MEMORANDUM DECISION
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 Jan 20 2016, 10:41 am
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Robert C. Becker
Richards, Boje, Pickering,
Benner & Becker
Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert J. Lunsford, January 20, 2016
Appellant-Defendant, Court of Appeals Case No.
29A02-1503-DR-198
v. Appeal from the Hamilton
Superior Court
Laurie (Lunsford) Knight, The Honorable David K. Najjar,
Appellee-Plaintiff Special Judge
Trial Court Cause No.
29D02-0609-DR-934
Mathias, Judge.
[1] The marriage of Robert Lunsford (“Husband”) and Laurie (Lunsford) Knight
(“Wife”) was dissolved in the Hamilton Superior Court in 2007. In 2011, Wife
filed an affidavit for contempt citation because she did not receive payment as
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agreed under the parties’ settlement agreement and subsequent agreed entry.
The trial court did not find Husband in contempt but found that Husband owed
Wife money under the agreements and that he was entitled to a $104,000 credit.
The trial court did not issue an order until 2014 after Wife filed a motion to
reduce to judgment. The court ordered Husband to pay Wife $896,000 under
the parties’ settlement agreement and agreed entry. Husband filed a motion to
correct error, which the trial court denied. Husband now appeals and raises the
following two issues, which we restate as:
I. Whether the trial court erred in entering a post-dissolution judgment
against Husband for proceeds from the sale of real estate when the real
estate at issue sold at sheriff’s sale in foreclosure, rather than through a
sale by Husband to a private, third party; and,
II. Whether the trial court erred in entering a post-dissolution judgment
against Husband for a contingent payment to be made to Wife if Wife
received bi-weekly psychological treatment, when she failed to provide
proof of that treatment.
We affirm in part, reverse in part, and remand for proceedings consistent with
this opinion.
Facts and Procedural History
[2] On September 7, 2007, Husband and Wife’s marriage was dissolved in
Hamilton Superior Court. The parties’ decree of dissolution incorporated a final
settlement agreement. The relevant part of the settlement agreement provides:
9. To effectuate an equitable distribution of the marital estate,
Husband shall pay Wife the sum of $500,000 upon the sale of the
Schulley Road real estate. In addition, Husband shall pay Wife
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the sum of $100,000 per year for five years, with the first
payment on or before November 15, 2007, and annually
thereafter until paid in full. In the event that Husband fails to pay
the amounts set forth above, Wife can request that Husband’s
business interests be sold in order to satisfy the financial
obligations set forth in this paragraph.
Appellant’s App. p. 22.
[3] The parties modified the settlement agreement with an agreed entry on March
25, 2008, which in part provides:
2. Pursuant to paragraph #9 of the Final Settlement Agreement
incorporated in the Decree of Dissolution, respondent was
obligated to pay petitioner the sum of $100,000 per year for five
years. With respect to the $100,000 due in 2008, said obligation
shall be satisfied whereby respondent shall pay the sum of $4,000
per month commencing on April 15, 2008, and monthly
thereafter with the balance of $68,000 to be paid on November
15, 2008. Said payments are contingent upon the petitioner
obtaining treatment with a psychologist on a biweekly basis until
November 2008. Petitioner shall sign a release with her treating
psychologist so that the respondent can verify treatment.
Petitioner is not obligated to release any of her mental health
records other than that she is being treated. In the event the
respondent fails to pay the amount set forth above, petitioner can
stop seeing a psychologist and she can seek to obtain a judgment
for any unpaid amounts.
Appellant’s App. pp. 26-27.
[4] On January 26, 2011, Wife filed an affidavit for contempt citation alleging that
Husband had not paid her $500,000 upon the sale of the Schulley Road real
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estate1 and that Husband had only paid $104,000 toward his obligations
outlined in the settlement agreement and subsequent agreed entry. The trial
court held a contempt hearing on March 28, 2011, and concluded that Husband
was not in contempt but that Wife was “entitled to judgment in the unpaid
amounts, in the amounts that were to be paid but not have been paid given [sic]
Mr. Lunsford credit for $104,000.00 in payments.” Tr. p. 22. The trial court did
not enter a judgment in favor of Wife following the hearing.2
[5] On March 21, 2014, Wife filed a motion to reduce to judgment because no
written order had been entered after the March 28, 2011 hearing. The trial court
held a hearing on September 23, 2014, and issued a judgment on October 13,
2014, for $896,0003 against Husband for unpaid obligations under the parties’
settlement agreement and agreed entry. Husband filed a motion to correct error
on October 30, 2014, which the trial court subsequently denied. Husband now
appeals.
1
Sometime after the entry of the parties’ decree of dissolution and final settlement agreement on September
7, 2007, and before the hearing on Wife’s contempt petition on March 28, 2011, the Schulley Road real estate
referred to in Paragraph 9 of the parties’ final settlement agreement was foreclosed and sold at a sheriff’s sale.
2
It is not entirely clear why the trial court did not enter a judgment after the March 28, 2011, hearing. Based
on the transcript, it appears that Wife’s proposed order that was submitted to the court was marked with a
post-it-note labeled, “Hold.” Tr. p. 30.
3
The trial court’s judgment included the amount owed to Wife by Husband upon the sale of the Schulley
Road real estate, the 2008 contingent payment for which Wife was required to provide verification of bi-
weekly psychological treatment, and the remaining three $100,000 payments Husband agreed to pay Wife in
the settlement agreement.
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Standard of Review
[6] We must first note that Wife did not file an appellee’s brief. When an appellee
fails to submit a brief, we do not undertake the burden of developing appellee’s
arguments, and we apply a less stringent standard of review. Jenkins v. Jenkins,
17 N.E.3d 350, 351 (Ind. Ct. App. 2014). We may reverse if the appellant
establishes prima facie error, which is error at first sight, on first appearance, or
on the face of it. Id. at 351-52. The prima facie error rule relieves our court from
the burden of controverting arguments advanced in favor of reversal where that
burden properly rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366
(Ind. Ct. App. 2002). We are still obligated to correctly apply the law to the
facts in the record to determine whether reversal is required. Jenkins, 17 N.E.3d
at 352.
Discussion and Decision
[7] Husband argues that the trial court erred in entering a judgment against him
that included payment to be made to Wife upon the sale of real estate when the
real estate was not sold. Husband also argues that Wife was required to obtain
bi-weekly psychological treatment to receive the 2008 payment, but she failed to
provide proof of treatment. Specifically, Husband contends that the trial court
did not consider the plain and ordinary meaning of the parties’ settlement
agreement and subsequent agreed entry when it entered its judgment in favor of
Wife.
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[8] When dissolving a marriage, parties are free to negotiate their own settlement
agreements and may incorporate those into a dissolution decree. Ind. Code §
31-15-2-17. The settlement agreements then become binding contracts and are
interpreted according to the general rules of contract construction. Shorter v.
Shorter, 851 N.E.2d 378, 382-83 (Ind. Ct. App. 2006).
[9] Unless the terms of the contract are ambiguous, they will be given their plain
and ordinary meaning. Id. at 383. 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. Id. Terms are not ambiguous merely because the parties disagree as
to the proper interpretation of those terms. Id. However, any ambiguity in a
contract is construed against its drafter. Barney v. StoneMor Operating LLC, 953
N.E.2d 554, 558 (Ind. Ct. App. 2011).
[10] Our supreme court has determined that the dissolution court that enters a
property settlement agreement is in the best position to resolve questions of
interpretation and enforcement of that agreement and thus retain jurisdiction to
interpret the terms of their property settlement agreements and to enforce them.
Shorter, 851 N.E.2d at 383. Nonetheless, interpretation of a settlement
agreement, as with any other contract, presents a question of law, and we
review it de novo. Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind. 2008).
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A. The Schulley Road Real Estate
[11] Husband argues that the trial court did not consider the plain and ordinary
meaning of the parties’ settlement agreement which provides, “Husband shall
pay Wife the sum of $500,000 upon the sale of the Schulley Road real estate.”
Appellant’s App. p. 22. Husband testified at the March 28, 2011 hearing that
the Schulley Road real estate was foreclosed, and he obtained no proceeds from
the sale. Tr. p. 16. Husband also testified that the property was sold at a sheriff’s
sale. Tr. pp. 10, 16.
[12] In considering the plain and ordinary meaning of this provision, it specifically
states, “upon the sale of the real estate.” Wife reasonably expected to receive
$500,000 when the real estate sold. Even though the real estate was sold at a
sheriff’s sale that produced no proceeds for Husband, a sale still occurred. If
Husband only intended to pay Wife if the sale produced net proceeds to him,
then the agreed entry could have included that in the language of the provision.
Husband had the opportunity to ensure that his interests were protected in the
agreed entry because his attorney drafted both the settlement agreement and the
agreed entry.4 As a result, any ambiguity is construed against Husband.
[13] This result is also contemplated by the provision in the settlement agreement
that allows Wife to seek the sale of Husband’s business assets if Husband fails
to pay Wife $500,000 upon the sale of the Schulley Road real estate or if he fails
4
Wife consented to be unrepresented by counsel in signing the settlement agreement and agreed entry.
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to pay his $100,000 per year obligation to Wife. Therefore, the plain language
of the agreement establishes Husband’s intent to pay Wife regardless of any
profit or monetary gain the real estate sale generated. For all of these reasons,
the trial court did not err in concluding that a sale of the Schulley Road real
estate occurred and in including $500,000 in its judgment in favor of Wife.
B. Contingent Payment Based on Wife’s Psychological Treatment
[14] Husband also contends that the trial court erred in not applying the plain and
ordinary meaning to the 2008 contingent payment provision. Husband agreed
to pay Wife $4,000 per month beginning in April 2008 with the remaining
$68,000 to be paid in November 2008, as long as Wife obtained verifiable bi-
weekly treatment with a psychologist until November 2008.5 Although
Husband contends that the court erred in interpreting the parties’ agreement, he
specifically focuses on the fact that Wife never provided verification for her
psychological treatment in 2008.
[15] The March 28, 2011, contempt hearing was clearly set to hear evidence on
Husband’s liability for the $500,000 payment and to establish the extent of his
liability on the $100,000 per year payments, one of which was contingent on
proof of Wife receiving psychological counseling. However, the record discloses
no evidence presented showing that Wife had obtained psychological treatment
5
The parties’ settlement agreement provided that Husband pay Wife $100,000 for five consecutive years. The
agreed entry only modified the 2008 payment. Husband does not dispute the amounts owed in 2009, 2010,
and 2011 payments on appeal, so we will not address them here.
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as provided in the parties’ agreed entry. Neither party even mentioned that the
2008 payment was contingent on Wife obtaining verifiable bi-weekly
psychological treatment during the hearing. It was not until the September 23,
2014, hearing on Wife’s motion to reduce to judgment that Husband argued
that he did not owe Wife $100,000 for 2008 because she failed to provide
verification of psychological treatment.6
[16] Nonetheless, because Wife filed her affidavit for contempt and set the March
hearing, she had the burden to establish at that hearing that she was entitled to
a judgment that included the 2008 payment by providing verification of her
psychological treatment. “The burden of proof is normally allocated to a party-
plaintiff initiating a proceeding and seeking relief.” Washington Twp. Fire Dep’t v.
Beltway Surgery Ctr., 911 N.E.2d 590, 596 (Ind. Ct. App. 2009), trans. granted,
opinion vacated (Feb. 24, 2010), opinion adopted sub nom, Washington Twp. Fire
Dep’t v. Beltway Surgery Ctr., 921 N.E.2d 825 (Ind. 2010). Because Wife
presented no evidence at the contempt hearing that she received bi-weekly
psychological treatment from the time the agreed entry was signed in March
2008 until November 2008, she is not entitled to the 2008 payment under the
parties’ agreed entry.
[17] Further, Husband is entitled to a $4,000 credit based on the April 15, 2008
payment because it was part of the contingent provision requiring Wife to
6
The record reflects that Husband paid Wife $4,000 on April 15, 2008 but made no further payments to Wife
in 2008 as agreed. Tr. p. 19.
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provide verification of psychological treatment, which she failed to do.7 On
remand, the trial court should add an additional $96,000 credit to Husband’s
already recognized 2007 payment credit of $104,000. This amounts to a total
credit of $200,000 to be applied toward the post-dissolution judgment against
him in favor of Wife.
Conclusion
[18] The trial court did not err in entering a post-dissolution judgment in favor of
Wife against Husband that included payment based upon the sale of the
Schulley Road real estate. However, we conclude that the trial court erred in
adding the 2008 payment based on Wife’s lack of proof of the bi-weekly
psychological treatment called for in the parties’ agreed entry as a condition
precedent to Husband’s liability for those amounts. We therefore remand this
case to the trial court for proceedings consistent with this opinion.
[19] Affirmed in part, reversed in part, and remanded for proceedings consistent
with this opinion.
Bailey, J., concurs.
Baker, J., concurs in part and dissents in part with opinion.
7
The trial court credited Husband for this payment in its October 13, 2014, order. Appellant’s Br. at 12.
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IN THE
COURT OF APPEALS OF INDIANA
Robert J. Lunsford, Court of Appeals Case No.
29A02-1503-DR-198
Appellant-Defendant,
v.
Laurie (Lunsford) Knight,
Appellee-Plaintiff.
Baker, Judge, concurring in part and dissenting in part.
[1] I fully concur with the majority on the first issue regarding the Schulley Road
real estate. I respectfully dissent, however, on the second issue. The 2008 agreed
entry provides that Husband’s 2008 $100,000 yearly obligation could have been
satisfied by monthly payments of $4,000 and a final balance payment to be
made at the end of the year. Wife, however, was only entitled to receive regular
payments in this fashion if she provided proof that she was obtaining biweekly
treatment by a psychologist. She did not provide this proof to Husband, nor did
she provide any evidence to the trial court that she had received this treatment.
As a result, Husband was not required to make the monthly payments of
$4,000.
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[2] This conclusion does not, however, mean that he does not owe Wife $100,000
for 2008. It is apparent to me that the 2008 agreed entry modified the manner in
which his obligation could be satisfied rather than modifying the obligation
itself. In other words, nothing in the 2008 agreed entry changes the fact that he
is required to pay Wife $100,000 per year for five years. As a result, I would
affirm the trial court’s order with respect to the balance owed by Husband for
2008. In all other respects, I concur with the majority.
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