MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
                                                                           FILED
estoppel, or the law of the case.                                     May 05 2020, 9:06 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Julie A. Camden                                         Christopher T. Smith
Camden & Meridew, P.C.                                  Smith Davis LLC
Fishers, Indiana                                        Greenfield, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In Re the Marriage of:                                  May 5, 2020
                                                        Court of Appeals Case No.
Crystal Couture Moore,                                  19A-DR-2798
Appellant-Petitioner,                                   Appeal from the Hancock Circuit
                                                        Court
        v.                                              The Honorable R. Scott Sirk,
                                                        Judge
Alan J. Couture,                                        Trial Court Cause No.
Appellee-Respondent.                                    30C01-0206-DR-380




Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020                    Page 1 of 14
                                          Case Summary
[1]   Crystal Couture Moore (“Wife”) and Alan J. Couture (“Husband”) were

      married in 1983 and divorced in 2002. In the 2002 divorce decree, the trial

      court found that Husband had committed a marital tort against Wife and

      entered judgment against Husband in the amount of $675,000 (the

      “judgment”). The trial court explicitly found that the judgment was to

      compensate Wife for an intentional battery committed by Husband and would

      not be dischargeable in bankruptcy. In the years following the parties’ divorce,

      Husband has filed for bankruptcy on two different occasions. The judgment

      was not discharged in either bankruptcy proceeding. Husband subsequently

      requested that the second bankruptcy court reconsider whether the judgment

      should have been discharged by the bankruptcy proceedings. Before ruling on

      Husband’s request, the bankruptcy court asked the trial court to clarify the

      nature of the marital tort and whether the judgment was intended to be akin to

      alimony or support.


[2]   In June of 2019, the trial court conducted a two-day trial to determine the

      nature of the marital tort and judgment. Despite Wife’s assertion that re-

      litigation of whether a marital tort occurred was barred by the doctrine of res

      judicata, on September 4, 2019, the trial court found that no marital tort had

      occurred. The trial court also denied Wife’s subsequent motion to correct error

      in which she again argued res judicata. Wife contends that the trial court

      abused its discretion in denying her motion to correct error, claiming that re-

      litigation of the issue of whether a marital tort had occurred was barred by the

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020   Page 2 of 14
      doctrine of res judicata. Concluding that the trial court abused its discretion in

      finding that Wife had waived her right to assert res judicata, we reverse and

      remand with instructions for the trial court to issue an order classifying the

      marital tort and judgment as an intentional battery which resulted in a willful

      and malicious injury by Husband to Wife.



                               Facts and Procedural History
[3]   Husband and Wife married on April 23, 1983. Wife initiated divorce

      proceedings in June of 2002.1 In these proceedings, Wife alleged that Husband

      had committed a marital tort against her by causing her to contract the human

      papillomavirus (“HPV”). The trial court issued a decree dissolving the parties’

      marriage on September 23, 2002. With regard to the marital tort, the trial court

      found as follows:


                Judgment for Marital Tort: It was [Wife’s] intention to file a
                spousal tort action against [Husband]. [Husband] further
                acknowledges and stipulates that as a direct and proximate cause
                of [Husband’s] action, [Wife] has suffered damages for which
                [Husband] is responsible under a theory of intentional battery,
                which warrants punitive damages, and shall not be dischargeable
                in bankruptcy.

                Based thereon, [Wife] shall have a judgment against [Husband]
                in the sum of Six Hundred Seventy-five Thousand Dollars
                ($675,000) with said judgment to accrue interest at the rate of 8%
                per annum.



      1
          Two children were born during the course of the parties’ marriage. (Appellant’s App. Vol. II p. 18)

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020                        Page 3 of 14
              In lieu of the filing of a separate action, [Husband] agrees to the
              foregoing judgment being entered in this action and made a part
              of this Decree. Both parties expressly waive their right to try
              such claim before a jury.

              That [Husband] shall pay the foregoing judgment at the rate of
              $2,271.39 bi-monthly due on the 15th and the last day of each
              month. Said payment shall be reduced by the amount paid
              towards child support, the mortgage and alimony as referenced
              above so that the total amount paid towards the child support,
              alimony, mortgage and judgment does not exceed $2,271.39 bi-
              monthly with an annual increase of three (3) percent.

              Upon a modification or termination of the child support, the
              mortgage obligation or alimony obligation as set forth above,
              payment on the judgment shall commence so as to make the total
              payment by [Husband] for child support, alimony, mortgage and
              judgment equal to $2,271.39 bi-monthly, with an annual increase
              of three (3) percent.


      Appellant’s App. Vol. II p. 21.


[4]   In 2004, Husband filed for bankruptcy in the Northern District of Indiana. The

      judgment was not discharged in this action and Husband thereafter continued

      to make payments on the judgment. In 2012, Husband filed for bankruptcy in

      the United States Bankruptcy Court for the District of Montana (the

      “Bankruptcy Court”). The Bankruptcy Court found the judgment to be non-

      dischargeable.


[5]   On January 6, 2017, Wife filed a motion for rule to show cause in the trial court

      after Husband stopped making payments on the judgment. Husband, claiming

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020   Page 4 of 14
      to believe that the judgment had been discharged in the 2004 bankruptcy

      proceedings, filed a motion for relief in the Bankruptcy Court, requesting that it

      reconsider its previous determination that the judgment was not dischargeable

      in the bankruptcy proceedings. On May 24, 2018, the Bankruptcy Court issued

      an order holding Husband’s motion in abeyance and invited the trial court “to

      provide clarification on the nature of the marital tort debt, and whether it was

      intended to be in the nature of alimony or support for [Wife].” Appellant’s

      App. Vol. II p. 52. On June 20, 2019, the Bankruptcy Court issued another

      order in which it requested the trial court to clarify “the nature of the marital

      tort debt, and whether it was intended to be in the nature of alimony or support

      for [Wife]” on or before July 18, 2019. Appellant’s App. Vol. II p. 105.


[6]   In accordance with the Bankruptcy Court’s requests for clarification, the parties

      agreed to a trial date for the trial court to hear argument relating to “the nature

      of the marital tort that has been the subject of two prior bankruptcy

      proceedings[.]” Appellant’s App. Vol. II p. 35. During the first day of trial,

      Husband argued that “the issue in this case seems now to turn on whether the

      — the nature of the marital tort and whether it was intentional. An intentional

      tort that is one that is willful and malicious is non-dischargeable. Whereas one

      that is not willful and malicious is.” Tr. p. 33. Wife countered, stating that the

      issue of whether an intentional marital tort occurred


              is res judicata Your Honor. This has already been determined by
              this Court you know back in 2002. That — you know we’ll let
              you read the transcript and — and see it for yourself. But I think
              it’s very clear that you know he was trying to get out of the

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020   Page 5 of 14
              marriage, he was — he had agreed to a — a marital tort. And I
              think the record is very clear and now — now that he’s trying to
              discharge it and avoid payment on it years later, he is now trying
              to say that oh no, no I can’t remember and you know now that
              it’s twenty years later it’s easy to say well the — the records
              aren’t available or it’s tough to prove the negative.


      Tr. p. 34. At the conclusion of the second day of trial, Husband argued that


              The Bankruptcy Court in Montana remanded this matter to this
              Court for this Court to determine the nature of the marital tort
              that is at issue in this case. Particularly the most important
              aspect of that is was it an intentional tort which based on
              bankruptcy law as I understand it can be non-dischargeable
              whereas a tort that is not intentional is dischargeable.


      Tr. p. 85. Husband continued “So Your Honor the finding that this Court

      should make is to the point there is no indication of any intention tort for how

      can a man intentionally inflict a disease he has no way to know that he has?

      One cannot do that.” Tr. p. 87. Wife countered “I think it’s important to look

      back at the agreement that was placed on the record that the parties agreed to a

      marital tort back then Your Honor.… One of the problems we have Your

      Honor is we thought this was done. We had this agreement, we put this on the

      record.” Tr. p. 88.


[7]   On September 4, 2019, the trial court issued an order in which it found as

      follows:


              12. No evidence was presented by [Wife] or [Husband] that
              [Husband] ever contracted HPV or any other STD, and no
              evidence was presented to suggest he intentionally or even
      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020   Page 6 of 14
              negligently transmitted HPV or another STD to [Wife].

              13. In light of the foregoing findings, the Court finds that [Wife]
              has failed to meet her burden of proving by a preponderance of
              the evidence that [Husband] committed the marital tort against
              her, and [Wife] has failed to meet her burden of proving by a
              preponderance of the evidence that any transmission of HPV or
              another STD by [Husband] to [Wife] was intentional.


      Appellant’s App. Vol. II pp. 109–10. With respect to Wife’s claim that a

      determination of whether a marital tort had occurred was barred by the doctrine

      of res judicata, the trial court found as follows:


              4. [Wife] asserts this issue was resolved by res judicata.
              However, on October 22, 2018, the parties agreed to a trial on
              these issues that had previously been resolved. The Court finds
              that therefore by agreeing to a trial the issue of res judicata was
              waived by [Wife]. The parties agreed to a new trial of the issue
              of marital tort before the Court.


      Appellant’s App. Vol. II p. 108.


[8]   On September 27, 2019, Wife filed a motion to correct error, in which she

      asserted as follows:


              That within paragraph four (4) of the Order on Trial to
              Determine Nature of Marital Tort, the Court found that by
              agreeing to a trial on the issues of res judicata, it was therefore
              waived by [Wife]. That this Finding is incorrect. That the
              attorneys for [Wife] and [Husband] met in chambers with
              Commissioner Coombs. That Commissioner Coombs requested
              that the parties reduce the dates to writing and submit to the
              Court. That in response to said request from Commissioner
              Coombs, the pleading titled Agreement on Trial Date was filed
      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020   Page 7 of 14
        with the Court on or about October 22, 2018. That the only
        thing [Wife] agreed to do was to provide guidance to the United
        States Bankruptcy Court for the District of Montana as requested
        within the Order dated May 24, 2018. That hearing in Hancock
        Circuit Court was going to be held with or without our
        authorization. That [Wife] raised the res judicata argument
        multiple times throughout the actual Court hearing. That the
        meeting with Commissioner Coombs was not on the record but
        undersigned Counsel recalls both parties gave the Court a quick
        summary of the issues for hearing to assist the Court with trying
        to determine an appropriate length of time necessary to try the
        matter as is usually done. That one of the issues raised to the
        Court in the brief summary was res judicata. That the
        Agreement on Trial Date was an administrative function for the
        Court’s convenience, not an agreement by [Wife] to undo the
        Decree of Dissolution of Marriage dated September 23, 2002.


Appellee’s App. Vol. II pp. 2–3. During the hearing on Wife’s motion to

correct error, Wife stated that “the main point I wanted to argue is Res

Judicata.” Tr. p. 95. She further stated the following:

        The October 22, 2018 Order — I guess probably the relevant part
        says by agreement of the parties this matter should be
        rescheduled for trial to determine the nature of the marital tort
        that has been the subject matter of two prior bankruptcy
        proceedings.… So I think in the — the Court relied upon that as
        us waiving Res Judicata Your Honor and I just want to — I
        wanted to point out that I just by no intent did I want to waive
        Res Judicata. I was just trying to — you know I think we had
        met down in Judge — Commissioner Coombs’ office Your
        Honor and we kind of both gave him a synopsis of what our sides
        were and he had asked hey you know please just reduce that to
        writing and filing it with the Court, make it a court order. So I
        — I felt like that was kind of more of an administrative — or
        administrative function that we were assisting the Court with. So

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020   Page 8 of 14
               you know I did not want to waive and I — I don’t believe the
               language of the agreement contemplates that we cannot bring up
               Res Judicata nor was that waived[.]


       Tr. pp. 95–96. On October 28, 2019, the trial court denied Wife’s motion to

       correct error.



                                 Discussion and Decision
[9]    Wife appeals following the denial of her motion to correct error. “In general,

       we review a trial court’s ruling on a motion to correct error for an abuse of

       discretion.” City of Indpls. v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App. 2010).

       “However, to the extent the issues raised … are purely questions of law, our

       review is de novo.” Id. In this case, Wife claims that the trial court abused its

       discretion in finding that re-litigation of the question of whether Husband

       committed a marital tort was not barred by the doctrine of res judicata. Wife

       also claims that the trial erred in failing to find that the marital tort was in the

       nature of support and was therefore non-dischargeable in bankruptcy.


                                            I. Res Judicata
[10]           The doctrine of res judicata serves to prevent the litigation of
               matters that have already been litigated. Res judicata consists of
               two distinct components: claim preclusion and issue preclusion.
               Claim preclusion is applicable when a final judgment on the
               merits has been rendered and acts to bar a subsequent action on
               the same claim between the same parties. When claim
               preclusion applies, all matters that were or might have been
               litigated are deemed conclusively decided by the judgment in the
               prior action. Claim preclusion applies when the following four
       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020   Page 9 of 14
               factors are present: (1) the former judgment was rendered by a
               court of competent jurisdiction; (2) the former judgment was
               rendered on the merits; (3) the matter now at issue was, or could
               have been, determined in the prior action; and (4) the
               controversy adjudicated in the former action was between parties
               to the present suit or their privies. Final judgments dispose of the
               subject matter of the litigation as to the parties so far as the court
               in which the action is pending has the power to dispose of it.


       TacCo Falcon Point, Inc. v. Atl. Ltd. P’ship XII, 937 N.E.2d 1212, 1218–19 (Ind.

       Ct. App. 2010) (internal citations and quotation omitted). It is undisputed that

       the first, third, and fourth factors set forth in TacCo are satisfied here. The

       parties, however, dispute whether the trial court’s judgment was rendered on

       the merits.

[11]   In 2002, Husband stipulated to the fact that he had committed a marital tort

       against Wife. Husband further stipulated that as a direct and proximate cause

       of his actions, Wife “suffered damages for which [Husband] is responsible

       under a theory of intentional battery, which warrants punitive damages and

       shall not be dischargeable in bankruptcy.” Appellant’s App. Vol. II p. 21. The

       trial court accepted Husband’s stipulations, incorporated them into its final

       appealable judgment, and found that Husband had committed a marital tort

       against Wife.


[12]   “It has been held that parties entering into a stipulation are bound to the facts so

       stipulated.” Wittwer v. Wittwer, 545 N.E.2d 27, 29 (Ind. Ct. App. 1989). “Once

       a stipulation is entered into between the parties, the facts so stipulated are

       conclusive upon both the parties and the tribunal.” Id. Given that both

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020   Page 10 of 14
       Husband and the trial court were bound by Husband’s stipulations and the

       stipulations were incorporated into the trial court’s final appealable judgment,

       we conclude that, for the purposes of res judicata, the issue was decided on the

       merits. Because all four of the TacCo factors were satisfied, the parties were

       barred from re-litigating the issue of whether Husband committed a marital tort.

       That said, the question before us on appeal is whether the trial court abused its

       discretion in finding that Wife waived her right to assert that re-litigation of the

       issue was barred by the doctrine of res judicata.


[13]   The United States Bankruptcy Code provides that “[a] discharge … does not

       discharge an individual debtor from any debt … (5) for a domestic support

       obligation; [or] (6) for willful and malicious injury by the debtor to another

       entity or to the property of another entity[.]” 11 U.S.C.A. § 523(a). The instant

       trial became necessary after Husband requested that the Bankruptcy Court find

       that the judgment should have been discharged in his bankruptcy proceedings

       and the Bankruptcy Court sought clarification on “the nature of the marital tort

       debt, and whether it was intended to be in the nature of alimony or support for

       [Wife].” Appellant’s App. Vol. II p. 105. The Bankruptcy Court’s request for

       clarification was limited in scope to the specific nature of the marital tort and

       whether it was intended to be akin to alimony or support.


[14]   After receiving the Bankruptcy Court’s request for clarification, the parties

       agreed to a trial date for the trial court “to determine the nature of the marital




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020   Page 11 of 14
tort that has been the subject of two prior bankruptcy proceedings[.]” 2

Appellant’s App. Vol. II p. 35. In arguing that the trial court abused its

discretion in denying her motion to correct error, Wife asserts that her

agreement to proceed with a new trial was limited to the scope of the

Bankruptcy Court’s request for clarification and was not an agreement to re-

litigate the question of whether Husband committed a marital tort. Husband

acknowledges that the trial was focused and/or limited “by agreement of the

parties on the issue of the nature of the marital tort.” Appellee’s Br. p. 12.

Furthermore, there is nothing in the record that indicates that the parties’

agreement to have a new trial was expanded beyond the scope of the

Bankruptcy Court’s request for clarification. Given the lack of evidence to the

contrary, we conclude that the record supports Wife’s assertion that her

agreement to proceed to trial was limited to the scope of the Bankruptcy Court’s

request for clarification. Accordingly, we conclude that the trial court abused

its discretion in finding that Wife waived her right to assert that re-litigation was

barred by res judicata.3




2
  Husband claims that Wife has waived her appellate res judicata claim because she did not raise the issue of
res judicata until her motion to correct error. The record reveals, however, that Wife raised the issue of res
judicata at trial.
3
  During trial, Wife submitted a transcript of the parties’ 2002 divorce proceedings, during which Husband
acknowledged that Wife had contracted HPV as a result of the extramarital intimate relations that he
engaged in during the parties’ marriage. Despite making this acknowledgment under oath during the 2002
divorce proceedings, Husband disavowed his prior acknowledgment during the instant trial, claiming that an
STD test conducted in April of 2019, indicated that he did not currently have any STDs. In making this
claim, Husband acknowledged, however, that the STD test was not determinative of whether he previously
had or currently has HPV as there is no HPV test available for males. There is nothing in the record beyond
Husband’s self-serving testimony that he currently has no reason to believe that he transmitted HPV to Wife
or ever intended to transmit HPV to Wife that would negate the testimony during the parties’ 2002 divorce

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020                      Page 12 of 14
                                       II. Nature of Judgment
[15]   Wife also contends that the trial court should have clarified for the Bankruptcy

       Court that the judgment was not dischargeable. We agree.


[16]   Again, the United States Bankruptcy Code provides that “[a] discharge … does

       not discharge an individual debtor from any debt … (6) for willful and

       malicious injury by the debtor to another entity or to the property of another

       entity[.]” 11 U.S.C.A. § 523(a). The term willful is defined as “done

       deliberately : INTENTIONAL.” https://www.merriam-

       webster.com/dictionary/willful (last visited April 23, 2020). As is discussed

       above, Husband stipulated that he had committed an intentional battery against

       Wife and that the judgment would not be dischargeable in bankruptcy.

       Husband argues in the instant proceedings that he could not have willfully or

       maliciously injured Wife as he did not intentionally injure Wife. Husband’s

       argument is in direct conflict with his prior stipulation that he committed an

       intentional battery on Wife. Given that Husband is bound by his prior

       stipulation that he committed an intentional battery on Wife, see Wittwer, 545

       N.E.2d at 29, we conclude that the judgment compensates Wife for a willful or

       malicious injury committed on Wife by Husband. As such, the judgment was

       not dischargeable in Husband’s subsequent bankruptcy proceedings. See 11



       proceedings indicating that there was “a high probability” that Husband transmitted HPV to Wife. Ex. Vol.
       p. 32. Given that the transcript of the 2002 divorce proceedings was entered into evidence during the instant
       trial, the record does not support the trial court’s finding that “[n]o evidence was presented by [Wife] or
       [Husband] … to suggest [Husband] intentionally or even negligently transmitted HPV or another STD to
       [Wife].” Appellant’s App. Vol. II pp. 109–10.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020                     Page 13 of 14
       U.S.C.A. § 523(a). On remand, we instruct the trial court to enter an order

       classifying the judgement as such.


[17]   The judgment of the trial court is reversed, and the matter remanded with

       instructions.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2798 | May 5, 2020   Page 14 of 14
