FILED
Jun 25 2018, 8:55 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy Logan David W. Stone IV
Benson, Pantello, Morris, James & Stone Law Office & Legal Research
Logan, LLP Anderson, Indiana
Fort Wayne, Indiana Joanne M. Kolbe
Law Offices of Joanne M. Kolbe
Warsaw, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Linda Sanders, June 25, 2018
Appellant/Petitioner, Court of Appeals Case No.
18A-DR-326
v. Appeal from the Marshall Circuit
Court
Jerad Sanders, The Honorable Robert O. Bowen,
Appellee/Respondent. Special Judge
Trial Court Cause No.
50C01-1404-DR-90
Bradford, Judge.
Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018 Page 1 of 14
Case Summary
[1] Linda Sanders (“Wife”) and Jerad Sanders (“Husband”) married in 1998, and,
in 2014, Wife petitioned to dissolve the marriage. At a final hearing in January
of 2017, the terms of a property settlement (“the Agreement”) were read into
the record, after which both parties agreed to them. The trial court granted
Wife’s dissolution petition that day and directed the preparation of a dissolution
order that incorporated the terms of the Agreement. Approximately one month
later, Wife moved to repudiate the settlement, which motion the trial court
denied. Wife moved to correct error and for relief from judgment. Wife’s
motion to correct error was ultimately deemed denied by operation of rule, and
the trial court did not grant her relief from judgment. Wife challenges both the
denial of the motion to correct error and the failure to grant relief from
judgment, contending that the Agreement was invalid because it was not
submitted in writing or signed before the trial court’s approval, that she timely
repudiated it, and the trial court failed to explicitly find that the Agreement was
just and reasonable. Finding no merit in Wife’s contentions, we affirm.
Facts and Procedural History
[2] On April 25, 2014, Wife petitioned to dissolve her marriage to Husband, to
whom she had been married since 1998. On January 9, 2017, a final hearing
was held, at which the terms of the Agreement were read in open court:
[Wife’s counsel]: Well, yes. Essentially, um, the parties
are going to keep all property present in their possession. The
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real estate is going to be the property of the husband. The
husband is going to transfer, I think, by way of QDRO or
transference $30,000 from an IRA into my client’s name. Ah,
he’s going to give her $5,000 cash—and when is that payable—
when can you get that?
[Husband’s counsel]: He had asked for six (6) months.
[Wife’s counsel]: Okay. Six (6) months. Okay. Ah, the
parties are going to be responsible for the debt in their individual
name. I don’t believe there’s any joint debt.
[Husband’s counsel]: Is the mortgage just in your name?
[Husband]: Yeah.
[Wife’s counsel]: Okay. The mortgage—maybe—
[Husband’s counsel]: I think you’re right.
[Wife’s counsel]: —we can recite that out in the decree. I
think we know what the debts are. We can just put that—
[Husband’s counsel]: Yes.
[Wife’s counsel]: —in the decree.
[Husband’s counsel]: But I think that’s correct.
[Wife’s counsel]: Okay. Ah, essentially then—in terms of
personal property, there’s still a number of items that are still at
the house that my client would like to retrieve. Those are the
items that she owned prior to the parties’ marriage. I think
there’s like cast iron tub, her personal effects, some Christmas
decorations, that type of thing, bed, dresser, that sort of stuff.
She’d like to go ahead and keep all that. I think the parties know
what’s what or what’s—whose is whose and so I don’t think
there’s going to be any issue with that. It’s just a matter of you
being able to get some kind of truck to get over there and get it
out. Right?
[Wife]: Uh-huh and some help.
Tr. Vol. II pp. 4–5.
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[3] The following discussion also occurred:
THE COURT: You heard Mr. Black recite what is the
purported agreement between you and Jerad concerning the
disposition of all assets and debts? Is that correct?
[Wife]: Correct.
THE COURT: And is that what you agreed to?
[Wife]: Yes.
THE COURT: Do you feel that is fair and equitable to
both of you?
[Wife]: Um—
THE COURT: Let me ask you this. Is it—is it fair
enough to get the mar—the divorce granted today?
[Wife]: Yes.
Tr. Vol. II p. 8. The trial court stated,
THE COURT: Okay. If there’s nothing else, then I’m going to
grant the Petition for Dissolution of Marriage. Each of you are
restored to the status of unmarried persons effective immediately.
All property and debts are divided in accordance with the
agreement and your prior name is restored. In other words, the
divorce is granted today. It’s just a matter of—[Wife’s counsel],
you’re going to prepare the decree?[1]
Tr. Vol. II p. 9.
[4] The hearing then moved to the matter of the parties’ tax obligations for 2015
and 2016, with Husband requesting that the parties refile jointly for those years
to save money. Wife initially objected, expressing concern that refiling might
1
After a brief discussion, it was in fact determined that Husband’s attorney would prepare the decree.
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delay her taking possession of the marital home. When it was pointed out by
Wife’s counsel that she already had possession of the house and that Husband
would be responsible for all of the taxes in any event, Wife’s counsel asked her
if she was “okay” with refiling, to which she responded, “I guess.” Tr. Vol. II
p. 14. The trial court asked Wife, “Is that agreeable[,] Mrs. Sanders?”, to which
she replied, “Sure.” Tr. Vol. II p. 15. An entry for January 9, 2017, in the
chronological case summary (“CCS”) indicated as follows: “AGREEMENT
RECITED - COURT GRANTS DISSOLUTION OF MARRIAGE THIS
DATE [Husband’s counsel] TO PREPARE DECREE ORDER TO BE
DATED 01/09/2017[.]” Appellant’s App. Vol. II p. 4.
[5] On February 10, 2017, Wife sent a handwritten letter to the trial court,
requesting that it reconsider the Agreement. The trial court, presumably
because Wife was represented by counsel, forwarded the correspondence to the
parties and attorneys but took no further action. The CCS indicates that on
February 15, 2017, the trial court issued the dissolution decree, which,
consistent with the prior CCS entry, was dated and stamped as filed as of
January 9, 2017. The decree reflected the terms of the Agreement discussed
and agreed upon at the final hearing. A CCS entry on February 16, 2017,
indicates that on February 15, 2017, Wife moved to withdraw the Agreement,
and her counsel moved to withdraw his appearance.
[6] On March 13, 2017, the trial court held a hearing on Wife’s motion to
withdraw the Agreement. Wife testified, claiming that at the January 9 hearing
(1) she could not hear hers or Husband’s counsels, (2) the court reporter could
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not hear her, and (3) she did not voice her objections more forcefully because
she was “crying a lot” and had “several polyps[,]” which had to be removed
after the hearing. Tr. Vol. II p. 25. Also on March 13, 2017, the trial court
denied Wife’s motion to withdraw the Agreement. On April 6, 2017, Wife filed
a verified motion to correct error and/or for relief from judgment. On
December 11, 2017, the trial court conducted a hearing on Wife’s motions;
Wife’s motion to correct error was ultimately deemed denied, and her motion
for relief from judgment pursuant to Indiana Trial Rule 60(B) has neither been
adjudicated nor deemed denied.
Discussion and Decision
I. Standards of Review
A. Motion to Correct Error
[7] Wife contends that the trial court abused its discretion in denying her motion to
correct error. We review denial of a motion to correct error for abuse of
discretion. Shane v. Home Depot USA, Inc., 869 N.E.2d 1232, 1234 (Ind. Ct.
App. 2007). An abuse of discretion occurs if the trial court’s decision is against
the logic and effect of the facts and circumstances before the court, or the
reasonable inferences therefrom. Id.
B. Motion for Relief from Judgment
[8] Wife also contends that the trial court should have granted her motion for relief
from judgment, seemingly filed pursuant to several grounds listed in Indiana
Rule of Trial Procedure 60(B).
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We review the denial of a motion for relief from judgment under
Indiana Trial Rule 60(B) only for an abuse of discretion because
such a motion is addressed to the equitable discretion of the trial
court. V.C. Tank Lines, Inc. v. Faison, 754 N.E.2d 1061, 1064
(Ind. Ct. App. 2001). An abuse of discretion will be found only
when the trial court’s judgment is clearly erroneous. Id. A trial
court’s action is clearly erroneous when it is against the logic and
effect of the facts before it and the inferences which may be
drawn therefrom. Id. In ruling on a Trial Rule 60(B) motion, the
trial court is required to “balance the alleged injustice suffered by
the party moving for relief against the interests of the winning
party and society in general in the finality of litigation.” Id.
(quoting Chelovich v. Ruff & Silvian Agency, 551 N.E.2d 890, 892
(Ind. Ct. App. 1990)).
Goldsmith v. Jones, 761 N.E.2d 471, 473–74 (Ind. Ct. App. 2002).
II. Validity of Agreement
[9] At the heart of both of Wife’s claims is her contention that the trial court’s
adoption of the oral Agreement into its dissolution decree was erroneous
because (1) the Agreement was not reduced to writing before approval by the
trial court, (2) the Agreement was not signed by the parties before approval by
the trial court, (3) she timely repudiated it in any event, and (4) the trial court
was required to explicitly find that the Agreement was fair and reasonable
before approving it but failed to do so. If Wife cannot convince us of the merits
of at least one of these contentions, it follows that she has failed to establish that
the trial court abused its discretion in denying her motion to correct error or in
not granting her relief from judgment.
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A. Whether the Agreement was Required to Be in Writing
Before Approval by the Trial Court
[10] Indiana Code section 31-15-2-17(a) provides, in part, that “[t]o promote the
amicable settlements of disputes that have arisen or may arise between the
parties to a marriage attendant upon the dissolution of their marriage, the
parties may agree in writing to provisions for […] the disposition of any
property owned by either or both of the parties[.]” Wife contends that this
language and related case law require that any such agreement must be reduced
to writing before it can be properly accepted by the trial court. Husband
contends that recitation of the terms of an agreement into the record is sufficient
to satisfy section 31-15-2-17(a)’s writing requirement.
[11] We have noted that there are “strong policy reasons supporting the requirement
that agreements be in writing, including: (1) ensuring the enforceability of
agreements; (2) facilitating agreements that result from mutual assent; (3)
achieving complete resolution of disputes; and (4) producing clear
understandings that the parties are less likely to dispute or challenge.” Akers v.
Akers, 849 N.E.2d 773, 775 (Ind. Ct. App. 2006). In Stolberg v. Stolberg, 538
N.E.2d 1 (Ind. Ct. App. 1989), we concluded that the writing requirement was
satisfied where
[t]he substance of the agreement was testified to by [husband]
and orally accepted by [wife]. The trial court interrogated both
parties on the content of the agreement and their understanding
thereof. Upon questioning, [wife] affirmed her request for
approval of the settlement as stated by [husband].
Unquestionably, both [husband and wife] intentionally, with full
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knowledge of the eventual outcome, entered into a joint
agreement.
Id. at 4. The Stolberg court also rejected wife’s claim that “the agreement signed
by the trial judge was merely ‘written evidence of an oral agreement[,]’” stating
that “[w]e fail to see any real distinction between a written agreement and
written evidence of an oral agreement. The distinction is one of semantics
rather than substance. It was the written agreement contemplated by the
statute.” Id. We, too, fail to see any real distinction between a written
agreement and written evidence of an oral agreement, as either can satisfy the
policy concerns raised by the Akers court.
[12] Indeed, the Akers court reiterated Stolberg’s interpretation of the writing
requirement:
We believe that the writing requirement of Indiana Code § 31-15-
2-17 can be satisfied in two ways. First, and most obviously, the
parties can produce and sign a written document containing the
terms of their agreement. The second way was suggested by
Judge Sullivan, writing in concurrence in [McClure v. McClure,
459 N.E.2d 398 (Ind. Ct. App. 1984)]. He wrote: “While the
agreement may not have been reduced to writing in a separate
document and signed by the parties as well as by counsel, the
agreement became binding upon the parties when it was
stipulated into the record.” McClure, 459 N.E.2d at 401
(Sullivan, J., concurring). We agree with Judge Sullivan that the
writing requirement of Indiana Code § 31-15-2-17 can be satisfied
by orally stipulating the terms of the settlement agreement into
the court record. The parties themselves, their attorneys, or the
trial court can recite the terms of the agreement in open court,
and the parties can then acknowledge, under oath, their assent to
those terms. Placing the agreement on the trial court record by
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way of a voice recording and/or the court reporters’ transcript is
tantamount to composing a written settlement document in that
both procedures produce tangible proof of the terms of the
agreement.
Akers, 849 N.E.2d at 775–76.
[13] After the terms of the Agreement were read in open court, Wife acknowledged
her assent under oath. What Wife characterizes as her equivocation about the
Agreement is more fairly described as clearing up her apparent confusion
regarding the effect of refiling tax returns for 2015 and 2016. Whatever
concerns Wife may have had about the taxes, they were satisfactorily
addressed, as she ultimately agreed in open court to the provisions of the
Agreement, including Husband’s proposal that he refile his tax returns for 2015
and 2016. We conclude that the trial court’s recitation of the Agreement’s
terms followed by Wife’s assent to them satisfies section 31-15-2-17(a)’s writing
requirement.
B. Whether the Agreement Must Have Been Signed
[14] Wife also asserts that the writing must also have been signed by both parties
before the trial court could approve it, citing to Indiana Code sections 31-15-2-
17 and 31-15-2-13 for this proposition. Section 31-15-2-17 does contain the
already-discussed writing requirement, but there is no signing requirement.
Moreover, while section 31-15-2-13(a) does require the filing of verified
pleadings “signed by both parties[,]” it only applies in cases where the trial
court seeks to enter a “summary disposition decree without holding a final
hearing[,]” which is not what occurred here. The authority cited by Wife does
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not support her contention, and our research has uncovered none that does.
Wife has failed to establish that the parties were required to sign a written
Agreement as a prerequisite for approval by the trial court.
C. Whether Wife Timely Repudiated the Agreement
[15] Wife argues that, even if the writing requirement was satisfied, the trial erred in
entering a decree that incorporated the Agreement after she timely repudiated
it. As we noted in McClure, there is a “simple two-step process necessary to
bring a valid property settlement agreement into existence[,]” namely that (1)
the parties must come to a valid agreement and (2) the trial court must approve
it. McClure, 459 N.E.2d at 401. Until a property settlement agreement is
approved by the trial court, it can be repudiated by a party. See id. (“[O]ur
decision is grounded solely on error by the trial court in approving an
agreement that was timely repudiated.”).
[16] Here, the terms of the Agreement were read in open court and the parties
agreed to them, after which the trial court explicitly approved it, stating on the
record that “[a]ll property and debts are divided in accordance with the
agreement[.]” Tr. Vol. II p. 9. The trial court also made it abundantly clear
that its judgment was to be effective immediately, stating that the parties “are
restored to the status of unmarried persons effective immediately” and, “In
other words, the divorce is granted today.” Tr. Vol. II p. 9. The trial court’s
CCS entry indicating that Husband’s counsel was to prepare a dissolution
decree to be submitted later but dated January 9, 2017—the date of the final
hearing—further indicates that it considered the matter settled. Wife’s
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repudiation came over one month after the trial court approved the Agreement
at the final hearing, which is too late.
[17] We acknowledge that some of our precedent indicates that the cutoff for
repudiation is not when the property settlement is approved by the trial court
but when the dissolution decree is issued. See, e.g., Anderson v. Anderson, 399
N.E.2d 391, 398 (Ind. Ct. App. 1979) (“Hence, a settlement agreement that has
not been approved by the dissolution court and incorporated and merged into
the decree has no legal efficacy.”). Under the circumstances of this case, at
least, the actual issuance of the decree was little more than a formality, as the
trial court made it clear that its judgment was to take effect immediately with a
decree detailing the judgment to be issued later. Granting relief to Wife on the
basis that the terms of the Agreement had not yet been incorporated into the
decree when she objected would elevate form over substance in this case. Wife
has failed to establish that she timely repudiated the Agreement. 2
2
In any event, Wife cannot even establish with certainty that she objected before the issuance of the decree.
The trial court properly failed to act on Wife’s letter to the trial court, as she was represented by counsel at
the time, and Indiana does not recognize hybrid representation. See, e.g., Miedreich v. Rank, 40 Ind. App. 393,
397, 82 N.E. 117, 118 (Ind. Ct. App. 1907) (“[A] party to an action may appear in his own proper person, or
by attorney, but he cannot do both. If he appears by attorney, he should be heard through him.”) (citation
omitted). As for Wife’s motion to withdraw the Agreement, which was filed by counsel, it is not at all clear
that it was filed before the decree was issued. If anything, the record suggests the opposite, as the CCS entry
indicating the issuance of the decree appears before the entry indicating Wife’s motion to withdraw the
Agreement.
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D. Whether the Trial Court Erroneously Failed to Consider
Whether the Agreement Was Just and Reasonable
[18] Finally, Wife argues that the trial court was required to explicitly determine that
the Agreement was just and reasonable before approving it. Specifically, Wife
argues that “the statutes require trial courts to insist upon a written agreement
or perform an analysis of factors listed at I.C. 31-15-7-5.”3 Appellant’s Br. p.
38. Even if we assume, arguendo, that these are, in fact, the only two options
available to the trial court, we have already determined that the recitation of the
Agreement’s terms into the record, coupled with the parties’ assent to them
under oath, satisfies the writing requirement of Indiana Code section 31-15-2-
17(a). Wife has failed to establish error in this regard.
Conclusion
3
Indiana Code section 31-15-7-5 provides as follows:
The court shall presume that an equal division of the marital property between the parties
is just and reasonable. However, this presumption may be rebutted by a party who
presents relevant evidence, including evidence concerning the following factors, that an
equal division would not be just and reasonable:
(1) The contribution of each spouse to the acquisition of the property, regardless of
whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the disposition of the
property is to become effective, including the desirability of awarding the family
residence or the right to dwell in the family residence for such periods as the court
considers just to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to the disposition or
dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the parties.
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[19] We conclude that the Agreement was not required to be reduced to writing or
signed before approval by the trial court, Wife did not timely repudiate the
Agreement, and the trial court did not err in failing to find that the Agreement
was just and reasonable. Consequently, we further conclude that the trial court
did not err in denying Wife’s motion to correct error or in failing to grant her
relief from judgment.
[20] We affirm the judgment of the trial court.
Baker, J., and Kirsch, J., concur.
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