MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Feb 28 2017, 5:54 am

court except for the purpose of establishing                          CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Angela L. Freel                                          Matthew J. McGovern
Jackson Kelly PLLC                                       Anderson, Indiana
Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Marriage of:                        February 28, 2017

Jeffrey E. Nelson,                                       Court of Appeals Case No.
                                                         82A01-1607-DR-17061
Appellant-Respondent,
                                                         Appeal from the
        v.                                               Vanderburgh Superior Court
                                                         The Honorable
Julie A. Nelson,                                         Leslie C. Shively, Judge
                                                         Trial Court Cause No.
Appellee-Petitioner.
                                                         82D01-1601-DR-32



Kirsch, Judge.




1
  We note that the trial court cause number on the Declaratory Judgment Order, from which Jeffrey E.
Nelson appeals, is 82D05-1601-DR-32. We, like the parties, will use the 82D01-1601-DR-32 cause number
found in the CCS and the transcript.

Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 1 of 22
[1]   After Julie A. Nelson (“Wife”) filed a petition for dissolution of her marriage to

      Jeffrey E. Nelson (“Husband”), she filed a Petition for Declaratory Judgment,

      asking the trial court to interpret the parties’ prenuptial agreement (“the

      Agreement”) on several specified issues. Husband appeals the trial court’s

      Declaratory Judgment Order (“Order”) and raises the following two restated

      issues:


      I. Whether the trial court erred when it determined that the
      Agreement’s definition of separate property did not include income
      produced from separate property or proceeds received from the sale of
      separate property; and


      II. Whether the trial court erred in its determinations with regard to
      “gifts” as that term is used in the Agreement.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On April 28, 2012, the parties married in Illinois. The day before their

      marriage, the parties executed the Agreement, which, among other things,

      defined and delineated the parties’ separate property and marital property as

      follows:


      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
      Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 2 of 22
      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.


      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.


      Appellant’s App. at 56. The parties attached to the Agreement Schedule A and

      Schedule B, which outlined Husband’s property and debts and Wife’s property

      and debts, respectively.


[4]   The Agreement also provided that it is to be construed under Illinois law:


      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



      Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 3 of 22
      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. at 58, 60.


[5]   The Agreement, at Section 8, titled Full Knowledge, provided, in part:


      The rights of the respective parties in each other’s property or estate
      shall be determined, fixed and settled by this Agreement and not
      otherwise.


      Id. The next section, Section 9, titled Mutual Release, stated that the parties

      intended the Agreement to be a mutual release of all right, title, and interest

      “there may be now or will hereafter be” by virtue of the marriage in and to all

      the property of the other. Id. Section 9 concluded with the following language:


      It is their intention mutually to release and waive all benefits of the laws
      of Illinois or any other state relating to the Husband and Wife as set
      forth above.



      Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 4 of 22
      Id.


[6]   On January 8, 2016, Wife filed her petition for dissolution in Indiana. Issues

      arose between the parties concerning the interpretation and enforceability of the

      Agreement, and, at the trial court’s request, Wife and Husband each filed, on

      April 29, 2016, a memorandum of law providing the trial court with, among

      other things, each party’s respective interpretation of the Agreement. On June

      2, 2016, Wife filed her Petition for Declaratory Judgment (“Petition”).


[7]   In her Petition, Wife set forth specific questions regarding the interpretation of

      the Agreement, asking the trial court to construe whether certain property

      constituted separate property or marital property. Specifically, as is relevant to

      this appeal, Wife asked the trial court (1) whether income produced from

      separate property and proceeds from the sale of separate property was separate

      property, as Husband claimed, or was marital property, as Wife claimed; and

      (2) whether assets acquired by “gift” constituted separate property only if the

      gift was made to the spouse by a third party at death, as Husband claimed. Id.

      at 65-66.


[8]   On June 17, 2016, the trial court held a hearing on Wife’s Petition, among

      other pending matters. The trial court received argument from counsel; the

      parties did not present evidence.2 On June 27, 2016, the trial court granted



      2
        At the hearing, the parties identified some areas of common ground, agreeing and stipulating that (1) all
      property, whether real or personal, owned by each party at the time of the marriage is separate property,
      regardless of whether the property was listed on a schedule attached to the Agreement, (2) funds placed in a
      joint account of the parties are marital funds subject to division, (3) assets acquired during the marriage from

      Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017            Page 5 of 22
       Wife’s Petition and entered the Order, which declared, in part, that the

       Agreement’s definition of separate property “does not include the income

       produced from separate property or proceeds received from the sale of separate

       property.” Appellant’s App. at 16. The Order also determined that the

       Agreement did not preclude spousal gifts during the marriage and that the

       Agreement “defines property acquired by gift, whether during or before the

       marriage, as separate property.” Id. at 15. Husband now appeals.3


                                          Discussion and Decision
[9]    We are asked to determine whether the trial court erred by granting declaratory

       relief to Wife based upon its interpretation of the Agreement.4 Pursuant to the

       Uniform Declaratory Judgment Act, declaratory orders, judgments, and decrees

       have the force and effect of final judgments and are reviewed as any other

       order, judgment, or decree. Ind. Code § 34-14-1-1; Schmidt v. Schmidt, 812

       N.E.2d 1074, 1079 (Ind. Ct. App. 2004).


[10]   Here, Husband asserts that the trial court erred by failing to properly interpret

       the Agreement. Prenuptial agreements are contracts, and the rules governing

       contracts apply to their interpretation. In re Marriage of Best, 387 Ill. App. 3d




       any joint account of the parties are marital assets subject to division, and (4) the real estate owned jointly and
       located on Oak Trace Terrace and on Hillsdale Road in Evansville, Indiana, is marital property subject to
       division between the parties. The trial court included these stipulations in its Declaratory Judgment Order,
       Appellant’s App. at 15-17, and those portions of the trial court’s Order are not at issue in this appeal.
       3
        We note that after Husband filed his Notice of Appeal with this court, Wife filed a Motion to Dismiss
       Husband’s appeal, which was denied.
       4
           Husband does not challenge the Indiana trial court’s authority to issue the declaratory judgment.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017             Page 6 of 22
       948, 949, 327 Ill. Dec. 234, 235-36, 901 N.E.2d 967, 968-69 (2009), appeal

       denied; In re Marriage of Drag, 326 Ill. App. 3d 1051, 1055, 261 Ill. Dec. 184, 188,

       762 N.E.2d 1111, 1115 (2002).5 A court’s primary goal in the construction of a

       contract is to decide and give effect to the intent of the parties as it is expressed

       through the words of the contract. In re Marriage of Rosenbaum-Golden, 381 Ill.

       App. 3d 65, 72, 319 Ill. Dec. 27, 35, 884 N.E.2d 1272, 1280 (2008), appeal

       denied. In determining the parties’ intent, courts must view the contract as a

       whole and not focus on isolated terms or provisions. In re Marriage of Chez, 2013

       IL App (1st) 120550, ¶ 16, 377 Ill. Dec. 337, 341, 1 N.E.3d 1224, 1228, appeal

       denied. If the language of the contract is clear and unambiguous, the intent of

       the parties is ascertained solely from the words of the contract, given their plain

       and ordinary meanings. Id. Contract construction presents a question of law,

       which we review de novo. In re Marriage of Heinrich, 2014 IL App (2d) 121333, ¶

       40, 30 Ill. Dec. 26, 39, 7 N.E.3d 889, 902. De novo consideration means we

       perform the same analysis that a trial judge would perform. In re Marriage of

       Enders, 2015 IL App (1st) 142435, ¶ 85, 400 Ill. Dec. 837, 846, 48 N.E.3d 1277,

       1286.


[11]   In this case, the parties disagree as to what is and is not defined as separate

       property under the Agreement, and they also disagree as to the trial court’s

       determinations with regard to gifts, including those made from one spouse to




       5
           The parties agree that Illinois law controls the substantive issues. Appellant’s Br. at 5; Appellee’s Br. at 17.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017                   Page 7 of 22
       the other. Specifically, Husband argues on appeal that the trial court erred: (1)

       when it determined that the Agreement’s definition of separate property did not

       include income from separate property and proceeds from the sale of separate

       property; and (2) when it determined that property acquired by gift, whether

       before or during the marriage, was separate property.6 We address each

       contention in turn.


                    I. Income and Proceeds from Separate Property
[12]   With regard to the Agreement’s treatment of income produced by and proceeds

       from sale of separate property, the trial court’s Order determined:


       6. The Court finds the definition of separate property under the
       Prenuptial Agreement does not include the income produced from
       separate property or proceeds received from the sale of separate
       property. Therefore, any asset purchased during the marriage from
       income or proceeds of separate property becomes marital property
       subject to an equal division between the parties.


[13]   Appellant’s App. at 16. Husband asserts that the trial court’s interpretation was

       contrary to the Agreement and Illinois law.


[14]   The Agreement at Section 3 (“Section 3”) defined separate property and marital

       property as follows:




       6
        The trial court’s Order also determined that the Agreement does not limit the term gift to mean only
       property that is acquired during the marriage from a third party at death and does not preclude gifts from one
       spouse to the other during the marriage; Husband does not challenge those determinations on appeal.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017          Page 8 of 22
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.


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


Appellant’s App. at 56. Husband suggests, and we agree, that “[i]n reviewing this

section of the Prenuptial Agreement, generally . . . the first paragraph addresses

what property is to be identified as the separate property of the parties and the


Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 9 of 22
       second paragraph then goes on to address what property is to be identified as

       the marital property of the parties.” Reply Br. at 8-9.


[15]   A reading of the first paragraph of Section 3 indicates three categories of

       separate property: (1) all property belonging to an individual spouse at the

       commencement of the marriage and that is outlined in Schedules A and B to

       the Agreement, including any appreciation in value of such property (whether

       such enhancement is due to market conditions or efforts of either of the parties);

       (2) all property acquired by the party by bequest, devise, gift or inheritance; and

       (3) all property acquired in exchange for separate property. The terms

       “income” and “proceeds” are not used in Section 3, nor in Husband’s Schedule

       A, which outlines the assets that are to be deemed his separate property.

       Because income and proceeds from separate property were not mentioned in

       the first paragraph of Section 3, which defines separate property, the trial court

       did not err when it found that “the definition of separate property under the

       Prenuptial Agreement does not include the income produced from separate

       property or proceeds received from the sale of separate property.” Id. at 16.


[16]   The next paragraph of Section 3, identifying what constitutes marital property,

       initially states that marital property excludes “any property, . . . acquired by

       either bequest, devise, gift or inheritance or otherwise addressed heretofore.”

       Id. at 56. It continues that marital property includes “property, assets, proceeds,

       jointly held accounts, furniture [and] furnishings.” Id. (emphasis added). Id.

       Because income and proceeds from separate property were not “addressed

       heretofore” in the first paragraph of Section 3, which defines separate property,

       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 10 of 22
       those assets fall within the scope of what constitutes marital property, and the

       trial court did not err when it determined that “any asset purchased during the

       marriage from income or proceeds of separate property becomes marital

       property subject to an equal division between the parties.” Id. at 16.


[17]   Husband argues that the trial court’s position “is directly contrary to Illinois

       law.” Appellant’s Br. at 8. He observes that under the Illinois Uniform

       Premarital Agreement Act (“the Premarital Agreement Act”), couples may

       contract with respect to, among other things, the rights and obligations of each

       of the parties in any of the property of the other and with respect to the

       disposition of property upon marital dissolution, and, he argues, the Premarital

       Agreement Act states that “property,” “[a]s used in this Article,” means “an

       interest, present or future, legal or equitable, vested or contingent, in real or

       personal property, including income and earnings.” Id. at 10 (quoting 750 Ill.

       Comp. Stat. 10/2(2) (1990)). Husband also refers us to the definitions of

       “marital property” and “non-marital property” found in the Illinois Marriage

       and Dissolution of Marriage Act (“Dissolution of Marriage Act”), noting that,

       under those definitions, income “that is derived from property excluded by a

       valid prenuptial agreement is, by statute, non-marital,” as is “income that has

       been generated from property that was acquired prior to marriage.” Id. at 10-11

       (citing 750 Ill. Comp. Stat. 5/503). Husband’s position is that “[u]nder Illinois




       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 11 of 22
       statutory provisions and case law [],7 any income, earnings and/or proceeds

       from these separate property items would also be the separate, i.e. “non-

       marital,” property of each respective spouse.” Id. at 12. Wife responds that the

       parties elected not to use the statutory definitions and instead defined separate

       property and marital property in their Agreement.8 Appellee’s Br. at 11. We

       agree with Wife.


[18]   Section 4 of the Premarital Agreement Act “allows the parties to a premarital

       agreement to contract on: (1) their property rights and obligations; (2) their

       rights to take specific property actions; (3) the disposition of their property; (4)

       the elimination or modification of spousal support; (5) the making of

       agreements or arrangements intended to carry out the premarital agreement; (6)

       their life insurance benefits; (7) the law to be applied in construing the

       premarital agreement; and (8) any other matter not violating a criminal statute

       or public policy.” In re Marriage of Best, 228 Ill. 2d 107, 117, 319 Ill. Dec. 815,

       820-21, 886 N.E.2d 939, 944-45 (2008) (citing 750 Ill. Comp. Stat. 10/4(a)

       (2004)). As the Illinois Supreme Court recognized in Best, “Section 4 effectively




       7
         In support of his argument, Husband also cites to Illinois case law, including a case in which, upon
       dissolution of marriage, rental income generated from non-marital business property and the proceeds from
       the sale of the property retained its status as husband’s non-marital property. Appellant’s Br. at 11 (citing to
       and quoting from In re Marriage of Booth, 627 N.E.2d 1142, 1145 (Ill. App. Ct. 1993)). As Wife observes, the
       parties in the cases to which Husband cites did not execute a prenuptial agreement.
       8
         Wife also asserts that Husband’s statutory argument applies only to income, not proceeds, and, thus, his
       argument as to proceeds is waived. Appellee’s Br. at 21. Because we resolve the matter based on the plain
       language of the Agreement, we do not reach this aspect of Wife’s argument.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017           Page 12 of 22
       permits parties to waive or modify their marital rights by entering into a valid

       premarital agreement.” Id. at 118, 886 N.E.2d at 945.


[19]   In Best, the parties had entered into a premarital agreement covering a variety of

       financial and property issues, including the parties’ rights to attorney fees. The

       husband, Steven, filed a petition for dissolution, and before a dissolution had

       been ordered, Steven sought a declaratory judgment addressing the validity and

       effect of the premarital agreement. Id. at 110, 886 N.E.2d at 940. In its

       declaratory judgment order, the trial court found that the agreement was valid

       and enforceable, and it interpreted the agreement to find that a section of the

       premarital agreement that waived the parties’ rights to attorney fees did not

       apply to custody-related matters. Id. The appellate court reversed, finding that

       Steven had not satisfied the “termination-of-controversy” requirement of

       Illinois’s declaratory judgment statute, and the appellate court refused to review

       the merits of Steven’s claim that the trial court improperly construed the

       attorney fee waiver provision of the agreement. Id. at 110-111, 886 N.E.2d at

       941.


[20]   In determining that “[c]onstruing the agreement will indeed terminate a

       significant part of the parties’ controversy” – and thus Steven had satisfied the

       termination-of-controversy requirement – the Illinois Supreme Court noted that

       no question will remain as to “whether the agreement’s provisions provide the

       controlling authority over the parties’ dissolution rights.” Id. at 117, 886

       N.E.2d at 944. The Best Court then remanded the matter to the appellate court



       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 13 of 22
       for review of the trial court’s interpretation of the attorney fee provision,

       observing:


       By entering into a premarital agreement under section 4, the parties in this case
       agreed that their enumerated rights at dissolution are no longer governed by
       statute to the extent that they are validly modified or waived in their
       agreement. Allowing the declaratory judgment before the final
       dissolution order undoubtedly upheld the parties’ rights under the Act
       to enter into a binding contract before marriage to control the outcome
       of many issues that could arise during their dissolution.


       Id. at 118, 886 N.E.2d at 948 (emphasis added).


[21]   Likewise, here, by entering into the Agreement, we find that the parties agreed

       that their rights at dissolution were no longer governed by statute. The

       Agreement was a legal contract by which the parties sought to settle their

       respective interests in the property of the other during the course of the

       marriage and upon its termination. The Agreement was intended to be the

       governing source defining the parties’ rights in property in the event of

       dissolution, i.e., what is separate property and what is marital property. See

       Appellant’s App. at 57 (Agreement stating that rights of parties in each other’s

       property “shall be determined, fixed and settled by this Agreement and not

       otherwise” and that the parties intended to “waive all benefits of the laws of

       Illinois”). Accordingly, we find that the trial court did not err when it

       determined that the Agreement’s definition of separate property did not include

       income from separate property and proceeds from the sale of separate property.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 14 of 22
                                                   II. Gifts
[22]   We next address Husband’s argument regarding the trial court’s determinations

       in its Order regarding gifts. In doing so, we turn to the language of the

       Agreement. The first paragraph of Section 3, addressing what constitutes

       separate property, states that all property belonging to either party at the time of

       the marriage “and all property hereafter acquired by the other party by either

       bequest, devise, gift or inheritance” shall be that party’s separate property.

       Appellant’s App. at 56 (emphasis added). In her Petition, Wife sought

       clarification regarding the term “gift”:

       4. Husband further contends that assets acquired by “gift” only become
       separate property if the gift was made at death. The Agreement
       provides that separate property includes property acquired by “either
       bequest, devise, gift, or inheritance.” The Agreement is silent as to
       when the gift is made, and fails to include the language “at death.”
       Wife seeks declaration of this issue.


       Id. at 66.


[23]   The trial court’s Order, with respect to the “gift” issue, determined:


       3. The Prenuptial Agreement unambiguously defines property acquired by gift,
       whether before or during marriage, as separate property. The pertinent
       provisions of the Prenuptial Agreement do not indicate an intention of
       the parties to preclude spousal gifts during the marriage. No language
       contained in the Prenuptial Agreement limits the definition of a “gift”
       to property acquired during the marriage from a third party at death, as
       Husband asserts.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 15 of 22
       4. The presumption in Illinois law that a conveyance from one spouse
       to the other during the marriage is a gift can be overcome by evidence
       that the transfer was not intended to be a gift. The Court will hear
       evidence at the final hearing regarding which, if any, gifts were acquired
       by a party during the marriage, whether from a third party, or from a
       spouse. If one party disputes the characterization of an asset as a gift to
       the other spouse, the Court will hear evidence and determine whether
       the requisite donative intent existed at the time of making the gift to
       classify that asset as the separate property of the party receiving it.


       Id. at 15-16 (emphasis added).


[24]   On appeal, Husband argues that the trial court erred when it stated, “The

       Prenuptial Agreement unambiguously defines property acquired by gift,

       whether before or during marriage, as separate property[,]” because that

       statement treated all gifts as being separate property of the recipient spouse.

       Reply Br. at 5. He urges that “not all gifts are created equal” under the terms of

       the agreement, and, in support, he refers us to language in the second paragraph

       of Section 3, which he maintains specifically provides that gratuitous inter-

       spousal transfers of certain property during the course of the marriage is to be

       treated as marital property, not separate property. The relevant provision

       states:

       Marital property shall also include any property acquired before
       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
       their marriage.


       Appellant’s App. at 56 (emphasis added). Husband argues that the above

       “retitling provision” of Section 3
       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 16 of 22
only controls the gratuitous transfer of titled property owned by a spouse
prior to marriage. Property that is not titled, such as clothing,
housewares, jewelry, etc., could still be given and/or gifted to the other
spouse without those items becoming marital property if the requisite
donative intent has been shown.


Appellant’s Br. at 15 (emphasis added). Husband suggests that the trial court’s

Order was a “blanket ruling on how gifts would be treated and defined in this

case,” Reply Br. at 5, and that “[a]s a result of this ruling, anything that is

determined to be a gift, even gifts between spouses that would include the

retitling of property, is classified as separate property[.]” Id. at 6. The Order,

he argues, ignored the contractual provision in the parties’ Agreement regarding

retitling of property and “require[s] the parties to litigate the issue of donative

intent on all such transactions.” Appellant’s Br. at 15. He asks that we reverse

“paragraphs 3, 4 and 59 of the Declaratory Judgment Order as it relates to

gratuitous inter-spousal transfers of titled property[.]” Id. (emphasis added); see

also Reply Br. at 4.10




9
 Paragraphs 3 and 4 of the Order are set out in our decision. Paragraph 5 addressed a particular oil lease,
whether it was a gift, and whether it was marital property. The trial court declined to rule on the issue, but
noted, “[T]he Court acknowledges the characterization of this asset is in dispute, and therefore, will hear
evidence on whether the intent in transferring this oil lease [] to [Wife] during the marriage was to make it
her separate property or marital property subject to an equal division.” Appellant’s App. at 16.
10
   Accordingly, it appears that Husband does not challenge the trial court’s determination as it pertains to
inter-spousal gifts of un-titled property. However, to the extent that Husband does claim that the trial court’s
decision as it related to gifts from one spouse to another of un-titled property was erroneous, that argument is
waived for failure to present argument or support. Ind. Appellate Rule 46(A)(8).

Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017           Page 17 of 22
[25]   Wife opposes Husband’s attempt to separate the effect of the Order as it applies

       to gifts of titled property versus gifts of untitled property, arguing that in her

       Petition she “simply asked the trial court to settle whether the term ‘gift’ was

       restricted to conveyances at death.” Appellee’s Br. at 39. Therefore, she argues,

       Husband’s arguments on appeal regarding gifts of property that were retitled in

       the name of the other spouse or both spouses are not before this court, are based

       on “abstract possibilities,” and are not ripe for our consideration. Id. Although

       Wife may not have asked the court to make a distinction between titled and

       non-titled gifts, its Order included the statement that “[the Agreement]

       unambiguously defines property acquired by gift, whether before or during

       marriage, as separate property[,]” and Husband’s appellate argument is that a

       broad reading and application of that sentence would conflict with the re-titling

       provision in paragraph two of Section 3. It is appropriate that we address this

       matter as it affects the division of the parties’ marital estate.


[26]   We do not find that, as Husband requests, reversal of paragraphs 3, 4, and 5 of

       the Order is warranted. Initially, we observe that the sentence in dispute – “The

       Prenuptial Agreement unambiguously defines property acquired by gift,

       whether before or during marriage, as separate property.” – does not expressly

       state that all gifts between spouses are separate property. However, to the

       extent that this sentence could be viewed as a ruling that all inter-spousal gifts,

       whether of titled property or not, constitute separate property, we find such a

       reading of that sentence conflicts with Section 3 of the Agreement, which states

       that “any property . . . which is given to the spouse by retitling in the other


       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 18 of 22
       spouse’s name or in the joint name of the parties . . . during the period of their

       marriage” is marital property. Appellant’s App. at 56. Accordingly, we find that,

       under the express terms of the Agreement, gifts may be made from one spouse

       to the other during marriage, and such gifts may be, but are not necessarily, the

       separate property of the recipient spouse. With this clarification, we affirm the

       trial court’s determinations with regard to gifts under the Agreement.


[27]   Affirmed.


[28]   Barnes, J., concurs.


[29]   Robb, J., concurs in part and dissents in part with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 19 of 22
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       In the Matter of the Marriage of:                        Court of Appeals Case No.
                                                                82A01-1607-DR-1706
       Jeffrey E. Nelson,
       Appellant-Respondent,

               v.

       Julie A. Nelson,
       Appellee-Petitioner.



       Robb, Judge, concurring in part and dissenting in part


[30]   The trial court determined and the majority agrees that the Agreement’s

       definition of separate property “does not include the income produced from

       separate property or proceeds received from the sale of separate property.”

       Appellant’s App., Vol. II at 16. I respectfully dissent.


[31]   I agree with the majority that interpretation of the Agreement is not subject to

       the Illinois statute, but is based on the language of the Agreement alone, and I

       also agree that the first paragraph of Section 3 defines what is separate property

       while the second paragraph of Section 3 defines what is marital property.

       However, based on the language of the Agreement, I conclude that income and

       proceeds from separate property remain separate property.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 20 of 22
[32]   As the majority notes, we interpret the Agreement to give effect to the parties’

       intent. See slip op. at ¶ 10. And we view the Agreement as a whole and do not

       focus on singular or isolated terms. See id. It is clear to me that the parties’

       intent was to keep their separate property entirely separate, without exception.

       The first paragraph of Section 3 defining what is separate property essentially

       reads as follows:

               [A]ll property . . . belonging to the other party at the
               commencement of their marriage, . . . [(]including . . . any assets
               . . . attributable to any appreciation in value of such property,[)] .
               . . 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 . . . .


       Appellant’s App., Vol. 11 at 56 (emphasis added). Appreciation in value of

       separate property is separate property. Property acquired in exchange for

       separate property becomes separate property. I see no reason why income and

       proceeds, like appreciation and new property acquired from separate property,

       would not follow the asset.


[33]   The fact that the singular word “proceeds” appears in the second paragraph of

       Section 3 defining what is marital property does not necessarily mean that

       “proceeds” were not addressed by the first paragraph of Section 3 defining what

       is separate property. All it means is that any proceeds not arising from separate

       property are marital property. Moreover, if the mere use of the word



       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 21 of 22
       “proceeds” in the second paragraph of Section 3 defines its character, what of

       “income,” which is not mentioned in either paragraph?


[34]   In short, in considering the Agreement as a whole and the clear intent of the

       parties to keep their separate property as their own, I would reverse the trial

       court’s determination that “income and proceeds” are marital property.


[35]   In all other respects, I concur in the majority decision.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-DR-1706 | February 28, 2017   Page 22 of 22
