Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                        Aug 20 2013, 5:38 am
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:

BILL D. EBERHARD                                 JOHN M. HAECKER
Eberhard & Weimer, P.C.                          Grimm & Grimm
LaGrange, Indiana                                Auburn, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DEBORAH D. MINNICH,                              )
                                                 )
       Appellant-Respondent,                     )
                                                 )
              vs.                                )      No. 57A03-1303-DR-92
                                                 )
WILLIAM B. MINNICH,                              )
                                                 )
       Appellee-Petitioner.                      )


                     APPEAL FROM THE NOBLE CIRCUIT COURT
                         The Honorable G. David Laur, Judge
                           Cause No. 57C01-1108-DR-155



                                      August 20, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
        In this case, we conclude that a trial court’s denial of a motion for additional time

to comply with the terms of a property distribution order was not an abuse of discretion

when the order specifically provided what was to occur if the deadlines imposed by the

order were not met.

        The marriage of William B. Minnich (Husband) and Deborah D. Minnich (Wife)

was dissolved in July 2012, and the trial court’s property distribution order awarded Wife

certain real property if she could refinance the property and make a substantial

equalization payment to Husband within 120 days. If Wife was unable to meet this

deadline, the property would then be awarded to Husband, provided he could refinance

and make an equalization payment to Wife. Wife was unable to meet her deadline, and

Husband filed a motion to enforce the property distribution order. Wife then filed a

motion asking the trial court for additional time to complete the transaction. After a

hearing, the trial court denied Wife’s motion and awarded the property to Husband

contingent upon his making an equalization payment to Wife within 120 days.

        Wife appeals, claiming that the trial court erred by determining it was unable to

modify its original order and by failing to consider and grant her motion as a Trial Rule

60(B) motion for relief from judgment. Finding no error, we affirm the judgment of the

trial court.

                                          FACTS

        Husband and Wife married in 2004, and Husband petitioned for dissolution of the

marriage in 2011. The trial court held a contested hearing regarding property distribution

                                              2
on July 24, 2012, and on August 23, 2012, the trial court issued a dissolution decree that

was dated July 24, 2012.

       In relevant part, the dissolution decree awarded Wife certain real estate valued at

$209,935.88 “as it has been in her family for decades, subject to her ability to obtain

mortgage financing to satisfy the equalization judgment set out below.” Appellant’s App.

p. 12. The equalization “judgment” required Wife to pay Husband $156,404.81 within

120 days and further stated that “[i]n the event the equalization payment is not paid, then

the Court awards the farm, livestock, barn and equipment to Husband and Husband shall

pay an equalization payment of $119,767.75 - $600.09 = $119,167.66, within one

hundred twenty (120) days from the expiration date for Wife to obtain financing.” Id. at

14.

       On November 26, 2012, Husband filed a “Motion to Clarify and Enforce Decree

of Dissolution of Marriage,” wherein he claimed that Wife had failed to secure financing

or make an equalization payment within 120 days from July 24, 2012, as required by the

dissolution decree. Id. at 15-17. Husband requested that the trial court enforce the decree

by awarding him the property subject to an equalization payment made from him to Wife.

Husband asserted that he had already arranged financing and asked that the trial court

“appoint a commissioner for Wife for the purpose of executing documents required at the

closing of Husband’s refinancing transaction.” Id. at 16. The trial court scheduled a

hearing on Husband’s motion for January 10, 2013.



                                            3
       On December 13, 2012, Wife filed a response to Husband’s motion, claiming that

because the effective date of the dissolution decree had been August 23, 2012, not July

24, 2012, her deadline for making the equalization payment was actually December 20,

2012. However, Wife also asked for an extension of time in which to pay Husband

because, although she claimed that she was ready to close on the financing transaction the

next day, she “ha[d] been informed by the Star Financial Bank closing officer that it may

take up to 30 days from the date of closing for Wife to receive the cash funds to pay

[Husband].” Appellant’s App. p. 19. Wife requested that the trial court allow her until

January 24, 2013, to make the payment.

        On January 10, 2013, Husband responded to Wife’s response, and the trial court

proceeded with the hearing on Husband’s motion to clarify and enforce the dissolution

decree. During the hearing, it was determined that Wife still had not closed on the

property’s refinancing. Wife’s counsel claimed that “one of the reasons [is because

Husband is] on the mortgage and Star Financial won’t close . . . until he signs off. So if

he’ll sign she’ll give him the remainder1 of the money, but he’s not signed off.” Tr. p. 13.

However, counsel for Wife then stated that “apparently Star Financial has never

contacted him, so how would he know . . . .” Id. at 14.

       As for Wife’s request for additional time to make the equalization payment,

Husband’s counsel stated:


1
  On December 19, 2012, Wife made a partial payment to Husband in the amount of $30,410.13, and on
January 10, 2013, Wife gave Husband an additional $25,000. However, Husband had returned each of
those payments by the January 10, 2013 hearing.
                                                4
         Your Honor, if you look at . . . the response I filed today, uh, they’re
        asking you to do something you don’t have any authority to do. You, you
        can’t, according to law give them more time. . . . So they’re asking you to
        do something you don’t have authority to do.

Tr. p. 15. The trial court then told Wife’s counsel, “Tell me how I have the ability to

change it. . . . [Husband’s counsel] gives me what I . . . think is accurate law.” Id. at 16.

Wife’s counsel requested the opportunity to file a written response, and the trial court

granted Wife’s counsel until the end of the following week to file a response. Wife filed

her memorandum of law in support of her request for an extension of time on January 18,

2013.

        On January 22, 2013, the trial court issued an order stating in relevant part:

        1. [Wife] has not paid to [Husband] the sum of $156,404.81 within the 120
        days as set out in the Dissolution Decree.

        2. Pursuant to the Dissolution Decree, the farm, livestock (valued at
        $7200.00), barn and equipment is awarded to [Husband], subject to his
        payment, within 120 days of this Order, to [Wife] in the sum of
        $119,167.66. [Wife] shall cooperate with [Husband] with the closing and
        should she fail to sign the required closing and transfer documents, the
        Court appoints John Haecker to act as Commissioner to execute documents
        on her behalf.

                                             ...

        4. [Wife] shall surrender possession of the residence located on the real
        estate within ten (10) days after closing and possession of the livestock,
        equipment, land and out buildings at closing.

Appellant’s App. p. 8. On February 20, 2013, the trial court denied Wife’s motion

to correct errors. Wife now appeals.



                                              5
                                DISCUSSION AND DECISION

        Wife’s primary argument is that the trial court erred in determining that it could

not lawfully modify its previous property distribution order pursuant to Indiana Code

section 31-15-7-9.1.2 At the outset, however, we are compelled to point out that the trial

court’s order does not specifically state that the trial court lacked the authority to change

the dissolution decree. Rather, the order simply states that Wife failed to abide by the

terms of the decree that provided for her to keep the property, and therefore Husband was

entitled to enforcement of the terms of the decree.               Appellant’s App. p. 8.         Thus,

notwithstanding the statements the trial court made during the January 10, 2013 hearing

regarding its ability to modify its original property distribution order, the trial court’s

order does not reflect that the argument made by Husband’s counsel during the hearing

factored into its decision to enforce its original order rather than allow Wife additional

time for refinancing.

        Put another way, as it was entirely within the trial court’s discretion to enforce the

terms of its original decree, and the trial court’s order appears to do just that, there is

simply no support for Wife’s claim that the trial court “made its decision solely on an

assertion of law” made by Husband’s counsel. Appellant’s Br. p. 6; see Shepherd v.

Tackett, 954 N.E.2d 477, 480 (Ind. Ct. App. 2011) (stating that “[a] dissolution court

retains jurisdiction to interpret the terms of its decree and decide questions emanating

from its decree pertaining to its enforcement”). Accordingly, this argument fails.
2
 In relevant part, this statute provides: “The orders concerning property disposition entered under this
chapter . . . may not be revoked or modified, except in case of fraud.” Ind. Code § 31-15-7-9.1(a).
                                                   6
       Additionally, we cannot subscribe to Wife’s argument that the trial court should

have interpreted her motion as a Trial Rule 60(B) motion for relief from judgment and

granted her relief from the judgment on that basis. In support of her argument, Wife

directs us to Parham v. Parham, which held that a trial court did not abuse its discretion in

setting aside, pursuant to Trial Rule 60(B)(8), a dissolution decree’s property distribution

order that was going to be “legally impossible to carry out” as the decree directed. 855

N.E.2d 722, 726 (Ind. Ct. App. 2006). Wife’s reliance on Parham is misplaced, inasmuch

as the Parham Court concluded that the wife’s requests were “tantamount to a request for

relief from a judgment under Trial Rule 60(B)” and because, at a hearing on the motion,

the wife’s counsel “made clear that the trial court was presented with a request for relief

under Trial Rule 60(B).” Id. at 727, 731. Indeed, here Wife raises her Trial Rule 60(B)

argument for the first time on appeal and has presented no evidence that the trial court’s

original order was impossible to accomplish. Therefore, Wife’s reliance on Parham

avails her of nothing.

       Additionally, we believe that our Supreme Court in Ryan v. Ryan made clear that

equitable relief under Trial Rule 60(B), which is first and foremost a procedural

mechanism rather than a substantive right, is inappropriate when the mandates of a statute

strictly forbid it. 972 N.E.2d 359, 370 (Ind. 2012). The Ryan Court further directed that

principles of contract law should apply when a dispute arises over a property division

order. Id. at 371.



                                             7
       It follows that because Indiana Code section 31-15-7-9.1 expressly forbids

modification of a property division order set out in a final dissolution decree, relief from

the property distribution order was unavailable to Wife under Trial Rule 60(B). This is

especially true because it appears that the trial court considered that Wife may not be able

to refinance the property and make the required equalization payment to Husband in a

timely manner. Indeed, the trial court made specific provisions for what was to happen

should that contingency occur.

       “[S]trong policy favors the finality of marital property divisions, whether the court

approves the terms of a settlement agreement reached by the parties or the court mandates

the division of property among the parties.” Shepherd v. Tackett, 954 N.E.2d 477, 480

(Ind. Ct. App. 2011). And while a trial court may correct its own judgment “to reflect the

true intention of the court at the time the judgment was entered,” Lankenau v. Lankenau,

174 Ind. App. 45, 49, 365 N.E.2d 1241, 1244 (1977), “an order is not merely a

clarification where it makes substantial changes in the original decree,” Shepherd, 954

N.E.2d at 482.

       Here, because the trial court considered the contingency of Wife being unable to

complete her refinancing transaction within 120 days and the property distribution order

specifically awarded the property to Husband in that event, we conclude that Wife’s

request for an extension of time was essentially a request that the trial court materially

alter the terms of the property distribution order. See Ryan, 972 N.E.2d at 363-65

(discussing the difference between a modification and a clarification of a property

                                             8
distribution agreement or order and concluding that such an agreement incorporated into

a final dissolution decree could not be later modified by the trial court when the

agreement itself was unambiguous, suggested that the parties had contemplated market

risk, and contained no provision that allowed for later adjustment of its terms).

Therefore, it was proper for the trial court to deny Wife’s request for an extension of time

to complete the refinancing transaction, and we find no error.

       The judgment of the trial court is affirmed.

FRIEDLANDER, J., concurs.

VAIDIK, J., dissents with opinion.




                                             9
_______________________________________________________

                              IN THE
                    COURT OF APPEALS OF INDIANA

DEBORAH D. MINNICH,                             )
                                                )
       Appellant-Intervener,                    )
                                                )
              vs.                               )    No. 57A03-1303-DR-92
                                                )
WILLIAM B. MINNICH,                             )
                                                )
       Appellee-Petitioner.                     )
                                                )


VAIDIK, Judge, dissenting.

       Because I believe that the trial court should have treated Wife’s motion as a Trial

Rule 60(B) motion for relief from judgment and granted her an evidentiary hearing, I

respectfully dissent.

       In this case, the parties were divorced in July 2012. The trial court’s property-

division order gave Wife 120 days to refinance the property at issue and make a cash-

equalization payment to Husband of $156,404.81. This is not just any property,

however—it is a farm with surrounding acreage that has been in Wife’s family for

decades. Wife made two payments to Husband (totaling almost $55,000), but was unable

to complete the refinancing process within the 120-day period. When the 120-day period

                                           10
expired, Husband filed a motion to enforce the property-division order, which, in the case

that Wife was unable to make the entire cash-equalization payment, allowed Husband to

take possession of the family farm.3 Wife filed her response and a Motion for Extension

of Time. Wife explained that she had initiated the refinancing process immediately after

receiving the property-division order and that the process would be complete in a matter

of days, but according to the bank, it could take “up to [an additional] 30 days for her to

receive the cash funds to pay to [Husband].” Appellant’s App. p. 19.

        At a brief hearing on both parties’ motions in January 2013, at which no witnesses

were called, Wife confirmed that closing was imminent and explained that the

refinancing process had been delayed by the bank and title companies due to the holiday

season. Tr. p. 13-14. Wife requested a one-month extension to complete the refinancing

process and pay the remaining funds to Husband. Husband argued that an extension

would constitute an impermissible modification of the property-division order. The trial

acknowledged Husband’s argument but appeared sympathetic to Wife’s situation, asking

Wife to “tell me how I have the ability to change it.” Id. at 16. The court directed Wife

to file a brief in support of her request for an extension of time. The court ultimately

denied Wife’s Motion for Extension of Time and ordered her to surrender possession of

the family farm to Husband.

        Wife filed a motion to correct errors in February 2013. She argued that the trial

court should have treated her Motion for Extension of Time as a Trial Rule 60(B) motion.
3
  Husband also requested clarification regarding other provisions in the property-division order, but that
request is not relevant here.
                                                   11
Appellant’s App. p. 39. She also requested an evidentiary hearing, saying that she could

present evidence that the refinancing process had not been completed within 120 days

due to matters outside her control and that she had made substantial interim payments to

Husband to demonstrate good faith. Id. at 40. The trial court denied Wife’s motion to

correct errors, and she appealed.

       I believe the trial court could have—and should have—treated Wife’s motion as a

Trial Rule 60(B) motion. At the brief hearing on the parties’ motions, the court heard no

evidence, only the arguments of counsel, and Wife did not caption her motion for

Extension of Time as a Trial Rule 60(B) motion. Based on this, it was reasonable for the

trial court not to initially treat Wife’s motion as one for relief from judgment. But in her

motion to correct errors, Wife clearly requested Trial Rule 60(B) relief, and that request

was made within one year of the dissolution decree; thus, it was timely under the

requirements of Trial Rule 60(B). At that point, there could be no mistake that Wife was

seeking relief from judgment under Trial Rule 60(B). It follows that Wife was entitled to

conduct discovery and present evidence in support of her motion. See Ind. Trial Rule

60(B)(D); Rothschild v. Devos, 757 N.E.2d 219, 224 (Ind. Ct. App. 2001) (finding that

the trial court abused its discretion in denying a motion for relief from judgment without

hearing pertinent evidence and allowing for discovery).

       Because I believe the trial court should have treated Wife’s motion as one for

relief from judgment and heard evidence on Wife’s claim, I would reverse the denial of

Wife’s motion and remand for an evidentiary hearing. At an evidentiary hearing, Wife

                                            12
could argue excusable neglect based on Trial Rule 60(B), or the contract-based claim of

impossibility of performance.4 And Wife could present evidence to support her claims,

including evidence that the bank was responsible for the delay in the refinancing process,

she made substantial interim payments to Husband to demonstrate good faith, and

Husband was not cooperative during the refinancing process.




4
  See Ryan v. Ryan, 972 N.E.2d 359, 370-71 (Ind. 2012) (A court must approach a property-division
dispute as a contract dispute, subject to the rules of contract law).
                                               13
