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                        Mar 21 2014, 6:59 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                             ATTORNEY FOR APPELLEE:

R. CORDELL FUNK                                     APRIL L. BOARD
R. Cordell Funk, LLC                                Crown Point, Indiana
Crown Point, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

BARBARA LOOMIS,                                     )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )       No. 45A03-1307-DR-252
                                                    )
JAMES LOOMIS,                                       )
                                                    )
       Appellee-Respondent.                         )


                         APPEAL FROM THE LAKE CIRCUIT COURT
                          The Honorable George C. Paras, Special Judge
                                Cause No. 45C01-1209-DR-737



                                          March 21, 2014


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                   CASE SUMMARY

       Appellant-Petitioner Barbara Loomis (“Wife”) and Appellee-Respondent James

Loomis (“Husband”) divorced in August of 1989. They are the parents of two adult sons,

A.L. and N.L. On July 18, 2008, Husband and Wife entered into a mediation settlement

agreement (the “Agreement”). Pursuant to the terms of the Agreement, Husband agreed to

pay $18,000.00, to be divided equally between A.L. and N.L., and Wife agreed to dismiss

any remaining claims against Husband relating to child support. The Agreement further

stated that Husband would pay $1,000.00 at the time the parties entered into the Agreement

and the remaining $17,000.00 within ninety days of the date that the parties entered into the

Agreement. However, the parties subsequently acknowledged that Husband would not be

able to pay the remaining $17,000.00 within ninety days and agreed to an extension.

       On December 15, 2009, Wife filed a motion seeking a determination that Husband

breached the Agreement by failing to satisfy his financial obligation as proscribed by the

Agreement. As a result of the alleged breach, Wife requested that Husband be ordered to pay

interest, damages, and fees. Alternatively, Wife requested that the trial court order Husband

to comply with the terms of the Agreement. On February 23, 2013, the trial court conducted

an evidentiary hearing on Wife’s motion. During this hearing, Husband presented evidence

demonstrating that he had satisfied the Agreement by paying the entire $18,000.00 to the

parties’ sons as proscribed by the terms of the Agreement. Following the conclusion of the

evidentiary hearing, the trial court found that Husband had not breached the Agreement. The

trial court also denied Wife’s request for interest, damages, and fees.



                                              2
       On appeal, Wife challenges the trial court’s determination that Husband did not breach

the Agreement. Wife also challenges the trial court’s denial of her request for interest,

damages, and fees. On cross appeal, Husband requests appellate attorney’s fees. Finding no

error by the trial court and concluding that Husband is not entitled to an award of appellate

attorney’s fees, we affirm.

                       FACTS AND PROCEDURAL HISTORY

       Husband and Wife divorced on August 28, 1989. Loomis v. Loomis, 45A03-0607-

CV-300 *1 (Ind. Ct. App. April 24, 2007). They are the parents of two adult sons, A.L. and

N.L. Id. In the years following their divorce, Husband and Wife have been engaged in

various disputes relating to parenting time and Husband’s child support obligations.

       On July 18, 2008, Husband and Wife entered into the Agreement. Pursuant to the

terms of the Agreement, Husband agreed to pay $18,000.00, to be divided equally between

A.L. and N.L. A portion of the sum due to A.L. was to be applied to the remaining balance

on A.L.’s student loan. In exchange for Husband agreeing to pay $18,000.00 to the parties’

sons, Wife agreed to dismiss any remaining claims against Husband relating to the parties’

divorce or child support. The Agreement further stated that Husband would pay $1,000.00 at

the time the parties entered into the Agreement and the remaining $17,000.00 within ninety

days of the date that the parties entered into the Agreement. Husband paid the $1,000.00

pursuant to the terms of the Agreement. However, the parties subsequently acknowledged

that Husband would not be able to pay the remaining $17,000.00 within ninety days and

agreed to an extension. The extension provided that Husband would pay the remaining



                                             3
$17,000.00 when his now-wife received a financial settlement to which she was entitled from

her ex-husband.

       On December 15, 2009, Wife filed a motion seeking a determination that Husband

breached the Agreement by failing to pay the remaining $17,000.00 as proscribed by the

Agreement. As a result of Husband’s alleged breach, Wife requested interest, damages, and

fees. Alternatively, Wife requested that the trial court order Husband to comply with the

terms of the Agreement. On February 23, 2013, the trial court conducted an evidentiary

hearing on Wife’s motion. During this hearing, Husband presented evidence demonstrating

that he had satisfied the terms of the Agreement by paying the entire $18,000.00 to the

parties’ sons as proscribed by the terms of the Agreement. Following the conclusion of the

evidentiary hearing, the trial court found that Husband had not breached the Agreement. The

trial court also denied Wife’s request for interest, damages, and fees. This appeal follows.

                            DISCUSSION AND DECISION

       On appeal, Wife contends that the trial court erroneously determined that Husband did

not breach the Agreement. Wife also contends that even if the trial court correctly

determined that Husband did not breach the Agreement, the trial court erroneously denied her

request for interest, damages, and fees. For his part, Husband contends that the trial court

correctly determined that he did not breach the Agreement and denied Wife’s request for

interest, damages, and fees. Husband also asserts a request for appellate attorney’s fees.

                                 I. Standard of Review

       When resolving disputes concerning child support and related issues, parties are free



                                             4
to negotiate their own settlement agreements. See generally Deel v. Deel, 909 N.E.2d 1028,

1032-33 (Ind. Ct. App. 2009) (providing that parties are free to negotiate their own divorce

settlements). In fact, Indiana courts strongly favor settlement agreements. Sands v. Helen

HCI, LLC, 945 N.E.2d 176, 180 (Ind. Ct. App. 2011) (citing Georgos v. Jackson, 790 N.E.2d

448, 453 (Ind. 2003)). Once the parties reach a settlement agreement, the settlement

agreement becomes a binding contract and is interpreted according to the general rules of

contract construction. Deel, 909 N.E.2d at 1032 (citing Bailey v. Mann, 895 N.E.2d 1215,

1217 (Ind. 2008)). The interpretation and construction of contract provisions is a function

for the courts. Id. (citing Stenger v. LLC Corp., 819 N.E.2d 480, 484 (Ind. Ct. App .2004),

trans. denied). “Interpretation of a settlement agreement, as with any other contract, presents

a question of law and is reviewed de novo.” Id. at 1033 (citing Bailey, 895 N.E.2d at 1217).

       Further, where, as here, the trial court issues findings of fact and conclusions thereon,

“we apply the following two-tiered standard of review: whether the evidence supports the

findings, and whether the findings support the judgment. Fowler v. Perry, 830 N.E.2d 97,

102 (Ind. Ct. App. 2005).

       The trial court’s findings and conclusions will be set aside only if they are
       clearly erroneous, i.e., when the record contains no facts or inferences
       supporting them. [Learman v. Auto Owners Ins. Co., 769 N.E.2d 1171, 1174
       (Ind. Ct. App. 2002), trans. denied]. A judgment is clearly erroneous when a
       review of the record leaves us with a firm conviction that a mistake has been
       made. Id. We neither reweigh the evidence nor assess the credibility of
       witnesses, but consider only the evidence most favorable to the judgment.
       Clark v. Crowe, 778 N.E.2d 835, 839-40 (Ind. Ct. App. 2002).

Id.

                    II. Husband’s Alleged Breach of the Agreement


                                               5
       Again, Wife contends that the trial court erroneously determined that Husband did not

breach the Agreement. In raising this contention, Wife claims that a number of the findings

made by the trial court are not supported by the record. We will address each in turn.

                                   A. Finding Number 6

       Wife claims that Finding Number 6 is not supported by the evidence. Finding

Number 6 provides as follows:

       The evidence and circumstances were clear that, although there were time
       frames set forth in the mediated agreement, time was not of the essence for the
       payments contemplated therein.

Appellant’s Br. Appendix A. In challenging this finding, Wife argues that the trial court

misinterpreted the clear intent of the parties by ignoring the timeline set forth in the

Agreement for Husband’s satisfaction of his financial obligation under the Agreement.

However, our review of the record clearly demonstrates that the trial court did not

misinterpret the parties’ intent or err in determining that time was not of the essence for the

payments contemplated by the Agreement.

       The Agreement stated that Husband was to pay the remaining $17,000.00 to the

parties’ sons within ninety days of the date that the parties entered into the Agreement.

However, the record demonstrates that the parties soon thereafter agreed that the ninety-day

deadline would be extended until the time in which Husband’s now-wife received a financial

settlement from her ex-husband. Wife acknowledged this extension in her December 15,

2009 request for sanctions, alternatively, or to enforce the Agreement. In addition, it is

important to note that at the time the parties agreed to the extension, it was not known exactly


                                               6
when Husband’s now-wife would receive the above-mentioned settlement. As such, we

conclude that the fact that the parties were willing to delay satisfaction of Husband’s

financial obligation under the Agreement until some future unknown time creates an

inference which supports the trial court’s determination that the parties did not intend for

time to be of the essence.

                                    B. Finding Number 8

          Wife also claims that Finding Number 8 is not supported by the evidence. Finding

Number 8 provides as follows:

          In December 2009, [Husband] borrowed money from his father to pay towards
          the amount owed under the mediated agreement; the amount he borrowed and
          deposited into his attorney’s trust account was $11,989.26. This amount was
          supposed to be the $17,000 less the balance due on the parties’ son’s student
          loan.

Appellant’s Br. Appendix A. In challenging Finding Number 8, Wife does not challenge the

portion of the finding which states that $11,989.26 was placed in Husband’s attorney’s trust

fund account or that the $11,989.26 represented the $17,000 less the balance due on A.L.’s

student loan. Wife only challenges the trial court’s determination that Husband borrowed

this money from his father. However, we note, and Wife concedes, that how Husband

funded the $11,989.26 is irrelevant to a determination regarding whether Husband breached

the Agreement. In any event, our review of the record reveals that the trial court’s finding

regarding the source of the $11,989.26 is supported by a statement contained in Husband’s

submissions to the trial court which indicates that Husband borrowed the $11,989.26 from his

father.



                                               7
                                       C. Finding Number 10

        Wife claims that Finding Number 10 is not supported by the evidence. Finding

Number 10 provides as follows:

        In December 2009, the parties disagreed as to whether [Husband’s] direct
        payment of the student loan, in installment payments, and paying the balance
        of the $17,000 in a lump sum complied with the agreement.

Appellant’s Br. Appendix A. Upon review, it is clear that this finding is supported by the

record which clearly demonstrates that the parties disagreed as to whether Husband’s act of

making direct payments on the student loan separate from the lump sum of $11,989.26

complied with the terms of the Agreement.

                                       D. Finding Number 15

        Wife also claims that Finding Number 15 is not supported by the evidence. Finding

Number 15 provides as follows:

        The $11,989.26 was held in [Husband’s] attorney’s trust account until
        November 2012 when the Court approved the release of the funds to the
        parties’ sons. The sons received those funds at that time.

Appellant’s Br. Appendix A. In challenging this finding, Wife argues that the finding is

misleading because the trial court issued the order releasing the funds to the parties’ sons at

her request. The record reveals that the trial court issued an order on November 6, 2012, in

which it ordered that the $11,989.26 should be released to the parties’ sons. As such, the trial

court’s finding is not misleading, and we conclude that Finding Number 15 is clearly

supported by the record.1


        1
           We note that it is irrelevant that the trial court’s November 6, 2012 order was issued following a
request from Wife that the funds be turned over the parties’ sons.

                                                     8
                           E. Findings Numbers 19, 20, and 21

       Wife claims that Findings 19, 20, and 21 are not supported by the evidence. Findings

Numbers 19, 20, and 21 provide as follows:

       19. The evidence did not show that [Husband] intentionally breached the
       agreement. The evidence showed that [Husband] suffered unexpected
       financial difficulties, that he made a good faith effort to comply and that he did
       in fact substantially comply with the agreement.
       20. The Court finds that there was not a breach of the parties’ mediated
       agreement; therefore, [Wife] is not entitled to set aside the agreement,
       resurrect her prior claims or recover interest, penalties or attorney fees.
       21. The Court finds that [Husband] is now in full compliance with the
       mediated agreement.

Appellant’s Br. Appendix A (emphasis in original). We note that these findings represent the

trial court’s legal conclusions and we will review them as such.

       Upon review, we conclude that the conclusions of the trial court are supported by the

court’s findings. The findings, which again, we conclude are supported by the record,

demonstrate that the parties agreed to extend the time period in which Husband was to pay

the remaining $17,000.00 to the parties’ sons. Regardless of where Husband obtained the

necessary funds, he provided $11,989.26 to his attorney to satisfy his obligation minus the

money he paid toward A.L.’s student loan. A.L.’s student loan has been paid in full, and

Husband tendered an additional $1,160.68 to his attorney to satisfy the remaining money

owed to the parties’ sons. We agree with the trial court that Husband substantially complied

with the Agreement by paying the full amount provided for by the Agreement to the parties’

sons. Given Husband’s unexpected financial difficulties, we find it of little consequence that

Father paid this amount in multiple payments rather than the single lump sum that was



                                               9
contemplated by the Agreement.

       In addition, the trial court’s conclusion that Wife was not entitled to set aside the

agreement, resurrect her prior claims, or recover interest, penalties, or attorney’s fees is

supported by the findings. The findings demonstrate that Husband did not breach the

Agreement and that he is in full compliance with the terms of the Agreement. As such, there

is no basis to allow Wife to set aside the agreement or to resurrect her prior claims against

Husband. To allow her to do so would be contrary to the terms of the Agreement which she

sought to enforce. Likewise, we conclude that the trial court’s conclusion that Wife was not

entitled to recover interest, penalties, or attorney’s fees is not clearly erroneous as it

supported by the trial court’s findings.

           III. Wife’s Request for Interest, Damages, and Attorney’s Fees

       Wife additionally contends that even if the trial court properly determined that

Husband did not breach the Agreement, the trial court erred in rejecting her request for an

award of interest, damages, and attorney’s fees. Again, as is stated above, we determine that

the trial court’s conclusions in this regard are supported by the court’s findings. Wife does

not present any legal authority supporting this contention. Rather she claims that Husband

should have been ordered to pay her interest for his delay in satisfying his financial

obligation set forth in the Agreement, that Husband should have to reimburse her for

payments on the parties’ son’s student loan that she unilaterally decided to make even though

the Agreement provided that Husband would pay the balance of the loan and Husband was

indeed making payments on said loan, and that Husband should have to pay for her attorney’s



                                             10
fees. We disagree.

                                                A. Interest

        With regard to Wife’s request that Husband be ordered to pay her interest, we note

that the record demonstrates that the Agreement provided that the agreed upon sum was to be

paid directly to the parties’ adult sons. The Agreement did not provide for the payment of

any funds to Wife. Wife does not explain how she was affected by Husband’s delay in

satisfying his financial obligation under the terms of the Agreement or why she should be

entitled to recover any interest from Husband when she was not a financial beneficiary under

the terms of the agreement. As such, we conclude that the trial court did not err in denying

Wife’s request for interest.2

                                            B. Loan Payment

        With regard to Wife’s request that Husband be ordered to repay her for money she

paid toward A.L.’s student loan, we note that any payment by Wife resulted from the

unilateral decision by Wife to make said payment. Wife has referred to no legal authority

suggesting, and nothing in the Agreement indicates, that Husband should have to reimburse

Wife for this unilateral decision. The trial court heard evidence that Husband recognized that

he was responsible for paying the balance of the student loan and was making payments on

said loan. Wife claimed below that she was forced to pay $2,478.00 on A.L.’s student loan

to keep the loan from going into default. The trial court, acting as the trier of fact, was free


        2
           Wife alternatively argues that an award of interest could be paid to the parties’ sons. However, Wife
has failed to demonstrate that such an award is warranted in light of the parties’ agreed extension and the fact
that the funds were held in Husband’s attorney’s trust account for nearly three years after being paid by
Husband before the trial court issued its order permitting the funds to be distributed to the parties’ sons.

                                                      11
to believe or disbelieve Wife’s claim as it saw fit. See generally McClendon v. State, 671

N.E.2d 486, 488 (Ind. Ct. App. 1996) (providing that the trier of fact is free to believe or

disbelieve witnesses as it sees fit). Wife’s challenge on appeal effectively amounts to an

invitation for this court to reweigh the evidence, which we will not do. Fowler, 830 N.E.2d

at 102 (citing Clark, 778 N.E.2d at 839-40).

                                    C. Attorney’s Fees

       Having found in favor of Husband, the trial court determined that award of attorney’s

fees in favor of Wife is unwarranted. Finding no clear error in the trial court’s findings and

conclusions thereon, we agree with the trial court’s determination and conclude that an award

of attorney’s fees in Wife’s favor is unwarranted.

                 IV. Husband’s Request for Appellate Attorney’s Fees

       We next turn to Husband’s request for appellate attorney’s fees. In pertinent part,

Indiana Appellate Rule 66(E) provides that a court on review “may assess damages if an

appeal ... is frivolous or in bad faith. Damages shall be in the Court’s discretion and may

include attorney’s fees.” In Orr v. Turnco Mfg. Co., 512 N.E.2d 151, 152 (Ind. 1987), the

Indiana Supreme Court noted, that an appellate court “must use extreme restraint” in

exercising its discretionary power to award damages on appeal. “Hence, the discretion to

award attorney fees under App. R. 66(C) is limited to instances when an appeal is permeated

with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.”

Boczar v. Meridian St. Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001) (internal quotation




                                             12
omitted). Here, while we ultimately rule in Husband’s favor, we decline to award appellate

attorney’s fees as requested by Husband.

                                      CONCLUSION

       Finding no clear error in the trial court’s conclusions that Husband did not breach the

Agreement and Wife is not entitled to interest, damages, or attorney’s fees, and having

determined that Husband is not entitled to an award of appellate attorney’s fees, we affirm

the judgment of the trial court.

       The judgment of the trial court is affirmed.

MATHIAS, J., and PYLE, J., concur.




                                             13
