MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                   Jan 28 2015, 10:02 am
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 estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Julie Dixon                                               Karen Celestino-Horseman
Lori B. Schmeltzer                                        Austin & Jones, P.C.
Ciyou & Dixon, P.C.                                       Indianapolis, Indiana
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Nina Ozuyener,                                           January 28, 2015

Appellant-Petitioner,                                    Court of Appeals Cause No.
                                                         49A02-1404-DR-238
        v.                                               Appeal from the Marion Superior
                                                         Court
                                                         The Hon. Patrick L. McCarty, Judge
Korkut Ozuyener,                                         Cause No. 49D03-1303-DR-9657
Appellee-Respondent.




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015    Page 1 of 13
                                           Case Summary                   1




[1]   On March 11, 2013, Appellant-Petitioner Nina Sidibe Ozuyener (“Wife”) filed

      a Petition for Dissolution of Marriage from her husband Appellee-Respondent

      Korkut Ozuyener (“Husband”). On September 13, 2010, Husband and Wife

      (collectively “the parties”) executed an estate planning package which included,

      among other things, a document entitled “Post-Nuptial Agreement” (“the

      Agreement”) which determined the distribution of marital assets in the event of

      death or divorce. Wife requested that the trial court enforce the Agreement.

      The trial court found that the Agreement was unenforceable due to a lack of full

      disclosure to Husband regarding the nature of the Agreement. On appeal, the

      parties dispute which Indiana statute governs the Agreement, whether the

      Agreement was supported by consideration, and whether the trial court abused

      its discretion in finding that the Agreement was unenforceable. Finding that

      the trial court did not abuse its discretion by rejecting the Agreement, we

      decline to address the additional issues. Affirmed.



                             Facts and Procedural History




              1
                 We heard Oral Argument in this case on January 8, 2014 and we thank counsel for the quality of
      their presentations.




      Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015        Page 2 of 13
[2]   On March 11, 1999, Husband and Wife married. The couple had two children

      together. In July of 2010, the parties had an initial consultation with attorneys

      Hannah Joseph and Carly Turow (collectively the “Attorneys”) of the law firm

      of Joseph and Turow. Husband and Attorneys testified that the original

      purpose of the meeting was to discuss an estate planning package. Wife

      testified that the original purpose of the meeting was to discuss a prenuptial

      (later termed a postnuptial) agreement and only then did the Attorneys

      recommend a broader suite of estate planning documents. Turow and Wife

      testified that Husband initiated the conversation about a postnuptial agreement

      at the initial meeting and that he wanted a postnuptial agreement to prove to

      Wife that he did not marry her for her family’s money. The Attorneys agreed

      to represent both Husband and Wife in drafting the Agreement. On June 30,

      2010, Joseph sent an engagement letter addressed to both Husband and Wife

      confirming Attorneys’ representation of the parties. The engagement letter was

      signed only by Wife as “Client.” Respondent’s Ex. A. It is unclear whether the

      parties were orally advised of the potential for a conflict of interest and of the

      benefits of obtaining separate counsel. There was no such written advisement.

      Attorneys also represented Wife and her family in unrelated matters during the

      same period of time.


[3]   On September 13, 2010, the parties executed an estate planning package

      consisting of a durable power of attorney, designation of health care

      representative, last will and testament, funeral planning, and a document

      entitled “Post-Nuptial Agreement.” The Agreement sets forth, among other




      Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015   Page 3 of 13
      things, how the parties’ assets would be divided in the event of divorce and

      allocates significantly more of the marital assets to Wife. This disproportionate

      allocation was intended to reflect the amount of assets contributed to the

      marriage by the parties. Specifically, Wife’s family had contributed a $300,000

      down payment on the couple’s family home (“the Diver’s Cove property”), and

      had purchased a Chicago property of which a fifty-percent interest was gifted to

      Wife.


[4]   The Agreement states that, in the event of divorce, the parties’ property was to

      be divided according to financial-declaration statements attached to the

      Agreement. Attorneys gave the parties template financial-declaration forms

      which Wife filled out for both parties and returned to Attorneys. The forms

      were unsigned. It is unclear whether the financial statements were attached to

      the executed agreement. The copy of the Agreement in the Attorneys’ file did

      not contain the financial-declaration forms. According to the financial-

      declaration statements, the Agreement purported to give Wife exclusive

      ownership rights to the Diver’s Cove and Chicago properties, valued, in total, at

      $875,000 ($359,500 was still owed on those properties at the time the financial-

      declaration forms were completed). The Agreement gives Husband exclusive

      rights to an Indianapolis property valued at $55,000. The Agreement also gives

      Wife sole ownership of two savings accounts worth $340,000 and gives

      Husband sole ownership of two savings accounts worth $8,500. Attorney

      Turow stated that the Agreement was not so much a division of property as a

      “clear allocation to the [Wife’s] side of the family.” Tr. p. 29.




      Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015   Page 4 of 13
[5]   The details of the Agreement were developed throughout several emails

      between the Attorneys and the parties. Wife handled nearly all of the

      communications with Attorneys. Although Husband was copied on the

      majority of the email communications, he was left out of several emails

      specifically pertaining to the Agreement, namely its distribution of marital

      property. Although his signature and initials are on the Agreement, Husband

      maintains that he was unaware that a postnuptial agreement had been prepared

      for execution along with the other estate planning documents, that he did not

      read or know that he was signing a postnuptial agreement, and that he was not

      informed or aware of the financial-declaration statements. English is

      Husband’s second language and he testified that he did not feel comfortable

      with his language skills when it came to reading technical documents. As such,

      throughout the course of the marriage, Husband relied heavily on Wife in

      conducting their family business affairs. Wife admitted to preparing Husband’s

      financial-declaration statement but stated that she sent it to Husband for review.

      Husband claims he was not aware he had signed a postnuptial agreement until

      Wife informed him of such after she filed for dissolution.


[6]   On March 11, 2013, Wife filed a Petition for Dissolution of Marriage and

      requested that the trial court enforce the Agreement. After a two-day hearing

      concerning the validity of the Agreement, the trial court found that the

      Agreement was invalid and unenforceable and issued the following findings:

              4.    [Husband] does not deny that [h]is initials and signature
              appear[] on the post nuptial agreement but [claims] that he was
              unaware that it was in a stack with the other documents at the time,




      Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015   Page 5 of 13
        that he did not read it, was not informed of it and did not see any
        exhibits or attachments in the way of financial statements which
        described and identified the property that each party would retain as
        solely theirs.


        5.     [Husband] contends that he would not have signed the
        agreement had he known of its existence, that he did not participate in
        the preparation of any financial statements and the existence of same
        was not disclosed to him. Furthermore, that he was unaware of the
        agreement up to a point [in] time where [Wife] informed him of this
        shortly [] before proceeding with a dissolution of marriage action.


        6.     [Husband] further testified that being unaware of the nature and
        meaning of a postnuptial agreement he resorted to internet research to
        determine such after being informed of the agreement’s existence by
        [Wife].


        7.     Evidence in the way of testimony from [Attorneys] had
        indicated that a discussion was had regarding a post nuptial agreement
        which included [Husband] but neither recalled any specific details
        about the discussions, questions asked if any by [Husband] with only
        one of the attorneys being present at the execution of the documents.


        8.      Furthermore, there was no recall by the attorneys as to whether
        financial statements identifying what would be the sole or separate
        property of each party had been attached to the post nuptial agreement
        at the time of signing.


        9.     The post nuptial agreement stipulated into evidence (previously
        filed with the court by the [Wife]) contained what appeared to be
        financial statements but unsigned by either party with a copy of the
        same agreement entered into evidence from the preparing attorneys file
        which was without said financial statements.


        10.    Also introduced into evidence were numerous emails on the
        subject which [Husband] maintains he did not receive[] with some of
        the emails not copied to him as [Wife] testified that some things




Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015   Page 6 of 13
              deemed not important enough to copy him on regarding the
              postnuptial.


              11.     [Husband] was further found to trust and rely greatly on [Wife]
              in conducting their business affairs. While it is undisputed that
              [Husband]’s initials and signature appear[] on the post nuptial
              agreement it is not clear that he was aware of the agreement and its
              existence at the time of signing while mixed in with other documents.
              [Husband] also testified that [he] believes that he is entitled to a half
              interest in the residential home which is titled to both parties. There
              had also been a clear lack of full disclosure in the absence of the
              financial statements identifying the property to remain the separate
              and sole property of each along with [Husband] not being copied on
              all emails. Such a lack of full disclosure also creates an unfairness,
              unreasonableness manifest inequity.


                       The Court therefore find[s] that the postnuptial agreement
               although signed by the [Husband] was the product of unfairness not
               having an awareness of the meaning of a post nuptial agreement
               along with a lack of full disclosure as [Husband] was unaware of it[s]
               existence while signing other documents including the absence of the
               financial statements as attachments or exhibits identifying the
               property of each. The Court therefore determine[s] the post nuptial
               agreement invalid or unenforceable with [Wife]’s request for legal
               costs is denied.


      Appellant’s App. pp. 8-10. Additional facts will be provided where necessary.



                                 Discussion and Decision
                                      I. Standard of Review
[7]   Wife is appealing from a decision in which the trial court entered findings of

      fact and conclusions thereon.




      Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015   Page 7 of 13
                In the instant case, the trial court entered special findings of fact
        and conclusions of law pursuant to Ind. Trial Rule 52(A). Therefore,
        our standard of review is two-tiered: we first determine whether the
        evidence supports the trial court’s findings, and second, we determine
        whether the findings support the judgment. Boonville Convalescent
        Center, Inc. v. Cloverleaf Healthcare Services, Inc., 834 N.E.2d 1116, 1121
        (Ind. Ct. App. 2005), reh’g denied, trans. denied. Findings of fact are
        clearly erroneous when the record lacks any reasonable inference from
        the evidence to support them, and the trial court’s judgment is clearly
        erroneous if it is unsupported by the findings and the conclusions
        which rely upon those findings. Id. In establishing whether the
        findings or the judgment are clearly erroneous, we consider only the
        evidence favorable to the judgment and all reasonable inferences to be
        drawn therefrom. Id.
                While conducting our review, we cannot reweigh the evidence
        or judge the credibility of any witness, and must affirm the trial court’s
        decision if the record contains any supporting evidence or inferences.
        Id. However, while we defer substantially to findings of fact, we do
        not do so for conclusions of law. Id. We evaluate conclusions of law
        de novo and owe no deference to a trial court’s determination of such
        questions. Id.


Briles v. Wausau Ins. Cos., 858 N.E.2d 208, 212 (Ind. Ct. App. 2006). “Sua

sponte findings control only as to the issues they cover, and a general judgment

will control as to the issues upon which there are no findings.” Morgal-Henrich

v. Henrich, 970 N.E.2d 207, 210 (Ind. Ct. App. 2012) (citing Yanoff v. Muncy, 688

N.E.2d 1259, 1262 (Ind. 1997)).

        [A]ppellate courts give considerable deference to the findings of the
        trial court in family law matters …. [T]rial courts must exercise
        judgment, particularly as to credibility of witnesses, and we defer to
        that judgment because the trial court views the evidence firsthand and
        we review a cold documentary record. Thus, to the extent credibility
        or inferences are to be drawn, we give the trial court’s conclusions
        substantial weight. But to the extent a ruling is based on an error of




Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015   Page 8 of 13
              law or is not supported by the evidence, it is reversible, and the trial
              court has no discretion to reach the wrong result.


      MacLafferty v. MacLafferty, 829 N.E.2d 938, 941 (Ind. 2005).


                  II. Enforceability of Postnuptial Agreement
[8]   Both this court and the Indiana Supreme Court have addressed the validity of

      postnuptial agreements several times. In each case, the reviewing court has

      begun its analysis by classifying the disputed postnuptial agreement as either a

      dissolution-settlement agreement or a reconciliation agreement. The outcome

      of this analysis determines the amount of discretion the trial court has to accept

      or reject the agreement.

                      Turning to the merits, our first guidepost in this case is Pond v.
              Pond, 700 N.E.2d 1130 (Ind. 1998). There, the Indiana Supreme
              Court discussed the difference between “reconciliation agreements”
              and “dissolution settlements.” Id. at 1132. The former are agreements
              (referred to as prenuptial, premarital, or antenuptial agreements)
              entered into in contemplation of marriage or its continuance and that
              generally must be enforced as written in the event of dissolution. Id.
              The latter are agreements entered into as a consequence of dissolution
              proceedings (post-nuptial agreements); they are governed by the
              Indiana Dissolution of Marriage Act (“the Act”), and their acceptance
              or rejection is within the trial court’s discretion.


      Beaman v. Beaman, 844 N.E.2d 525, 529 (Ind. Ct. App. 2006). Wife argues that

      the Agreement is a reconciliation agreement and, therefore, that the trial court’s

      discretion to reject the Agreement was limited. Husband argues the Agreement

      is a dissolution settlement and, as such, the trial court had greater discretion to

      reject the Agreement.




      Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015   Page 9 of 13
[9]    We need not address this particular question as the outcome of this case would

       be the same regardless of the classification of the Agreement. Wife’s analysis of

       the law on postnuptial agreements was artfully articulated and accurate;

       however, the facts of this case do not support her conclusion that the trial court

       exceeded its discretion in this instance. Even applying the more stringent

       discretionary standard used for reconciliation agreements, we find that the trial

       court was within its discretion to reject the agreement.


           A. Discretionary Standard for Reconciliation Agreements
[10]   Reconciliation agreements must generally be enforced as written and trial

       courts may only reject such agreements under a limited set of circumstances.

       Pond, 700 N.E.2d at 1132. Reconciliation agreements are valid and binding so

       long as they are entered into freely and fairly, without fraud, undue influence,

       duress, or misrepresentation, and are not, under the particular circumstances of

       the case, unconscionable. Gaskell v. Gaskell, 900 N.E.2d 13, 17 (Ind. Ct. App.

       2009); In re Marriage of Boren, 475 N.E.2d 690, 695 (Ind. 1985); Matter of Estate of

       Palamara, 513 N.E.2d 1223, 1229 (Ind. Ct. App. 1987). In applying this

       standard, our courts have looked at whether the parties to a marital agreement

       received full disclosure of the nature and extent of the rights they waived via the

       agreement and whether the parties fully disclosed their assets prior to execution

       of the agreement. Estate of Stack v. Venzke, 485 N.E.2d 907, 910-11 (Ind. Ct.

       App. 1985). A marital agreement is unconscionable if “there was a gross

       disparity in bargaining power which led the party with the lesser bargaining

       power to sign a contract unwillingly or unaware of its terms and the contract is




       Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015   Page 10 of 13
       one that no sensible person, not under delusion, duress or distress would

       accept.” Rider v. Rider, 669 N.E.2d 160, 162 (Ind. 1996) (quoting Justus v.

       Justus, 581 N.E.2d 1265 (Ind. Ct. App. 1991)).


                              B. Discretionary Standard Applied
[11]   Under the applicable standard of review, we “must affirm the trial court’s

       decision if the record contains any supporting evidence or inferences.” Briles,

       858 N.E.2d at 212. Although there is conflicting evidence regarding Husband’s

       subjective awareness of the Agreement, “we consider only the evidence

       favorable to the judgment and all reasonable inferences to be drawn therefrom,”

       and “we cannot reweigh the evidence or judge the credibility of any witness.”

       Id.


[12]   The Agreement was significantly unequal in its disposition of the marital assets,

       the Attorneys were acutely aware of this fact, and there were several emails

       between Wife and Attorneys which specifically addressed the unbalanced

       distribution and on which Husband was not copied. Despite the contentious

       and unbalanced nature of the Agreement, Attorneys agreed to represent

       Husband and Wife jointly and did not properly advise the parties of the

       apparent conflicts of interest. Husband claims that Attorneys breached the

       Indiana Rules of Professional Conduct Rule 1.7 by agreeing to represent the

       parties jointly and by failing to disclose conflicts of interests to Husband and/or




       Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015   Page 11 of 13
failing to obtain Husband’s consent to the same. 2 Husband further claims that

this created manifest inequities between the parties. The Rules of Professional

Conduct are not law and whether an attorney breached the Rules is not

determinative of the enforceability of a contract created as a consequence of an

alleged breach. However, the fact that both Husband and Wife were

represented by the same counsel indicates, at the very least, a lack of arms-

length bargaining in the formation of the Agreement. As mentioned above, “[a]

contract is unconscionable if there was a gross disparity in bargaining power

which led the party with the lesser bargaining power to sign a contract

unwillingly or unaware of its terms and the contract is one that no sensible

person, not under delusion, duress or distress would accept.” Rider, 669 N.E.2d

at 162. Throughout their marriage, Husband relied heavily on Wife to handle

the family’s business affairs and she admitted to taking care of and advising

Husband on the majority of those matters. Moreover, the Agreement was

developed exclusively based on Wife’s wishes. Wife testified that Husband did

not ask for any changes or revisions to any of the executed documents with the

exception of a preference on burial instructions in the event of his death.




         2
         Husband highlights two potential conflicts of interest: (1) Attorneys’ representation of both Husband
and Wife in drafting the Agreement, and (2) Attorneys’ representation of Wife and Wife’s family on other
matters while simultaneously representing Husband and Wife.




Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015         Page 12 of 13
[13]   In its findings of fact, the trial court outlined evidence which suggested that

       Husband was unaware of the nature and terms of Agreement. Specifically,

       Husband claimed he was completely unaware of the Agreement prior to Wife’s

       filing for dissolution, Husband did not complete the financial-declaration

       statements, the financial-declaration statements were unsigned and not attached

       to the Attorneys’ copy of the Agreement, and it is unclear whether the financial-

       declaration statements were attached to the original executed Agreement. It is

       difficult to see how Husband could fairly be bound by an Agreement which

       repeatedly references attached financial statements that were not actually

       attached, particularly when it is the substance of those statements that

       determines the core of the Agreement (i.e., what assets the parties would retain

       upon death or dissolution of marriage).


[14]   The trial court’s factual findings indicate that the Agreement was not entered

       into fairly and was the product of a lack of full disclosure as to the nature and

       terms of the Agreement. To find otherwise would require this court to reweigh

       the evidence, which we will not do. Because the trial court’s conclusion was

       supported by its findings, we cannot say that the judgment was clearly

       erroneous.


[15]   The judgment of the trial court is affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015   Page 13 of 13
