MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D), this                          Mar 28 2018, 7:13 am
Memorandum Decision shall not be
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regarded as precedent or cited before any                            Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of establishing                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
David R. Phillips                                        Debra Lynch Dubovich
Shaw Law Office                                          Levy & Dubovich
Valparaiso, Indiana                                      Merrillville, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Marriage of                                   March 28, 2018

Paul A. Magura,                                         Court of Appeals Case No.
                                                        64A04-1708-DR-1852
Appellant-Respondent,
                                                        Appeal from the Porter Superior
        v.                                              Court
                                                        The Honorable William E. Alexa,
Lisa L. Magura,                                         Judge
                                                        The Honorable Katherine R.
Appellee-Petitioner.                                    Forbes, Magistrate
                                                        Trial Court Cause No.
                                                        64D02-0407-DR-5961




Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018        Page 1 of 13
[1]   Paul A. Magura (“Husband”) appeals the trial court’s order finding that his

      former spouse, Lisa A. Magura (“Wife”), has paid him in accordance with the

      parties’ marital settlement agreement and ordering him to pay attorney fees.

      We affirm.


                                      Facts and Procedural History

[2]   On November 23, 2004, the trial court entered a dissolution decree which

      incorporated by reference a marital settlement agreement entered into by the

      parties. The marital settlement agreement provided in part that the parties

      owned two parcels of real estate, the “marital residence” and the “ranch

      house,” in Porter, Indiana. Appellant’s Appendix Volume 2 at 13. The

      agreement provided that the marital residence would be sold and set forth how

      the sale proceeds would be distributed.


[3]   With respect to the ranch house, the agreement provided:


              Ranch House: The parties further agree and stipulate that Wife
              shall be awarded all right, title and interest to the “ranch house” .
              . . , and that she shall buyout [sic] Husband’s interest in same by
              transferring to him the lump sum of Thirty-Thousand Dollars
              ($30,000.00), in consideration of any and all interest he may have
              had in said real estate. The parties’ [sic] further agree that Wife
              shall be entitled to refinance the ranch house in order to obtain
              the necessary buy-out funds, and that Husband shall execute a
              Quit Claim Deed as part of the refinancing process or buy-out
              process. Wife shall remit the lump sum to Husband upon the
              closing of the refinancing concerning said property, or within one
              year from entry of the parties’ Dissolution Decree, whichever
              shall first occur.


      Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018   Page 2 of 13
                 The parties further agree that Husband shall be entitled to reside
                 in the “ranch house” for a period not to exceed one (1) year from
                 the sale of the “marital residence” . . . , provided he assume full
                 responsibility for timely payment of the real estate taxes,
                 insurance, utilities and other expenses associated with the “ranch
                 house” during said period of possession, and that he indemnify
                 and hold Wife harmless therefrom. At the end of Husband’s one
                 year term of possession (or sooner, if he should fail to maintain
                 timely payment of the obligations outlined herein), he shall
                 peacefully surrender said property to Wife in a neat and orderly
                 condition, ordinary wear and tear excepted. Husband shall
                 assume financial responsibility for any damages caused to the
                 property known as the “ranch house” during his period of
                 possession, and shall indemnify and hold Wife harmless
                 therefrom. Moreover, Husband shall not engage in, nor allow
                 others to engage in, illegal activities on or about said property,
                 and Wife shall be entitled to inspect said property from time to
                 time upon reasonable notice to Husband.

      Id. at 13-14. The settlement agreement also provided that any modification or

      waiver of any of the provisions of the agreement must be made in writing.


[4]   Sometime in 2006, Wife moved into the ranch house with her daughter, her

      granddaughter, Husband, and their son. Husband moved out of the house in

      September of 2015. On October 14, 2015, Husband filed a petition for a

      temporary restraining order and a post-trial order.1 The parties met for

      mediation in December 2015 and, after four hours of mediation, Husband left

      the building without notifying the mediator or the attorneys and did not return.




      1
          This petition is not included in the appellant’s appendix.


      Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018   Page 3 of 13
      On June 26, 2017, the court held a hearing at which it admitted evidence

      regarding Wife’s expenditures related to a vehicle, automobile insurance, and a

      cell phone for Husband and to real estate taxes, insurance premiums, and utility

      service for the ranch house and photographic evidence of the condition of the

      ranch house in 2015. Wife’s counsel also requested time to submit an attorney

      fee affidavit, and the court stated the parties had forty-eight hours to file their

      affidavits. Wife filed an affidavit in support of attorney fees on June 28, 2017.2


[5]   On July 17, 2017, the court entered an order which provided:


                 1.       The Court finds that Wife owed to Husband the sum of
                          $30,000.00 pursuant to the Parties’ Marital Settlement
                          Agreement.

                 2.       This Court is not modifying this obligation. However, the
                          Court finds that Wife has paid to Husband well over the
                          $30,000.00 amount. After the parties’ divorced, the Wife
                          purchased a vehicle for Husband, paid for the insurance on
                          the vehicle for a number of years and paid for the
                          Husband’s cell phone for a number of years. The Court
                          does not even have to consider all the expenses that Wife
                          paid that Husband was Ordered to pay under the
                          Agreement to reach the $30,000.00 amount owed.

                 3.       To Order Wife to now pay another $30,000.00 would
                          unjustly enrich the Husband and would not be fair and
                          equitable.




      2
          The record does not include a copy of the submitted affidavit.


      Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018   Page 4 of 13
              4.      Husband shall be responsible for contribution to Wife’s
                      Attorney fees in the sum of $2,800.00. Said sum is
                      reduced to judgment . . . .

      Id. at 23-24.


                                                  Discussion

[6]   Husband claims that the trial court erred in not ordering Wife to pay him

      $30,000 and in ordering him to pay attorney fees. He asserts that his

      cohabitation with Wife did not terminate or alter Wife’s monetary obligation

      under the settlement agreement, that Wife did not keep a contemporaneous

      accounting of the payments she made toward the vehicle, housing, and cell

      phone service, and that the court erred in concluding that Wife’s contributions

      to the household during their cohabitation offset her obligation under the

      settlement agreement.


[7]   Wife maintains that the court did not err in determining that she had already

      paid Husband well over $30,000, that the debt was paid in full and Husband is

      not entitled to another $30,000, and that the record is replete with evidence

      supporting the court’s ruling. She also maintains that, contrary to Husband’s

      argument, the settlement agreement was not terminated or modified.


[8]   Where a trial court enters findings of fact and conclusions of law, first we

      determine whether the evidence supports the findings, and second we determine

      whether the findings support the judgment. Lechien v. Wren, 950 N.E.2d 838,

      841 (Ind. Ct. App. 2011). We will set aside the trial court’s specific findings

      only if they are clearly erroneous, that is, when there are no facts or inferences
      Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018   Page 5 of 13
       drawn therefrom to support them. Id. A judgment is clearly erroneous when a

       review of the record leaves us with a firm conviction that a mistake has been

       made. Id. We neither reweigh the evidence nor assess the credibility of

       witnesses, but consider only the evidence most favorable to the judgment. Id.

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

       standard applies to issues upon which the trial court made no findings. Id.

       Further, because Husband appeals a negative judgment, he must show that the

       evidence points unerringly to a conclusion different from that reached by the

       trier of fact. See Wilder-Newland v. Kessinger, 967 N.E.2d 558, 560 (Ind. Ct. App.

       2012), trans. denied.


[9]    This Court has stated that, “[t]o prevail on a claim for unjust enrichment, a

       plaintiff must establish that a measurable benefit has been conferred on the

       defendant under such circumstances that the defendant’s retention of the benefit

       without payment would be unjust” and that “[p]rinciples of equity prohibit

       unjust enrichment of a party who accepts the unrequested benefits another

       provides despite having the opportunity to decline those benefits.” McMahel v.

       Deaton, 61 N.E.3d 336, 345 (Ind. Ct. App. 2016) (citing Bright v. Kuehl, 650

       N.E.2d 311, 316 (Ind. Ct. App. 1995), reh’g denied), trans. denied.


[10]   We review a trial court’s award of attorney fees in connection with a

       dissolution decree for an abuse of discretion. Hartley v. Hartley, 862 N.E.2d 274,

       286 (Ind. Ct. App. 2007). The trial court abuses its discretion if its decision is

       clearly against the logic and effect of the facts and circumstances before it. Id.



       Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018   Page 6 of 13
[11]   At the June 26, 2017 hearing, Wife testified that the ranch house was still titled

       in her and Husband’s names and that she had not paid Husband in a lump sum.

       She indicated that she was not trying to modify her obligation under the

       settlement agreement to pay Husband $30,000 but that she, in fact, had paid

       Husband the money in the form of purchasing him a truck, paying his vehicle

       insurance, and paying a cell phone on his behalf. Wife testified that Husband

       had indicated that he could not do much with $30,000 because he did not have

       a vehicle or a cell phone and, once he purchased those items, there would not

       be enough money on which he could live, and she testified that Husband was

       also afraid of relapsing to heroin and cocaine use.


[12]   Wife testified that she spent $17,243.35 to purchase a GMC Sonoma for

       Husband, that Husband did not contribute in any way to the acquisition of the

       vehicle, and that her understanding when she purchased the vehicle was that

       the purchase constituted partial payment of the $30,000 that she owed him.

       Wife indicated that she agreed to provide Husband with insurance on his

       vehicle until he was able to find a job and insure the vehicle on his own, that

       Husband did not make any contributions toward the vehicle insurance costs

       until the date he moved out of the house in September of 2015, and that she

       spent approximately $6,945.97 in insurance payments for the vehicle. She

       further indicated that Husband requested that, in lieu of paying him the

       $30,000, she pay for his cell phone bill and that she spent $6,048.85 in cell

       phone service costs on Husband’s behalf from the date of the dissolution decree




       Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018   Page 7 of 13
       through the date he vacated the ranch house in September of 2015. Wife

       indicated that she expended a total of $30,238.17.


[13]   Wife further testified that, pursuant to the settlement agreement, Husband was

       required to pay, during his possession of the ranch house, the real estate taxes,

       homeowners insurance, the utilities, and the maintenance expenses and that he

       was supposed to leave the property in good order and condition. She testified

       that, during Husband’s occupancy from August of 2006 through September of

       2015, he never contributed toward the real estate taxes and that she paid

       $27,760.52 in real estate taxes during the period of time he occupied the

       residence. When asked “[y]ou weren’t gifting him a place to stay because the

       two of you were in love or trying to make this marriage work,” Wife answered

       “[c]orrect.” Transcript Volume II at 19. Wife indicated that it was fair to say

       that she and Husband lived together at the residence during that period of time,

       that she dated other people during that time, and she and Husband never

       reconciled during that period of time. Wife indicated that Husband never

       contributed toward the homeowners insurance and that she paid $12,133 in

       home insurance expenses on his behalf. She further indicated that Husband

       never paid NIPSCO or the water and sewer expenses and that, according to her

       records, she paid $14,282.66 in NIPSCO expenses and $6,277 through the

       Town of Porter and Waste Management during the period Husband occupied

       the ranch house.


[14]   Wife also testified that Husband did not leave the property peacefully and that

       she had him evicted. She indicated that she and Husband lived in the ranch

       Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018   Page 8 of 13
       house together with Wife’s son and at times her granddaughter, of whom Wife

       had guardianship, from 2006 to about 2014 and that she vacated the property

       with the understanding that Husband “had one year to fix the property up that

       had gone into disrepair and not to use illegal drugs while he was there while

       [she] and [her granddaughter] moved to a property in Knox where [she] kind of

       kept her safe from what was happening in this home.” Id. at 24. Wife testified

       that, when she returned in September of 2015, she took photographs of the

       condition of the property, there was a significant amount of hoarding, there

       were syringes and socks placed in random areas, it took almost a month to

       clean area by area, there was rotting wood and all sorts of debris, there had

       been a leak in the living room, the electrical box was rigged with extension

       cords, and insulation was falling down. She testified that the vast part of these

       problems occurred during the last year of Husband’s occupancy from 2014 to

       2015. The court admitted photographs of the housing depicting its condition.

       When asked if she had any idea what it would cost her to repair the home, Wife

       replied that she had been obtaining estimates and that “[i]t’s well into the

       thousands.” Id. at 27.


[15]   Wife also testified that her older son had passed away in the military in 2003,

       she had guardianship of her granddaughter, she had multiple discussions with

       Husband about him moving out, that it usually started drama or chaos, that she

       “would get the drug thing thrown in [her] face,” and that it was easier to just

       keep the peace. Id. at 29. She testified that she moved in the ranch house in

       2006 because she had been paying a lot on rentals and yet was still responsible


       Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018   Page 9 of 13
       for the bills on the ranch house. She indicated that, when she bought the truck,

       it was under both her name and Husband’s name and that she did not place it

       in his name only because she had to insure it. Wife indicated that she did not

       have Husband sign a receipt or make a ledger to keep track of all of the

       payments toward her obligation. She testified that, on numerous occasions

       between 2010 and 2014 or 2015, she told Husband that her obligations were

       complete and that he needed to move out.


[16]   Husband testified that he moved back into the ranch house around 2006 and

       that his understanding was that he and Wife were going to attempt to reconcile,

       and that it felt to him like the divorce never happened. He testified that Wife

       had a good career, she was making most of the money, he worked on the side

       doing remodeling when he could, a lot and some of his work was for cash, he

       used salvaged materials to fix the house, when he did have some money he

       would use it for the family, and that he would cook and do some cleaning. He

       testified that the truck was used for camping trips and was not used just for his

       personal use, that Wife had access to it anytime, and that he was on the title for

       Wife’s vehicle as well. He indicated there was never any discussion that Wife’s

       expenditures to purchase the vehicle, the insurance, or the cell phone were

       going toward her obligation under the settlement agreement. The court

       admitted exhibits related to the vehicle and homeowners insurance bills, the cell

       phone bills, the utility bills, and the property taxes.


[17]   To the extent Husband suggests that the trial court found that the parties’

       cohabitation terminated or modified Wife’s obligation under the settlement

       Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018   Page 10 of 13
       agreement, we observe that the court’s order specifically states “[t]his Court is

       not modifying this obligation” and found that Wife made the required payment

       to Husband. Appellant’s Appendix Volume 2 at 23. The court thus determined

       that Wife performed her payment obligation under the settlement agreement.

       The trial court found that Wife has paid Husband “well over the $30,000.00

       amount” she owed him under the settlement agreement. Id. The court entered

       specific findings that Wife purchased a vehicle for Husband and paid for the

       insurance on the vehicle and Husband’s cell phone for a number of years.


[18]   The evidence presented at the June 26, 2017 hearing supports the trial court’s

       findings. Wife presented evidence that she paid a total of over $30,000 for a

       GMC Sonoma, the insurance premiums for the vehicle, and a cell phone for

       Husband. She also presented evidence that she paid over $60,000 in real estate

       taxes, homeowners insurance, and utilities for the ranch house during the time

       Husband occupied the property. Wife testified that Husband did not contribute

       to these vehicle or housing expenses, and Husband indicated that Wife had a

       good career and made most of the money.


[19]   As for the suggestion that Wife’s expenditures on behalf of Husband were gifts

       due to cohabitation, reconciliation, or otherwise, the trial court was able to

       assess the credibility of the witnesses and their respective testimony, including

       the conflicting testimony. Husband effectively lived expense-free for numerous

       years after the entry of the dissolution decree because Wife made all payments

       associated with his housing, transportation, and cell phone. Further, while

       Wife may have benefited from the nonmonetary and relatively small monetary

       Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018   Page 11 of 13
       contributions of Husband to some extent during the parties’ cohabitation, the

       record establishes that Husband benefited substantially from the monetary

       resources and contributions provided by Wife during that time. Based upon the

       record, we cannot conclude that the trial court’s findings that Wife paid

       Husband the amount owed under the settlement agreement and that to order

       Wife to pay another $30,000 would unjustly enrich Husband are clearly

       erroneous or that the court erred in finding that Husband is not entitled to

       further payment under the settlement agreement. Husband has not shown that

       the evidence points unerringly to a conclusion different from that reached by

       the trier of fact.


[20]   With respect to the court’s attorney fee award of $2,800, the record reveals that

       Husband lived in the ranch house for numerous years after the dissolution

       decree during which time he essentially lived expense-free as Wife made all

       payments associated with his transportation, housing, and cell phone, that

       Husband did not leave the property peacefully and had to be evicted in

       September of 2015, and that he walked out of mediation without informing the

       mediator or the attorneys. We cannot say, based upon the record and under the

       circumstances, that the trial court abused its discretion in entering an attorney

       fee award in favor of Wife.


                                                  Conclusion

[21]   For the foregoing reasons, we affirm the order of the trial court.


       Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018   Page 12 of 13
Bailey, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018   Page 13 of 13
