                                                                         FILED
                                                                    Aug 16 2019, 8:10 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
James G. Pittman                                           Lonnie D. Johnson
Michelle L. Woodward                                       Stephanie A. Halsted
Pittman Law Firm                                           Clendening Johnson & Bohrer,
Bedford, Indiana                                           P.C.
                                                           Bloomington, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Donna J. Hamilton,                                         August 16, 2019
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           19A-DN-96
        v.                                                 Appeal from the Monroe Circuit
                                                           Court
Robert D. Hamilton,                                        The Honorable Valeri Haughton,
Appellee-Respondent                                        Judge
                                                           Trial Court Cause No.
                                                           53C08-1706-DN-263



Crone, Judge.




Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019                            Page 1 of 19
                                              Case Summary
[1]   Donna J. Hamilton (“Wife”) appeals a summary judgment entered in favor of

      the estate (“the Estate”) of her deceased ex-husband, Robert D. Hamilton

      (“Husband”). The dispute concerns the ownership of Husband’s portion of his

      individual retirement account (“IRA”) 1 following a fifty-fifty split entered

      pursuant to the couple’s dissolution settlement agreement. Wife asserts that the

      trial court erred in not striking certain portions of two affidavits included in the

      Estate’s designated materials, in granting the Estate’s motion for summary

      judgment, and in denying her motion for summary judgment. We affirm.


                                  Facts and Procedural History
[2]   Husband and Wife were married in 1986. In June 2017, Wife filed a petition to

      dissolve the marriage. That summer, Husband contacted his financial planner,

      Thomas Rillo, seeking information regarding the steps necessary for changing

      his designated IRA beneficiary from Wife to his two daughters. Rillo informed

      Husband that he would need to bring in a copy of his dissolution decree to

      accomplish the change.


[3]   On September 29, 2017, the parties executed a “Contract and Agreement” (“the

      Agreement”), which was incorporated into and attached to the October 2, 2017

      dissolution decree. As it relates to Husband’s IRA, the Agreement specifies an




      1
        Many of the filed documents refer to Husband’s IRA as a single account. In fact, his IRA comprises two
      accounts, both of which include identical beneficiary designations.

      Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019                             Page 2 of 19
      “account balance of $389,482.78 as of August 31, 2017” and states, “Wife shall

      be entitled to 50% of Husband’s retirement account as of August 31, 2017 in the

      amount of $194,741.39.” Appellant’s App. Vol. 2 at 14-15. The Agreement

      ordered that Husband take all necessary steps to separate out Wife’s portion

      within thirty days of the decree.


[4]   On October 9, 2017, Husband and his friend, Marsha Keith, drove to Rillo’s

      office with a copy of Husband’s dissolution decree, per Rillo’s previous

      instructions. The office was closed due to a Monday holiday, so they returned

      the next day. Husband asked to see Rillo but learned that Rillo was on

      vacation. He left a copy of the dissolution decree with office personnel. The

      next day, he was critically injured in an accident. He died of his injuries the

      following day, October 12, 2017. Shortly thereafter, the Estate was opened in a

      different county, and one of Husband’s daughters was appointed personal

      representative. In November 2017, Wife filed a claim against the Estate to

      preserve her sum-certain share of the IRA in the event it was a probate asset.


[5]   On December 21, 2017, Wife filed a motion for a temporary restraining order

      (“TRO”) and preliminary injunction. She claimed that Husband had died

      before separating out her share of the IRA, that she had “learned on December

      20, 2017 that [Husband] changed his beneficiary designation on the above …

      IRA account from [Wife] to [Husband’s] daughters after the divorce was filed,”

      and that she had filed a claim with the Estate and had not yet received her fifty-

      percent share of Husband’s IRA pursuant to the Agreement. Id. at 17-18. She

      asked that the trial court enjoin both the Estate from submitting any claims

      Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019          Page 3 of 19
      regarding the IRA funds and Rillo’s office from processing or distributing any

      such funds pending a hearing. The court granted her motion for a TRO and

      emergency hearing.


[6]   On December 28, 2017, Wife filed a motion to compel distribution of her

      $194,741.39 of Husband’s IRA funds. She later filed a motion to extend the

      TRO and request for hearing, which the trial court granted. After a hearing on

      Wife’s motions, the trial court issued an order granting Wife’s motion to

      compel the distribution of $194,741.39 from the IRA. The court indicated that

      Wife had recently learned and informed the court that Husband had never fully

      executed his change of designated IRA beneficiary to his daughters. As a

      result, Wife claimed that she was entitled to the balance of Husband’s IRA

      funds. The parties agreed to freeze the IRA balance pending a declaratory

      judgment as to the ownership of the funds. They also agreed that the trial court

      would retain jurisdiction.


[7]   In February 2018, the Estate filed a motion for summary judgment

      accompanied by a memorandum and designated materials, which included

      affidavits executed by Rillo and Keith. On April 2, 2018, Wife filed materials

      in opposition to the Estate’s motion as well as her own motion for summary

      judgment, with a motion to strike portions of Rillo’s and Keith’s affidavits. The

      Estate filed materials in response, which included Keith’s amended affidavit.




      Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019       Page 4 of 19
[8]    On December 17, 2018, the trial court issued an order granting summary

       judgment in favor of the Estate. Wife now appeals. Additional facts will be

       provided as necessary.


                                       Discussion and Decision

         Section 1 – The trial court did not commit reversible error in
            implicitly denying Wife’s motion to strike portions of
                       Husband’s designated affidavits.
[9]    We first address Wife’s contention that the trial court abused its discretion in

       not granting her motion to strike certain portions of the Estate’s designated

       affidavits. The trial court has broad discretion in ruling on motions to strike in

       the summary judgment context. Szamocki v. Anonymous Doctor & Anonymous

       Grp., 70 N.E.3d 419, 429 n.7 (Ind. Ct. App. 2017), trans. denied. Its decision

       will not be reversed unless prejudicial error is clearly demonstrated. Devereux v.

       Love, 30 N.E.3d 754, 766 (Ind. Ct. App. 2015), trans. denied.


[10]   As a preliminary matter, we address Wife’s assertion that the trial court erred in

       not issuing a specific ruling on her motion to strike. Although the trial court

       should have issued a specific ruling on Wife’s motion to strike, we do not

       believe that its failure to do so amounts to reversible error. See Palmer v. State,

       173 Ind. App. 208, 213, 363 N.E.2d 1245, 1248 (1977) (court’s failure to rule

       specifically on party’s motion to strike affidavits held to be harmless error). A

       trial court is presumed to know and follow the applicable law. Tharpe v. State,

       955 N.E.2d 836, 842 (Ind. Ct. App. 2011), trans. denied. This would include its

       duty to disregard any inadmissible information included in an affidavit.
       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019           Page 5 of 19
       Bankmark of Florida, Inc. v. Star Fin. Card Servs., Inc., 679 N.E.2d 973, 980 (Ind.

       Ct. App. 1997). Thus, the trial court’s inaction on Wife’s motion to strike

       operates as an implied denial. See Palmer, 173 Ind. App. at 213, 363 N.E.2d at

       1248 (grant of summary judgment absent specific ruling on motion to strike

       held to amount to implied overruling/denial of motion to strike).


                                        1.1 – Thomas Rillo’s Affidavit

[11]   Wife moved to strike paragraphs 6 and 7 and a portion of paragraph 8 of Rillo’s

       affidavit, which include the following averments: 2


               6. In August 2017, Husband contacted my office about
               separating the funds in his IRA accounts and changing the
               primary beneficiary on his accounts from his then-spouse, Wife,
               to his daughters. He advised that he and Wife were divorcing.


               7. My office advised Husband that we would require a divorce
               decree in order to make the changes he requested.


               8. On October 10, 2017, ... My staff advised him that I was on a
               planned vacation but would contact him upon my return.


       Appellant’s App. Vol. 2 at 83.


[12]   In her motion to strike, Wife asserted that Rillo lacked personal knowledge of

       matters asserted therein and that the challenged statements amounted to




       2
         In their affidavits, Rillo and Keith referred to Husband and Wife by their proper names. For consistency’s
       sake, we refer to them as Husband and Wife.

       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019                                Page 6 of 19
       inadmissible hearsay. Hearsay is an out-of-court statement offered to prove the

       truth of the matter asserted. Ind. Evidence Rule 801(c). Unless otherwise

       provided by law or in our evidence rules, hearsay is inadmissible. Ind.

       Evidence Rule 802.


[13]   With respect to affidavits designated in support of or opposition to summary

       judgment, Indiana Trial Rule 56(E) provides in part that they “shall be made on

       personal knowledge, shall set forth facts as would be admissible in evidence,

       and shall show affirmatively that the affiant is competent to testify to the

       matters stated therein.” Because the court may consider only admissible

       evidence when ruling on a motion for summary judgment, inadmissible hearsay

       statements cannot create a genuine issue of material fact. Hays v. Harmon, 809

       N.E.2d 460, 465-66 (Ind. Ct. App. 2004), trans. denied.


[14]   Wife claims that Rillo did not have personal knowledge as to the challenged

       statements. Essentially, she claims that the phrases “My office” and “My staff”

       are insufficient to demonstrate Rillo’s personal knowledge. We disagree.

       “Under the rule of imputed knowledge, ‘the law imputes the agent’s knowledge

       to the principal.’” BGC Entm’t, Inc. v. Buchanan ex rel. Buchanan, 41 N.E.3d 692,

       701 (Ind. Ct. App. 2015) (quoting Southport Little League v. Vaughn, 734 N.E.2d

       261, 274 (Ind. Ct. App. 2000), trans. denied (2001)), trans. denied. This means

       that “knowledge of material facts acquired by an agent in the course of the

       agent’s employment and within the scope of his authority, is the knowledge of

       the principal.” Id. at 702 (quoting Southport Little League, 734 N.E.2d at 275).

       This agency rule is grounded in the legal principle that it is the agent’s duty “to

       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019         Page 7 of 19
       disclose all material facts … and upon the presumption that he has discharged

       that duty.” Id. According to agency principles, for purposes of knowledge,

       Rillo and his staff members are one.


[15]   Moreover, the designated materials indicate that Rillo was Husband’s personal

       financial advisor and was keenly familiar with the operations of his office. See

       Appellant’s App. Vol. 2 at 83 (unchallenged paragraph 9 of Rillo’s affidavit

       stating, “Per my established practices and procedures”); see also French v.

       Hickman Moving & Storage, 400 N.E.2d 1384, 1387 (Ind. Ct. App. 1980)

       (averments of familiarity with operations of business were sufficient to show

       requisite knowledge of office practices). He knew about Husband’s desire to

       change his beneficiary designations to his daughters and knew the steps that

       Husband needed to take to accomplish those changes. He obviously knew that

       he himself was out of the office due to vacation and knew that Husband in fact

       had left a copy of the dissolution decree as previously instructed. See

       Appellant’s App. Vol. 2 at 84 (unchallenged averment that by dropping off

       decree, Husband had done all he could to effect beneficiary change). The fact

       of Rillo’s absence was not offered to prove the truth of the matter asserted, i.e.,

       whether Rillo had actually gone on vacation. Nor was the statement that Rillo

       would call Husband offered to prove that he actually would have done so upon

       his return. This is not hearsay.


                                       1.2 – Marsha Keith’s Affidavit

[16]   Wife also moved to strike portions of paragraphs 3, 4, and 6 of Keith’s affidavit,

       in which Keith described Husband’s attempts to change his beneficiary
       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019          Page 8 of 19
designations for his IRA and other accounts. In her motion to strike, Wife

claimed that Keith lacked personal knowledge concerning those attempts.

Keith amended her affidavit to comport with Trial Rule 56(E), and it was

attached to the Estate’s response to Wife’s motion to strike. Her amended

affidavit reads in pertinent part,


        3. In May 2017, Husband contacted Raymond James to change
        the beneficiary designation on his IRA accounts. I was present
        when he made this phone call and have personal knowledge that it
        occurred.

        4. Around that time, Husband was in the process of changing
        the beneficiary designation on all of his accounts, including his
        life insurance and bank accounts, from Wife to his daughters,
        Melissa Watts and Stacey Hamilton. He also signed a power of
        attorney and living will giving his daughters authority over his
        end of life decisions. I was present when Husband performed these
        actions and have personal knowledge they occurred.


        ….


        6. On Tuesday, October 10, 2017, Husband and I went back to
        Raymond James so that Husband could change his beneficiary
        designation and divide his IRA funds. Husband spoke with a
        woman named Jennifer, who took a copy of Husband’s divorce
        decree. Husband told me that Tom Rillo, Husband’s Raymond
        James Financial Adviser, was on vacation at the time, so
        Husband was unable to sign any beneficiary paperwork or take
        any other action. Raymond James advised that Tom would call
        Husband upon his return.


Id. at 136 (emphases added).


Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019           Page 9 of 19
[17]   We believe that Keith’s amendments to her affidavit, italicized above and

       indicating her personal knowledge of and presence during Husband’s attempts

       to change his designated IRA beneficiary, are sufficient to cure most if not all

       the defects alleged by Wife. As for the final two sentences of paragraph 6, we

       again note that they are not hearsay because they were not offered for the truth

       of the matter asserted (whether Rillo was in fact on vacation or would in fact

       call Husband). Even so, Keith’s assertion as to what Husband told her is

       cumulative of the statements included in Rillo’s affidavit, and because Wife was

       not prejudiced by these additional statements, any error would be considered

       harmless. Keown v. Keown, 883 N.E.2d 865, 870-71 (Ind. Ct. App. 2008).


        Section 2 – The trial court did not err in granting the Estate’s
          summary judgment motion and denying Wife’s summary
                               judgment motion.
[18]   Wife claims that the trial court erred in granting the Estate’s motion for

       summary judgment and denying her motion for summary judgment. We

       review a court’s ruling on a summary judgment motion de novo, applying the

       same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.

       2014). In conducting our review, we consider only those matters that were

       designated to the trial court during the summary judgment stage. Biedron v.

       Anonymous Physician 1, 106 N.E.3d 1079, 1089 (Ind. Ct. App. 2018), trans.

       denied (2019).


[19]   Summary judgment is appropriate if the designated evidence shows that there is

       no genuine issue as to any material fact and that the moving party is entitled to

       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019       Page 10 of 19
       judgment as a matter of law. Hughley, 15 N.E.3d at 1003; Ind. Trial Rule

       56(C). The moving party bears the onerous burden of affirmatively negating an

       opponent’s claim. Hughley, 15 N.E.3d at 1003. Then, if “the moving party

       satisfies this burden through evidence designated to the trial court, the non-

       moving party may not rest on its pleadings, but must designate specific facts

       demonstrating the existence of a genuine issue for trial.” Biedron, 106 N.E.3d at

       1089 (quoting Broadbent v. Fifth Third Bank, 59 N.E.3d 305, 311 (Ind. Ct. App.

       2016), trans. denied).


[20]   In determining whether issues of material fact exist, we neither reweigh

       evidence nor judge witness credibility. Peterson v. Ponda, 893 N.E.2d 1100, 1104

       (Ind. Ct. App. 2008), trans. denied (2009). Rather, we must accept as true those

       facts established by the designated evidence favoring the non-moving party.

       Brill v. Regent Commc’ns, Inc., 12 N.E.3d 299, 309 (Ind. Ct. App. 2014), trans.

       denied. “Any doubt as to any facts or inferences to be drawn therefrom must be

       resolved in favor of the non-moving party.” Buddy & Pals III, Inc. v. Falaschetti,

       118 N.E.3d 38, 41 (Ind. Ct. App. 2019) (quoting Goodwin v. Yeakle’s Sports Bar &

       Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016)), trans. denied. The party that lost in

       the trial court bears the burden of persuading us that the trial court erred.

       Biedron, 106 N.E.3d at 1089. Where, as here, the parties file cross-motions for

       summary judgment, we consider each motion separately to determine whether

       the moving party is entitled to judgment as a matter of law. Von Haden v.

       Supervised Estate of Von Haden, 699 N.E.2d 301, 303 (Ind. Ct. App. 1998).



       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019         Page 11 of 19
[21]   We first address Wife’s procedural argument. She challenges the trial court’s

       issuance of a summary judgment order that offers no explanation as to the

       issue(s) upon which it found no genuine issue of material fact. She relies on

       language in Indiana Trial Rule 56(C), which reads, “The court shall designate

       the issues or claims upon which it finds no genuine issue as to any material

       facts.” We find her reliance misplaced. The language upon which Wife relies

       must be read in context. Its placement in section (C) indicates that it applies

       only to circumstances in which summary judgment is rendered as to fewer than

       all the issues, claims, or parties, that is, where summary judgment is only

       partial. 3 Here, the trial court entered summary judgment on the only

       unresolved issue – the ownership of Husband’s IRA balance. See Tr. Vol. 2 at

       15-16 (trial court indicating just one issue yet unresolved – ownership of

       Husband’s IRA balance – and parties stipulating to trial court’s continuing

       jurisdiction). The court did not err in declining to include in its order an

       explanation concerning the absence of material factual issues.


[22]   Turning to the substance of the underlying dispute, we note that it involves the

       interpretation of contracts. Matters of contract interpretation are questions of

       law and therefore are particularly appropriate for summary judgment. Brill, 12




       3
         Wife cites as support Palmer, 173 Ind. App. at 217, 363 N.E.2d at 1250, where another panel of this Court
       reversed and remanded with instructions for the trial court to reconsider and to designate its reasons for
       granting summary judgment for two of the named defendants. Palmer involved multiple claims against
       multiple defendants and therefore is distinguishable.

       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019                              Page 12 of 19
       N.E.3d at 309. When interpreting a written contract, we attempt to determine

       the intent of the parties at the time the contract was made. Id.


[23]   Here, the parties opted to settle all property division matters via the Agreement.

       With respect to the division of Husband’s IRA accounts, the Agreement reads,


               8. RETIREMENT, PENSIONS AND ANNUITIES: Husband
               has an IRA through Raymond James, Account No. … with an
               account balance of $389,482.78 as of August 31, 2017. Wife
               shall be entitled to 50% of Husband’s retirement account as of
               August 31, 2017 in the amount of $194,741.39. If necessary,
               Wife shall be responsible for preparing the Qualified Domestic
               Relations Order. Husband shall take all necessary steps at
               Raymond James to separate said IRA into an IRA account in
               Wife’s sole name within 30 days.


       Appellant’s App. Vol. 2 at 14-15 (underlining omitted). Paragraph 10 of the

       Agreement reads, in pertinent part, “Each party shall be awarded any and all

       monetary assets in his or her own respective name including but not limited to

       accounts held by each party.” Id. at 15.


[24]   The Estate maintains that by agreeing to a fifty-fifty split of the present value of

       Husband’s IRA, Wife waived any interest in his half of the IRA. For a waiver

       of interest to be valid, the waiver must be made knowingly, voluntarily, and

       intelligently. Von Haden, 699 N.E.2d at 304.


[25]   Wife claims that she did not waive her interest in Husband’s half of the IRA

       and therefore is entitled to it as the designated IRA beneficiary. She relies on

       Graves v. Summit Bank, where another panel of this Court applied to IRAs the


       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019         Page 13 of 19
       same rule that existed for life insurance policies – that a dissolution decree

       alone does not result in a change of the named beneficiary of the former

       spouse’s IRA. 541 N.E.2d 974, 977 (Ind. Ct. App. 1989), trans. denied (1990).

       In Graves, the husband opened an IRA and named his wife as the beneficiary.

       Id. at 975. Two years later, the couple divorced, and the dissolution decree

       awarded the husband’s IRA solely to him. Id. Three and a half years later, the

       husband died, and while he had changed his will to remove bequests to his

       former wife, he never executed a change of IRA beneficiary. Id. The wife sued

       his estate to recover the IRA funds, and the trial court entered summary

       judgment for the estate. Id. The Graves court reversed and entered summary

       judgment for the wife, holding that she had only an expectancy interest, not a

       property right, in the IRA as a result of the property settlement agreement and

       that because the husband never changed his beneficiary designation, the IRA

       funds passed to her as a non-probate transfer. Id. at 979. See also Rishel v. Estate

       of Rishel ex rel. Gilbert, 781 N.E.2d 735, 737 (Ind. Ct. App. 2003) (holding ex-

       wife did not waive her rights as named beneficiary where property settlement

       set off ex-husband’s retirement accounts as his sole property, ex-wife had only

       an expectancy interest as named beneficiary on the accounts, and ex-husband

       died two months later without having changed named beneficiary).


[26]   We agree with the Estate that this case is more analogous to Von Haden than to

       Graves or Rishel. In Von Haden, another panel of this Court addressed the

       following issue: “when the parties’ marital dissolution property settlement

       equally divides a 401K plan savings account and the husband does not replace

       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019         Page 14 of 19
       his ex-wife as beneficiary, how are the proceeds of that account to be divided

       upon the husband’s death?” Id. at 302. There, as here, the settlement

       agreement divided the husband’s retirement account fifty-fifty, giving the wife a

       present right to half of the account’s present value. Id. at 304. In other words,

       “when the marital pot was divided, the parties and the court considered the

       cash value of the IRA at the time of separation, not the value of a revocable

       expectancy.” Id. at 305. The Von Haden court affirmed summary judgment in

       favor of the estate, finding as a matter of law that in agreeing to take one-half of

       the husband’s account per the settlement agreement, the wife had waived any

       right she might have had to the husband’s share of his pension benefit. Id. at

       306.


[27]   Wife contends that Von Haden is distinguishable in that it involved a plan

       governed by the Employee Retirement Income Security Act (“ERISA”). She

       correctly points out that plans under ERISA are subject to certain limitations

       concerning the assignment of benefits. However, the “provisions of ERISA do

       not preclude the waiver by a designated beneficiary of a right to the payment of

       benefits.” Id. at 304. The Von Haden court resorted to Indiana law to guide its

       analysis concerning what constitutes a waiver. Id. at 305 (waiver must be

       knowingly, voluntarily, and intelligently made). While it is true that the release

       provision in Von Haden was more explicit than in the present case, i.e., “each

       party accepts the provisions of this agreement in full release and settlement of

       any and all claims and rights against the other,” id., we believe that Wife acted

       knowingly, voluntarily, and intelligently in this case as well.

       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019         Page 15 of 19
[28]   For example, the Agreement here was more specific than the settlement

       agreement in Von Haden. The Agreement awarded Wife not merely “one half,”

       id. at 304, but rather a sum certain of “$194,741.39” based on a specific

       valuation date of “August 31, 2017.” Appellant’s App. Vol. 2 at 14-15. By

       signing the Agreement, Wife accepted a sum-certain share of Husband’s IRA as

       determined on a definite valuation date. This represents a present property

       right, as in Von Haden, and not merely an expectancy interest, as in Graves and

       Rishel. The Agreement further ordered the separation of the IRA into one

       account each for Husband and Wife and specified that each party would own

       the accounts that were held in his/her own respective name. This means

       $194,741.39 for Wife, to be separated from the balance, which was owned by

       Husband.


[29]   We believe that Wife’s intent at the time of contracting was both clear and

       specific, as is evidenced in her subsequent filings with the court. In her motion

       for TRO, she not only specified her right to $194,741.39 but also requested an

       order freezing the Estate’s and Rillo’s office’s ability to make any claims to or

       disbursements of the IRA funds until she received her sum-certain distribution.

       Subsequently, in her motion to compel distribution, she clearly asserted a

       present property interest in the $194,741.39 awarded to her per the Agreement.

       In her TRO motion, she specified that she had learned (mistakenly, as it turned

       out) that Husband had changed his designated IRA beneficiary of his remaining

       balance from her to his own daughters. Id. at 17. These filings indicate not

       only her intent but also her understanding of Husband’s intent to change his


       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019        Page 16 of 19
       beneficiary designation. Cf. Rishel, 781 N.E.2d at 744 (expressing serious

       misgivings about awarding spouse’s IRA proceeds to ex-spouse in cases of

       excusable neglect or inadvertence as opposed to expressed intent to keep

       beneficiary designation as is) (Friedlander, J., concurring). It was only when

       she later discovered that Husband had died before executing a change of

       beneficiary form that she increased her demand to include Husband’s half of the

       IRA.


[30]   Wife bases her cross motion for summary judgment on the fact that she was the

       listed beneficiary of Husband’s IRA on the date that he died. The Estate asserts

       that the equitable rule of substantial compliance invalidates her claim.

       Substantial compliance has been held to supply an equitable remedy when a

       person has done “everything within his power” to change a beneficiary to an

       insurance policy. Borgman v. Borgman, 420 N.E.2d 1261, 1265 (Ind. Ct. App.

       1981), trans. denied. See also Elliott v. Metro. Life Ins. Co., 116 Ind. App. 404, 421,

       64 N.E.2d 911, 917 (1946) (substantial compliance applied to effect change of

       beneficiary where intended change of beneficiary was frustrated by original

       beneficiary). Substantial compliance, although a fact-sensitive determination,

       has been held to be a question of law. See, e.g., Schoettmer v. Wright, 992 N.E.2d

       702, 707 (Ind. 2013) (substantial compliance with notice provisions in the

       Indiana Tort Claims Act is question of law).


[31]   Here, the Agreement afforded Husband thirty days to complete a separation of

       Wife’s $194,741.39 from the balance of the IRA. On days seven and eight of

       that period, Husband went to Rillo’s office and attempted to separate out

       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019            Page 17 of 19
       Wife’s sum-certain interest and to change the beneficiary of his remaining

       balance. On the second of those attempts, he left a copy of the dissolution

       decree with Rillo’s staff. On day nine, he was critically injured in an accident,

       and on day ten, he died. In his affidavit, Rillo explained,


               9. Per my standard practice and procedures, once I received the
               divorce decree from Husband, I would have prepared the
               paperwork necessary to divide the funds in Husband’s IRA
               accounts and to [e]ffect a change of his beneficiary designation
               for Husband’s signature.

               10. At the time Husband delivered the divorce decree to
               Raymond James, there is nothing more he could have done to
               separate his IRA funds and change his beneficiary.


       Id. at 83-84.


[32]   Wife argues that the Estate failed to meet its burden because it did not designate

       any evidence listing the requirements to change an IRA beneficiary. We

       disagree. In the unchallenged portion of his affidavit, Rillo averred that in

       delivering the dissolution decree to his office, Husband had done everything

       within his power to separate out Wife’s one-half interest and to execute a

       change of the designated beneficiary. Wife did not designate any evidence to

       the contrary. Husband substantially complied with the Agreement’s

       requirement as to the separation of accounts and did exactly what he had been

       instructed to do concerning the change of his IRA beneficiary. He died two

       days later, while waiting for Rillo to return and prepare the necessary

       paperwork so that he could formally execute these changes. He therefore is

       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019         Page 18 of 19
       deemed to have completed these changes pursuant to the equitable rule of

       substantial compliance. Accordingly, we affirm the grant of the Estate’s motion

       for summary judgment and the denial of Wife’s motion for summary judgment.


[33]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-DN-96 | August 16, 2019    Page 19 of 19
