                                                                   FILED
                                                              Mar 09 2017, 10:12 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Stephen P. Rothberg                                      Cynthia Hogan
      Fort Wayne, Indiana                                      Fort Wayne, Indiana

                                                               Roberta L. Renbarger
                                                               Fort Wayne, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Fazia Deen-Bacchus,                                      March 9, 2017
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               02A04-1608-DR-1867
              v.                                               Appeal from the Allen Superior
                                                               Court
      Harold M. Bacchus, Jr.,                                  The Honorable James R. Heuer,
      Appellee-Respondent.                                     Special Judge
                                                               Trial Court Cause No.
                                                               02D07-0702-DR-153



      Najam, Judge.


                                       Statement of the Case
[1]   Fazia Deen-Bacchus (“Wife”) appeals the dissolution court’s February 2016

      order in which the court directed Harold M. Bacchus, Jr. (“Husband”) to

      promptly transfer certain amounts from three investment accounts (“the

      investment accounts”) to Wife. Wife raises a single issue for our review, which
      Court of Appeals of Indiana | Opinion 02A04-1608-DR-1867 | March 9, 2017             Page 1 of 10
      we restate as follows: whether the dissolution court erroneously interpreted its

      January 2011 property distribution order, in which the court had set aside the

      investment accounts to Wife as “her property,” when the court ordered

      Husband in February of 2016 to transfer only the January 2011 value of the

      investment accounts to Wife. We reverse and remand with instructions.


                                 Facts and Procedural History
[2]   The facts underlying Wife and Husband’s dissolution and the distribution of the

      marital estate were stated by this court on appeal from the January 2011 order:


              Husband and Wife married in September 1985 and have three
              children, two of whom are now emancipated. Wife petitioned to
              dissolve the marriage on February 7, 2007. At the time, Wife
              was an attorney who had been admitted to practice just a few
              years earlier, and Husband was an Air Force physician and an
              emergency room physician. The parties also owned and
              operated a business, Med-I-Qwik.


              The trial court dissolved the marriage in January 2009 but left
              disposition of the marital property pending. Later that year,
              Husband retired from the Air Force and his contract as an
              emergency room physician was terminated. A hearing regarding
              disposition of the marital property was held over several days.
              The trial court subsequently entered an order in January 2011
              identifying marital assets and debts, finding the net worth of the
              marital property to be $1,405,763, and giving Wife 55% and
              Husband 45% of the property.


              Both parties filed motions to correct error. After a hearing over
              another several days, the trial court entered an order in February
              2012 reducing the net worth of the marital property to $1,353,333
              and dividing the property equally between the parties. . . .
      Court of Appeals of Indiana | Opinion 02A04-1608-DR-1867 | March 9, 2017   Page 2 of 10
      Bacchus v. Deen-Bacchus, No. 02A03-1203-DR-119, 2013 WL 1614972 (Ind. Ct.

      App. Apr. 16, 2013) (“Bacchus I”).


[3]   Also in the January 2011 order, the court “granted” Wife “as her property” the

      investment accounts, along with numerous other assets. Appellant’s App. Vol.

      2 at 48. Elsewhere in its order, the court found the investment accounts to have

      values of $305,755 (Prudential SEP IRA account #9594); $67,961 (Prudential

      Annuity account #5952); and $81,689 (Prudential Life Insurance account

      #3175). However, in ordering that Wife be “granted” the investment accounts

      “as her property,” the court simply identified the assets granted to Wife without

      reference to the court’s valuation of those assets. Id. Further, in their ensuing

      motions to correct error, neither party challenged the court’s identification of

      the investment accounts as assets to be distributed to Wife.


[4]   Both parties raised numerous issues for our review in Bacchus I. After reviewing

      the parties’ arguments, we affirmed in part, reversed in part, and remanded with

      instructions to the dissolution court. However, neither party questioned on

      appeal the dissolution court’s order that the investment accounts were assets to

      be distributed to Wife.


[5]   Nonetheless, Husband never distributed the investment accounts to Wife as her

      own assets. Eventually, the court held a hearing on Husband’s refusal to

      distribute the investment accounts, along with other matters. At that hearing,

      Husband’s only argument as to why he had not distributed the investment

      accounts to Wife was that he interpreted the January 2011 order to require only


      Court of Appeals of Indiana | Opinion 02A04-1608-DR-1867 | March 9, 2017   Page 3 of 10
      the distribution of a defined value—namely, the court’s January 2011 valuation

      of each of the investment accounts—to Wife, though he had also not distributed

      those values to Wife. As such, Husband contended, the investment accounts

      themselves actually belonged to Husband, which, he continued, also entitled

      him to an asserted $65,595 in growth from those accounts.1 Later in the

      hearing, following up on a line of questioning from the dissolution court,

      Husband’s counsel stated that Husband “had transferred money . . . into [the

      Prudential] SEP IRA after the hearing in 2010 [on the distribution of assets],”

      but she conceded that there was no evidence in the record that Husband had

      contributed any money to any of the investment accounts after the January

      2011 order. Tr. at 4, 55.


[6]   Following the hearing, in February of 2016 the court entered its order regarding

      Husband’s failure to distribute the investment accounts. In that order, the court

      found and concluded in relevant part as follows:

              8.     As of this date [Husband] has failed to cooperate in the
              transfer of three investment accounts to [Wife] as provided in the
              order issued January 6, 2011, namely:


                Marital Estate Value [as determined in the January 2011 Order]




      1
         At the hearing, Husband’s counsel stated that the current value of the investment accounts was “over
      $330,000” (Prudential SEP IRA account #9594); $91,000 (Prudential Annuity account #5952); and “over
      $100,000” (Prudential Life Insurance account #3175). Tr. at 4-5, 7. Those figures represent a cumulative
      growth of at least $65,595.

      Court of Appeals of Indiana | Opinion 02A04-1608-DR-1867 | March 9, 2017                       Page 4 of 10
                 A. Prudential SEP IRA (#9594)                      $305,755.00


                 B. Prudential Annuity (#5952)                      $67,961.00


                 C. Prudential Life Ins. (#3175)                    $81,689.00


                 D. Total                                           $455,405.00


        9.     Pursuant to . . . the January 6, 2011[,] Order, both parties
        were ordered to promptly sign all documents required to
        effectuate transfer of assets.


        10. [Husband] caused Prudential Financial to freeze these
        accounts until the dispute as to the amount of distribution of each
        account was resolved. It is [Husband’s] contention that any
        f[u]nds in excess of the marital estate value should remain as his
        property. It is [Wife’s] contention that the current value of the
        accounts should be transferred to her. If [Husband] had elected to
        delay the transfer of that portion of [the investment] accounts in excess of
        the marital estate value[,] he would not be acting in violation of . . . the
        January 6, 2011[, Order]. However, his actions in denying [Wife]
        access to the amount not in dispute, namely, $455,405.00, is in
        violation of the January 6, 2011[, Order]. He is, therefore, found
        in contempt.


        11. [Wife] is entitled to receive the marital estate value of the
        accounts. This is due, in part, to the volatility of the investment market
        from year to year and the fact that [Husband] made additional
        contributions to the accounts after this marital estate value was
        established.


        12. However, due to the delay in the transfer of the assets
        caused by [Husband], he shall pay to [Wife] the sum of one


Court of Appeals of Indiana | Opinion 02A04-1608-DR-1867 | March 9, 2017             Page 5 of 10
               percent (1%) per annum of the martial estate value of these
               assets . . . [which is a total value of] $18,491.00.


      Appellant’s App. Vol. 2 at 36-37 (emphases added). This appeal ensued.


                                     Discussion and Decision
[7]   Wife appeals the dissolution court’s February 2016 order. In particular, Wife

      challenges the court’s conclusion that, in the January 2011 order, the court had

      ordered Husband to distribute to Wife only certain values from the investment

      accounts rather than transferring ownership of the investment accounts to Wife.

      Thus, Wife’s argument on appeal requires us to construe the January 2011

      order.


[8]   We have long recognized that “[a] judgment is construed in the same manner

      as a contract would be. The language of a judgment is ambiguous where it

      would lead two reasonable [people] to different conclusions as to its effect and

      meaning.” Flynn v. Barker, 450 N.E.2d 1008, 1009 (Ind. Ct. App. 1983).

      “When construing the language of a judgment[,] the Court will attempt to read

      the provisions of the judgment so as to render all of them effective and not mere

      su[r]plusage.” Id. We interpret contracts, and, therefore, judgments, de novo.

      See State Farm Mut. Auto. Ins. Co. v. Jakubowicz, 56 N.E.3d 617, 619 (Ind. 2016).


[9]   We agree with Wife that the January 2011 order unambiguously set the

      investment accounts themselves, and not merely their values at the time, aside

      to Wife as her own assets. While the January 2011 order necessarily identified

      both the investment accounts and values for those accounts, in ordering the

      Court of Appeals of Indiana | Opinion 02A04-1608-DR-1867 | March 9, 2017   Page 6 of 10
       distribution of the parties’ respective property and assets the court unmistakably

       identified each of the investment accounts—without reference to the values for

       the accounts—as Wife’s “property.” Appellant’s App. Vol. 2 at 48. There is

       simply no reasonable alternative construction of the court’s January 2011 order.

       Accordingly, we hold that the court erred in the February 2016 order when it

       concluded that the January 2011 order set aside to Wife only the values of the

       investment accounts.


[10]   Indeed, Husband’s only argument to the dissolution court regarding his

       recalcitrance in following the January 2011 order—that the order was

       ambiguous—should have been rejected outright by the court as untimely. We

       have recognized that, where such arguments are raised for the first time after

       the timeframe for motions to correct error has lapsed, such arguments are

       barred by “res judicata, [and the order in question is] subject to modification

       only through the appeal process.” R.W.M. v. A.W.M., 926 N.E.2d 538, 541-42

       (Ind. Ct. App. 2010). Indeed, while trial courts have “ample authority” to

       “alter, amend[,] or modify” their judgments, Ind. & Mich. Elec. Co. v. Harlan, 504

       N.E.2d 301, 308 (Ind. Ct. App. 1987), trans. denied, that authority is limited to

       “any time before a motion to correct error[] is required to be made, or with or

       as part of a motion to correct error[],” Ind. Trial Rule 52(B).


[11]   Here, Husband did not assert in his motion to correct error on the January 2011

       order that the court’s language to distribute the investment accounts was

       ambiguous. Neither did the court reconsider its January 2011 order sua sponte

       within that timeframe. See id. And neither did Husband raise the issue on

       Court of Appeals of Indiana | Opinion 02A04-1608-DR-1867 | March 9, 2017   Page 7 of 10
       appeal from the January 2011 order in Bacchus I. The dissolution court should

       not have entertained Husband’s argument at this belated juncture.


[12]   Nonetheless, on appeal Husband contends that we should defer to the

       dissolution court’s interpretation of its own order. We cannot agree. Our de

       novo standard of review is well-established. See Flynn, 450 N.E.2d at 1009.

       Moreover, the January 2011 order is a paper record that speaks for itself. We

       are in just as good a position as the dissolution court to determine the meaning

       of that record. See Anderson v. Wayne Post 64, Am. Legion Corp., 4 N.E.3d 1200,

       1206 (Ind. Ct. App. 2014), trans. denied. Thus, we owe the court no deference

       on this issue.


[13]   Husband also argues that the February 2016 order should be affirmed based on

       its finding that Husband had continued to make contributions to the investment

       accounts. It is true that, in its February 2016 order, the court stated that

       Husband “made additional contributions to the accounts after th[e] marital

       estate value [had been] established.” Appellant’s App. Vol. 2 at 37. We review

       the court’s findings of fact for clear error. Fischer v. Heymann, 12 N.E.3d 867,

       870 (Ind. 2014). Clear error occurs when “the record contains no facts to

       support” the court’s findings. Id.


[14]   That finding is clear error. There is no evidence whatsoever to show that

       Husband made any contributions to the investment accounts either after the

       2010 hearing on the distribution of the marital estate or after the court entered

       the January 2011 order. See id. To the contrary, Husband’s counsel expressly


       Court of Appeals of Indiana | Opinion 02A04-1608-DR-1867 | March 9, 2017   Page 8 of 10
       admitted that Husband had made no such contributions after the January 2011

       order. Tr. at 4; see Krampen v. Krampen, 997 N.E.2d 73, 81 (Ind. Ct. App. 2013)

       (“While statements of counsel are not evidence, a clear and unequivocal

       admission of fact by an attorney is a judicial admission which is binding on the

       client.”) (quotation marks and alteration omitted), trans. denied. Insofar as

       Husband’s counsel did suggest that Husband had made contributions of

       unknown amounts an unknown number of times after the 2010 hearing but

       before the 2011 order, the statements of counsel are not evidence. Krampen, 997

       N.E.2d at 81. And Husband’s argument that we should affirm the dissolution

       court’s finding based solely on the dissolution court’s knowledge of the case is

       not persuasive. Neither Wife’s appendix on appeal nor the transcript of the

       hearing before the dissolution court demonstrates any evidence in support of

       the statements of Husband’s counsel, and Husband has not filed an appellee’s

       appendix to supplement the record on appeal. Accordingly, we are obliged to

       conclude that the dissolution court’s finding is not supported by the record.


[15]   Finally, we are also not persuaded that the dissolution court’s order for

       Husband to pay an additional one percent of the January 2011 values of the

       investment accounts, or $18,491, to Wife requires us to affirm the February

       2016 order. Again, the January 2011 order is unambiguous and Husband’s

       arguments to the contrary are not timely. Moreover, Husband’s counsel

       admitted to the court that the investment accounts had grown by more than

       $65,000 during the time that Husband had defied the January 2011 order to

       distribute those accounts to Wife. The court’s order for Husband to pay Wife


       Court of Appeals of Indiana | Opinion 02A04-1608-DR-1867 | March 9, 2017    Page 9 of 10
       the additional $18,491 does not place Wife in the position she would have

       occupied had Husband complied with the January 2011 order and distributed

       the investment accounts to Wife. Rather, the court’s February 2016 order

       rewards Husband for disregarding the January 2011 order and penalizes Wife.


[16]   In sum, the parties and the dissolution court had the opportunity to clarify any

       ambiguities in the January 2011 order within the time prior to the court’s

       judgment on the motions to correct error that were filed on that order, yet

       neither the parties nor the court suggested that the language of the January 2011

       order to distribute the investment accounts to Wife was ambiguous. And it was

       not ambiguous; the order plainly and unmistakably identifies the investment

       accounts, not a certain value of the accounts, as Wife’s property. Accordingly,

       the dissolution court’s February 2016 order to the contrary is erroneous. We

       reverse the February 2016 order on this issue and remand with instructions that

       the dissolution court order Husband transfer ownership of the investment

       accounts to Wife and to enter any other findings and conclusions the court

       deems appropriate that are not inconsistent with this opinion.


[17]   Reversed and remanded with instructions.


       Bailey, J., and May, J., concur.




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