                                                                      Feb 11 2015, 8:53 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Nicole A. Zelin                                           Michael C. Cooley
      Pritzke & Davis, LLP.                                     Dawn E. Wellman
      Greenfield, Indiana                                       Allen Wellman McNew Harvey, LLP
                                                                Greenfield, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In re the Marriage of:                                    February 11, 2015
                                                                Court of Appeals Case No.
      Michael O. Hall                                           30A01-1407-DR-311
                                                                Appeal from the Hancock Circuit
      Appellant-Respondent,
                                                                Court
                                                                The Honorable Richard D. Culver,
              v.                                                Judge
                                                                Case No. 30C01-1311-DR-1994
      Susan M. Hall,
      Appellee-Petitioner




      Crone, Judge.


                                              Case Summary
[1]   Michael O. Hall (“Husband”) appeals the trial court’s division of property upon

      the dissolution of his marriage to Susan M. Hall (“Wife”). Specifically,

      Husband challenges the trial court’s conclusion that a written agreement

      between the parties providing for certain property rights in the event of the

      Court of Appeals of Indiana | Opinion 30A01-1407-DR-311 | February 11, 2015            Page 1 of 11
      dissolution of the marriage constitutes a valid and enforceable reconciliation

      agreement. Finding no clear error, we affirm.


                                  Facts and Procedural History
[2]   The evidence favorable to the trial court’s judgment indicates that Husband and

      Wife married on March 2, 2004. Approximately eight months later, Husband

      became incarcerated. In December 2004, Wife sought the advice of counsel to

      pursue the dissolution of the marriage. Wife informed Husband that she

      intended to dissolve the marriage due to his untruthfulness regarding his

      finances and criminal history, and also because of the parties’ separation.

      Husband did not want the marriage to be dissolved. Wife was adamant about

      dissolving the marriage and conveyed this to Husband. Husband told Wife that

      he would do anything to make her more comfortable with him. It was

      Husband’s idea that the parties could make an agreement that would give Wife

      financial protection in the event of a future divorce. Wife agreed to no longer

      pursue a dissolution of marriage in exchange for such an agreement.


[3]   Wife asked her counsel to draft the type of agreement that Husband and Wife

      had discussed. When counsel was unresponsive for several months, Wife

      decided that she would need to draft the agreement herself. Before doing so,

      however, Wife had numerous discussions with Husband about each party’s

      assets and the type of information that would be included in the agreement.

      Thereafter, Wife drafted a document titled “Postnuptial Agreement” (“the

      Agreement”), dated April 3, 2005, wherein the parties agreed to a distribution

      of real and personal property in the event of dissolution. The Agreement
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      provided that the parties “agree to keep separate any properties or assets that

      either party brought to the marriage or incur during the marriage in separate

      name and/or separate business or farm names.” Appellant’s App. at 37. The

      Agreement stated that “[b]oth parties agree to keep properties and assets

      separate and lay no claim to the other[’]s property or assets in the event of

      divorce or separation or legal action against the individuals….” Id. Further,

      “[b]oth parties agree to be jointly responsible for those properties and assets

      acquired under joint names of ownership from this time forward.” Id. The

      Agreement provided an itemized list of the assets held by each party on the date

      of the Agreement.


[4]   Wife mailed the Agreement to Husband for his review and signature. Husband

      reviewed the Agreement and signed it before a notary public in the Department

      of Correction on April 6, 2005. After signing the Agreement, Husband mailed

      it back to Wife. Wife signed the Agreement after receiving it from Husband.

      After the Agreement was executed, Wife no longer pursued the dissolution of

      the parties’ marriage.


[5]   While Husband remained incarcerated, Wife assisted him with his financial

      affairs, retained his personal belongings at her residence, and continued to visit

      him in the Department of Correction. Husband was released from

      incarceration in June 2006 and returned to live with Wife. The parties resided

      together as a married couple from the date of Husband’s release until they

      separated on October 23, 2013. Throughout that time, the parties abided by the

      terms of the Agreement by keeping their respective real and personal property

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      separate and treating any properties placed in both parties’ names as a joint

      responsibility and obligation.


[6]   Wife filed a petition for dissolution of marriage on November 5, 2013. The

      parties participated in mediation until February 2014, when Wife filed a motion

      to enforce the Agreement. Id. at 9. Following an evidentiary hearing, the trial

      court entered its findings of fact, conclusions thereon, and judgment

      determining that the Agreement was a valid and enforceable reconciliation

      agreement “made in contemplation of and in exchange for reconciling the

      parties’ marriage.” Id. at 49. Specifically, the trial court concluded in relevant

      part,

              28. The facts establish that the parties herein were sufficiently
              separated and [Wife] was sufficiently furthering her rights to terminate
              the marriage, such that the extension of marriage as a result of the
              execution of the reconciliation agreement is sufficient and adequate
              consideration to make the agreement binding.


              29. Sufficient mutual intent exists and is evidenced by the parties
              operating their respective businesses and real and personal property
              interests in accordance with the terms of the reconciliation agreement
              for numerous years following the document[’]s execution.


              30. In furtherance of public policy of this State, the amicable
              settlement by written agreement of the property rights of those citizens
              whose marriage is being dissolved should be strictly enforced to the full
              extent of the agreement; therefore, the [Agreement] in this case should
              be strictly enforced and neither party shall claim a right or interest in
              the other parties[sic] assets which are titled or deeded in his or her
              name, solely.


      Id. at 48-49 (internal citation omitted).
      Court of Appeals of Indiana | Opinion 30A01-1407-DR-311 | February 11, 2015      Page 4 of 11
[7]   Husband filed a motion to certify the order for interlocutory appeal, which was

      denied by the trial court. A final dissolution hearing was held on June 16,

      2014, and a decree of dissolution was entered on June 24, 2014. Among other

      things, the dissolution decree provided for the division of property in

      accordance with the Agreement. This appeal ensued.


                                      Discussion and Decision
[8]   Husband asserts that the trial court erred in concluding that the Agreement is a

      valid and enforceable reconciliation agreement. In making its decision, the trial

      court entered findings of fact and conclusions thereon pursuant to Indiana Trial

      Rule 52(A). Our two-tiered standard of review is well settled:

              [F]irst we determine whether the evidence supports the findings, and
              second, whether the findings support the judgment. In deference to
              the trial court’s proximity to the issues, we disturb the judgment only
              where there is no evidence supporting the findings or the findings fail
              to support the judgment. We do not reweigh the evidence, but
              consider only the evidence favorable to the trial court’s judgment.
              Those appealing the trial court’s judgment must establish that the
              findings are clearly erroneous. Findings are clearly erroneous when a
              review of the record leaves us firmly convinced that a mistake has been
              made. We do not defer to conclusions of law, however, and evaluate
              them de novo.


      Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1076 (Ind. Ct. App. 2011) (citations

      omitted), trans. denied.


[9]   Other panels of this Court have recognized that “public policy favors the

      amicable settlement by written agreement of the property rights of citizens

      whose marriage is being dissolved.” Gaskell v. Gaskell, 900 N.E.2d 13, 17 (Ind.

      Court of Appeals of Indiana | Opinion 30A01-1407-DR-311 | February 11, 2015   Page 5 of 11
       Ct. App. 2009) (citing Flansburg v. Flansburg, 581 N.E.2d 430, 433 (Ind. Ct.

       App. 1991), trans. denied (1992)). It has long been held that antenuptial

       agreements are valid and binding “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[,]” In re Marriage of Boren, 475

       N.E.2d 690, 693 (Ind. 1985), and we have concluded that the same should

       apply to reconciliation agreements made between parties in order to preserve

       the marriage. Flansburg, 581 N.E.2d at 436. As Husband challenges the

       validity of the Agreement here on several grounds, we will address each

       challenge in turn.


              Section 1 – The Agreement was supported by adequate
                                 consideration.
[10]   Husband first argues that the Agreement is not a valid reconciliation agreement

       because it lacked adequate consideration. We have stated that “the extension

       of a marriage that would have otherwise been dissolved but for the execution of

       an agreement to reconcile has been deemed adequate consideration” to support

       a reconciliation agreement. Id. at 434.


[11]   Both Husband and Wife testified that, although Wife had sought counsel and

       was adamant about pursuing the dissolution of the parties’ marriage, she

       decided not to pursue the dissolution only after and because the parties

       executed the Agreement. Indeed, the evidence indicates that the Agreement

       was originally Husband’s idea and that both parties fully intended and accepted

       that the purpose of the Agreement was to preserve a marriage that otherwise

       Court of Appeals of Indiana | Opinion 30A01-1407-DR-311 | February 11, 2015   Page 6 of 11
       would be dissolved. The parties remained married for an additional eight years

       after execution of the Agreement and abided by the terms of the Agreement

       during that time. This evidence supports the trial court’s findings and

       conclusion that the Agreement constituted a reconciliation agreement

       supported by adequate consideration.


[12]   Husband maintains that “[a]t no time did the parties, in any legal sense,

       separate or move to dissolve the marriage,” and therefore the record does not

       support a conclusion that the marriage would have been dissolved but for the

       Agreement. Appellant’s Br. at 8. Husband points to language used by this

       Court in our prior opinions and argues that a valid reconciliation agreement

       may only be made between parties who have legally “separated or filed for

       dissolution.” See Gaskell, 900 N.E.2d at 17 (quoting Flansburg, 581 N.E.2d at

       436). Husband claims that Wife’s mere contemplation of dissolving the

       marriage was not sufficient.


[13]   We acknowledge the language used in Gaskell and Flansburg and recognize that,

       most often, the initiation of dissolution proceedings will in fact precede the

       execution of a reconciliation agreement as it did in those cases. Nevertheless,

       we disagree with Husband that such is a condition precedent to a valid and

       enforceable reconciliation agreement. The proper inquiry is whether the

       agreement was executed in order to preserve and extend a marriage that

       otherwise would have been dissolved but for the execution of the agreement, see

       Flansburg, 581 N.E.2d at 434, regardless of whether formal separation has

       already occurred or legal proceedings initiated. Based upon the evidence

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       referenced above, the trial court concluded that “the parties herein were

       sufficiently separated” and Wife was “sufficiently furthering her rights to

       terminate the marriage, such that the extension of marriage as a result of the

       execution of the [Agreement] is sufficient and adequate consideration to make

       the agreement binding.” Appellant’s App. at 49. This conclusion is supported

       by the trial court’s findings of fact and, under the circumstances presented,

       Husband has not convinced us that a mistake has been made.


       Section 2 – Husband was not under duress when he signed the
                              Agreement.
[14]   Husband next asserts that the Agreement is unenforceable because he signed

       the document under duress. On this issue, the trial court specifically found that

       “[n]either party was under duress or undue influence prior to or during the

       signing” of the Agreement. Id. at 47. Husband maintains that he was under

       duress because he was incarcerated, without access to legal counsel, and

       because Wife threatened to divorce him if he did not sign the Agreement.


[15]   “‘In order to avoid a contract on the basis of duress, there must be an actual or

       threatened violence [or] restraint of a man’s person contrary to law, to compel

       him to enter into a contract or discharge one.’” Youngblood v. Jefferson Cnty. Div.

       of Family & Children, 838 N.E.2d 1164, 1170 (Ind. Ct. App. 2005) (quoting

       Carrasco v. Grubb, 824 N.E.2d 705, 711 (Ind. Ct. App. 2005), trans. denied), trans.

       denied (2006). “In deciding whether a person signed a document under duress,

       ‘the ultimate fact to be determined is whether or not the purported victim was

       deprived of the free exercise of his own will.’” Id. (quoting Raymundo v.

       Court of Appeals of Indiana | Opinion 30A01-1407-DR-311 | February 11, 2015   Page 8 of 11
       Hammond Clinic Ass’n, 449 N.E.2d 276, 283 (Ind. 1983)). There is no evidence

       in the record that Husband was deprived of the free exercise of his own will

       regarding the execution of the Agreement. Husband’s reliance on the mere fact

       of his incarceration as clear evidence of duress is unpersuasive. Husband’s

       further argument that he was under duress because Wife was threatening to

       divorce him if he did not sign the Agreement is similarly unpersuasive and begs

       the question of the entire purpose of any reconciliation agreement. The trial

       court’s finding on this issue is not clearly erroneous.


                      Section 3 – A meeting of the minds occurred.
[16]   Husband maintains that the Agreement is unenforceable because, although

       both parties signed the document, Wife’s signature was neither notarized nor

       dated, and therefore there is insufficient evidence that a “meeting of the minds”

       occurred. “A meeting of the minds of the contracting parties, having the same

       intent, is essential to the formation of a contract.” Zimmerman v. McColley, 826

       N.E.2d 71, 77 (Ind. Ct. App. 2005). The intent of the parties to a contract is a

       factual matter to be determined from all the circumstances. Id. Husband

       directs us to no authority, because there is none, that a notarized and dated

       signature is required to effectuate a meeting of the minds of the contracting

       parties. Significantly, the trial court made numerous findings of fact regarding

       the authenticity of the parties’ signatures and their mutual intent in contracting,

       and Husband makes no argument that any of those findings are unsupported by

       the evidence. Husband essentially requests us to reweigh the evidence in his

       favor, which we may not do. We find no error.

       Court of Appeals of Indiana | Opinion 30A01-1407-DR-311 | February 11, 2015   Page 9 of 11
        Section 4 – The trial court did not abuse its discretion when it
                          admitted parole evidence.
[17]   Finally, Husband contends that the trial court abused its discretion when,

       during the hearing on Wife’s motion to enforce the Agreement, it admitted

       parole evidence regarding Wife’s “intent behind the creation of the

       [Agreement].” Appellant’s Br. at 10. We disagree.


[18]   We review the admission or exclusion of evidence only for an abuse of

       discretion. Reed v. Bethel, 2 N.E.3d 98, 107 (Ind. Ct. App. 2014). It is well

       settled that parole evidence “may be considered if it is not being offered to vary

       the terms of the written contract[.]” Goodrich Quality Theaters, Inc. v. Fostcorp

       Heating & Cooling, Inc., 16 N.E.3d 426, 439 (Ind. Ct. App. 2014) (citation

       omitted). Among other reasons, parole evidence may be considered to “show

       the nature of the consideration supporting a contract” and “to shed light upon

       the circumstances under which the parties entered into the written contract.”

       Id. Our review of the record reveals that these are precisely the reasons that the

       trial court admitted Wife’s testimony and her testimony was in no way offered

       to vary the terms of the Agreement. The trial court did not abuse its discretion

       in admitting Wife’s testimony.


                                                  Conclusion
[19]   In sum, the trial court’s conclusion that the Agreement is a valid and

       enforceable reconciliation agreement is not clearly erroneous. Therefore, the




       Court of Appeals of Indiana | Opinion 30A01-1407-DR-311 | February 11, 2015   Page 10 of 11
       trial court did not err in distributing the marital estate in accordance with the

       Agreement. As our supreme court has eloquently observed,

               The truth is, it is exceedingly difficult to imagine why, in any case
               where there is no fraud, courts should displace the judgment of
               contracting parties and substitute their own. No persons in the world
               can so well and so justly judge as the contracting parties themselves,
               and it is only in the strongest and clearest cases that courts should
               disregard their judgment, and never where there is neither positive
               wrong nor fraud.


       Boren, 475 N.E.2d at 694. We affirm the decision of the trial court.


[20]   Affirmed.


       Friedlander, J., and Kirsch, J., concur.




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