MEMORANDUM DECISION
Sep 09 2015, 9:03 am
Pursuant to Ind. Appellate Rule 65(D), this
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.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Mark A. Dabrowski David Rosselot
Dabrowski Law Office Rosselot Law Office
Kokomo, Indiana Kokomo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Lind, September 9, 2015
Appellant-Petitioner, Court of Appeals Case No.
34A02-1412-DR-827
v. Appeal from the Howard Superior
Court
Nancy Lind, The Honorable Brant J. Parry, Judge
Appellee-Respondent.
Cause No. 34D02-1205-DR-493
Najam, Judge.
Statement of the Case
[1] John Lind (“Husband”) appeals the trial court’s November 6, 2014, order that
purported to clarify its June 28, 2013, decree of dissolution. Husband raises a
single issue for our review, namely, whether the trial court’s November 6, 2014,
Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015 Page 1 of 11
order was an impermissible modification of the decree of dissolution. We hold
that it was and, as such, we reverse the court’s November 6, 2014, order.
Facts and Procedural History1
[2] On June 28, 2013, the trial court entered its decree of dissolution, which
dissolved Husband’s marriage to Nancy Lind (“Wife”). Among other things,
the trial court found and concluded as follows:
5. The parties own real estate located at 3803 Albright Rd.,
Kokomo, IN.
6. [Husband] is hereby awarded this property as his sole and
separate property.
7. Pursuant to appraisal, the Court finds that[,] at separation,
the property had a value of $90,500.00.
8. There is a mortgage on the property, and[,] at the time of
separation, the amount due and owing on this obligation was
$78,642.51.
9. [Husband] is ordered to attempt to have [Wife’s] name removed
from the debt through a refinance [of] the home or an assumption [of] the
mortgage within 180 days. The interest rate must be at the
prevailing rate at the time or at a rate comparable to the current
mortgage’s interest rate.
1
Wife’s attorney has filed an Appellee’s Appendix that is forty-four pages long, excluding only the
verification of accuracy and certificate of service page. Despite Appellate Rule 50(A)(3)’s clear instruction
that an Appellee’s Appendix “shall not contain any materials already contained” in the Appellant’s
Appendix, Wife’s Appendix is in fact entirely duplicative of the first forty-four pages of Husband’s Appendix.
We trust that Wife’s attorney did not charge Wife or anyone else for the preparation and submission of her
completely unnecessary Appendix.
Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015 Page 2 of 11
Appellant’s App. at 12 (emphasis added). The court then concluded that an
equal division of the marital estate between the parties was just and reasonable.
Neither party appealed the decree of dissolution. About six months prior to the
court’s entry of the dissolution decree, Husband had lost his employment at
Delphi Corporation in Kokomo. The trial court was aware of Husband’s
employment status when it entered the decree of dissolution.
[3] Following the decree of dissolution, on at least four occasions Husband
attempted to refinance or assume the mortgage on the martial real property.
However, he was unable to do so because of his insufficient income. On
February 17, 2014, Wife filed an affidavit of contempt against Husband in
relevant part because he had not yet been able to have her name removed from
the mortgage on the marital real property.
[4] Thereafter, the trial court held an evidentiary hearing on the Wife’s contempt
request. Following that hearing, the court entered its “Order Clarifying Decree
of Dissolution” (“the November 6, 2014, order”), which provided:
After hearing evidence concerning the refinance of the martial
real estate, the Court did not find [Husband] in contempt.
However, the Court took the matter under advisement regarding
modifying or clarifying the Decree as to the debt on the property.
Being duly advised, the Court now FINDS and Orders as
follows:
***
Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015 Page 3 of 11
4. [Husband] has attempted to refinance or assume the
mortgage[] but has been denied by four (4) different banking
institutions. Each of the denials has indicated that the reason for
the denial is insufficient income for the amount of credit
requested.
***
6. A court may retain jurisdiction to interpret the terms of its
decree and decide questions pertaining to the enforcement of the
Decree. Fackler v. Powell, 839 N.E.2d 165, 169 (Ind. 2005).
7. With the Decree of Dissolution, the Court’s intent was to
award [Husband] 100% of the equity in the real estate while at
the same time removing [Wife’s] name and obligation from the
debt on the real estate.
8. The Court now orders [Husband] to refinance or assume the
mortgage and have [Wife’s] name removed from the debt within the next
180 days. If [Husband] is unable to refinance or assume the mortgage in
that time period, [Husband] is ordered to list the home for sale.
[Husband] may list the home with a realtor of his choosing.
[Husband] shall list the property at a price commensurate with
comparable home sales in the area, after consultation with the
realtor. Upon the sale [of] the home, [Husband] shall retain
100% of the proceeds as indicated in the Decree.
9. The Court finds this order is a clarification of the court’s
intent stated in the Decree. This order does not award more or
less property to either party. It has no effect on the division of
property. It does not schedule a new obligation or indebtedness.
Rather, this order speaks to an existing obligation of [Husband]:
to remove [Wife’s] name from the debt associated with the real
estate.
Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015 Page 4 of 11
Id. at 43-44 (emphasis added). The court stayed the November 6, 2014, order,
and this appeal ensued.
Discussion and Decision
[5] Husband contends that the November 6, 2014, order is an impermissible
modification of the decree of dissolution. As our supreme court has explained:
This law starts with direction given to us by the Legislature:
The disposition of property settled by an agreement
[in writing between the parties to a marriage
dissolution providing for the disposition of any
property owned by either or both of them] and
incorporated and merged into the decree is not
subject to subsequent modification by the court,
except as the agreement prescribes or the parties
subsequently consent.
Ind. Code § 31-15-2-17(c) (2008).
In fact, the Legislature has prohibited the revocation or
modification of all court orders concerning property disposition,
not only those (like the one at issue in this case) entered by
agreement of the parties:
The orders concerning property disposition entered
under this chapter [of the Indiana Code governing
the disposition of property and maintenance] (or IC
31-1-11.5-9 before its repeal) may not be revoked or
modified, except in case of fraud.
I.C. § 31-15-7-9.1(a).
Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015 Page 5 of 11
Our decisions have made clear that the statutory proscription on
revocation and modification of property-distribution agreements
is “unambiguous.” Voigt v. Voigt, 670 N.E.2d 1271, 1278 (Ind.
1996).
Our most recent opinion enunciating this principle was Johnson v.
Johnson, where Chief Justice Shepard, writing for a unanimous
court, flatly stated that the statutes set forth above require that
“property distribution settlements approved as part of a
dissolution may be modified only where both parties consent or
where there is fraud, undue influence, or duress.” 920 N.E.2d
253, 258 (Ind. 2010) (citations omitted).
Another unanimous opinion written by Chief Justice Shepard
emphasized that the statutory no-modification rule is grounded
in contract law:
An agreement for division of property is economic
in nature—an ordinary contract. See Bowman v.
Bowman, 567 N.E.2d 828 (Ind. Ct. App.1991). . . .
As with other contracts, a division of property may
only be modified according to the terms of the
agreement, if the parties’ [sic] consent, or if fraud or
duress occurs. [I.C.] §§ 31-15-2-17(c), -7-9.1.
Snow v. England, 862 N.E.2d 664, 668 (Ind. 2007).
***
That a court has no authority to modify a property-settlement
agreement, I.C. § 31-15-2-17(c) (or, for that matter, a property-
division order, I.C. § 31-15-7-9.1(a)), does not mean that a court
has no authority to resolve a dispute over the interpretation of a
settlement agreement or property-division order.
This is a significant gloss to the analysis set forth . . . supra, for
one party’s assertion that the other is seeking an impermissible
Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015 Page 6 of 11
modification is frequently met with the contention that only
clarification of an agreement or order is sought. . . .
***
When a party asks a court to clarify a settlement agreement, the
court’s task is one of contract interpretation. This is because
settlement agreements are contractual in nature and binding if
approved by the trial court. Myers v. Myers, 560 N.E.2d 39, 42, 44
(Ind. 1990); accord Snow, 862 N.E.2d at 668; Voigt, 670 N.E.2d at
1278. As such, a settlement agreement is “interpreted according
to the general rules for contract construction.” Bailey v. Mann,
895 N.E.2d 1215, 1217 (Ind. 2008) (citations omitted).
***
[T]here is a plethora of Court of Appeals authority providing that
general rules applicable to construction of contracts govern
construction of marriage-settlement agreements. This principle
was enunciated by our colleagues as early as Higgins v. St. Joseph
Loan & Trust Co. of South Bend, 98 Ind. App. 674, 677, 186 N.E.
910, 912 (1933) (en banc), trans. denied, and has been regularly
deployed in recent years. One frequently quoted passage
provides:
When interpreting these agreements, we apply the
general rules applicable to the construction of
contracts. That is, unless the terms of the contract
are ambiguous, they will be given their plain and
ordinary meaning. Clear and unambiguous terms
in the contract are deemed conclusive, and when
they are present we will not construe the contract or
look to extrinsic evidence[] but will merely apply
the contractual provisions.
Shorter v. Shorter, 851 N.E.2d 378, 383 (Ind. Ct. App. 2006)
(internal citations omitted).
Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015 Page 7 of 11
Ryan v. Ryan, 972 N.E.2d 359, 361-64 (Ind. 2012) (footnotes omitted)
(alterations and some omissions original).
[6] Here, Husband contends that the trial court’s November 6, 2014, order is an
impermissible modification of the decree of dissolution. Wife responds that the
November 6, 2014, order merely clarified the terms of the decree. As this
dispute requires us to interpret the decree of dissolution, our standard of review
is de novo. See id. at 363-64; see, e.g., Bd. of Comm’rs of Cnty. of Jefferson v. Teton
Corp., 30 N.E.3d 711, 713 (Ind. 2015).
[7] In Ryan, our supreme court addressed whether a trial court order issued
subsequent to the parties’ settlement agreement was a modification or a
clarification of that agreement. The parties’ original agreement required them
to sell two properties they owned and to divide the proceeds, “subject to a
proviso that neither party was required to accept a sale yielding net proceeds
below specified minimums.” Ryan, 972 N.E.2d at 360. Thereafter, the 2008
recession occurred and the properties could not be sold at or above the specified
minimums. As such, the husband moved the trial court to order the properties
to be sold at the prevailing fair market value. The trial court denied the motion
and, on appeal, our supreme court affirmed.
[8] In rejecting the husband’s argument that his motion was merely a request to
clarify the parties’ original agreement, our supreme court concluded that there
was “no ambiguity in the language of the parties’ agreement that would permit
Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015 Page 8 of 11
us to conclude as a matter of contract law that [the wife] is bound to agree to
sales prices for the properties . . . less than those stated in the agreement.” Id. at
364-65. The court added that the husband’s motion, “in point of fact, . . . d[id]
seek modification” of the original agreement. Id. at 365.
[9] Ryan controls the outcome in the instant appeal. Here, again, the decree of
dissolution imposed, in relevant part, the following obligation on Husband with
respect to the marital real property: “[Husband] is ordered to attempt to have
[Wife’s] name removed from the debt through a refinance [of] the home or an
assumption [of] the mortgage within 180 days.” Appellant’s App. at 12. That
language is unambiguous. Indeed, in the November 6, 2014, order, the court
found that Husband had fully complied with that obligation when he
“attempted to refinance or assume the mortgage[] but has been denied by four
(4) different banking institutions.” Id. at 43.
[10] Despite finding that Husband had complied with the unambiguous obligation
imposed on him in the decree of dissolution, the court nonetheless imposed two
new obligations on Husband in its November 6, 2014, order. First, the court
ordered Husband to “refinance or assume the mortgage and have [Wife’s] name
removed from the debt within the next 180 days.” Id. at 44. Again, in the
original decree, the court had ordered Husband to “attempt” to refinance or
assume the mortgage, which he did. Id. at 12. In the subsequent, November 6,
2014, order, however, the court simply ordered Husband to refinance or assume
the mortgage. That was a new obligation. Ryan, 972 N.E.2d at 361-64.
Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015 Page 9 of 11
[11] In addition, the court ordered Husband to “list the home for sale” if he was
“unable to refinance or assume the mortgage in that time period.” Appellant’s
App. at 44. That also was a wholly new obligation on Husband and was a clear
modification of the original decree. Neither of the new obligations is
permissible. Ryan, 972 N.E.2d at 361-64.
[12] Wife’s argument on appeal in support of the November 6, 2014, order is not
entirely clear. As near as we can tell, she asserts that the trial court believed
that the November 6, 2014, order merely clarified the decree of dissolution and
that we should defer to the trial court’s assessment. But this argument ignores
our supreme court’s clear explanation in Ryan that a decree of dissolution is in
the nature of a contract. Id. at 361-62 (quoting I.C. § 31-15-2-17(c)). And this
court employs de novo review in the interpretation of contracts. See, e.g., Teton
Corp., 30 N.E.3d at 713. Accordingly, Wife’s argument on appeal must fail.
[13] Finally, we note that Wife did not appeal the decree of dissolution, and neither
she nor the trial court suggested that the November 6, 2014, order was
necessary to resolve an ambiguity between the Husband’s obligations in the
decree and the decree’s distribution of the marital assets and liabilities. As
such, that potential issue is not before us.
[14] We hold that the November 6, 2014, order impermissibly modified the decree
of dissolution. While the new obligations contained in the November 6, 2014,
order might well have been appropriate had they been part of the original
Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015 Page 10 of 11
decree of dissolution, they cannot stand as subsequent modifications of that
decree. As such, the November 6, 2014, order is reversed.
[15] Reversed.
Kirsch, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015 Page 11 of 11