreement
is a dissolution settlement and, as such, the trial court had greater discretion to
reject the Agreement.
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[9] We need not address this particular question as the outcome of this case would
be the same regardless of the classification of the Agreement. Wife’s analysis of
the law on postnuptial agreements was artfully articulated and accurate;
however, the facts of this case do not support her conclusion that the trial court
exceeded its discretion in this instance. Even applying the more stringent
discretionary standard used for reconciliation agreements, we find that the trial
court was within its discretion to reject the agreement.
A. Discretionary Standard for Reconciliation Agreements
[10] Reconciliation agreements must generally be enforced as written and trial
courts may only reject such agreements under a limited set of circumstances.
Pond, 700 N.E.2d at 1132. Reconciliation agreements are valid and binding so
long as they are entered into freely and fairly, without fraud, undue influence,
duress, or misrepresentation, and are not, under the particular circumstances of
the case, unconscionable. Gaskell v. Gaskell, 900 N.E.2d 13, 17 (Ind. Ct. App.
2009); In re Marriage of Boren, 475 N.E.2d 690, 695 (Ind. 1985); Matter of Estate of
Palamara, 513 N.E.2d 1223, 1229 (Ind. Ct. App. 1987). In applying this
standard, our courts have looked at whether the parties to a marital agreement
received full disclosure of the nature and extent of the rights they waived via the
agreement and whether the parties fully disclosed their assets prior to execution
of the agreement. Estate of Stack v. Venzke, 485 N.E.2d 907, 910-11 (Ind. Ct.
App. 1985). A marital agreement is unconscionable if “there was a gross
disparity in bargaining power which led the party with the lesser bargaining
power to sign a contract unwillingly or unaware of its terms and the contract is
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one that no sensible person, not under delusion, duress or distress would
accept.” Rider v. Rider, 669 N.E.2d 160, 162 (Ind. 1996) (quoting Justus v.
Justus, 581 N.E.2d 1265 (Ind. Ct. App. 1991)).
B. Discretionary Standard Applied
[11] Under the applicable standard of review, we “must affirm the trial court’s
decision if the record contains any supporting evidence or inferences.” Briles,
858 N.E.2d at 212. Although there is conflicting evidence regarding Husband’s
subjective awareness of the Agreement, “we consider only the evidence
favorable to the judgment and all reasonable inferences to be drawn therefrom,”
and “we cannot reweigh the evidence or judge the credibility of any witness.”
Id.
[12] The Agreement was significantly unequal in its disposition of the marital assets,
the Attorneys were acutely aware of this fact, and there were several emails
between Wife and Attorneys which specifically addressed the unbalanced
distribution and on which Husband was not copied. Despite the contentious
and unbalanced nature of the Agreement, Attorneys agreed to represent
Husband and Wife jointly and did not properly advise the parties of the
apparent conflicts of interest. Husband claims that Attorneys breached the
Indiana Rules of Professional Conduct Rule 1.7 by agreeing to represent the
parties jointly and by failing to disclose conflicts of interests to Husband and/or
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failing to obtain Husband’s consent to the same. 2 Husband further claims that
this created manifest inequities between the parties. The Rules of Professional
Conduct are not law and whether an attorney breached the Rules is not
determinative of the enforceability of a contract created as a consequence of an
alleged breach. However, the fact that both Husband and Wife were
represented by the same counsel indicates, at the very least, a lack of arms-
length bargaining in the formation of the Agreement. As mentioned above, “[a]
contract is unconscionable if there was a gross disparity in bargaining power
which led the party with the lesser bargaining power to sign a contract
unwillingly or unaware of its terms and the contract is one that no sensible
person, not under delusion, duress or distress would accept.” Rider, 669 N.E.2d
at 162. Throughout their marriage, Husband relied heavily on Wife to handle
the family’s business affairs and she admitted to taking care of and advising
Husband on the majority of those matters. Moreover, the Agreement was
developed exclusively based on Wife’s wishes. Wife testified that Husband did
not ask for any changes or revisions to any of the executed documents with the
exception of a preference on burial instructions in the event of his death.
2
Husband highlights two potential conflicts of interest: (1) Attorneys’ representation of both Husband
and Wife in drafting the Agreement, and (2) Attorneys’ representation of Wife and Wife’s family on other
matters while simultaneously representing Husband and Wife.
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[13] In its findings of fact, the trial court outlined evidence which suggested that
Husband was unaware of the nature and terms of Agreement. Specifically,
Husband claimed he was completely unaware of the Agreement prior to Wife’s
filing for dissolution, Husband did not complete the financial-declaration
statements, the financial-declaration statements were unsigned and not attached
to the Attorneys’ copy of the Agreement, and it is unclear whether the financial-
declaration statements were attached to the original executed Agreement. It is
difficult to see how Husband could fairly be bound by an Agreement which
repeatedly references attached financial statements that were not actually
attached, particularly when it is the substance of those statements that
determines the core of the Agreement (i.e., what assets the parties would retain
upon death or dissolution of marriage).
[14] The trial court’s factual findings indicate that the Agreement was not entered
into fairly and was the product of a lack of full disclosure as to the nature and
terms of the Agreement. To find otherwise would require this court to reweigh
the evidence, which we will not do. Because the trial court’s conclusion was
supported by its findings, we cannot say that the judgment was clearly
erroneous.
[15] The judgment of the trial court is affirmed.
Najam, J., and Robb, J., concur.
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