MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                             Nov 27 2019, 10:41 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                                  ATTORNEYS FOR APPELLEE
Dan J. May                                              Matthew T. Black
Kokomo, Indiana                                         Brian A. Clay
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gaylynn Burke,                                          November 27, 2019
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        19A-DR-1329
        v.                                              Appeal from the Howard Superior
                                                        Court
David Burke,                                            The Honorable Brant J. Parry,
Appellee-Petitioner.                                    Judge
                                                        Trial Court Cause No.
                                                        34D02-1512-DR-908



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019               Page 1 of 17
                               STATEMENT OF THE CASE
[1]   Appellant-Respondent, Gaylynn Burke (Wife), appeals the trial court’s post-

      dissolution Order denying Wife’s Petition to Modify Decree for Fraud, but

      granting the Appellee-Petitioner’s, David Burke (Husband), Cross Motion to

      Enforce Decree.


[2]   We affirm.


                                                  ISSUES
[3]   Wife raises four issues on appeal, which we consolidate and restate as two

      issues:

      (1) Whether the trial court abused its discretion by denying Wife’s Petition to

      Modify Decree for Fraud; and

      (2) Whether the trial court’s grant of Husband’s Cross Motion to Enforce

      Decree resulted in an impermissible modification of the Decree.


                      FACTS AND PROCEDURAL HISTORY
[4]   Wife and Husband were married on April 28, 1997. No children were born of

      this marriage; however, the parties have children born from prior relationships.

      On December 3, 2015, the parties separated, and Husband filed a petition to

      dissolve the marriage. Wife remained in the marital home in Kokomo,

      Indiana.


[5]   During the discovery in the dissolution proceedings, Wife sent Husband a set of

      interrogatories. In question 14, Wife asked Husband whether he had ever

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 2 of 17
      deposited any “money, documents, or other items of personal property,” in a

      safe-deposit box, vault or safe. (Appellant’s App. Vol. II, p. 39). Husband

      responded by stating that in the safe within the marital home, there were

      “[U.S.] [s]aving [b]onds, [g]uns, [and a] [c]oin [c]ollection.” (Appellant’s App.

      Vol. II, p. 39). In question 25, Wife asked Husband to list any property,

      including real, personal, or money, that Husband had acquired prior to or

      during his marriage to Wife. Husband responded as follows:


              a. Safe and its contents, sport equipment, tools, inheritance,
              bonds, living room TV, Roku, home speaker system, laptop,
              kindle, printer, wireless internet monitor/router, 4 handguns[,] 1
              rifle, [and] coins.


              b. $1,500-$2,000 for computer and electronic equipment, $22,000
              in bonds (total), firearms valued at $1,000, [and] coins valued at
              $300[.]


              c. Electronics were gift from son (he may still have receipts),
              guns were purchased through [Husband’s] income, $10,000 of
              bonds were inherited, $12,000 in bonds were purchased prior to the
              marriage, [and] coins were purchased prior to marriage[.]


      (Appellant’s Exh. Vol. II, p. 43) (emphasis added).


[6]   While the dissolution proceeding was pending, on July 28, 2016, Wife filed a

      motion, requesting the trial court to allow her to open the safe located in the

      parties’ marital home so that she could inventory and value its contents. On

      August 3, 2016, the trial court issued an order directing the parties to



      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 3 of 17
      “coordinate a date and time certain for the opening and inventory of the safe”

      in the


               presence of a competent, neutral, local appraiser for the purpose
               of inventory and subsequent valuation. If the parties are unable
               to agree upon a date, time or appraiser for these purposes, the
               [c]ourt will establish the same upon either party’s requests.

               Neither party shall remove any item, article, document, object or
               otherwise from the safe and the safe shall be re-sealed upon the
               completion of the inventory.


      (Appellant’s Corrected App. Vol. II, p. 52) (underline in original).

      Notwithstanding the trial court’s order, Wife did not pursue the opening of the

      safe.


[7]   On October 2, 2017, the trial court conducted a final contested hearing. During

      the hearing, among the things, Husband requested to be awarded were the “gun

      safe . . . sporting goods,” and “tools” which he argued were valued at

      “$100,000.00.” (Transcript pp. 19-20). Wife was asked if she agreed with

      Husband retaining the “gun safe, guns, sports equipment[,] or tools” and Wife

      stated that she had “no objection, none.” (Tr. p. 63). During Wife’s direct

      examination, Wife sought to admit Exhibit G, a list of the parties’ marital assets

      and debts that she had prepared with the assistance of her attorney. In the

      “Misc. Personality & Related Debt” section, Wife listed the “Safe (Saving[s]

      Bonds, Guns, Coins).” (Exh. Vol. II, p. 43). No values were assigned to these

      assets, nor were they allocated to either party. The only evidence presented to



      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 4 of 17
      the trial court regarding the ownership of the savings bonds was Husband’s

      response to Wife’s interrogatories.


[8]   Following that hearing, on December 8, 2017, the trial court entered its findings

      of facts and conclusions thereon, dissolving the parties’ marriage (Decree). The

      trial court entered the following pertinent findings:


              17. The [c]ourt finds that at the date of separation, the marital
              estate consisted of the following property:


              a. Marital residence                                       $161,500.00
              b. 2015 Traverse                                           lease
              c. 2005 Chevy truck                                        $6,588.00
              d. [Wife’s] Roth Account                                   $23,248.00
              e. [Wife’s] 529 accounts                                   $44,567.29
              f. [Wife’s] IRA                                            $325,540.00
              g. [Husband’s] Edward Jones Accounts                       $377,897.00
              h. [Husband’s] Financial Builder’s Account                 $626.00
              i. [Husband’s] PNC accounts                                $2,774.00
              j. [Husband’s] Solidarity accounts                         $40,075.00
              k. [Husband’s] PNC accounts                                $4,561.00
              l. [Household Goods]to [Husband]                           $100,000.00


              18. The [c]ourt finds at the date of separation, the marital estate
              consisted of the following debt:
              a. Marital residence at PNC                    $104,944.00
              b. Bank of America credit card ([Wife])        $ 8,370.00


              19. [Husband testified that he would like to retain his guns, gun
              safe, sports equipment, tools and coins. He valued these items at
              $100,000. [Wife] had no objection to that valuation. The parties
              agree to divide other personal property evenly with [Wife]
              receiving the old oak table, the old china cabinets (2), the old

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 5 of 17
        dishes from her family, the bedroom suite she owned prior to
        marriage, and the television she bought after separation.


(Appellant’s App. Vol. II, pp. 20-21). The trial court then entered the

following conclusions.


        34. [Wife] is awarded, as her sole and separate property, the
        residence located at 4745 E. 100 S., Flora, IN subject to the
        indebtedness thereupon, including, but not limited to, all
        mortgages, utilities, taxes, insurance, assessments, etc.


        ****


        36. [Husband] is awarded, as his sole and separate property, the
        2005 Chevy Colorado subject to the debt, taxes, and insurance
        which he shall be obligated to pay.


        37. [Husband] is awarded the personal property contained in the safe.
        He is also awarded the safe itself. Further, [Husband] is awarded his
        guns, coins, sports equipment, tools, and any other gun safes.
        [Husband] is also awarded other personal property currently in
        his possession.


        38. [Wife] is awarded the remaining contents of the marital
        residence, not specifically set over to [Husband] in paragraph 37.


(Appellant’s Corrected App. Vol. II, p. 23) (emphasis added). The Decree

contained a balance sheet specifying which assets and debts were assigned to

the parties. As per his request, Husband was assigned the “Safe: guns, coins,

[and] tools” which were valued at “$100,000.” (Appellant’s App. Vol. II, p.

26). Also, because the trial court employed a 50/50 distribution of the marital

Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 6 of 17
       estate between the parties, the balance sheet showed that Husband was to pay

       Wife an equalization sum of “$42,090.” (Appellant’s App. Vol. II, p. 26).


[9]    Following the entry of the Decree, the safe was opened but was found to be

       empty. Husband reported the guns as stolen and reported to the U.S. Treasury

       Department that the savings bonds were lost. On December 15, 2018,

       Husband, through his counsel, requested Wife to “consent to assigning certain

       savings bonds” to Husband. (Appellant’s Corrected App. Vol. II, p. 29).

       Instead of responding to the request, on January 28, 2019, Wife filed a Petition

       to Modify Decree for Fraud, pursuant to Indiana Code section 31-15-2-17(c),

       Indiana Code section 31-15-7-9.1, and Trial Rule 60(B)(8), alleging that

       Husband had concealed evidence regarding the existence of the savings bonds

       during the dissolution proceedings and further, the Decree “did not divide the

       same.” (Appellant’s App. Vol. II, p. 27). Thus, Wife requested a modification

       of the Decree.


[10]   On January 22, 2019, Husband filed his response to Wife’s petition, alleging

       that during “discovery” he disclosed to Wife that he had “[U.S.] [s]avings

       bonds in the safe kept at the marital residence.” (Appellant’s App. Vol. II, p.

       30). Husband claimed that Wife conceded during the divorce proceedings that

       Husband should be awarded the safe and its contents which also contained the

       savings bonds. Thus, Husband claimed that he did not conceal the existence of

       the savings bonds. Husband simultaneously filed a Cross Motion to Enforce

       Decree, in which he maintained that Wife was aware of the existence of the



       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 7 of 17
       savings bonds inside the safe, and the Decree which awarded him the safe and

       all its contents should be enforced.


[11]   On February 4, 2019, Wife filed a reply to Husband’s response and Cross

       Motion. To the extent that Husband argued that the Decree awarded him the

       savings bonds, Wife claimed that the balance sheet attached to the Decree listed

       all the parties’ assets and debts, and the balance sheet did not include savings

       bonds. Wife additionally argued that “there was no testimony about the

       existence of, or the savings bonds, and the court failed to divide the same.

       Clearly, the court neither divided nor considered the savings bonds, now

       claimed by [] Husband as his property.” (Appellant’s Corrected App. Vol. II, p.

       85).


[12]   On March 7, 2019, the trial court conducted a hearing as to Wife’s Petition to

       Modify Decree for Fraud and Husband’s Cross Motion to Enforce Decree.

       Arguing that Husband had committed fraud, Wife testified that the Decree did

       not mention anything “about the savings bonds” and that Husband “never

       brought up” the issue “in the divorce proceedings.” (Tr. pp. 73-74). During

       cross examination, Wife conceded that she had agreed that Husband should be

       awarded the safe and its contents, which also included the savings bonds.

       Notwithstanding her prior testimony, when questioned as to whether it was her

       understanding that the savings bonds were located inside the safe, Wife stated

       she “never looked in the safe.” (Tr. p. 76). Wife additionally claimed that she

       was unaware her attorney had sent interrogatories to Husband during discovery



       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 8 of 17
       where Husband had confirmed that there were savings bonds valued at $22,000

       inside the safe.


[13]   On May 22, 2019, the trial court issued an Order, entering findings of fact and

       conclusion thereon, denying Wife’s Petition to Modify Decree for Fraud, but

       granting Husband’s Cross Motion to Enforce Decree. In pertinent part, the trial

       court concluded as follows:


               1. [Wife] asserts three grounds under which she believes the
               Petition to Modify Decree for Fraud should be granted: I.C. [§]
               31-15-2-17[(c)], I.C. [§]31-15-7-9.1, and Trial Rule 60(B)(8).


               2. Under Trial Rule 60(B)(8), a court may relieve a party or his
               legal representative from a judgment, for “any reason justifying
               relief from the operation of the judgment, other than those
               reasons set forth in sub-paragraphs (1), (2), (3), and (4)”.


               3. Trial Rule 60(B)(3) specifically discusses fraud and indicates
               that a [m]otion under that section must be brought within one
               year. Therefore, Trial Rule 60(B) does not apply.


               4. I.C. [§] 31-15-2-17 applies to agreements. This matter was
               resolved after a contested hearing. Therefore, this code section
               does not apply.


               5. I.C. [§] 31-15-7-9.1 indicates that orders concerning property
               disposition may not be modified, “except in the case of fraud”.


               6. Fraud is an “unconscionable plan or scheme used to
               improperly influence the court’s decision.[”] Stanger v. Sorrell,
               776 N.E.2d 353, 357 (Ind. 2002).


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 9 of 17
               7. In this case, [Husband] did disclose [] the existence of the
               savings bonds. He answered in the interrogatories that they
               existed. [Husband] disclosed the location of the bonds and even
               placed a value [on] them.


               8. After receiving the interrogatories, [Wife] requested the ability
               to open the safe, which was in her possession, and have it
               inventoried and appraised. The [c]ourt granted her request.
               However, she neglected to follow through with her request.


               9. The evidence before the court at the final hearing was that
               [U.S.] [s]avings bonds existed, and that they were located within
               the safe. [Husband] even gave a value to the safe and its contents
               at $100,000 to take the value of the bonds into account. [Wife]
               did not object to that valuation.


               10. It was the intent of the [c]ourt to award the contents of the
               safe, which by [Wife’s] own testimony was to contain bonds, to
               [Husband]. Through a scrivner’s [sic] error, the [c]ourt failed to
               include the word “bonds” in the Decree and/or Asset sheet.


               11. [Husband] is entitled to possession of the [savings] bonds.


       (Appellant’s Corrected App. Vol. II, pp. 11-12).


[14]   Wife now appeals. Additional information will be provided as necessary.


                               DISCUSSION AND DECISION
                                    I. Petition to Modify Decree for Fraud

[15]   Wife contends that the trial court abused its discretion by denying her motion

       for relief from judgment—i.e., her Petition to Modify Decree for Fraud. Wife’s


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 10 of 17
       petition was made pursuant to Trial Rule 60(B)(8), and Indiana Code section

       31-15-7-9.1. 1


[16]   Trial Rule 60(B) provides in 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 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 subparagraphs (1),
                (2), (3), and (4).




       1
         Wife also relied on Indiana Code section 31-15-2-17(c) which provides that the “disposition of property
       settled by an agreement described in subsection (a) and incorporated and merged into the decree is not
       subject to subsequent modification by the court, except as the agreement prescribes or the parties
       subsequently consent.” As correctly noted by the trial court, the disposition of this case was through a
       contested hearing, thus, the section was inapplicable to Wife’s petition, and we also find is irrelevant in this
       appeal.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019                   Page 11 of 17
               The motion shall be filed within a reasonable time for reasons
               (5), (6), (7), and (8), and not more than one year after the
               judgment, order or proceeding was entered or taken for reasons
               (1), (2), (3), and (4). A movant filing a motion for reasons (1),
               (2), (3), (4), and (8) must allege a meritorious claim or defense . .
               ..


[17]   A motion made under T.R. 60(B) is addressed to the equitable discretion of the

       trial court, and we will reverse only upon an abuse of that discretion. Ind. Ins.

       Co. v. Ins. Co. of N. Am., 734 N.E.2d 276, 279 (Ind. Ct. App. 2000), trans. denied.

       Under Trial Rule 60(B), the burden is on the movant to establish grounds for

       relief. Id. T.R. 60(B) is meant to afford relief from circumstances which could

       not have been discovered during the period a motion to correct error could have

       been filed; it is not meant to be used as a substitute for a direct appeal or to

       revive an expired attempt to appeal. Id.


[18]   It is undisputed that Wife’s Petition to Modify Decree for Fraud was filed more

       than one year after the Decree was entered. Because it had been over one year

       since the trial court entered the Decree in this case, the provisions of T.R.

       60(B)(1)-(4) were unavailable to Wife. Thus, Wife pursued her petition partly

       under T.R. 60(B)(8).


[19]   T.R. 60(B)(8) allows the trial court to set aside a judgment within a reasonable

       time for any reason justifying relief “other than those reasons set forth in sub-

       paragraphs (1), (2), (3), and (4).” T.R. 60(B)(8). “These residual powers under

       subsection (8) ‘may only be invoked upon a showing of exceptional circumstances

       justifying extraordinary relief,’ and is exclusive of other remedies available under

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 12 of 17
       T.R. 60(B)(1), (2), (3), and (4).” Graham v. Schreifer, 467 N.E.2d 800, 803

       (Ind.Ct.App.1984) (citing In re Marriage of Jones, 180 Ind. App. 496, 389 N.E.2d

       338, 340 (1979) (emphasis in original)). This court has further explained the

       provisions of T.R. 60(B)(8) as follows:


               T.R. 60(B)(8) is an omnibus provision which gives broad
               equitable power to the trial court in the exercise of its discretion
               and imposes a time limit based only on reasonableness.
               Nevertheless, under T.R. 60(B)(8), the party seeking relief from
               the judgment must show that its failure to act was not merely due
               to an omission involving the mistake, surprise or excusable
               neglect. Rather some extraordinary circumstances must be
               demonstrated affirmatively. This circumstance must be other
               than those circumstances enumerated in the preceding
               subsections of T.R. 60(B).


       Blichert v. Brososky, 436 N.E.2d 1165, 1167 (Ind. Ct. App. 1982) (citations

       omitted). Thus, if Wife’s petition could have properly fallen under any of the

       provisions of T.R. 60(B)(1)-(4), T.R. 60(B)(8) is unavailable.


[20]   In her brief, Wife only alleges that extraordinary circumstances existed since

       Husband “allegedly knew within one year of the dissolution decree that the safe

       granted to him was empty but waited till [sic] after the one year time limits had

       passed, to request that [Wife] sign off on the missing” savings bonds.

       (Appellant’s Br. p. 16). As noted, there are certain requirements for a Trial

       Rule 60(B)(8) motion. Wife had to show that: 1) she brought her claim within

       a reasonable time in light of the circumstances of the case; 2) extraordinary or

       exceptional circumstances justify that relief existed; and 3) she had alleged a


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 13 of 17
       meritorious claim or defense. See Parham v. Parham, 855 N.E.2d 722, 728 (Ind.

       Ct. App. 2006). Wife brought her claim after two years, and based on the

       instant circumstances, this was within a reasonable timeframe. However, Wife

       fails the second prong. In particular, Wife failed to show that extraordinary

       circumstances existed other than those circumstances enumerated in the

       preceding subsections of T.R. 60(B). Wife’s arguments were firmly grounded

       on her allegation that Husband committed fraud—i.e., that Husband failed to

       disclose to the trial court the existence of the savings bonds during the divorce

       proceedings. Wife’s petition could have properly fallen under T.R 60(B)(3)

       which addresses fraud; therefore, Wife could not seek relief under T.R.60(B)(8).

       Lastly, Wife was also required to present a meritorious defense. A meritorious

       claim or defense is one showing that, if the case were tried on the merits, a

       different result would be reached. Parham, 855 N.E.2d at 728. Evidence was

       presented through Husband’s interrogatories that savings bonds existed and had

       been stored in the safe within the marital home. Wife did not dispute their

       existence during the divorce proceedings, nor did she dispute Husband being

       awarded the safe and its contents. Based on the evidence, we conclude that

       Wife’s arguments were inadequate under Trial Rule 60(B)(8), and the trial court

       did not abuse its discretion by refusing to grant Wife’s petition.


[21]   Wife’s Petition to Modify Decree for Fraud also relied on Indiana Code section

       31-15-7-9.1. Indiana Code section 31-15-7-9.1(a), provides in relevant part, that

       the “orders concerning property disposition entered under this chapter . . . may

       not be revoked or modified, except in case of fraud.” Indeed, a strong policy


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 14 of 17
       favors the finality of property-division orders. Shepherd v. Tackett, 954 N.E.2d

       477, 480 (Ind. Ct. App. 2011). One purpose of this policy is to eliminate

       vexatious litigation that often accompanies dissolution of marriages. Rohrer v.

       Rohrer, 734 N.E.2d 1077, 1082 (Ind. Ct. App. 2000). “Fraud has been defined

       as extrinsic if the fraudulent matter prevents a trial of the issue in the case or

       improperly procures the court’s jurisdiction.” In re Marriage of M.E., 622 N.E.2d

       578, 582 (Ind. Ct. App. 1993). The doctrine of fraud on the court is narrowly

       applied and limited to egregious circumstances where an unconscionable plan

       or scheme is used by a party to improperly influence the court’s decision and

       where such acts prevent the losing party from fully and fairly presenting his

       case. See Rocca v. Rocca, 760 N.E.2d 677 (Ind. Ct. App. 2002), trans. denied. If

       fraud is alleged, it must be asserted not later than six years after the property-

       division order is entered. I.C. § 31-15-7-9.1(b).


[22]   Wife filed her motion for relief from judgment alleging fraud approximately

       two years after the Decree was entered by the trial court. In her brief, Wife

       argues that Husband perpetrated fraud on the court since Husband had

       “knowledge that there were $22,000.00 in savings bonds not contained in the

       court’s [D]ecree,” and that Husband waited “until one year had passed before

       seeking to have them re-issued.” (Appellant’s Br. p. 18).


[23]   Contrary to Wife’s claims, upon an examination of the record, we cannot

       conclude that Husband established an unconscionable plan or scheme to

       defraud the court, or improperly procured the trial court’s jurisdiction through

       fraud. Following a hearing on Wife’s petition, and Husband’s cross motion,

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 15 of 17
       the trial court reviewed the transcript of the divorce proceedings and all of the

       evidence presented at the final contested hearing, and it determined that

       Husband had requested to be awarded the safe and its contents, which included

       the savings bonds. Further, Husband presented evidence at the dissolution

       hearing that the value of the safe and its contents was $100,000. Wife then

       testified that she concurred with Husband’s valuation and the award of the safe

       and its contents to Husband. Given that evidence was presented regarding the

       location of the savings bonds in the safe, and Wife accepted that Husband

       should be awarded all the items in the safe, we cannot say that the record

       supports a conclusion that Husband perpetrated fraud on the court. Therefore,

       we affirm the trial court’s denial of Wife’s Petition to Modify Decree for Fraud

       pursuant to Indiana Code section 31-15-7-9.1.


                                    II. Cross Motion to Enforce Decree

[24]   Wife additionally argues the trial court’s grant of Husband’s Cross Motion to

       Enforce Decree resulted in an impermissible modification of the Decree. A

       court that issues a dissolution decree retains jurisdiction to interpret, clarify, and

       enforce its decree. Fackler v. Powell, 839 N.E.2d 165, 167-69 (Ind. 2005).

       Dissolution orders regarding property disposition, however, may not be

       revoked or modified by the court, except in the case of fraud. I.C. § 31-15-7-9.1.

       See also In re Marriage of Preston, 704 N.E.2d 1093, 1099 (Ind. Ct. App. 1999)

       (holding that the “trial court could not modify or revoke the first decree absent

       fraud, duress or undue influence[.]”).



       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 16 of 17
[25]   Our fair reading of the Order denying Wife’s Petition to Modify Decree for

       Fraud, and grant of Husband’s Cross Motion to Enforce Decree, indicates that

       the trial court was simply enforcing the Decree and not modifying it. In

       particular, the trial court concluded, that the “evidence before the court at the

       final hearing was that [] savings bonds existed, and they were located in the

       safe.” (Appellant’s App. Vol. II, p. 12). The trial court further concluded that it

       was the “intent of the [c]ourt to award the content of the safe” to Husband

       “which by [Wife’s] own testimony was to contain [the savings] bonds.”

       (Appellant’s App. Vol. II, p. 12). Thus, it is evident that as of the date of the

       Decree, the trial court determined Husband was entitled to the safe and its

       contents, which also included the savings bonds. Accordingly, we find no error

       with the trial court’s Order enforcing the Decree.


                                            CONCLUSION
[26]   In sum, we conclude that the trial court did not abuse its discretion by denying

       Mother’s Petition to Modify Decree for Fraud. Further, we conclude that the

       trial court’s Order enforcing the Decree did not constitute an improper

       modification of the Decree.


[27]   We affirm.


[28]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1329 | November 27, 2019   Page 17 of 17
