                                                                                 FILED
                                                                             Jan 24 2019, 7:46 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Jonathan R. Deenik                                         Michael Cheerva
      Deenik Law, LLC                                            Emswiller Williams Noland &
      Greenwood, Indiana                                         Clarke, LLC
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Donald P. Katz,                                            January 24, 2019
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 18A-DR-1125
              v.                                                 Appeal from the Hamilton
                                                                 Superior Court
      Lori B. Katz,                                              The Honorable William J. Hughes,
      Appellee-Respondent.                                       Judge
                                                                 Trial Court Cause No.
                                                                 29D03-1401-DR-888



      Shepard, Senior Judge.


[1]   When parties negotiate a court-approved property settlement during dissolution

      of marriage proceedings but later informally agree to carry out its terms through

      predictable, if different, means, does this latter path constitute an improper

      amendment of the original settlement?




      Court of Appeals of Indiana | Opinion 18A-DR-1125 | January 24, 2019                           Page 1 of 8
[2]   Under the facts of this case, we conclude that the parties’ later arrangements fell

      within the larger terms of the formal decree and that Donald Katz was required

      to make additional property settlement payments to Lori Katz under the terms

      of their court-approved agreement. We affirm the trial court.


                                Facts and Procedural History
[3]   In 2014, Donald filed a petition to dissolve the parties’ marriage. The marital

      estate included the parties’ house in Carmel, Indiana, a condominium in

      Colorado, and various investments and business interests. Donald and Lori

      negotiated a settlement agreement that the trial court approved and

      incorporated in a decree of dissolution on August 17, 2016. Among other

      provisions, the parties agreed the house and the condominium would be sold,

      and the proceeds would be used to pay off a mortgage and a line of credit

      secured by those properties. The agreement further stated Donald would pay

      Lori a monthly sum to equalize the division of marital assets. According to the

      agreement, if the parties later agreed to not sell either or both properties, Lori

      would be entitled to additional monthly payments “to add back the costs of sale

      that are no longer being incurred.” Appellant’s App. Vol. 2, p. 23.


[4]   The home and condominium were listed for sale. On June 6, 2017, Donald

      and Lori signed a one-page document that Donald had drafted without an

      attorney. In the document, Donald and Lori explained they wanted to “modify

      [their] earlier arrangement” and remove the properties from listings for sale “for

      the foreseeable future.” Id. at 36. The document further states, “Donald P.


      Court of Appeals of Indiana | Opinion 18A-DR-1125 | January 24, 2019        Page 2 of 8
      Katz has expressed a desire to continue to occupy the [house] and maintain [the

      condominium] as a second home.” Id. Donald and Lori further stated they

      wanted to “refinanc[e] the current loan secured by these properties into a more

      favorable mortgage program.” Id. Lori quitclaimed her interest in the house

      after the document was signed, but she and Donald were still both parties to a

      mortgage on the property.


[5]   On November 6, 2017, Donald filed a request for appointment of a

      commissioner. That document has not been provided to this Court. Lori

      responded by asking the trial court to either: order the sale of the house and

      condominium, or order Donald to make additional monthly payments to

      accurately account for the changed division of marital property.


[6]   The court held an evidentiary hearing. On January 30, 2018, it denied

      Donald’s request for appointment of a commissioner. The court granted Lori’s

      request for additional payments, increasing Donald’s monthly obligation from

      154 payments (per the original divorce decree) to 186 payments. In its order,

      the court determined the additional payments were necessary because “[t]he

      parties agreed not to sell the marital home and condo as shown in [the June 6,

      2017 document].” Id. at 13. This appeal followed.


                                                      Issue
[7]   Donald raises three issues, which we consolidate and restate as: Whether the

      trial court erred in ordering Donald to make additional payments to Lori.



      Court of Appeals of Indiana | Opinion 18A-DR-1125 | January 24, 2019     Page 3 of 8
                                     Discussion and Decision
[8]    Neither party requested findings of fact and conclusions thereon, and the trial

       court did not issue any. We review the court’s order under a general judgment

       standard. A general judgment will be affirmed if it can be sustained upon any

       legal theory consistent with the evidence. Shelby Eng’g Co., Inc. v. Action Steel

       Supply, Inc., 707 N.E.2d 1026 (Ind. Ct. App. 1999). We neither reweigh the

       evidence nor judge the credibility of the witnesses. Bedford Recycling, Inc. v. U.S.

       Granules Corp., 634 N.E.2d 1361 (Ind. Ct. App. 1994), trans. denied.


[9]    Donald argues the trial court erred in ordering him to make additional monthly

       payments to Lori due to their agreement not to sell the house and the

       condominium. He claims the evidence showed he still intended to sell those

       properties later, and the court’s decision amounted to an improper modification

       of the settlement agreement.


[10]   Settlement agreements are contractual in nature and bind the parties when the

       court merges and incorporates that agreement into the divorce decree. Shorter v.

       Shorter, 851 N.E.2d 378 (Ind. Ct. App. 2006). Once incorporated into a judicial

       decree, such agreements may not be altered, absent fraud, duress, or consent of

       the parties. Still, as Justice Sullivan observed for a unanimous Court, that

       “does not mean that a court has no authority to resolve a dispute over the

       interpretation of a settlement agreement or property-division order.” Ryan v.

       Ryan, 972 N.E.2d 359, 363 (Ind. 2012).




       Court of Appeals of Indiana | Opinion 18A-DR-1125 | January 24, 2019        Page 4 of 8
[11]   When such moments arise, and the terms of a contract are unambiguous, we do

       not construe its terms or look to extrinsic evidence. Deel v. Deel, 909 N.E.2d

       1028 (Ind. Ct. App. 2009). Unambiguous terms are conclusive, and we will

       merely apply the contractual provisions. Id.


[12]   According to the parties’ settlement agreement, the house and the

       condominium were to be listed for sale and “remain listed until sold.”

       Appellant’s App. Vol. 2, p. 18. Donald could live in the house “until its sale,”

       but he was “solely responsible for all mortgages . . . and all other obligations

       associated with the marital residence.” Id. In addition, “[Donald] shall pay

       [Lori a] property settlement judgment of $3,600 a month for 154 months.” Id.

       at 22. If the proceeds from the sale of the house and the condominium were

       less than certain specified amounts, then Lori’s settlement payments were to be

       reduced accordingly. By contrast, “[i]n the event there is a future agreement

       not to sell either or both of the properties, counsel for [Donald and Lori] shall

       calculate the extension of the payments to add back the costs of sale that are no

       longer being incurred.” Id. at 23. The unambiguous language of the agreement

       provides Lori is entitled to additional payments if the properties are removed

       from sale by agreement of the parties.


[13]   Did the trial court properly determine the parties agreed not to sell the

       properties? Donald and Lori’s June 6, 2017 document states, “Donald P. Katz

       has expressed a desire to continue to occupy the [marital home] and maintain

       [the condominium] as a second home.” Id. Donald and Lori further stated

       they wanted to “refinance[e] the current loan secured by these properties into a

       Court of Appeals of Indiana | Opinion 18A-DR-1125 | January 24, 2019        Page 5 of 8
       more favorable mortgage program.” Id. Lori later testified Donald had told her

       he planned to return the properties to sale listings, but he had not done so by the

       time of the evidentiary hearing. Tr. Vol. 2, p. 45. This is ample evidence from

       which the trial court could have reasonably concluded the parties had agreed to

       not sell the properties, and, further, that Donald intended to keep them for an

       extended period, thus triggering Donald’s contractual obligation to make

       additional payments to Lori. Donald points to evidence that he had removed

       the properties from sale listings on a temporary basis while he worked out

       financing for his businesses. We see this as a request to reweigh the evidence.


[14]   Donald further claims the June 6, 2017 document was not valid because it did

       not modify the settlement agreement. We agree the document did not modify

       the original settlement agreement, which required any modification to be

       submitted to a court for approval. Lori testified she wanted to submit the

       document to the trial court, but Donald refused.


[15]   Even if the document did not modify the settlement agreement, it is sufficient

       evidence of the parties’ intent to not sell the properties. Donald does not

       dispute drafting or signing the document. In addition, the original settlement

       agreement unambiguously states the parties could make a “future agreement”

       to not sell the properties. Appellant’s App. Vol. 2, p. 23. Indeed, the

       agreement described how to calculate the additional payments to Lori if she and

       Donald agreed not to sell one or both of the properties. The original settlement

       agreement did not require that any future agreement must meet the

       requirements for a formal modification of the settlement agreement.

       Court of Appeals of Indiana | Opinion 18A-DR-1125 | January 24, 2019      Page 6 of 8
[16]   We conclude that the June 6, 2017 signed document, which reflected the

       parties’ agreement not to sell the properties, was explicitly contemplated by the
                                                  1
       terms of the original settlement. See Ind. Code § 31-15-2-17(c) (1997) (once an

       agreement on property disposition is incorporated into a decree, it may be

       modified “as the agreement prescribes or the parties subsequently consent”); see

       also Ring v. Ring, 51 N.E.3d 1245, 1250 (Ind. Ct. App. 2016) (noting the parties

       had agreed to sell a parcel of land, which was permissible under the terms of

       their property settlement agreement, but rejecting the proposed sale of a

       different parcel as an inappropriate modification because one party objected).


[17]   Finally, Donald claims the trial court’s award of additional property settlement

       payments was unfair because he had no notice that the court would rule upon

       “the issue of whether the parties had agreed not to sell the properties.”

       Appellant’s Br. p. 12.


[18]   The record shows otherwise. In Lori’s response to Donald’s request to appoint

       a commissioner, she claimed the settlement agreement required the parties to

       sell the marital home and the condominium. She further stated Donald had

       removed the properties from sale and she was entitled to either: (1) a court

       order to sell the properties; or (2) additional property settlement payments from

       Donald. Donald was clearly informed in advance of the hearing that Lori



       1
         Donald also argues the trial court’s order effectively modified the original settlement agreement. To the
       contrary, the court merely applied the plain terms of the agreement by determining: the parties decided not
       to sell the home and the condominium; and, under the agreement, Lori was entitled to additional payments
       because of the decision not to sell.

       Court of Appeals of Indiana | Opinion 18A-DR-1125 | January 24, 2019                              Page 7 of 8
       sought additional property settlement payments due to his withdrawal of the

       properties from sale, and he was by no means ambushed at the evidentiary

       hearing.


[19]   For these reasons, we affirm the judgment of the trial court.


[20]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-DR-1125 | January 24, 2019   Page 8 of 8
