      MEMORANDUM DECISION
                                                                      Sep 09 2015, 9:03 am
      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 establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Mark A. Dabrowski                                        David Rosselot
      Dabrowski Law Office                                     Rosselot Law Office
      Kokomo, Indiana                                          Kokomo, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      John Lind,                                               September 9, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               34A02-1412-DR-827
              v.                                               Appeal from the Howard Superior
                                                               Court

      Nancy Lind,                                              The Honorable Brant J. Parry, Judge
      Appellee-Respondent.
                                                               Cause No. 34D02-1205-DR-493




      Najam, Judge.


                                         Statement of the Case
[1]   John Lind (“Husband”) appeals the trial court’s November 6, 2014, order that

      purported to clarify its June 28, 2013, decree of dissolution. Husband raises a

      single issue for our review, namely, whether the trial court’s November 6, 2014,



      Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015   Page 1 of 11
      order was an impermissible modification of the decree of dissolution. We hold

      that it was and, as such, we reverse the court’s November 6, 2014, order.


                                   Facts and Procedural History1
[2]   On June 28, 2013, the trial court entered its decree of dissolution, which

      dissolved Husband’s marriage to Nancy Lind (“Wife”). Among other things,

      the trial court found and concluded as follows:


               5.  The parties own real estate located at 3803 Albright Rd.,
               Kokomo, IN.

               6.    [Husband] is hereby awarded this property as his sole and
               separate property.

               7.     Pursuant to appraisal, the Court finds that[,] at separation,
               the property had a value of $90,500.00.

               8.    There is a mortgage on the property, and[,] at the time of
               separation, the amount due and owing on this obligation was
               $78,642.51.

               9.     [Husband] is ordered to attempt to have [Wife’s] name removed
               from the debt through a refinance [of] the home or an assumption [of] the
               mortgage within 180 days. The interest rate must be at the
               prevailing rate at the time or at a rate comparable to the current
               mortgage’s interest rate.




      1
        Wife’s attorney has filed an Appellee’s Appendix that is forty-four pages long, excluding only the
      verification of accuracy and certificate of service page. Despite Appellate Rule 50(A)(3)’s clear instruction
      that an Appellee’s Appendix “shall not contain any materials already contained” in the Appellant’s
      Appendix, Wife’s Appendix is in fact entirely duplicative of the first forty-four pages of Husband’s Appendix.
      We trust that Wife’s attorney did not charge Wife or anyone else for the preparation and submission of her
      completely unnecessary Appendix.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015            Page 2 of 11
      Appellant’s App. at 12 (emphasis added). The court then concluded that an

      equal division of the marital estate between the parties was just and reasonable.

      Neither party appealed the decree of dissolution. About six months prior to the

      court’s entry of the dissolution decree, Husband had lost his employment at

      Delphi Corporation in Kokomo. The trial court was aware of Husband’s

      employment status when it entered the decree of dissolution.


[3]   Following the decree of dissolution, on at least four occasions Husband

      attempted to refinance or assume the mortgage on the martial real property.

      However, he was unable to do so because of his insufficient income. On

      February 17, 2014, Wife filed an affidavit of contempt against Husband in

      relevant part because he had not yet been able to have her name removed from

      the mortgage on the marital real property.


[4]   Thereafter, the trial court held an evidentiary hearing on the Wife’s contempt

      request. Following that hearing, the court entered its “Order Clarifying Decree

      of Dissolution” (“the November 6, 2014, order”), which provided:

              After hearing evidence concerning the refinance of the martial
              real estate, the Court did not find [Husband] in contempt.
              However, the Court took the matter under advisement regarding
              modifying or clarifying the Decree as to the debt on the property.
              Being duly advised, the Court now FINDS and Orders as
              follows:

                                                     ***



      Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015   Page 3 of 11
        4.     [Husband] has attempted to refinance or assume the
        mortgage[] but has been denied by four (4) different banking
        institutions. Each of the denials has indicated that the reason for
        the denial is insufficient income for the amount of credit
        requested.

                                               ***

        6.    A court may retain jurisdiction to interpret the terms of its
        decree and decide questions pertaining to the enforcement of the
        Decree. Fackler v. Powell, 839 N.E.2d 165, 169 (Ind. 2005).

        7.    With the Decree of Dissolution, the Court’s intent was to
        award [Husband] 100% of the equity in the real estate while at
        the same time removing [Wife’s] name and obligation from the
        debt on the real estate.

        8.      The Court now orders [Husband] to refinance or assume the
        mortgage and have [Wife’s] name removed from the debt within the next
        180 days. If [Husband] is unable to refinance or assume the mortgage in
        that time period, [Husband] is ordered to list the home for sale.
        [Husband] may list the home with a realtor of his choosing.
        [Husband] shall list the property at a price commensurate with
        comparable home sales in the area, after consultation with the
        realtor. Upon the sale [of] the home, [Husband] shall retain
        100% of the proceeds as indicated in the Decree.

        9.      The Court finds this order is a clarification of the court’s
        intent stated in the Decree. This order does not award more or
        less property to either party. It has no effect on the division of
        property. It does not schedule a new obligation or indebtedness.
        Rather, this order speaks to an existing obligation of [Husband]:
        to remove [Wife’s] name from the debt associated with the real
        estate.




Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015   Page 4 of 11
      Id. at 43-44 (emphasis added). The court stayed the November 6, 2014, order,

      and this appeal ensued.


                                     Discussion and Decision
[5]   Husband contends that the November 6, 2014, order is an impermissible

      modification of the decree of dissolution. As our supreme court has explained:

              This law starts with direction given to us by the Legislature:

                      The disposition of property settled by an agreement
                      [in writing between the parties to a marriage
                      dissolution providing for the disposition of any
                      property owned by either or both of them] and
                      incorporated and merged into the decree is not
                      subject to subsequent modification by the court,
                      except as the agreement prescribes or the parties
                      subsequently consent.

              Ind. Code § 31-15-2-17(c) (2008).

              In fact, the Legislature has prohibited the revocation or
              modification of all court orders concerning property disposition,
              not only those (like the one at issue in this case) entered by
              agreement of the parties:

                      The orders concerning property disposition entered
                      under this chapter [of the Indiana Code governing
                      the disposition of property and maintenance] (or IC
                      31-1-11.5-9 before its repeal) may not be revoked or
                      modified, except in case of fraud.

              I.C. § 31-15-7-9.1(a).




      Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015   Page 5 of 11
        Our decisions have made clear that the statutory proscription on
        revocation and modification of property-distribution agreements
        is “unambiguous.” Voigt v. Voigt, 670 N.E.2d 1271, 1278 (Ind.
        1996).

        Our most recent opinion enunciating this principle was Johnson v.
        Johnson, where Chief Justice Shepard, writing for a unanimous
        court, flatly stated that the statutes set forth above require that
        “property distribution settlements approved as part of a
        dissolution may be modified only where both parties consent or
        where there is fraud, undue influence, or duress.” 920 N.E.2d
        253, 258 (Ind. 2010) (citations omitted).

        Another unanimous opinion written by Chief Justice Shepard
        emphasized that the statutory no-modification rule is grounded
        in contract law:

                An agreement for division of property is economic
                in nature—an ordinary contract. See Bowman v.
                Bowman, 567 N.E.2d 828 (Ind. Ct. App.1991). . . .
                As with other contracts, a division of property may
                only be modified according to the terms of the
                agreement, if the parties’ [sic] consent, or if fraud or
                duress occurs. [I.C.] §§ 31-15-2-17(c), -7-9.1.

        Snow v. England, 862 N.E.2d 664, 668 (Ind. 2007).

                                               ***

        That a court has no authority to modify a property-settlement
        agreement, I.C. § 31-15-2-17(c) (or, for that matter, a property-
        division order, I.C. § 31-15-7-9.1(a)), does not mean that a court
        has no authority to resolve a dispute over the interpretation of a
        settlement agreement or property-division order.

        This is a significant gloss to the analysis set forth . . . supra, for
        one party’s assertion that the other is seeking an impermissible
Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015   Page 6 of 11
        modification is frequently met with the contention that only
        clarification of an agreement or order is sought. . . .

                                               ***

        When a party asks a court to clarify a settlement agreement, the
        court’s task is one of contract interpretation. This is because
        settlement agreements are contractual in nature and binding if
        approved by the trial court. Myers v. Myers, 560 N.E.2d 39, 42, 44
        (Ind. 1990); accord Snow, 862 N.E.2d at 668; Voigt, 670 N.E.2d at
        1278. As such, a settlement agreement is “interpreted according
        to the general rules for contract construction.” Bailey v. Mann,
        895 N.E.2d 1215, 1217 (Ind. 2008) (citations omitted).

                                               ***

        [T]here is a plethora of Court of Appeals authority providing that
        general rules applicable to construction of contracts govern
        construction of marriage-settlement agreements. This principle
        was enunciated by our colleagues as early as Higgins v. St. Joseph
        Loan & Trust Co. of South Bend, 98 Ind. App. 674, 677, 186 N.E.
        910, 912 (1933) (en banc), trans. denied, and has been regularly
        deployed in recent years. One frequently quoted passage
        provides:

                When interpreting these agreements, we apply the
                general rules applicable to the construction of
                contracts. That is, unless the terms of the contract
                are ambiguous, they will be given their plain and
                ordinary meaning. Clear and unambiguous terms
                in the contract are deemed conclusive, and when
                they are present we will not construe the contract or
                look to extrinsic evidence[] but will merely apply
                the contractual provisions.

        Shorter v. Shorter, 851 N.E.2d 378, 383 (Ind. Ct. App. 2006)
        (internal citations omitted).
Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015   Page 7 of 11
      Ryan v. Ryan, 972 N.E.2d 359, 361-64 (Ind. 2012) (footnotes omitted)

      (alterations and some omissions original).


[6]   Here, Husband contends that the trial court’s November 6, 2014, order is an

      impermissible modification of the decree of dissolution. Wife responds that the

      November 6, 2014, order merely clarified the terms of the decree. As this

      dispute requires us to interpret the decree of dissolution, our standard of review

      is de novo. See id. at 363-64; see, e.g., Bd. of Comm’rs of Cnty. of Jefferson v. Teton

      Corp., 30 N.E.3d 711, 713 (Ind. 2015).


[7]   In Ryan, our supreme court addressed whether a trial court order issued

      subsequent to the parties’ settlement agreement was a modification or a

      clarification of that agreement. The parties’ original agreement required them

      to sell two properties they owned and to divide the proceeds, “subject to a

      proviso that neither party was required to accept a sale yielding net proceeds

      below specified minimums.” Ryan, 972 N.E.2d at 360. Thereafter, the 2008

      recession occurred and the properties could not be sold at or above the specified

      minimums. As such, the husband moved the trial court to order the properties

      to be sold at the prevailing fair market value. The trial court denied the motion

      and, on appeal, our supreme court affirmed.


[8]   In rejecting the husband’s argument that his motion was merely a request to

      clarify the parties’ original agreement, our supreme court concluded that there

      was “no ambiguity in the language of the parties’ agreement that would permit


      Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015   Page 8 of 11
       us to conclude as a matter of contract law that [the wife] is bound to agree to

       sales prices for the properties . . . less than those stated in the agreement.” Id. at

       364-65. The court added that the husband’s motion, “in point of fact, . . . d[id]

       seek modification” of the original agreement. Id. at 365.


[9]    Ryan controls the outcome in the instant appeal. Here, again, the decree of

       dissolution imposed, in relevant part, the following obligation on Husband with

       respect to the marital real property: “[Husband] is ordered to attempt to have

       [Wife’s] name removed from the debt through a refinance [of] the home or an

       assumption [of] the mortgage within 180 days.” Appellant’s App. at 12. That

       language is unambiguous. Indeed, in the November 6, 2014, order, the court

       found that Husband had fully complied with that obligation when he

       “attempted to refinance or assume the mortgage[] but has been denied by four

       (4) different banking institutions.” Id. at 43.


[10]   Despite finding that Husband had complied with the unambiguous obligation

       imposed on him in the decree of dissolution, the court nonetheless imposed two

       new obligations on Husband in its November 6, 2014, order. First, the court

       ordered Husband to “refinance or assume the mortgage and have [Wife’s] name

       removed from the debt within the next 180 days.” Id. at 44. Again, in the

       original decree, the court had ordered Husband to “attempt” to refinance or

       assume the mortgage, which he did. Id. at 12. In the subsequent, November 6,

       2014, order, however, the court simply ordered Husband to refinance or assume

       the mortgage. That was a new obligation. Ryan, 972 N.E.2d at 361-64.



       Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015   Page 9 of 11
[11]   In addition, the court ordered Husband to “list the home for sale” if he was

       “unable to refinance or assume the mortgage in that time period.” Appellant’s

       App. at 44. That also was a wholly new obligation on Husband and was a clear

       modification of the original decree. Neither of the new obligations is

       permissible. Ryan, 972 N.E.2d at 361-64.


[12]   Wife’s argument on appeal in support of the November 6, 2014, order is not

       entirely clear. As near as we can tell, she asserts that the trial court believed

       that the November 6, 2014, order merely clarified the decree of dissolution and

       that we should defer to the trial court’s assessment. But this argument ignores

       our supreme court’s clear explanation in Ryan that a decree of dissolution is in

       the nature of a contract. Id. at 361-62 (quoting I.C. § 31-15-2-17(c)). And this

       court employs de novo review in the interpretation of contracts. See, e.g., Teton

       Corp., 30 N.E.3d at 713. Accordingly, Wife’s argument on appeal must fail.


[13]   Finally, we note that Wife did not appeal the decree of dissolution, and neither

       she nor the trial court suggested that the November 6, 2014, order was

       necessary to resolve an ambiguity between the Husband’s obligations in the

       decree and the decree’s distribution of the marital assets and liabilities. As

       such, that potential issue is not before us.


[14]   We hold that the November 6, 2014, order impermissibly modified the decree

       of dissolution. While the new obligations contained in the November 6, 2014,

       order might well have been appropriate had they been part of the original




       Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015   Page 10 of 11
       decree of dissolution, they cannot stand as subsequent modifications of that

       decree. As such, the November 6, 2014, order is reversed.


[15]   Reversed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1412-DR-827 | September 9, 2015   Page 11 of 11
