                                                                                  FILED
                                                                             Sep 21 2018, 5:22 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT
      John T. Young
      Young and Young
      Franklin, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Tamara Jean (Swindle) Copple,                             September 21, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                41A01-1710-DR-2471
              v.                                                Appeal from the Johnson Superior
                                                                Court
      Huel Dwayne Swindle,                                      The Honorable Eugene Stewart,
      Appellee-Plaintiff                                        Senior Judge
                                                                Trial Court Cause No.
                                                                41D02-0607-DR-271



      May, Judge.


[1]   Tamara Jean (Swindle) Copple (“Mother”) appeals the trial court’s

      modification of the settlement agreement between her and her ex-husband,

      Huel Dwayne Swindle (“Father”). Mother argues the trial court lacked the

      authority to modify the terms of the settlement agreement. We reverse and

      remand.



      Court of Appeals of Indiana | Opinion 41A01-1710-DR-2471 | September 21, 2018                   Page 1 of 13
                             Facts and Procedural History
[2]   When Mother and Father divorced on September 5, 2008, Mother was granted

      custody of the two minor children born of their marriage. The decree of

      dissolution incorporated a settlement agreement in which the parties agreed:


              7. That the husband shall be solely responsible for the payments
              on the parties marital residence including taxes and insurance
              until such time as the house is paid off. This payment, coupled
              with the obligation on the 2006 Impala shall be in lieu of child
              support and be part of the distribution of property. That this
              arrangement has been in effect for the past two years and has
              worked and these payments shall constitute and Domestic
              [Support Order for] purposes of the federal bankruptcy Act.


      (App. Vol. 2 at 12) (errors in original). 1


[3]   In early 2017, the younger child, then 22 years old, married, and Father

      stopped making the payments on the marital residence. On March 2, 2017,

      Mother filed a “Motion for Rule to Show Cause” alleging Father had failed to

      make the February mortgage payment. (Id. at 14.) The trial court scheduled

      the matter for hearing. On March 16, 2017, Father filed a petition for

      modification alleging the marital residence payments constituted child support

      and the minor children were both “emancipated as a matter of law.” (Id. at 17.)

      Father argued his obligation should therefore be terminated.




      1
        The trial court included this same paragraph as a finding, which is where we found the “Support Order for”
      language that we included here. (See App. Vol. 2 at 11.)

      Court of Appeals of Indiana | Opinion 41A01-1710-DR-2471 | September 21, 2018                   Page 2 of 13
[4]   On June 5, 2017, the trial court held a hearing. On October 5, 2017, the trial

      court issued its order, noting the property settlement agreement did not

      “establish a child support amount[.]” (Id. at 9.) The trial court found this

      failure made the agreement ambiguous, and then the court found unenforceable

      the clause ordering Father to make the payments “until such time as the house

      is paid off.” (Id.) Therefore, the trial court terminated Father’s obligation to

      make such payments as of the date of Father’s petition for modification.



                                   Discussion and Decision                               2




                                   Modification of Settlement Agreement

[5]   Mother appeals the trial court’s modification of Father’s monthly payment. 3

      Typically, we review trial court decisions about child support modification for

      clear error. See Bogner v. Bogner, 29 N.E.3d 733, 738 n.2 (Ind. 2015) (clarifying




      2
       Father did not file a brief. When an appellee does not submit a brief, we do not undertake the burden of
      developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Instead
      we apply a less stringent standard of review and may reverse if the appellant establishes prima facie error. Id.
      Prima facie error is “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van Wieren,
      858 N.E.2d 216, 221 (Ind. Ct. App. 2006).
      3
        Mother argues alternative theories as to how the trial court erred when it modified the property settlement
      agreement. Mother asserts either: 1) the order to pay the mortgage was not child support but rather an
      agreement as to property distribution and therefore not subject to modification without agreement of the
      parties or a showing of fraud, duress, or undue influence; 2) if the order to pay the mortgage was child
      support, the trial court was not required to conclude those payments stopped due to the emancipation of the
      children—just because the trial court would not have ordered such payments, the parties were free to make
      such an agreement; or 3) if the payments are not part of the property division or child support, they must be
      classified as disability maintenance and therefore, because Mother is still disabled, the trial court erred in
      modifying the agreement. Overall, however, Mother maintains the language as to the duration of the
      payments, regardless of the category in which the payments belong, is unequivocally “until said time as the
      house is paid off.” (App. Vol. 2 at 12.)

      Court of Appeals of Indiana | Opinion 41A01-1710-DR-2471 | September 21, 2018                       Page 3 of 13
      the proper standard on review for support modifications is clear error). When

      the trial court sua sponte makes findings of fact and conclusions of law, we must

      determine whether the evidence supports the findings and whether the findings

      support the judgement. Speaker v. Speaker, 759 N.E.2d 1174, 1179 (Ind. Ct.

      App. 2001). The judgment will be reversed only when clearly erroneous. Id. A

      finding is clearly erroneous only if the record contains no facts to support it

      either directly or by inference, and a judgment is clearly erroneous if it applies

      the wrong legal standard to properly found facts. Yanoff v. Muncy, 688 N.E.2d

      1259, 1262 (Ind. 1997). However, in this case the court’s decision was

      controlled by its interpretation of the settlement agreement reached by the

      parties.


[6]   We interpret settlement agreements under a de novo standard. Shorter v. Shorter,

      851 N.E.2d 378, 383 (Ind. Ct. App. 2006). Settlement agreements are

      contractual in nature and binding on the parties once “the dissolution court

      merges and incorporates that agreement into the divorce decree.” Id.

      Therefore, the rules governing contracts are applicable when we interpret the

      terms of the agreement. Id. If the terms are clear and unambiguous, those

      terms “are deemed conclusive.” Id.


[7]   Here, the settlement agreement, which was incorporated into the divorce

      decree, states Father was “solely responsible for the payments on the parties

      [sic] marital residence including taxes and insurance until such time as the

      house is paid off.” (App. Vol. 2 at 12.) The trial court’s order misstated the

      decree when it found the decree made “no indication as to [Father’s] child

      Court of Appeals of Indiana | Opinion 41A01-1710-DR-2471 | September 21, 2018   Page 4 of 13
support obligation, only that his paying the debt on the marital residence and

the 2006 Chevy Impala ‘shall be in lieu of child support.’” (Id. at 9.) The

decree actually indicated the residence payments and the payments on the

vehicle were to “be in lieu of child support and be part of the distribution of

property.” 4 (Id. at 12) (emphasis added). Therefore, the trial court’s finding

that the debt obligation equated to child support was in error. That debt

obligation was both child support and property distribution. 5




4
 We note the order also indicated “these payments shall constitute [a] Domestic [ Support Order for]
purposes of the federal bankruptcy Act.” (App. Vol. 2 at 12.) Federal law provides:
         The term “domestic support obligation” means a debt that accrues before, on, or after the date of the
         order for relief in a case under this title . . ., that is--
         (A) owed to or recoverable by--
                  (i) a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian, or
                  responsible relative; . . .
         (B) in the nature of alimony, maintenance, or support (including assistance provided by a
         governmental unit) of such spouse, former spouse, or child of the debtor or such child’s parent,
         without regard to whether such debt is expressly so designated;
         (C) established or subject to establishment before, on, or after the date of the order for relief in a case
         under this title, by reason of applicable provisions of--
                  (i) a separation agreement, divorce decree, or property settlement agreement;
                  (ii) an order of a court of record; or
                  (iii) a determination made in accordance with applicable nonbankruptcy law by a
                  governmental unit; and
         (D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the
         spouse, former spouse, child of the debtor, or such child's parent, legal guardian, or responsible
         relative for the purpose of collecting the debt.
11 U.S.C.A. § 101. Further, domestic support orders are excepted from discharge under Section 523(a)(5) of
the Bankruptcy Code. However, none of these facts clarify the classification of this award as child support,
property distribution, or spousal maintenance.
5
 While we are too far downstream from this order to undo what has been done, we note that trial courts
ought not enter orders that conflate child support and property distribution because it creates confusion of
exactly the type with which we are dealing herein. See Jenkins v. Jenkins, 567 N.E.2d 136, 140 (Ind. Ct. App.

Court of Appeals of Indiana | Opinion 41A01-1710-DR-2471 | September 21, 2018                          Page 5 of 13
[8]   Indiana courts have encouraged divorcing couples to resolve their disputes in

      their own fashion by entering into settlement agreements. Dewbrew v. Dewbrew,

      849 N.E.2d 636, 642 (Ind. Ct. App. 2006). As to property division, those

      agreements are not subject to court modification unless the agreement allows

      for modification, the parties agree to modification, or a court finds the

      agreement was procured using fraud, duress, or undue influence. See Ind. Code

      § 31-15-2-17 (parties may agree to property settlement but once that agreement

      is “incorporated and merged into the decree[, it] is not subject to subsequent

      modification by the court, except as the agreement prescribes or the parties

      subsequently consent”); see also Dillard v. Dillard, 889 N.E.2d 28, 33 (Ind. Ct.

      App. 2008) (an incorporated property settlement agreement may not be

      modified by the court unless the party requesting modification proves fraud,

      duress, or undue influence). However, the principles of freedom of contract

      that govern property settlements do not apply to child support and child

      custody because of the “overriding policy concern [to] protect[] the welfare and

      interests of children.” Voigt v. Voigt, 670 N.E.2d 1271, 1278 n.10 (Ind. 1996).


[9]   Thus, while Father’s obligation to pay child support is modifiable by statute,

      any payment pursuant to property distribution is not. See Kraft, 868 N.E.2d at

      1188 (child support agreed to in a settlement agreement is modifiable by

      statute); see also I.C. § 31-15-2-17 (property divisions pursuant to a settlement




      1991) (conflating child support with other marital debits is confusing and “[h]olding child support distinct
      from other accounts protects the child’s right to receive support”).

      Court of Appeals of Indiana | Opinion 41A01-1710-DR-2471 | September 21, 2018                      Page 6 of 13
       agreement are only modifiable in certain circumstances). Therefore, in order to

       decide whether the trial court erred when it modified the payment terms, we

       must decide whether the payments constitute child support or property

       distribution.


[10]   Because the decree conflated the payment of the mortgage as child support and

       as a property division, the categorization of the payment is ambiguous. When

       determining the correct interpretation of an ambiguous term in a settlement

       agreement, one of the factors we consider is whether the award was given as

       quid pro quo; if so, it is more likely property division than child support.

       Thompson v. Thompson, 550 N.E.2d 1332, 1337 (Ind. Ct. App. 1990). Other

       factors include the title of the property in question and the parties’ intent when

       they made the agreement. Id.


[11]   In Thompson, the trial court’s decree incorporated a settlement agreement

       wherein the control of the marital residence was given to the father because he

       had custody of the children. Id. at 1334. The decree specifically stated both

       parties would legally remain joint tenants with rights of survivorship. Id. In a

       later order, after custody had changed to the mother, the control and use of the

       marital residence was given to mother until “July 15 of the year in which the

       youngest child graduates from high school[.]” Id. at 1335. Once the youngest

       child graduated, the parties were ordered to sell the real estate and split the

       proceeds equally. Id.




       Court of Appeals of Indiana | Opinion 41A01-1710-DR-2471 | September 21, 2018   Page 7 of 13
[12]   We held the decree’s order regarding control of the marital residence

       represented child support with a later property division. Id. at 1337. The

       control of the residence was not, in itself, a division of property. Id. We also

       held that, although the decree was ambiguous because it could be interpreted

       multiple ways, the trial court’s interpretation was supported by “several

       factors.” Id. Namely, the title to the property was to remain in both parents’

       “names as joint tenants with rights of survivorship.” Id. Additionally, “there

       was no quid pro quo exchanged for the award or control[.]” Id. Due to the

       ambiguity, we held the trial court had rightfully considered extrinsic evidence to

       determine the parties’ intent when they made the original agreement. Id. In the

       original agreement, the mother had not received anything in return for ceding

       control of the marital residence to father and stated she had made the

       agreement because she had not wanted to disrupt the children’s environment.

       Id. Therefore, the trial court’s interpretation regarding control over the marital

       residence was not in error as such control was child support and modifiable. Id.


[13]   In Voigt, our Indiana Supreme Court reviewed a modification of a settlement

       agreement. While recognizing a trial court is constrained on the awards it can

       order, the Court noted parties are not so limited. Voigt, 670 N.E.2d at 1277.

       The Court said a trial judge may never know the reasons behind the agreement.

       Id. at 1278. Such ignorance, though, does not mean the agreement is without

       consideration or that it was procured through falsity. Id. Therefore, our

       Indiana Supreme Court “think[s] it best that courts tread lightly when

       evaluating settlement agreements.” Id.

       Court of Appeals of Indiana | Opinion 41A01-1710-DR-2471 | September 21, 2018   Page 8 of 13
[14]   Although the nature of the payments Father was to make herein – child support

       or property distribution – is ambiguous, the duration of the payment was

       unequivocal. Father agreed to make the payments on the marital residence

       “until such time as the house is paid off.” (App. Vol. 2 at 12.) The decree was

       entered on September 5, 2008. At that time, the children were 18 and 14 years

       old. The mortgage payoff on the house, at the time of the dissolution, was

       $146,000. (Tr. at 34.) As of March 16, 2017, the maturity date of the mortgage

       was July 1, 2036. (See Ex. Vol. Petitioner’s Ex. 1 at 3) (mortgage statement

       listing monthly payment amount and maturity date of loan).


[15]   Father testified he agreed to make the marital residence payments because he

       “didn’t want [his] children having to pick up and be moved somewhere else.”

       (Tr. at 7.) He stated he only made the agreement because he thought the decree

       “could be modified later on.” (Id. at 9.) However, nothing in the agreement

       lends itself to this interpretation. Mother was given the marital residence.

       Father was ordered to quitclaim his interest in that property to Mother. Father

       was ordered to make the payments on the marital residence and on the 2006

       Impala. Nowhere in the agreement is modification mentioned. Under no

       reasonable scenario, with regular monthly payments, would the marital

       residence have been paid off before the children were emancipated. Therefore,

       it is only reasonable to infer Father had an alternative motivation to agree to

       pay off the mortgage. It is unnecessary for us to know why he made the

       agreement. See Voigt, 670 N.E.2d at 1278 (our ignorance about why an




       Court of Appeals of Indiana | Opinion 41A01-1710-DR-2471 | September 21, 2018   Page 9 of 13
       agreement was entered does not mean the agreement was without

       consideration).


[16]   We decline to disrupt the agreement made by the parties and ratified by the trial

       court that granted the divorce. The amount to be paid by Father for the marital

       residence was ascertainable at the time the agreement was made in 2008, i.e.,

       the full amount of the mortgage loan. An ascertainable amount is properly

       treated as property to be divided. Sedwick v. Sedwick, 446 N.E.2d 8, 10 (Ind. Ct.

       App. 1983). Therefore, payments Father was ordered to make on the marital

       residence are an agreement on property division and not child support and,

       thus, not modifiable without a showing of fraud, duress, or undue influence.

       Compare Dillard, 889 N.E.2d at 33 (an incorporated property settlement

       agreement may not be modified by the court unless the party requesting

       modification proves fraud, duress, or undue influence), and I.C. § 31-15-2-17

       (property divisions pursuant to a settlement agreement are only modifiable in

       certain circumstances), with Kraft, 868 N.E.2d at 1188 (child support agreed to

       in a settlement agreement is modifiable by statute). Father did not allege, and

       no evidence was produced to prove, Mother had fraudulently procured the

       agreement, placed Father under duress, or used undue influence.

       Consequently, the trial court erred when it modified the decree and terminated

       Father’s obligation to pay the marital residence debt.


                                                     Contempt

[17]   Mother also requests we reverse the trial court’s failure to find Father in

       contempt. Whether a party is in contempt of court is a matter within the trial
       Court of Appeals of Indiana | Opinion 41A01-1710-DR-2471 | September 21, 2018   Page 10 of 13
       court’s discretion, and its decision will be reversed only for an abuse of that

       discretion. Norris v. Pethe, 833 N.E.2d 1024, 1029 (Ind. Ct. App. 2005). A court

       abuses its discretion when its decision is against the logic and effect of the facts

       and circumstances before the court or is contrary to law. Mitchell v. Mitchell, 871

       N.E.2d 390, 394 (Ind. Ct. App. 2007). When reviewing a contempt

       determination, we will not reweigh evidence or judge witness credibility. Id.

       We will affirm unless, after a review of the entire record, we have a firm and

       definite belief the trial court made a mistake. Id.


[18]   Mother alleged Father was in contempt for failing to make payments on the

       marital residence as ordered in the dissolution decree. Father admitted he quit

       making the payments. Indiana Code section 31-15-7-10 provides, in relevant

       part, “Notwithstanding any other law, all orders and awards contained in a

       dissolution of marriage decree . . . may be enforced by [] contempt[.]” As

       Father failed to follow the order in the decree to make payments on the marital

       residence, the trial court had the authority to find Father in contempt. See

       Mitchell, 871 N.E.2d at 396 (finding of contempt is proper when a party fails to

       comply with the dissolution decree). Because we reverse herein the trial court’s

       determination that those payments were child support and subject to

       modification, we invite the trial court to reconsider on remand its determination

       that Father was not in contempt by failing to make the payments required by

       his property settlement agreement.




       Court of Appeals of Indiana | Opinion 41A01-1710-DR-2471 | September 21, 2018   Page 11 of 13
                                            Appellate Attorney Fees

[19]   Mother requests we award appellate attorney fees. She argues we should award

       appellate attorney fees because of the disparity between her income and

       Father’s income and because of Father’s contempt.


[20]   Indiana Appellate Rule 66(E) allows us to “assess damages if an appeal,

       petition, or motion, or response, is frivolous or in bad faith.” Such an award

       may include appellate attorney fees but is left to our discretion. Id. However,

       we “use extreme restraint when exercising” that power due to “the potential

       chilling effect upon the exercise of the right to appeal.” Trost-Steffen v. Steffen,

       772 N.E.2d 500, 514 (Ind. Ct. App. 2002), reh’g denied, trans. denied. As Father

       took no action before us, we cannot hold he acted in such a manner as to justify

       payment of Mother’s attorney fees under Appellate Rule 66.


[21]   However, Indiana Code section 31-15-10-1(a) authorizes a trial court to award

       reasonable appellate attorney fees. See also Townsend v. Townsend, 20 N.E.3d

       877, 881 (Ind. Ct. App. 2014) (section 31-15-10-1(a) allows a trial court to

       award appellate attorney fees in dissolution proceedings), trans. denied.

       Jurisdiction over this award rests with the trial court. Goodman v. Goodman, 754

       N.E.2d 595, 603 (Ind. Ct. App. 2001), reh’g denied. Therefore, we remand the

       matter of appellate attorney fees to the trial court.



                                                Conclusion


       Court of Appeals of Indiana | Opinion 41A01-1710-DR-2471 | September 21, 2018   Page 12 of 13
[22]   The trial court erred when it modified the settlement agreement because the

       record suggests the mortgage payment was more akin to property distribution

       and, thus, could not be modified without agreement of the parties or proof of

       fraud in the making of the agreement. We reverse and remand for the trial

       court to revise its order in accordance with this opinion, to reconsider Mother’s

       motion for rule to show cause in light of our holding as to the settlement

       agreement, and to determine whether an award for appellate attorney fees is

       proper.


[23]   Reversed and remanded.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 41A01-1710-DR-2471 | September 21, 2018   Page 13 of 13
