MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Sep 09 2016, 8:44 am
court except for the purpose of establishing
                                                                      CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Jane G. Cotton                                          David W. Stone IV
Anderson, Indiana                                       Stone Law Office & Legal
                                                        Research
                                                        Anderson, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Connie Harrison,                                        September 9, 2016
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        48A02-1512-DR-2274
        v.                                              Appeal from the Madison Circuit
                                                        Court
Hubert Harrison,                                        The Honorable Angela Warner
Appellee-Petitioner                                     Sims, Judge

                                                        The Honorable Jason Childers,
                                                        Commissioner
                                                        Trial Court Cause No.
                                                        48C01-1507-DR-450



Crone, Judge.



Court of Appeals of Indiana | Memorandum Decision 48A02-1512-DR-2274 |September 9, 2016   Page 1 of 13
                                               Case Summary
[1]   Connie Harrison (“Wife”) appeals the trial court’s denial of her petition to

      revoke and/or modify her property settlement agreement with Hubert Harrison

      (“Husband”), which was subsequently approved by the trial court and

      incorporated into the decree dissolving the parties’ marriage. Wife claims that

      the trial court abused its discretion in refusing to revoke or modify the property

      settlement agreement prior to incorporating it into the dissolution decree.

      Finding no abuse of discretion, we affirm.


                                   Facts and Procedural History
[2]   Husband and Wife were married on May 6, 1977. 1 They have one adult son.

      In May 2015, Wife told Husband that she wanted a divorce. Husband then

      hired attorney Ronald McNabney to handle the divorce and to prepare a

      property settlement agreement. Prior to meeting with McNabney, Husband

      instructed Wife to write down everything that she wanted on a piece of paper

      and to bring it to the meeting. The handwritten note, dated June 24, 2015, and

      signed by Wife, provided that Wife wanted $80,000 cash, her 2008 GMC

      Envoy vehicle, and various pieces of furniture and personal items from the

      marital residence. The last sentence of the note stated, “The Rest of the House

      will be [Husband’s].” Husband’s Ex. A. On the back of the note, Wife

      explained that Husband was “a good man” but that she needed “out of this



      1
        The record indicates that the parties were previously married to each other, divorced in 1975, and remarried
      in 1977.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-DR-2274 |September 9, 2016          Page 2 of 13
      marriage” and that “now it is time [for] me to walk while [we can] still talk

      together.” Id.


[3]   The parties later met at McNabney’s office, and Wife showed Husband and

      McNabney her handwritten note. During the meeting, McNabney advised

      Wife that he was Husband’s attorney and not hers, that she was free to get her

      own attorney, and that he could not advise her “whether or not this agreement

      is good or bad.” Tr. at 33. He told Wife that he would “reduce what you’ve

      given me to writing” and that if he did not “get it right,” Wife could “correct it”

      until she felt comfortable. Id. Following the meeting, McNabney drafted a

      “Settlement Agreement and Waiver of Final Hearing” (“Settlement

      Agreement”) in which the parties agreed to the disposition of marital property.

      Appellant’s App. at 11-13. Pursuant to the Settlement Agreement, Husband

      was awarded the marital residence, subject to debt, two vehicles, subject to

      debt, a motorcycle and boat which had no debt, his GM pension, the remainder

      of his IRA after an $80,000 withdrawal for Wife plus tax consequences, and the

      joint checking, savings, and Christmas club accounts at Lampco. All joint

      charge accounts would be closed with Husband responsible for all outstanding

      balances. Wife was awarded $80,000 cash, her 2008 GMC Envoy, subject to

      debt, as well as all the furniture and personal property that she requested in her

      handwritten note. All other personal property was set aside for Husband.

      Husband signed the Settlement Agreement on July 11, 2015. Wife returned to

      McNabney’s office on July 16, 2015, read the Settlement Agreement, and

      signed it. The Settlement Agreement stated that it constituted the “settlement


      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-DR-2274 |September 9, 2016   Page 3 of 13
      of all issues” and that both parties agreed “that there are no contested issues left

      for the Court to resolve in this Cause.” Id. at 13.


[4]   On July 21, 2015, Husband filed a petition for dissolution of marriage. On July

      30, 2015, Husband filed the Settlement Agreement with the trial court, and the

      trial court approved the Settlement Agreement on July 31, 2105. On August

      19, 2015, counsel appeared on behalf of Wife and filed a motion to revoke, set

      aside, reconsider and/or modify the Settlement Agreement arguing that the trial

      court violated public policy in approving the Settlement Agreement within sixty

      days of the filing of the dissolution petition. Wife further argued that the

      property disposition is inequitable and that she was “unable to understand the

      magnitude and consequences of her actions at the time she signed the

      [S]ettlement [A]greement.” Id. at 23.


[5]   A hearing was held on October 6, 2015. Thereafter, the trial court entered its

      findings of fact and conclusions thereon denying Wife’s petition. Specifically,

      the trial court found in relevant part:

              6. The Settlement Agreement was the product of Husband and
              Wife jointly meeting with counsel [McNabney] at his office and
              discussing the terms of the dissolution. Wife provided to
              McNabney a written list of those items she wanted in the divorce,
              as well as her reasons for wanting out of the marriage.
              (Respondent’s Ex. A.) Wife’s items, including a lump sum
              payment of $80,000.00, were incorporated into the Settlement
              Agreement. Wife returned to McNabney’s office alone several
              days after the parties’ meeting and executed the Settlement
              Agreement.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-DR-2274 |September 9, 2016   Page 4 of 13
        7. Wife made no claim of any physical restraint placed on her or
        any threat of physical injury if she did not sign the Settlement
        Agreement.


        8. Wife made no claim that she was unaware of any marital
        assets at the time she executed the Settlement Agreement.
        Rather, Wife testified at length about her knowledge of the
        marital assets including Husband’s veteran’s pension, his GM
        pension, his social security benefits, the equity in the marital
        residence, an estimate of the value of Husband’s 401(K), and 62
        acres of farm land.


        9. Although Wife summarized her medical ailments, she
        presented no evidence of any mental, emotional or physical
        problems that would render her incompetent to render a binding
        agreement.


        10. Susan Barton, the secretary for McNabney, testified that she
        was present throughout the meeting with the parties when the
        Settlement Agreement and Wife’s list of requests were discussed.
        She denied that McNabney was rude to Wife, denied that he told
        Wife to speak only when spoken to and otherwise denied all of
        Wife’s claims regarding any improper conduct at the meeting.


        11. When meeting with the parties, McNabney informed them
        that he did not know whether the proposed settlement agreement
        was a good deal for either of them since he was not aware of their
        assets. McNabney further informed Wife that he did not
        represent her.


        12. Wife had an opportunity to reflect on the terms of the
        Settlement Agreement for a number of days prior to returning to
        McNabney’s office to sign the Settlement Agreement. She
        returned to McNabney’s office alone and signed the agreement


Court of Appeals of Indiana | Memorandum Decision 48A02-1512-DR-2274 |September 9, 2016   Page 5 of 13
              after having an opportunity to read it and point out any errors
              and ask any questions she may have had.


      Id. at 5-6.


[6]   Based upon those findings, the trial court concluded in relevant part,

              4. Based upon the findings set forth herein, the Court concludes
              that the Settlement Agreement was not procured through fraud
              or duress, nor was it the result of a manifest inequity. Wife was
              fully aware of the parties’ marital estate. Wife’s specific requests
              concerning the distribution of the marital estate were
              incorporated into the Settlement Agreement during her meeting
              with McNabney. Wife was given several days to consider the
              Settlement Agreement and voluntarily returned to McNabney’s
              office to sign the Settlement Agreement. There is no evidence
              that Wife was incompetent or otherwise mentally unable to
              understand the terms of the Settlement Agreement. Lastly, Wife
              set forth in writing a number of reasons for wanting out of the
              marriage. These reasons were unrelated to monetary
              considerations; instead, they suggest why Wife was satisfied with
              a Settlement Agreement that gave Husband a larger share of the
              marital estate.


      Id. at 7.


[7]   Accordingly, the trial court denied Wife’s petition to revoke and/or modify the

      Settlement Agreement and entered its decree of dissolution of marriage, which

      incorporated the Settlement Agreement. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-DR-2274 |September 9, 2016   Page 6 of 13
                                     Discussion and Decision
[8]   Wife claims that the trial court abused its discretion in denying her petition to

      revoke and/or modify the Settlement Agreement prior to incorporating it into

      the dissolution decree. In making its decision, the trial court entered findings of

      fact and conclusions thereon at Husband’s request. When a trial court has made

      findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52, we

      apply the following two-tiered standard of review: whether the evidence

      supports the findings of fact, and whether the findings of fact support the

      conclusions thereon. Campbell v. Campbell, 993 N.E.2d 205, 209 (Ind. Ct. App.

      2013), trans. denied. We will set aside findings of fact only if they are clearly

      erroneous, which occurs if the record contains no facts to support a finding

      either directly or by inference. Id. “We must defer to the trial court’s ability to

      assess the credibility of witnesses and will not reweigh the evidence, and we

      must consider only the evidence most favorable to the judgment along with all

      reasonable inferences drawn in favor of the judgment.” Crider v. Crider, 15

      N.E.3d 1042, 1053 (Ind. Ct. App. 2014), trans. denied. “It is not enough that the

      evidence might support some other conclusion, but it must positively require

      the conclusion contended for by appellant before there is a basis for reversal.”

      Campbell, 993 N.E.2d at 209.


[9]   It is well settled that “the public policy of this state generally favors the freedom

      of contract between private parties.” Pond v. Pond, 700 N.E.2d 1130, 1136 (Ind.

      1998). Regarding dissolution of marriage, our legislature has specifically

      provided that “[t]o promote the amicable settlements of disputes that have

      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-DR-2274 |September 9, 2016   Page 7 of 13
       arisen or may arise between the parties to a marriage attendant upon the

       dissolution of their marriage,” the parties may enter written agreements that

       include provisions for “the disposition of any property.” Ind. Code § 31-15-2-

       17. The trial court has the discretion to accept, modify, or reject a negotiated

       settlement agreement, and we review that decision only for an abuse of

       discretion Gabriel v. Gabriel, 654 N.E.2d 894, 897 (Ind. Ct. App. 1995), trans.

       denied (1996); see Ind. Code § 31-15-2-17(b)(2).


[10]   In Voigt v. Voigt, 670 N.E.2d 1271, 1277 (Ind. 1996), our supreme court

       cautioned that “the power to disapprove a settlement agreement must be

       exercised with great restraint. A trial judge should not reject such agreements

       just because she believes she could draft a better one.” Id. There is a very

       “strong presumption of enforceability” of these agreements, and “Indiana

       courts have ‘not hesitated to enforce a divorce settlement agreement which

       would have been in excess of the divorce court’s authority had it been crafted

       by the divorce court and which was shown to be, over time, grossly

       inequitable.’” Pond, 700 N.E.2d at 1136 (citation omitted). Accordingly “[i]n

       reviewing a settlement agreement, a court should concern itself only with fraud,

       duress, and other imperfections of consent, or with manifest inequities,

       particularly those deriving from great disparities in bargaining power.” Voigt,

       670 N.E.2d at 1278 (internal citation omitted).


[11]   Here, Wife concedes that there is no evidence that the Settlement Agreement

       was procured by fraud or duress. Instead, she maintains that the trial court

       should have set aside the agreement because Husband “exercised undue

       Court of Appeals of Indiana | Memorandum Decision 48A02-1512-DR-2274 |September 9, 2016   Page 8 of 13
       influence in the procurement of Wife’s signature” on the agreement.

       Appellant’s Br. at 15. Wife’s assertions of undue influence are belied by the

       evidence. As found by the trial court, the Settlement Agreement simply

       incorporated Wife’s specific requests concerning the distribution of the marital

       estate. She was admittedly neither forced nor pressured into signing the

       agreement, and after having several days to reflect on the terms of the

       agreement, she voluntarily returned to McNabney’s office without Husband to

       review and sign the agreement. Contrary to Wife’s assertions, the trial court’s

       findings and conclusions make clear that, after considering all the evidence

       presented by the parties, the court found no indication that the Settlement

       Agreement was a product of anything other than Wife’s specific requests based

       upon her full awareness of the parties’ assets.


[12]   Rather than challenge the evidence supporting the trial court’s findings, Wife

       instead makes vague references to other evidence in the record which she claims

       indicates that she suffered from “weakness of mind” which made her unable “to

       protect her own interests,” and which resulted in a manifestly unequal property

       distribution. Id. at 17-18. However, based upon the evidence and the

       testimony presented, the trial court found no manifest inequity and concluded

       that Wife was fully competent to understand the agreement and had reasons

       unrelated to monetary considerations that suggested that she was satisfied with




       Court of Appeals of Indiana | Memorandum Decision 48A02-1512-DR-2274 |September 9, 2016   Page 9 of 13
       an agreement that gave Husband a larger share of the marital estate. 2 Wife

       merely invites us to reweigh the evidence and reassess witness credibility, tasks

       not within our authority on appeal.


[13]   Wife also maintains that the trial court’s decision to not allow her to revoke the

       Settlement Agreement “is contrary to statute and contrary to the public

       interest” in light of the fact that she filed her petition to revoke within sixty days

       of the filing of the dissolution petition. Appellant’s Br. at 19. Wife points to

       Indiana Code Section 31-15-2-13, which permits a trial court to enter a

       summary dissolution decree without a hearing “[a]t least sixty (60) days after a

       petition is filed in an action for dissolution of marriage” if both parties have

       filed a written and signed waiver of final hearing, and filed either a written

       settlement agreement or a statement that there are no contested issues in the

       case. 3 She urges that the trial court was without statutory authority to approve

       the Settlement Agreement before the passage of the sixty-day period, and

       because the Settlement Agreement had no legal efficacy until incorporated into

       the dissolution decree, it follows that “a party should be allowed to rescind or

       revoke a signed settlement agreement before the passage of the sixty day



       2
         Although Wife baldly asserts that the Settlement Agreement provided for a manifestly unequal
       “approximate” 90/10 split, see Appellant’s Br. at 18, she cites conflicting evidence as well as evidence outside
       the record to support her claim. The record is inconclusive regarding the true value of the marital estate.
       3
         Wife briefly argues that her waiver of final hearing that was part of the Settlement Agreement was invalid
       because it was filed prior to the petition for dissolution, and therefore there was no action pending, and thus
       no hearing to waive at the time it was filed. Wife did not raise this issue in her petition to revoke, and
       therefore the issue is waived on appeal. See Heaphy v. Ogle, 896 N.E.2d 551, 557 (Ind. Ct. App. 2008) (failure
       to raise an issue before trial court results in waiver of that issue on appeal). In any event, Wife had the
       opportunity to be heard and to present all of her substantive claims at the hearing on the petition to revoke.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1512-DR-2274 |September 9, 2016           Page 10 of 13
       period.” Appellant’s Br. at 21. She claims that such a result is necessary to

       protect divorcing parties from being locked into “early agreements based on

       emotions.” Id.


[14]   We note that there is nothing in the language of Indiana Code Section 31-15-2-

       13 that prohibits a trial court from signing and approving a property settlement

       agreement during the sixty-day waiting period after the filing of the dissolution

       petition. Wife is correct, however, that a written property settlement agreement

       “in itself is not a legal instrument binding on the parties, no matter how

       formally executed, until it is approved by the court and incorporated and

       merged into the [dissolution] decree.” Gabriel, 654 N.E.2d at 898 (emphasis

       added) (citation omitted). Nonetheless, we have held that parties to a signed

       written property settlement agreement do not have an absolute right to

       repudiate prior to formal court approval and incorporation into the decree.

       Reno v. Haler, 734 N.E.2d 1095, 1101 (Ind. Ct. App. 2000) (citing Gabriel, 654

       N.E.2d at 898). Indeed, we specifically observed that conferring such a right

       upon the parties “would thwart the public policy of favoring amicable

       settlement of disputes.” Id. Thus, while a party is free to challenge a

       negotiated written property settlement agreement at a hearing, the trial court is

       not bound to reject the agreement absent evidence that convinces the court that

       the agreement should not be honored. See id. As stated above, the trial court

       here found no evidence of fraud, duress, other imperfections of consent, or

       manifest inequity. The trial court’s decision to uphold the parties’ Settlement

       Agreement was neither contrary to statute nor to the public interest. We


       Court of Appeals of Indiana | Memorandum Decision 48A02-1512-DR-2274 |September 9, 2016   Page 11 of 13
       conclude that the evidence supports the trial court’s findings of fact, and the

       findings support the conclusions thereon. Under the circumstances, we cannot

       say that the trial court abused its discretion in denying Wife’s petition to revoke

       the Settlement Agreement.


[15]   As a final matter, we address Wife’s contention that the Settlement Agreement

       omitted a large marital asset, namely sixty-two acres of farmland, and therefore

       the trial court erred in failing to divide all the assets of the marriage in its

       dissolution decree incorporating the Settlement Agreement. See Falatovics v.

       Falatovics, 15 N.E.3d 108, 110 (Ind. Ct. App. 2014) (providing general

       discussion of Indiana’s “one pot” theory which prohibits exclusion of any asset

       from the scope of trial court’s power to divide and award). We observe that

       Wife did not bring this matter to the trial court’s attention during the hearing on

       her petition to revoke and/or modify. To the extent that there is real estate that

       constitutes marital property that should have been disposed of in the dissolution

       decree, Wife may avail herself of the procedural mechanisms available to her




       Court of Appeals of Indiana | Memorandum Decision 48A02-1512-DR-2274 |September 9, 2016   Page 12 of 13
       pursuant to Indiana Trial Rule 60(B) if she so chooses. 4 The judgment of the

       trial court is affirmed.


[16]   Affirmed.


       Kirsch, J., and May, J., concur.




       4
           Trial Rule 60(B) provides in relevant part:

                On motion and upon such terms as are just the court may relieve a party or his legal
                representative from a judgment, including a judgment by default, for the following reasons:
                  (1) mistake, surprise, or excusable neglect;
                  (2) any ground for a motion to correct error, including without limitation to newly discovered
                  evidence, which by due diligence could not have been discovered in time to move for a
                  motion to correct errors under Rule 59;
                  (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other
                  misconduct of an adverse party;
                  …
                  (8) any reason justifying relief from the operation of the judgment, other than those reasons
                  set forth in sub-paragraphs (1), (2), (3), and (4).
                The motion shall be filed within a reasonable time for reasons … (8), and not more than one
                year after the judgment, order or proceeding was entered or taken for reasons (1), (2), (3), and
                (4).

       Court of Appeals of Indiana | Memorandum Decision 48A02-1512-DR-2274 |September 9, 2016             Page 13 of 13
