MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Sep 10 2020, 9:13 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Heather M. Schuh-Ogle Bryan L. Ciyou
Thomasson, Thomasson, Long & Alexander N. Moseley
Guthrie, P.C. Ciyou and Dixon, P.C.
Columbus, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Valerie (Watts) Padilla, September 10, 2020
Appellant-Respondent, Court of Appeals Case No.
20A-DR-423
v. Appeal from the
Jackson Superior Court
Donald Watts, The Honorable
Appellee-Petitioner Bruce A. MacTavish, Judge
Trial Court Cause No.
36D02-1203-DR-119
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-DR-423 | September 10, 2020 Page 1 of 9
Case Summary
[1] When Donald Watts (“Husband”) and Valerie (Watts) Padilla (“Wife”)
divorced in 2012, they agreed that Wife would keep the marital home and
refinance it into her sole name at “her earliest possible opportunity.” When
Wife did not do so, Husband filed numerous motions with the trial court.
Eventually, in February 2019, the parties agreed that the property would be sold
rather than refinanced. But when Wife did not sell the property either, Husband
filed more motions with the court. In December 2019, the court issued an order
that if Wife didn’t sell the property within thirty days, it reserved the right to
order an auction of the property. When Wife did not sell the property or file any
motions with the court in those thirty days, Husband asked the court to order
an auction, which the court did.
[2] Wife now appeals, arguing that the court erred by ordering an auction of the
property. Because eight years have now passed since Wife agreed to refinance
the property, the parties agreed in February 2019 that the property would be
sold instead of refinanced, and the court warned Wife that an auction would be
the next step if she did not sell the property, the court did not err when it
ordered the property to be sold at an auction when Wife did not sell it. We
therefore affirm.
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Facts and Procedural History
[3] Husband and Wife got married in 2006, and Husband filed for divorce in 2012.
The parties reached a settlement agreement, which was incorporated into their
July 2012 decree of dissolution. According to the agreement:
The parties own a certain tract of real estate, which has a
common address of 810 West 2nd Street, Seymour, Indiana. The
legal description of said real estate is incorporated by reference
herein. As of the date of the decree, the real estate shall become
the sole and individual property of [W]ife. Husband will execute
and deliver to [W]ife a Quitclaim Deed, subject to all
encumbrances, including mortgages and real estate taxes. Wife
will pay all mortgages, taxes, insurance and utilities and hold
[H]usband harmless therefrom. Wife shall refinance the
mortgage debt on said real estate [into] her sole name at her
earliest possible opportunity[.]
Appellant’s App. Vol. II p. 17 (emphasis added).
[4] About a year later, in June 2013, Husband filed a Petition for Contempt and
Affidavit in Support of Rule to Show Cause, alleging that Wife had not
refinanced the property. Id. at 20. In August 2013, the trial court issued an
Order on Rule to Show Cause, ordering Wife to refinance the property within
sixty days. Id. at 24. The court said if Wife could not refinance the property,
Husband could list the property himself. Id. at 25.
[5] In November 2013, Husband filed a second Petition for Contempt and Affidavit
in Support of Rule to Show Cause, alleging that Wife had not refinanced the
property within sixty days as ordered by the court. Id. at 26. The following
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month, the court issued an Order on Rule to Show Cause, ordering Wife to
appear at a hearing in January 2014. After several continuances, the hearing
was held in April. Following the hearing, the court ordered Wife to refinance
the property within sixty days with her father as co-signor. Id. at 30.
[6] There was no activity for four years until May 2018, when Husband filed a
third Petition for Contempt and Affidavit in Support of Rule to Show Cause,
alleging that Wife had still not refinanced the property as required by the
parties’ 2012 settlement agreement and the court’s previous orders. Id. at 31.
After several continuances, a hearing was held in February 2019. At this
hearing, the parties agreed that the property would be sold instead of
refinanced. Tr. Vol. II pp. 4-6. The court ordered Wife to sell the property
within ninety days, continued the matter “generally,” and said if the parties
needed a hearing, it would set one “really quick.” Id. at 6; see also Appellant’s
App. Vol. II p. 44.
[7] In June 2019, Husband requested a hearing. He alleged that on April 5 the
property was listed at $362,500—an amount “grossly higher” than the market
value of the home, that on April 30 the listing price was reduced to $235,000,
and that on May 19 the listing price was again reduced to $219,900—which was
“still higher than comparable homes in the area.” Appellee’s App. Vol. II pp.
43-44. According to Husband, Wife was “stall[ing]” to prevent the sale of the
property and would continue to do so unless the court intervened. Id. at 44. The
court set a hearing for August 15. Although it’s unclear from the record whether
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a hearing was held on this date,1 on August 20 the court ordered Wife to sell the
property within sixty days and set a review hearing for October 21. Appellant’s
App. Vol. II p. 45.
[8] On September 23, Husband filed a fourth Petition for Contempt and Affidavit
in Support of Rule to Show Cause. He alleged that when the court issued its
August 20 order requiring Wife to sell the property within sixty days, the
property was listed; however, Wife had since taken the property off the market
and stopped paying the mortgage. Id. at 48. The court moved up the October 21
hearing to October 10 to address the matter. Id. at 52. At the hearing, Wife’s
counsel said Wife took the property off the market to make repairs and that the
house was back on the market for $225,000 (increased from its previous listing
of $179,900). Tr. Vol. II p. 7. Husband’s counsel said Husband was tired of
playing the “waiting game.” Id. at 8. The court ordered the property to “remain
for sale” and that Wife communicate any offer to Husband. Appellant’s App.
Vol. II p. 53. The court said if there was an issue regarding the selling price or if
an auction needed to be set, it would set a hearing. Tr. Vol. II p. 8.
[9] On November 6, the court, on its own motion, set a review hearing for
December 16. Appellant’s App. Vol. II p. 54. Although it’s unclear from the
1
Wife requested a transcript of this hearing in her notice of appeal. Although the CCS says the August 15
hearing was rescheduled, the August 20 order says a hearing was held on August 15. The table of contents for
the transcript says no hearing took place on August 15. See Tr. Vol. I p. 2.
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record whether a hearing was held on this date,2 the court issued the following
order on December 18:
The Court orders the parties[’] marital residence at 810 West 2nd
St, Seymour, IN 47274 sold by [Wife] within 30 days of today’s
date or the Court reserves the right to select the realtor to handle
the sale or to order the property auctioned off.
Id. at 55 (emphasis added).
[10] On January 20, 2020, Husband filed a Motion for Court Order to Auction
Marital Residence. Id. at 56. Husband alleged that since the court’s December
18 order, Wife had taken the property off the market and relisted it the week of
January 13 with a new realtor for $199,000. Husband claimed that Wife was
“toying” with him, as she was “attempting to show that she is complying with
the Court’s Order to attempt to sell the residence, however, after any deadline
in this case, [she] discontinues her attempt to sell the residence by removing the
home from the real estate market or other means.” Id. at 57. Because over seven
years had passed and Wife had still not refinanced or sold the property,
Husband asked the court to order the property to be sold at an auction. On
January 22, the court granted Husband’s motion and ordered the parties to
agree to an auctioneer within seven days. Id. at 62. When Wife did not agree to
2
Wife requested a transcript of this hearing in her notice of appeal. However, the CCS is silent as to whether
a hearing was held on December 16. In addition, the table of contents for the transcript says no hearing took
place on December 16. See Tr. Vol. I p. 2.
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an auctioneer, Father asked the court to appoint one. The court appointed an
auctioneer on February 10.
[11] Wife now appeals the trial court’s January 22 and February 10 orders, which
have been stayed pending appeal.
Discussion and Decision
[12] Wife contends that the trial court erred by ordering an auction of the property.
Specifically, she argues that the court’s order constituted an “improper
modification” of the parties’ 2012 settlement agreement, which provided that
Wife would refinance the property. Appellant’s Br. p. 9. The problem with this
argument is that the parties themselves agreed at the February 2019 hearing—
almost a year before the court ordered the auction—that the property would be
sold rather than refinanced. See Appellant’s Reply Br. p. 5 (Wife admitting she
“agreed to a sale of the residence”). In other words, it was the parties, not the
court, who modified the 2012 settlement agreement. See Ind. Code § 31-15-2-17
(parties may agree to a property settlement but once that agreement is
“incorporated and merged into the decree[, it] is not subject to subsequent
modification by the court, except as the agreement prescribes or the parties
subsequently consent”).
[13] Wife argues that her agreement to the property being sold instead of refinanced
did not include auctioning it because “[a]n auction of real estate is significantly
different from the sale of real estate” and that therefore the court erred in
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ordering the property to be sold at an auction. Appellant’s Br. p. 10. We
disagree. First, an auction is a sale, so the court’s order is ultimately just an
enforcement of the parties’ own agreement. Second, Husband has been waiting
eight years to get his name off the mortgage. After the parties agreed at the
February 2019 hearing to modify their 2012 settlement agreement, the court
ordered Wife to sell the property on several occasions. Despite being given
multiple chances, Wife did not sell the property. Instead, she listed the property
above market value and even took it off the market twice. When the court
warned Wife in December 2019 that if she didn’t sell the property within thirty
days it reserved the right to order it to be sold at an auction, Wife did not
challenge the court’s authority to order an auction or ask for more time. And
when those thirty days passed with no word from Wife, Husband asked the
court to order an auction, and the court granted Husband’s request. Because
eight years have now passed since Wife agreed to refinance the property at “her
earliest possible opportunity,” the parties agreed in February 2019 that the
property would be sold instead of refinanced, and the court warned Wife that
an auction would be the next step if she did not sell the property, the court did
not err when it ordered the property to be sold at an auction when Wife did not
sell it.
[14] Wife makes a related argument that the trial court denied her “due process of
law” when it ordered the property to be sold at an auction “without the right to
be heard.” Appellant’s Br. p. 7. Wife, however, was given the right to be heard.
The court first floated the idea of an auction at the October 10 hearing;
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however, Wife voiced no objection to this idea. On December 18, the court
ordered that if Wife didn’t sell the property within thirty days, it reserved the
right to sell the property at an auction. But Wife filed nothing in response to this
order, such as alleging that the court did not have the authority to order an
auction or requesting more time. Wife had at least thirty days to “be heard” on
the issue of an auction but remained silent. There was no due-process violation.
[15] Affirmed.
Bailey, J., and Baker, Sr. J., concur.
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