MEMORANDUM DECISION                                                             FILED
                                                                           Aug 09 2018, 8:49 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                    CLERK
                                                                            Indiana Supreme Court
precedent or cited before any court except for the                             Court of Appeals
                                                                                 and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Angela L. Freel                                           Kelly A. Lonnberg
Jackson Kelly, PLLC                                       Stoll Keenon Ogden, PLLC
Evansville, Indiana                                       Evansville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re the Marriage of:                                   August 9, 2018
                                                         Court of Appeals Cause No.
Jeffrey E. Nelson,                                       18A-DR-794
Appellant-Respondent,                                    Appeal from the Vanderburgh
                                                         Superior Court
        v.
                                                         The Honorable Leslie C. Shively,
                                                         Judge
Julie A. Nelson,                                         Trial Court Cause No. 82D01-1601-
Appellee-Petitioner.                                     DR-32




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-794 | August 9, 2018                       Page 1 of 11
                                STATEMENT OF THE CASE
[1]   Appellant- Respondent, Jeffrey Nelson (Husband), appeals the provisional

      order requiring the sale of the matrimonial home he jointly owns with Appellee-

      Petitioner, Julie Nelson (Wife).


[2]   We reverse.


                                                    ISSUE
[3]   Husband presents a single issue on appeal, which we restate as: Whether the

      trial court erred by ordering the sale of the parties’ matrimonial home through a

      provisional order.


                      FACTS AND PROCEDURAL HISTORY
[4]   On April 28, 2012, the parties married in Illinois. A day before their wedding,

      the parties executed a prenuptial agreement (Agreement). The parties

      respectively attached to the Agreement, Schedule A and Schedule B outlining

      Husband’s and Wife’s premarital assets and debts. In addition, the Agreement

      contained clauses stipulating that it is to be construed under Illinois law.


[5]   On January 8, 2016, Wife filed a Verified Petition for Dissolution of Marriage

      and a Verified Motion for Provisional Order, seeking spousal support and the

      preliminary award of attorney fees. On May 2, 2016, the trial court issued a

      Provisional Order maintaining the status quo, and that meant that parties were

      not allowed to sell jointly held property. The order required Husband to pay

      Wife’s rent; however, Wife was responsible for her utilities. Also, Husband was

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-794 | August 9, 2018   Page 2 of 11
      ordered to pay monthly support of $2,500 to Wife, as well as $2,000 to Wife’s

      attorney. Husband was granted temporary possession of the marital home

      located at 1000 Oak Trace Road, Evansville, Indiana, however, Husband was

      required to maintain the home and pay for all of its debts and expenses.


[6]   On October 3, 2017, Wife filed an Information for Contempt and Petition for

      Expert and Attorney Fees. Wife alleged that Husband should be found in

      contempt since he had “abandoned the home, left it in disrepair, damaged some

      of the personal property[,] and not maintained the home in selling condition.”

      (Appellant’s App. Vol. II, p. 66). Wife claimed that the Provisional Order

      required Husband to “permit a personal property appraisal,” but, “Husband

      [had] refused to allow certain items of personal property to be appraised.”

      (Appellant’s App. Vol. II, p. 67). Also, Wife argued that Husband had not paid

      the bi-annual property taxes and annual home insurance. Wife additionally

      alleged that Husband was “not residing primarily in the marital residence” and

      that the “residence should be listed for sale.” (Appellant’s App. Vol. II, p. 67).

      Finally, Wife requested the award of additional attorney fees and expert witness

      fees.


[7]   On January 2, 2018, the trial court conducted a hearing on Wife’s contempt

      petition. On January 29, 2018, the trial court issued a Supplemental

      Provisional Order directing Husband to pay all pending debts and taxes relating

      to the parties’ home no later than January 31, 2018. Also, Husband was

      ordered to pay additional attorney and expert witness fees, and the trial court

      noted that Husband was free to claim a partial set-off at the final hearing. The

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-794 | August 9, 2018   Page 3 of 11
      trial court denied Wife’s request to possess the marital residence. However, the

      trial court allowed Wife or her counsel to access the “house and take pictures”

      of personal property for appraisal purposes. (Appellant’s App. Vol. II, p. 79).

      Husband appealed that order, mainly challenging the award of attorney and

      expert fees in favor of Wife. In addition to filing his notice of appeal, Husband

      filed a motion to stay the Supplemental Provisional order due to his Notice of

      Appeal.


[8]   On February 26, 2018, the trial court conducted a hearing on Husband’s

      motion to stay the Supplemental Provisional Order pending his appeal. On

      March 26, 2018, the trial court granted stay on the payment of attorney and

      expert fees pending the resolution of Husband’s appeal on that issue. The trial

      court then ordered as follows:

              2. The parties are ordered to list the jointly owned real estate for sale
              with Carol McClintock of Tucker Realty or Janice Miller of ERA
              Realty effective immediately over . . . Husband’s objection.


              3. Any offers should be made to the realtor and then discussed
              between the parties, whether offers come from a party or third parties.


              4. Should the parties not agree to accept any offer received or agree on
              a counteroffer, the [trial court] will retain jurisdiction and hearing will
              be scheduled.


              5. Parties are ordered not to distribute any net sale proceeds and said
              monies shall be held in the trust account of Husband’s counsel.


              6. Final hearing set for April 4, 2018, is vacated and reset to August
              13, 2018, at 9:00 a.m., reserving two days.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-794 | August 9, 2018       Page 4 of 11
       (Appellant’s App. Vol. II, p. 15).


[9]    Husband now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[10]   A question which we must decide, and which has received considerable

       attention by both parties, concerns the law which should govern this dispute.

       Wife has taken the position that the substantive law of Illinois should apply,

       while Husband favors the application of Indiana procedural law.


[11]   The parties’ prenuptial agreement defined and delineated the parties premarital

       property and debts; determined how marital property is to be divided upon

       divorce; and stipulated the application of Illinois law on substantive issues.

       With that said, the following provisions are pertinent to this appeal:

               3. Assets and Liabilities as Separate Property. Each of the parties
               agree that all property, whether real or personal, belonging to the other
               party at the commencement of their marriage, and as outlined in
               Schedules A and B attached hereto, including, if applicable, any assets
               acquired by each of them in their separate names while living together
               outside the marital relationship or attributable to any appreciation in
               value of such property, whether such enhancement is due to market
               conditions or to the services, skills or efforts of either of the parties and
               all property hereafter acquired by the other party by either bequest,
               devise, gift or inheritance, and all property acquired in exchange for
               separate property, shall remain the separate property of the other party
               during their lifetime and after their death and in the event of a divorce,
               annulment, separation or dissolution subject to agreements herein
               contained, excluding any property acquired by either bequest, devise,
               gift or inheritance or otherwise addressed hereto.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-794 | August 9, 2018       Page 5 of 11
        Excluding any property, real or personal, acquired by either bequest,
        devise, gift or inheritance or otherwise addressed heretofore, the
        parties further agree that any property, assets, proceeds, jointly held
        accounts, furniture, furnishings shall be considered to be marital
        property. Marital property shall also include any property acquired
        before the marriage which is given to the spouse by retitling in the
        other spouse’s name or in the joint name of the parties with the right of
        survivorship during the period of marriage. Upon the divorce,
        annulment, separation or dissolution, then the property obtained
        during the course of marriage shall be divided equally between the
        parties, even in the event the property, proceeds, or assets acquired
        after the date of marriage are titled in only one parties’ name so long as
        the above described marital funds, assets, proceeds or income are
        utilized for the acquisition of the property.


        ***


        11. Construction. The terms and provisions of this Agreement shall
        be construed and interpreted in accordance with the law of the
        jurisdiction of the State of Illinois in such case made and provided,
        whether or not the parties continue to reside in the State of Illinois
        subsequent to their marriage.


        ***


        25. Illinois Law To Be Applied. In the event that at any time during
        the existence of the marital relation between the parties, they should be
        or become residents of a state under the laws of which Husband and
        Wife acquire property interests commonly known as community
        property or any other property and interests different from the property
        interests of Husband and Wife under the laws of the State of Illinois,
        their property interests shall nevertheless remain the same as they
        would have been under the terms of the of this Agreement construed in
        accordance with the laws of the State of Illinois . . . .


(Appellant’s App. Vol. II, pp, 56,58). In light of the above provisions, Husband

subsequently argues that
Court of Appeals of Indiana | Memorandum Decision 18A-DR-794 | August 9, 2018    Page 6 of 11
               [T]he fact the parties entered into a [p]renuptial Agreement with an
               Illinois choice of law provision does not impact or alter the fact the
               procedural law of Indiana controls in this case. Per statute, the parties
               may request and potentially receive, if appropriate, orders for
               temporary maintenance or support, temporary restraining orders,
               custody orders, and orders for the possession of property. The
               statutory provisions do not, however, provide for the sale of real estate
               during the provisional period. For that reason alone, the trial court’s
               order should be reversed.


       (Appellant’s Br. p. 8). In turn, Wife contends that the parties’ prenuptial

       agreement calls for the application of Illinois law on the disposition of marital

       assets. Wife then directs us to Section 501 (a)(3) of the Illinois Marriage and

       Dissolution of Marriage Act, which provides that temporary orders during

       divorce proceedings may include the “sale of assets.” Wife, therefore sustains

       that “Illinois substantive law allows for an order to sell real estate during the

       pendency of a divorce action,” and the trial court’s order requiring the parties to

       list their marital home for sale is not erroneous. (Appellees’ Br. p. 6).


[12]   Generally, Indiana courts will give effect to the parties’ agreement as to

       controlling law. JKL Components Corp. v. Insul-Reps, Inc., 596 N.E.2d 945, 950

       (Ind. Ct. App. 1992). A contract provision that an agreement is to be governed

       by the law of another state operates only as to the substantive law of that state,

       and the procedural law of the forum state applies to procedural issues. Simon

       Prop. Grp., L.P. v. Acton Enterprises, Inc., 827 N.E.2d 1235, 1237 (Ind. Ct. App.

       2005). Laws which fix duties, establish rights and responsibilities among and

       for persons, natural or otherwise, are substantive in character, while those

       which merely prescribe the manner in which such rights and responsibilities

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-794 | August 9, 2018   Page 7 of 11
       may be exercised and enforced in a court are procedural. JKL Components Corp.,

       596 N.E.2d at 950.


[13]   Husband argues that

               First, in reviewing the [Indiana] statutory provisions, one will note
               provisional orders are initiated by motion of the parties accompanied
               by a separate affidavit. A hearing is then required with an order to
               follow. Per the statute, the parties may not request the sale of real
               estate and/or obtain an order for the sale of real estate. They may
               merely request the possession of property. Moreover, the trial court
               may enter an order for the possession of property, but not an order for
               the sale of said property. All of which is consistent with the temporary
               nature of the orders, and the goal of maintaining the status quo while
               the dissolution of marriage action is pending.


               Herein, there was no motion for provisional relief pending before the
               trial court. The motion before the court was a request to stay
               enforcement of the Supplemental Provisional Order while [his] appeal
               was pending. The last motion filed by either party regarding the real
               estate was [Wife’s] . . . Information for Contempt. A hearing was
               conducted on the same, and no finding of contempt was issued.
               [Wife’s] . . . request for immediate possession of the marital residence
               was denied, and there was no order issued for the sale of any real
               estate. For whatever reason, at the hearing on [Husband’s] motion to
               stay, the trial court on its own motion, and over the objection of
               [Husband], ordered the parties’ jointly owned real estate be
               immediately listed for sale. The trial court’s order was clearly outside
               the statutory authority, and the trial court should be reversed.


       (Appellant’s Br. pp. 11-12).


[14]   To the extent that Husband refers to the arguments proffered at the hearing on

       his motion to stay the Supplemental Provisional Order, we observe that

       Husband failed to provide that transcript. Although a failure to include a

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-794 | August 9, 2018   Page 8 of 11
       transcript is “not fatal to the appeal, failure to include a transcript works a

       waiver of any specifications of error which depend upon the evidence.” Lifeline

       Youth & Family Servs., Inc., v. Installed Bldg. Products, Inc., 996 N.E.2d 808, 814

       (Ind. Ct. App. 2013) (quoting In re Walker, 665 N.E.2d 586, 588 (Ind. 1996)).

       Husband has chosen to rest his appeal on the “appendices and supplement

       appendix filed by the parties along with the legal arguments raised” in his

       appellate brief. (Appellant’s Reply Br. p. 5). Husband’s arguments on appeal

       are centered on the interpretation and scope of Indiana Code section 31-15-4-8

       governing provisional orders during dissolution proceedings.


[15]   We review the construction of statutes de novo, giving no deference to the trial

       court’s interpretation because the interpretation of a statute is a question of law.

       Kaser v. Barker, 811 N.E.2d 930, 932 (Ind. Ct. App. 2004), trans. denied.

       Appellate courts independently review the statute’s meaning and apply it to the

       facts of the case under review. Id. We may not construe a statute in a manner

       that would impair the function the legislature intended it to possess. Id. Our

       goal is to ascertain the intent of the legislature by giving effect to the language

       that was used. Id. If the language of a statute is clear and unambiguous, it is

       not subject to judicial interpretation. Id. We must not interpret one provision

       of a statute so as to render other provisions of the same meaningless. Id.


[16]   In our view, Indiana Code section 31-15-4-8, is a procedural statute, therefore,

       we conclude that this controversy must be governed by the law of the forum

       state, i.e.,. Indiana. See Homer v. Guzulaitis, 567 N.E.2d 153, 156 (Ind. Ct. App.

       1991). Because this controversy may be resolved by procedural law without

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-794 | August 9, 2018   Page 9 of 11
       resort to substantive law, the contractual provision regarding Illinois choice of

       law does not govern this dispute, and we apply Indiana law. See Ashley v. State,

       757 N.E.2d 1037, 1040 (Ind. Ct. App. 2001) (noting that procedural and

       remedial matters are governed by law of forum state).


[17]   Applying Indiana law in this appeal, we first note Indiana Code section 31-15-

       4-1(a) provides that either party to a dissolution action or legal separation

       action may file a motion for temporary relief. Such motions must be

       accompanied by an affidavit setting forth the facts supporting the motion. I.C.

       § 31-15-4-2. A trial court is required to set such motions for hearing, and must

       hold the hearing and rule on the petition within twenty-one days after the

       petition is filed. I.C. § 31-15-4-4; -6. “The determination of temporary orders

       in a dissolution proceeding is committed to the sound discretion of the trial

       court, and it may issue orders for temporary maintenance or support, temporary

       restraining orders, custody orders, [or] orders for possession of property to the

       extent it deems just and proper.” Id. (citing I.C. § 31-15-4-8). The provisional

       order “is designed to maintain the status quo of the parties.” Mosley v. Mosley,

       906 N.E.2d 928, 929 (Ind. Ct. App. 2009) (quoting Bertholet v. Bertholet, 725

       N.E.2d 487, 498 (Ind. Ct. App. 2000)). “A provisional order is temporary in

       nature and terminates when the final dissolution decree is entered or the

       petition for dissolution is dismissed.” Id. at 930 (citing Ind. Code § 31-15-4-14).


[18]   We agree with Husband that there was no motion for provisional relief pending

       before the trial court. The motion before the trial court was a request to stay

       enforcement of the Supplemental Provisional Order pending Husband’s appeal.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-794 | August 9, 2018   Page 10 of 11
       Moreover, Indiana Code section 31-15-4-8 provides the scope of a provisional

       orders—i.e., temporary maintenance or support, temporary restraining orders,

       custody orders, or orders for possession of property. There is no provision

       under Indiana Code section 31-15-4-8 authorizing the sale of martial assets

       while divorce proceedings are ongoing. Based on our interpretation of the

       relevant statutory provisions, we conclude that the trial court’s order instructing

       the parties to list their matrimonial home for sale during divorce proceedings is

       erroneous, therefore, we reverse that order.


                                             CONCLUSION
[19]   In light of the foregoing, we conclude that the trial court erred by ordering the

       sale of the matrimonial home while the parties’ divorce is pending.


[20]   Reversed.


[21]   May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-794 | August 9, 2018   Page 11 of 11
