                                                                              FILED
                                                                         May 28 2019, 5:42 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Monty K. Woolsey                                          William O. Harrington
      Carmel, Indiana                                           Danville, Indiana
      Andrew R. Bloch
      Carmel, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Shaun Perrill,                                            May 28, 2019
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                18A-DN-1616
              v.                                                Appeal from the Hendricks
                                                                Superior Court
      Brandy Perrill,                                           The Honorable Robert W. Freese,
      Appellee-Respondent.                                      Judge
                                                                Trial Court Cause No.
                                                                32D01-1709-DN-552



      Tavitas, Judge.


                                               Case Summary

[1]   Shaun Perrill (“Husband”) filed this interlocutory appeal after the trial court

      concluded there was no enforceable premarital agreement (the “Agreement”)

      between Husband and Brandy Perrill (“Wife”). We reverse and remand.
      Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019                            Page 1 of 21
                                                      Issues

[2]   Husband raises several issues on appeal, which we consolidate and restate as:


              I.       Whether the trial court erred in concluding there was no
                       meeting of the minds between the parties to form an
                       enforceable contract.


              II.      Whether the trial court erred in failing to admit testimony
                       regarding Wife’s excluded property.


              III.     Whether the trial court erred in concluding the Agreement
                       was unconscionable.


                                                      Facts

[3]   Husband and Wife met in 2000 when they were both students at Purdue

      University. Wife graduated in 2001, and Husband graduated in 2002.

      Husband and Wife began living together in 2002. The couple eventually moved

      to Hendricks County in 2003.


[4]   Husband began working at Matrix Label Systems, one of his family’s

      businesses. Wife began working at Hendricks College Network and is now the

      executive director. At some point early in the couple’s relationship, Husband

      mentioned to Wife that he would be interested in having Wife sign a premarital

      agreement if the couple were to marry. Husband’s family had several family

      businesses that Husband sought to protect. The couple were engaged to be

      married in 2005, and they married in 2008.




      Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019               Page 2 of 21
[5]   Shortly before Husband’s and Wife’s wedding day in October 2008, Husband

      presented Wife with the Agreement. Wife asked an attorney to review the

      Agreement for her. Wife testified that she only saw one version of the

      Agreement, which was the version that she signed. 1 Wife claims she did not

      make any changes to the Agreement before she signed. Wife also testified that,

      as part of the Agreement, she was asked to provide a list of property that would

      be identified as her excluded property in the event the couple divorced.


[6]   The Agreement consisted of three main parts. The first section is the main

      portion of the Agreement, which covers nine pages, and includes the signature

      of both parties and the notary. In this portion of the Agreement, Husband and

      Wife agreed that each would:


              retain the value of certain of [his or her] own individual assets
              and property that [he or she] now owns or later receives as a gift
              or inheritance, including any increase in the value of such
              property, . . . the same as though [he or she] were not married
              and free from any control, interest, claim or right whatsoever of
              the other Party whether growing out of the marital relationship
              or by reason of death.


      Appellant’s App. Vol. II p. 151. This section defines Husband’s excluded

      property as follows:




      1
        There were several previous drafts of the Agreement; however, Wife claims she only saw the final version of
      the Agreement. The parties tendered, as a joint factual stipulation, an affidavit by attorney Ryan Leach, who
      was the drafter of the Agreement and is also Husband’s parents’ business attorney. The trial court accepted
      the joint factual stipulation on March 22, 2018. Attorney Leach did not receive a copy of the executed
      Agreement until November 7, 2017.

      Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019                                Page 3 of 21
              In the case of Husband, Excluded Property shall mean and
              include all of the common stock or ownership units or other such
              ownership interests in and of Compatible Technologies, LLC
              owned by Husband and shall also mean and include the
              membership or ownership interests of Moon Limited
              Partnership, now owned by Husband or received in the future by
              Husband, and any income, dividends, increase or decrease in
              value, or proceeds thereof, including any increase in the value of
              such shares, membership, or other ownership interests, or arising
              under the terms of Husband’s employment with compatible
              Technologies, LLC or Moon Limited Partnership as now in
              effect or as hereafter agreed, provided, however, that Husband’s
              salary from Compatible Technologies, LLC shall not constitute
              Excluded Property. Husband’s Excluded Property shall also
              include any property acquired with Excluded Property.
              Husband’s Excluded Property shall also include any gifts or
              inheritances later received from his family.


      Id. at 152-53. The next part of the Agreement is “Exhibit A,” which is defined

      in the main Agreement as Wife’s “financial and asset information” as well as

      Wife’s “excluded property.” Id. at 152. Finally, the third part of the

      Agreement is “Exhibit B,” which is defined as Husband’s “financial and asset

      information.” Id.


[7]   Wife asked Rebecca Cotney to serve as a notary for purposes of executing the

      Agreement. Cotney’s signature notarizing the Agreement indicates that both

      Exhibit A and Exhibit B were included with the Agreement. Husband testified

      that, after he and Wife signed the Agreement, he placed the Agreement in a

      fire-proof filing cabinet.




      Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019         Page 4 of 21
[8]    After Husband filed a petition to dissolve the marriage on September 13, 2017,

       Wife filed a motion to determine the enforceability of the couple’s Agreement

       on March 7, 2018. Wife testified to the foregoing facts and her uncertainty

       regarding the Agreement she actually signed. Wife does not recall if she

       received a copy of the Agreement at its execution. The next time Wife recalls

       seeing the Agreement after its execution was in 2017 when this matter began.

       Wife noticed, however, that when she received a copy of the Agreement in

       2017, it did not appear to be the same Agreement she signed because her

       Exhibit A was not attached. Instead, there was another document titled

       “Exhibit A” which appeared to list items belonging to Husband, and no Exhibit

       B was attached. (“Version 1”).


[9]    On November 1, 2017, Wife sent Husband a request for production of

       documents, requesting that Husband produce a complete copy of the executed

       Agreement. In response to the requests, Husband produced another version of

       the Agreement, which did not include a page entitled Exhibit A. In this

       version, Husband’s excluded items list was attached as Exhibit B (“Version 2”).

       This Exhibit B was slightly different than the exhibit produced in Version 1.


[10]   Wife testified that she prepared Exhibit A and gave it to Husband; however, at

       the hearing, Wife did not recall the items she included on Exhibit A. On the

       other hand, Husband stated that he “[did] not recall [Wife] giving [him]

       [E]xhibit A.” Tr. Vol. III p. 56. Husband stated that he was aware when the




       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019        Page 5 of 21
       parties signed the Agreement that Exhibit A was not attached. 2 Husband did

       not believe that Wife prepared an Exhibit A because, according to Husband,

       Wife did not own any property of value at the time.


[11]   After an evidentiary hearing on the issue, the trial court entered its findings of

       fact and conclusions of law on May 3, 2018, and concluded, in relevant part,


               31. Sometime on or after October 16, 2008, Wife prepared an
               Exhibit “A” list of what Wife wanted to be her “Excluded
               Property” under the Antenuptial Agreement . . . . In addition,
               Wife delivered Wife’s Exhibit ‘A’ List of Excluded Property to
               Husband.


                                                      *****


               36. Wife understood and intended that she executed the
               Executed Antenuptial Agreement with Wife’s Exhibit ‘A’ List of
               Excluded Property attached.


                                                      *****


               55. Wife’s Exhibit ‘A’ List of Excluded Property is not attached
               to either the First version of executed Antenuptial Agreement or
               the Second Version of Antenuptial Agreement.




       2
        Husband gave somewhat conflicting testimony at his deposition, testifying at one point that Exhibit A was
       not attached to the Agreement because “[Wife] did not have any excluded property,” but later testifying that
       Husband “cannot recall if there was an exhibit A at [the time the Agreement was executed].” Tr. Vol. III pp.
       61-62.

       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019                                Page 6 of 21
                                              *****


        60. The First Nine Pages clearly demonstrate that Wife’s Exhibit
        ‘A’ List of Excluded Property was attached to the Executed
        Antenuptial Agreement when it was executed. Wife contends
        that Wife’s Exhibit ‘A’ List of Excluded Property (a) was
        intended to be attached to the Executed Antenuptial Agreement
        and (b) was, in fact, attached to the Executed Antenuptial
        Agreement when it was executed. During the Second Hearing,
        Husband testified that Wife’s Exhibit ‘A’ List of Excluded
        Property was not attached to the Executed Antenuptial
        Agreement when it was executed. On the basis of this evidence,
        it is evident that there was no meeting of the minds between Wife
        and Husband. Therefore, if Husband’s testimony during the
        Second Hearing is taken at face value, no binding Antenuptial
        Agreement was ever formed by Wife and Husband.


                                              *****


        63. As noted above, in Irvine v. Irvine, 685 N.E.2d 67 (Ind. Ct.
        App. 1997), the Court of Appeals of Indiana held that,
        “[a]ntenuptial agreements are legal contracts by which parties
        entering into a marriage relationship attempt to settle the interest
        of each party in the property of the other during the course of the
        marriage and upon its termination by death or other means.” Id.
        at 71. Thus, the precise and essential purpose of an antenuptial
        agreement is to settle the rights of the parties to their property in
        contemplation of marriage. In this case, there was no meeting of
        the minds between Husband and Wife because an essential term
        of the Antenuptial Agreement – Wife’s Excluded Property – is
        uncertain. Therefore, the intention of Wife and Husband when
        they entered into the Antenuptial Agreement is uncertain and the
        Antenuptial Agreement (both versions) cannot be specifically
        enforced.



Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019            Page 7 of 21
                                                     *****


               70. Neither the First Version of Executed Antenuptial Agreement
               nor the Second Version of Executed Antenuptial Agreement is
               enforceable as a matter of law.


               71. There is no enforceable premarital agreement between Wife
               and Husband in this case.


       Appellant’s App. Vol. II pp. 16, 21, 23-26 (emphasis supplied). Husband now

       appeals.


                                                     Analysis

[12]   Husband appeals from the trial court’s findings of fact and conclusions of law.

       Accordingly,


               [W]e apply a two-tiered standard of review for clear error; that is,
               first, we determine whether the evidence supports the findings,
               and second, whether the findings support the judgment. We do
               not reweigh the evidence but consider the evidence favorable to
               the judgment.


               Findings of fact are clearly erroneous when the record contains
               no facts to support them, and a judgment is clearly erroneous if
               no evidence supports the findings, the findings fail to support the
               judgment, or if the trial court applies an incorrect legal standard.
               Although we review findings under the clearly erroneous
               standard, we review conclusions of law de novo.


       Carmer v. Carmer, 45 N.E.3d 512, 516-17 (Ind. Ct. App. 2015) (citations

       omitted).


       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019           Page 8 of 21
                                      I.       Enforceability of Agreement

[13]   We begin with Husband’s argument that the parties’ intent was clear, and,

       accordingly, the trial court erred in finding there was no meeting of the minds

       between the parties, and thus, no contract. This conclusion of law is reviewed

       de novo by our Court. See Carmer, 45 N.E.3d at 517.


[14]   Generally, courts favor premarital agreements, and our Supreme Court “has

       consistently held that [antenuptial] agreements, so long as they are entered into

       freely and without fraud, duress, or misrepresentation and are not, under the

       particular circumstances of the case, unconscionable, are valid and binding.” In

       re Marriage of Boren, 475 N.E.2d 690, 693 (Ind. 1985). “‘Antenuptial agreements

       are favored by the law and will be liberally construed to effect, so far as

       possible, the parties’ intentions.’” Boetsma v. Boetsma, 768 N.E.2d 1016, 1024

       (Ind. Ct. App. 2002) (quoting Beatty v. Beatty, 555 N.E.2d 184, 188) (Ind. Ct.

       App. 1990)), trans. denied. “Standard principles regarding contract formation

       and interpretation apply to premarital agreements.” Fetters v. Fetters, 26 N.E.3d

       1016, 1020 (Ind. Ct. App. 2015), trans. denied. “The party urging the validity of

       a contract bears the onus of proving its existence.” Ochoa v. Ford, 641 N.E.2d

       1042, 1044 (Ind. Ct. App. 1994).


[15]   A premarital agreement between parties contemplating marriage “must be in

       writing and signed by both parties.” Ind. Code § 31-11-3-4. “The agreement is

       enforceable without consideration.” Id. “It is fundamental that a contract is

       formed by the exchange of an offer and acceptance between contracting

       parties.” Ochoa, 641 N.E.2d at 1044 (citations omitted). “The parties to a
       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019              Page 9 of 21
       contract have the right to define their mutual rights and obligations, and a court

       may not make a new contract for the parties or supply missing terms under the

       guise of construing a contract.” Id.


[16]   “The basic requirements for a contract are offer, acceptance, consideration, and

       a meeting of the minds between the contracting parties on all essential elements

       or terms of the transaction.” Jermas v. Gumz, 53 N.E.3d 434, 445 (Ind. Ct. App.

       2016), trans. denied. “There must be mutual assent or a meeting of the minds on

       all essential elements or terms in order to form a binding contract.” Id. “Only

       ‘reasonable’ certainty is necessary; ‘absolute certainty in all terms is not

       required.’” Id. (citing Allen v. Clarian Health Partners, Inc., 980 N.E.2d 306, 309

       (Ind. 2012)). Instead, “[o]nly essential terms need to be included to render a

       contract enforceable.” Id. “An agreement required to be in writing must

       completely contain the essential terms without resort to parol evidence in order

       to be enforceable.” Schuler v. Graf, 862 N.E.2d 708, 713 (Ind. Ct. App. 2007),

       trans. denied.


[17]   “The court must read all of the contractual provisions as a whole to accept an

       interpretation that harmonizes the contract’s words and phrases and gives effect

       to the parties’ intentions as established at the time they entered the contract.”

       Schmidt v. Schmidt, 812 N.E.2d 1074, 1080 (Ind. Ct. App. 2004) (citations

       omitted). “If the language of the agreement is unambiguous, the intent of the

       parties must be determined from the four corners of the document.” Id. (citing

       Bressler v. Bressler, 601 N.E.2d 392, 395 (Ind. Ct. App. 1992)). “The terms of a



       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019          Page 10 of 21
       contract are ambiguous only when reasonably intelligent persons would

       honestly differ as to the meaning of those terms.” Id.


[18]   At the outset, it appears that the question of the parties’ intent and whether

       there was a meeting of the minds is focused squarely on the attachment of

       Exhibit A. The trial court first found that there was no “meeting of the minds”

       between the parties because Wife claims that she attached Exhibit A to the

       Agreement, whereas Husband claims that Wife did not. The trial court implies

       that Exhibit A is essential and, accordingly, concludes that it could not enforce

       the agreement without the meeting of the minds on this essential term.


[19]   Turning to the four corners of the document, the Agreement set forth the

       purpose of the Agreement, stating,


               WHEREAS, it is the desire and intention of Wife and Husband
               that Husband will retain the value of certain of his own
               individual assets and property that he now owns or later receives
               as a gift or inheritance, including any increase in the value of
               such property or, the same as though he were not married and
               free from any control, interest, claim or right whatsoever of the
               other Party whether growing out of the marital relationship or by
               reason of death; and


               WHEREAS, it is the desire and intention of Wife to release,
               relinquish, waive and discharge any and all claim, right, title,
               interest, expectancy or otherwise, or in, or to certain of the
               property or estate of Husband as set forth herein (including
               contingent rights or claims) whether arising out of the marital
               relationship of Wife and Husband or as a result of the death of
               the other Party, or otherwise; and


       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019           Page 11 of 21
               WHEREAS, it is the desire and intention of Wife and Husband
               that Wife will retain the value of certain of her own individual
               assets and property that she now owns or later receives as a gift
               or inheritance, including any increase in the value of such
               property or, the same as though she were not married and free
               from any control, interest, claim or right whatsoever of the other
               Party whether growing out of the marital relationship or by
               reason of death; and


               WHEREAS, it is the desire and intention of Husband to release,
               relinquish, waive and discharge any and all claim, right, title,
               interest, expectancy or otherwise, or in, or to certain of the
               property or estate of Wife as set forth herein (including
               contingent rights of claims) whether arising out of the marital
               relationship of Wife and Husband or as a result of the death of
               the other Party, or otherwise; . . .


       Appellant’s App. Vol. II p. 151.


[20]   Pursuant to paragraph 4 of the Agreement, excluded property for Wife would

       include “all property shown in Exhibit A, including any income, dividends,

       increase or decrease in value, or proceeds with respect to such property, and

       any gifts or inheritances later received from her family,” whereas Husband’s

       excluded property was defined separately in the first nine pages of the

       Agreement. Id. at 152. Husband’s excluded property is defined as:


               In the case of Husband, Excluded Property shall mean and
               include all of the common stock or ownership units or other such
               ownership interests in and of Compatible Technologies, LLC
               owned by Husband and shall also mean and include the
               membership or ownership interests of Moon Limited
               Partnership, now owned by Husband or received in the future by
               Husband, and any income, dividends, increase or decrease in
       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019          Page 12 of 21
                  value, or proceeds thereof, including any increase in the value of
                  such shares, membership, or other ownership interests, or arising
                  under the terms of Husband’s employment with compatible
                  Technologies, LLC or Moon Limited Partnership as now in
                  effect or as hereafter agreed, provided, however, that Husband’s
                  salary from Compatible Technologies, LLC shall not constitute
                  Excluded Property. Husband’s Excluded Property shall also
                  include any property acquired with Excluded Property.
                  Husband’s Excluded Property shall also include any gifts or
                  inheritances later received from his family.


       Id. at 152-53.


[21]   The Agreement also set forth that “the value of Wife’s Excluded Property, as

       defined and disclosed in Exhibit A, shall be set off to Wife free of and without

       any claim by Husband and Husband’s Excluded Property, as defined in this

       Agreement, shall be set off to Husband free of and without any claim by Wife.”

       Id. at 153. As to the remaining marital property, the Agreement states that it

       “shall be equally divided between Wife and Husband, after distribution of

       Wife’s Excluded Property and Husband’s Excluded Property has been made.” 3

       Id. In other words, the language of the Agreement anticipated that property

       would be set aside to each party pursuant to the Agreement’s definition of




       3
           Relatedly, the Agreement also contemplates, that
                  Wife and Husband further acknowledge and understand that they may pool certain of their financial
                  resources together in a joint effort to acquire various and, at present, undetermined assets such as
                  real estate or financial investments. In the event of Wife and Husband’s separation or marriage
                  dissolution, each understands and agrees that all such acquired property shall be forthwith
                  distributed amicably between them, or in the event Wife and Husband cannot agree, liquidated with
                  the net proceeds derived from the liquidation to be evenly distributed between them.
       Appellant’s App. Vol. II p. 154.

       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019                                 Page 13 of 21
       excluded property. Exhibit A would have only identified property Wife owned

       prior to the marriage. The issue then becomes whether the contents of Exhibit

       A, or Wife’s excluded property, contain essential terms.


[22]   While we agree that Wife’s Exhibit A would give more context to identify

       Wife’s premarital property, the identification of the property itself is not

       essential. In Hunsberger v. Hunsberger, 653 N.E.2d 118, 125 (Ind. Ct. App. 1995),

       a panel of this court reversed the trial court’s conclusion that the antenuptial

       agreement between the parties was invalid and unenforceable. Specifically, the

       trial court found that the antenuptial agreement was invalid and unenforceable

       “because [the husband] did not disclose his assets and their value to [the wife]

       before she signed the agreement.” Id. There, aside from the trial court’s error in

       relying on a vacated case, this court found that the trial court erred because,


               “even with respect to antenuptial agreements, presumably
               entered into when the parties’ relationship is likely to be one of
               trust and reliance, in contrast to the potential and actual adversity
               which accompanies marriage dissolutions, there is no absolute
               and mandatory duty imposed upon the parties to disclose
               information regarding possessions.”


       Hunsberger v. Hunsberger, 653 N.E.2d 118, 125 (Ind. Ct. App. 1995) (quoting

       Selke v. Selke, 600 N.E.2d 100, 102 (Ind. 1992)).


[23]   Here, the trial court ultimately concluded that Wife did attach Exhibit A when

       the parties executed the Agreement. Exhibit A, as evidenced by the parties’

       intent in the main Agreement, was intended to identify Wife’s excluded

       property in the event of dissolution or death. The actual list of excluded
       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019          Page 14 of 21
       property can be easily recreated and was not an essential term relating to the

       intent of the parties. This is especially true when the intent of the main portion

       of the Agreement was clear. The trial court expressly found that the “first nine

       (9) pages of the First Version of Executed Antenuptial Agreement and the first

       nine (9) pages of the Second Version of Executed Antenuptial agreement are

       identical.” Appellant’s App. Vol. II p. 19. This is important because, as a

       reviewing Court, we do not reweigh the evidence. Instead, we merely review

       the Agreement to determine whether the parties’ intent is clear.


[24]   The first portion also squarely states, that, “the inadvertent omission of any

       property shall not affect the validity, effect, or enforceability of this

       Agreement.” Id. at 155. Further, the Agreement also has a partial invalidity

       clause that states,


               [s]hould any part or segment of this Agreement be declared
               invalid by a court of competent jurisdiction, the declaration shall
               not affect the validity of the remaining portions of this
               Agreement, all of which shall continue in full force and effect as
               though this Agreement had been executed with the invalid
               portion deleted.


       Id. The Agreement also contains a severability clause that states,


               [s]hould any provision of this Agreement be held invalid or
               unenforceable by any court of competent jurisdiction, all other
               provisions shall nonetheless continue in full force and effect, to
               the extent that the remaining provisions are fair, just and
               equitable.



       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019             Page 15 of 21
       Id. at 156. While we recognize that the trial court did not find that a portion or

       provision of the Agreement was invalid, we believe this provision further

       evidences the parties’ intent that the property each owned before marriage

       would be excluded. The intent of the parties—that each would retain his or her

       excluded property—was clear; the specificity of Wife’s excluded property was

       not needed to find the intent between the parties.


[25]   Relatedly, we note that Exhibit B does not define Husband’s excluded property,

       but merely lists his assets and financial information at the time he signed the

       Agreement. Husband’s excluded property is defined in the main portion of the

       Agreement. Husband’s list had minor changes between Version 1 and Version

       2. While this is concerning, these changes do not impact an essential term of

       the Agreement.


[26]   Ultimately, the terms of the contract do not change with time, whereas the

       parties’ actual property is fluid and everchanging. The Agreement ultimately

       contemplates the potential for change in defining excluded property, using

       terms such as “any gifts or inheritance later received. . .,” and “now owned by

       Husband or received in the future by Husband.” Appellant’s App. Vol. II p.

       152. In other words, the parties’ Agreement already contemplated that each

       party would be required to later identify property that fit within the definition of

       excluded property.


[27]   All essential contractual elements were present in the Agreement with or

       without Exhibit A or B. Accordingly, the trial court erred in concluding as a


       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019         Page 16 of 21
       matter of law that there was no contract between the parties. The mere fact that

       Exhibit A was missing does not render the entire contract unenforceable.

       Exhibit A was designed to identify Wife’s specific excluded property at the time

       she signed the Agreement.


                                               II.      Parol Evidence

[28]   Husband next contends that it was error for the trial court to deny admission of

       parol evidence to prove that Wife did not own any property at the time of the

       marriage. As we have noted, “An agreement required to be in writing must

       completely contain the essential terms without resort to parol evidence in order

       to be enforceable.” Schuler, 862 N.E.2d at 713. The Agreement does contain

       the essential elements of a contract. The contents of the missing Exhibit A were

       not essential terms of this contract as Wife asserts. “The parol evidence rule

       prohibits courts from considering parol or extrinsic evidence for the purpose of

       varying or adding to the terms of a written contract.” Millner v. Mumby, 599

       N.E.2d 627, 629 (Ind. Ct. App. 1992). “The prohibition against the use of parol

       evidence is by no means complete; in fact, parol evidence may be considered as

       long as it has not been offered to vary the terms of the written contract.” Id.

       For example, “parol evidence may be admitted to supply an omission in the

       terms of the contract.” Malo v. Gilman, 379 N.E.2d 554, 557 (Ind. Ct. App.

       1978).




       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019         Page 17 of 21
[29]   Here, parol evidence should have been introduced with regard to the items

       listed on Wife’s Exhibit A. 4 The introduction of evidence with regard to what

       was included on Wife’s Exhibit A would not have contradicted the terms of the

       agreement, but merely would have provided specific determination of Wife’s

       premarital property at the time the Agreement was executed. See Malo, 379

       N.E.2d at 558 (finding that “parol evidence of a maximum cost limitation may

       be introduced where the contract fails to contain such a limitation”). Similarly

       here, parol evidence is admissible to determine what property Wife owned prior

       to the marriage and would have listed in her Exhibit A. Wife is not denied her

       excluded property; instead, it is a question of fact as to what property Wife is

       entitled to as excluded property, which Wife may show using parol evidence.

       Whether Exhibit A actually existed does not change the terms of the contract.

       Parol evidence should have been allowed to determine what, if any, property

       Wife owned prior to the marriage.




       4
         Importantly, Wife was asked if she could recall what she included in her Exhibit A, to which she
       responded, “I don’t recall what I put on that list.” Tr. Vol. III p. 15. Ultimately, Wife would have to
       identify evidence of the property she owned prior to the marriage pursuant to Indiana Code Section 31-
       15-7-4, which states:
             (a) In an action for dissolution of marriage under IC 31-15-2-2, the court shall divide the
             property of the parties, whether:
               (1) owned by either spouse before the marriage;
               (2) acquired by either spouse in his or her own right:
                        (A) after the marriage; and
                      (B) before final separation of the parties; or
               (3) acquired by their joint efforts.



       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019                                    Page 18 of 21
                                             III.     Unconscionability

[30]   Finally, Husband argues that the Agreement complies with Indiana’s Uniform

       Premarital Agreement Act (“UPAA”) pursuant to Indiana Code Chapter 31-11-

       3, and is, accordingly, not unconscionable. At the beginning, we note that we

       are not entirely certain that the trial court found the agreement was

       unconscionable. The trial court’s order concludes, “It would be unconscionable

       for the Court to enforce the Antenuptial Agreement in Husband’s sole favor,

       while denying Wife her express bargain – that Wife’s Exhibit ‘A’ List of

       Excluded Property would be protected in the event of divorce or death.”

       Appellant’s App. Vol. II p. 25. The trial court apparently used the term

       “unconscionable” to describe the potential result, and not the Agreement itself.


[31]   Regardless, we agree with Husband that the Agreement is not unconscionable.

       Generally, “[a] premarital agreement is not enforceable if a party against whom

       enforcement is sought proves that: (1) the party did not execute the agreement

       voluntarily; or (2) the agreement was unconscionable when the agreement was

       executed.” I.C. § 31-11-3-8(a). The court decides whether a premarital

       agreement is unconscionable as a matter of law. I.C. § 31-11-3-8(c). Our

       Supreme Court has given context to the unconscionability definition,

       concluding that an 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 one that
               no sensible person, not under delusion, duress or distress would



       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019           Page 19 of 21
               accept. The doctrine of unconscionability necessarily looks to
               the time of execution.”


       Rider v. Rider, 669 N.E.2d 160, 162 (Ind. 1996) (quoting Justus v. Justus, 581

       N.E.2d 1265, 1272 (Ind. Ct. App. 1991)).


[32]   Here, Husband was the one who wanted the Agreement to be executed, and

       Husband’s attorney was the drafter of the Agreement. Wife, however, also had

       an attorney review the Agreement. The parties appear to agree that, if Exhibit

       A was attached, there would be no disagreement regarding the terms of the

       Agreement. At the hearing, Wife was asked if she would argue the Agreement

       should not be enforced if her Exhibit A was attached. Wife responded, “I

       probably wouldn’t, I think that that [sic] document would make much more

       since [sic] as to what it says within the wording.” Tr. Vol. III p. 19. In other

       words, the only reason for unconscionability would be the exclusion of Exhibit

       A. Wife is in the best position to identify the assets she owned prior to the

       marriage. We fail to understand Wife’s contention that she cannot recall what

       property she owned prior to the marriage.


[33]   The lack of an Exhibit A does not make the Agreement unconscionable. Even

       if the trial court believed the Agreement was unfair because Wife would receive

       less, this does not make the Agreement unconscionable. See Rider, 669 N.E.2d

       at 164 (concluding that, even in the case where “enforcement of this contract

       eventually may force [Wife] to sell her home, [it] cannot find enforcement of

       this antenuptial agreement to be unconscionable,” and that the case “does not

       involve a situation where, following divorce, one spouse is left with
       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019         Page 20 of 21
       considerable assets while the other spouse is left virtually penniless, with no

       means of support”). Accordingly, to the extent the trial court found that the

       agreement was unconscionable, the trial court erred.


                                                   Conclusion

[34]   The trial court erred in concluding there was not an enforceable prenuptial

       agreement between the parties. We reverse and remand.


[35]   Reversed and remanded.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 18A-DN-1616 | May 28, 2019         Page 21 of 21
