                                                                               FILED
                                                                        Jun 25 2018, 8:55 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                ATTORNEYS FOR APPELLEE
Timothy Logan                                         David W. Stone IV
Benson, Pantello, Morris, James &                     Stone Law Office & Legal Research
Logan, LLP                                            Anderson, Indiana
Fort Wayne, Indiana                                   Joanne M. Kolbe
                                                      Law Offices of Joanne M. Kolbe
                                                      Warsaw, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Linda Sanders,                                             June 25, 2018
Appellant/Petitioner,                                      Court of Appeals Case No.
                                                           18A-DR-326
        v.                                                 Appeal from the Marshall Circuit
                                                           Court
Jerad Sanders,                                             The Honorable Robert O. Bowen,
Appellee/Respondent.                                       Special Judge
                                                           Trial Court Cause No.
                                                           50C01-1404-DR-90



Bradford, Judge.




Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018                                   Page 1 of 14
                                           Case Summary
[1]   Linda Sanders (“Wife”) and Jerad Sanders (“Husband”) married in 1998, and,

      in 2014, Wife petitioned to dissolve the marriage. At a final hearing in January

      of 2017, the terms of a property settlement (“the Agreement”) were read into

      the record, after which both parties agreed to them. The trial court granted

      Wife’s dissolution petition that day and directed the preparation of a dissolution

      order that incorporated the terms of the Agreement. Approximately one month

      later, Wife moved to repudiate the settlement, which motion the trial court

      denied. Wife moved to correct error and for relief from judgment. Wife’s

      motion to correct error was ultimately deemed denied by operation of rule, and

      the trial court did not grant her relief from judgment. Wife challenges both the

      denial of the motion to correct error and the failure to grant relief from

      judgment, contending that the Agreement was invalid because it was not

      submitted in writing or signed before the trial court’s approval, that she timely

      repudiated it, and the trial court failed to explicitly find that the Agreement was

      just and reasonable. Finding no merit in Wife’s contentions, we affirm.



                             Facts and Procedural History
[2]   On April 25, 2014, Wife petitioned to dissolve her marriage to Husband, to

      whom she had been married since 1998. On January 9, 2017, a final hearing

      was held, at which the terms of the Agreement were read in open court:


                     [Wife’s counsel]: Well, yes. Essentially, um, the parties
              are going to keep all property present in their possession. The

      Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018             Page 2 of 14
        real estate is going to be the property of the husband. The
        husband is going to transfer, I think, by way of QDRO or
        transference $30,000 from an IRA into my client’s name. Ah,
        he’s going to give her $5,000 cash—and when is that payable—
        when can you get that?
                 [Husband’s counsel]: He had asked for six (6) months.
               [Wife’s counsel]: Okay. Six (6) months. Okay. Ah, the
        parties are going to be responsible for the debt in their individual
        name. I don’t believe there’s any joint debt.
                 [Husband’s counsel]: Is the mortgage just in your name?
                 [Husband]: Yeah.
                 [Wife’s counsel]: Okay. The mortgage—maybe—
                 [Husband’s counsel]: I think you’re right.
              [Wife’s counsel]: —we can recite that out in the decree. I
        think we know what the debts are. We can just put that—
                 [Husband’s counsel]: Yes.
                 [Wife’s counsel]: —in the decree.
                 [Husband’s counsel]: But I think that’s correct.
               [Wife’s counsel]: Okay. Ah, essentially then—in terms of
        personal property, there’s still a number of items that are still at
        the house that my client would like to retrieve. Those are the
        items that she owned prior to the parties’ marriage. I think
        there’s like cast iron tub, her personal effects, some Christmas
        decorations, that type of thing, bed, dresser, that sort of stuff.
        She’d like to go ahead and keep all that. I think the parties know
        what’s what or what’s—whose is whose and so I don’t think
        there’s going to be any issue with that. It’s just a matter of you
        being able to get some kind of truck to get over there and get it
        out. Right?
                 [Wife]: Uh-huh and some help.
Tr. Vol. II pp. 4–5.


Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018               Page 3 of 14
[3]   The following discussion also occurred:


                       THE COURT: You heard Mr. Black recite what is the
                 purported agreement between you and Jerad concerning the
                 disposition of all assets and debts? Is that correct?
                          [Wife]: Correct.
                          THE COURT: And is that what you agreed to?
                          [Wife]: Yes.
                       THE COURT: Do you feel that is fair and equitable to
                 both of you?
                          [Wife]: Um—
                      THE COURT: Let me ask you this. Is it—is it fair
                 enough to get the mar—the divorce granted today?
                          [Wife]: Yes.
      Tr. Vol. II p. 8. The trial court stated,


                 THE COURT: Okay. If there’s nothing else, then I’m going to
                 grant the Petition for Dissolution of Marriage. Each of you are
                 restored to the status of unmarried persons effective immediately.
                 All property and debts are divided in accordance with the
                 agreement and your prior name is restored. In other words, the
                 divorce is granted today. It’s just a matter of—[Wife’s counsel],
                 you’re going to prepare the decree?[1]
      Tr. Vol. II p. 9.


[4]   The hearing then moved to the matter of the parties’ tax obligations for 2015

      and 2016, with Husband requesting that the parties refile jointly for those years

      to save money. Wife initially objected, expressing concern that refiling might



      1
          After a brief discussion, it was in fact determined that Husband’s attorney would prepare the decree.

      Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018                                    Page 4 of 14
      delay her taking possession of the marital home. When it was pointed out by

      Wife’s counsel that she already had possession of the house and that Husband

      would be responsible for all of the taxes in any event, Wife’s counsel asked her

      if she was “okay” with refiling, to which she responded, “I guess.” Tr. Vol. II

      p. 14. The trial court asked Wife, “Is that agreeable[,] Mrs. Sanders?”, to which

      she replied, “Sure.” Tr. Vol. II p. 15. An entry for January 9, 2017, in the

      chronological case summary (“CCS”) indicated as follows: “AGREEMENT

      RECITED - COURT GRANTS DISSOLUTION OF MARRIAGE THIS

      DATE [Husband’s counsel] TO PREPARE DECREE ORDER TO BE

      DATED 01/09/2017[.]” Appellant’s App. Vol. II p. 4.


[5]   On February 10, 2017, Wife sent a handwritten letter to the trial court,

      requesting that it reconsider the Agreement. The trial court, presumably

      because Wife was represented by counsel, forwarded the correspondence to the

      parties and attorneys but took no further action. The CCS indicates that on

      February 15, 2017, the trial court issued the dissolution decree, which,

      consistent with the prior CCS entry, was dated and stamped as filed as of

      January 9, 2017. The decree reflected the terms of the Agreement discussed

      and agreed upon at the final hearing. A CCS entry on February 16, 2017,

      indicates that on February 15, 2017, Wife moved to withdraw the Agreement,

      and her counsel moved to withdraw his appearance.


[6]   On March 13, 2017, the trial court held a hearing on Wife’s motion to

      withdraw the Agreement. Wife testified, claiming that at the January 9 hearing

      (1) she could not hear hers or Husband’s counsels, (2) the court reporter could

      Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018           Page 5 of 14
      not hear her, and (3) she did not voice her objections more forcefully because

      she was “crying a lot” and had “several polyps[,]” which had to be removed

      after the hearing. Tr. Vol. II p. 25. Also on March 13, 2017, the trial court

      denied Wife’s motion to withdraw the Agreement. On April 6, 2017, Wife filed

      a verified motion to correct error and/or for relief from judgment. On

      December 11, 2017, the trial court conducted a hearing on Wife’s motions;

      Wife’s motion to correct error was ultimately deemed denied, and her motion

      for relief from judgment pursuant to Indiana Trial Rule 60(B) has neither been

      adjudicated nor deemed denied.


                                  Discussion and Decision
                                     I. Standards of Review
                                   A. Motion to Correct Error
[7]   Wife contends that the trial court abused its discretion in denying her motion to

      correct error. We review denial of a motion to correct error for abuse of

      discretion. Shane v. Home Depot USA, Inc., 869 N.E.2d 1232, 1234 (Ind. Ct.

      App. 2007). An abuse of discretion occurs if the trial court’s decision is against

      the logic and effect of the facts and circumstances before the court, or the

      reasonable inferences therefrom. Id.


                            B. Motion for Relief from Judgment
[8]   Wife also contends that the trial court should have granted her motion for relief

      from judgment, seemingly filed pursuant to several grounds listed in Indiana

      Rule of Trial Procedure 60(B).
      Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018          Page 6 of 14
              We review the denial of a motion for relief from judgment under
              Indiana Trial Rule 60(B) only for an abuse of discretion because
              such a motion is addressed to the equitable discretion of the trial
              court. V.C. Tank Lines, Inc. v. Faison, 754 N.E.2d 1061, 1064
              (Ind. Ct. App. 2001). An abuse of discretion will be found only
              when the trial court’s judgment is clearly erroneous. Id. A trial
              court’s action is clearly erroneous when it is against the logic and
              effect of the facts before it and the inferences which may be
              drawn therefrom. Id. In ruling on a Trial Rule 60(B) motion, the
              trial court is required to “balance the alleged injustice suffered by
              the party moving for relief against the interests of the winning
              party and society in general in the finality of litigation.” Id.
              (quoting Chelovich v. Ruff & Silvian Agency, 551 N.E.2d 890, 892
              (Ind. Ct. App. 1990)).
      Goldsmith v. Jones, 761 N.E.2d 471, 473–74 (Ind. Ct. App. 2002).


                                   II. Validity of Agreement
[9]   At the heart of both of Wife’s claims is her contention that the trial court’s

      adoption of the oral Agreement into its dissolution decree was erroneous

      because (1) the Agreement was not reduced to writing before approval by the

      trial court, (2) the Agreement was not signed by the parties before approval by

      the trial court, (3) she timely repudiated it in any event, and (4) the trial court

      was required to explicitly find that the Agreement was fair and reasonable

      before approving it but failed to do so. If Wife cannot convince us of the merits

      of at least one of these contentions, it follows that she has failed to establish that

      the trial court abused its discretion in denying her motion to correct error or in

      not granting her relief from judgment.




      Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018            Page 7 of 14
          A. Whether the Agreement was Required to Be in Writing
                   Before Approval by the Trial Court
[10]   Indiana Code section 31-15-2-17(a) provides, in part, that “[t]o promote the

       amicable settlements of disputes that have arisen or may arise between the

       parties to a marriage attendant upon the dissolution of their marriage, the

       parties may agree in writing to provisions for […] the disposition of any

       property owned by either or both of the parties[.]” Wife contends that this

       language and related case law require that any such agreement must be reduced

       to writing before it can be properly accepted by the trial court. Husband

       contends that recitation of the terms of an agreement into the record is sufficient

       to satisfy section 31-15-2-17(a)’s writing requirement.


[11]   We have noted that there are “strong policy reasons supporting the requirement

       that agreements be in writing, including: (1) ensuring the enforceability of

       agreements; (2) facilitating agreements that result from mutual assent; (3)

       achieving complete resolution of disputes; and (4) producing clear

       understandings that the parties are less likely to dispute or challenge.” Akers v.

       Akers, 849 N.E.2d 773, 775 (Ind. Ct. App. 2006). In Stolberg v. Stolberg, 538

       N.E.2d 1 (Ind. Ct. App. 1989), we concluded that the writing requirement was

       satisfied where


               [t]he substance of the agreement was testified to by [husband]
               and orally accepted by [wife]. The trial court interrogated both
               parties on the content of the agreement and their understanding
               thereof. Upon questioning, [wife] affirmed her request for
               approval of the settlement as stated by [husband].
               Unquestionably, both [husband and wife] intentionally, with full
       Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018          Page 8 of 14
               knowledge of the eventual outcome, entered into a joint
               agreement.
       Id. at 4. The Stolberg court also rejected wife’s claim that “the agreement signed

       by the trial judge was merely ‘written evidence of an oral agreement[,]’” stating

       that “[w]e fail to see any real distinction between a written agreement and

       written evidence of an oral agreement. The distinction is one of semantics

       rather than substance. It was the written agreement contemplated by the

       statute.” Id. We, too, fail to see any real distinction between a written

       agreement and written evidence of an oral agreement, as either can satisfy the

       policy concerns raised by the Akers court.


[12]   Indeed, the Akers court reiterated Stolberg’s interpretation of the writing

       requirement:


               We believe that the writing requirement of Indiana Code § 31-15-
               2-17 can be satisfied in two ways. First, and most obviously, the
               parties can produce and sign a written document containing the
               terms of their agreement. The second way was suggested by
               Judge Sullivan, writing in concurrence in [McClure v. McClure,
               459 N.E.2d 398 (Ind. Ct. App. 1984)]. He wrote: “While the
               agreement may not have been reduced to writing in a separate
               document and signed by the parties as well as by counsel, the
               agreement became binding upon the parties when it was
               stipulated into the record.” McClure, 459 N.E.2d at 401
               (Sullivan, J., concurring). We agree with Judge Sullivan that the
               writing requirement of Indiana Code § 31-15-2-17 can be satisfied
               by orally stipulating the terms of the settlement agreement into
               the court record. The parties themselves, their attorneys, or the
               trial court can recite the terms of the agreement in open court,
               and the parties can then acknowledge, under oath, their assent to
               those terms. Placing the agreement on the trial court record by

       Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018              Page 9 of 14
               way of a voice recording and/or the court reporters’ transcript is
               tantamount to composing a written settlement document in that
               both procedures produce tangible proof of the terms of the
               agreement.
       Akers, 849 N.E.2d at 775–76.


[13]   After the terms of the Agreement were read in open court, Wife acknowledged

       her assent under oath. What Wife characterizes as her equivocation about the

       Agreement is more fairly described as clearing up her apparent confusion

       regarding the effect of refiling tax returns for 2015 and 2016. Whatever

       concerns Wife may have had about the taxes, they were satisfactorily

       addressed, as she ultimately agreed in open court to the provisions of the

       Agreement, including Husband’s proposal that he refile his tax returns for 2015

       and 2016. We conclude that the trial court’s recitation of the Agreement’s

       terms followed by Wife’s assent to them satisfies section 31-15-2-17(a)’s writing

       requirement.


                B. Whether the Agreement Must Have Been Signed
[14]   Wife also asserts that the writing must also have been signed by both parties

       before the trial court could approve it, citing to Indiana Code sections 31-15-2-

       17 and 31-15-2-13 for this proposition. Section 31-15-2-17 does contain the

       already-discussed writing requirement, but there is no signing requirement.

       Moreover, while section 31-15-2-13(a) does require the filing of verified

       pleadings “signed by both parties[,]” it only applies in cases where the trial

       court seeks to enter a “summary disposition decree without holding a final

       hearing[,]” which is not what occurred here. The authority cited by Wife does

       Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018         Page 10 of 14
       not support her contention, and our research has uncovered none that does.

       Wife has failed to establish that the parties were required to sign a written

       Agreement as a prerequisite for approval by the trial court.


               C. Whether Wife Timely Repudiated the Agreement
[15]   Wife argues that, even if the writing requirement was satisfied, the trial erred in

       entering a decree that incorporated the Agreement after she timely repudiated

       it. As we noted in McClure, there is a “simple two-step process necessary to

       bring a valid property settlement agreement into existence[,]” namely that (1)

       the parties must come to a valid agreement and (2) the trial court must approve

       it. McClure, 459 N.E.2d at 401. Until a property settlement agreement is

       approved by the trial court, it can be repudiated by a party. See id. (“[O]ur

       decision is grounded solely on error by the trial court in approving an

       agreement that was timely repudiated.”).


[16]   Here, the terms of the Agreement were read in open court and the parties

       agreed to them, after which the trial court explicitly approved it, stating on the

       record that “[a]ll property and debts are divided in accordance with the

       agreement[.]” Tr. Vol. II p. 9. The trial court also made it abundantly clear

       that its judgment was to be effective immediately, stating that the parties “are

       restored to the status of unmarried persons effective immediately” and, “In

       other words, the divorce is granted today.” Tr. Vol. II p. 9. The trial court’s

       CCS entry indicating that Husband’s counsel was to prepare a dissolution

       decree to be submitted later but dated January 9, 2017—the date of the final

       hearing—further indicates that it considered the matter settled. Wife’s
       Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018          Page 11 of 14
       repudiation came over one month after the trial court approved the Agreement

       at the final hearing, which is too late.


[17]   We acknowledge that some of our precedent indicates that the cutoff for

       repudiation is not when the property settlement is approved by the trial court

       but when the dissolution decree is issued. See, e.g., Anderson v. Anderson, 399

       N.E.2d 391, 398 (Ind. Ct. App. 1979) (“Hence, a settlement agreement that has

       not been approved by the dissolution court and incorporated and merged into

       the decree has no legal efficacy.”). Under the circumstances of this case, at

       least, the actual issuance of the decree was little more than a formality, as the

       trial court made it clear that its judgment was to take effect immediately with a

       decree detailing the judgment to be issued later. Granting relief to Wife on the

       basis that the terms of the Agreement had not yet been incorporated into the

       decree when she objected would elevate form over substance in this case. Wife

       has failed to establish that she timely repudiated the Agreement. 2




       2
         In any event, Wife cannot even establish with certainty that she objected before the issuance of the decree.
       The trial court properly failed to act on Wife’s letter to the trial court, as she was represented by counsel at
       the time, and Indiana does not recognize hybrid representation. See, e.g., Miedreich v. Rank, 40 Ind. App. 393,
       397, 82 N.E. 117, 118 (Ind. Ct. App. 1907) (“[A] party to an action may appear in his own proper person, or
       by attorney, but he cannot do both. If he appears by attorney, he should be heard through him.”) (citation
       omitted). As for Wife’s motion to withdraw the Agreement, which was filed by counsel, it is not at all clear
       that it was filed before the decree was issued. If anything, the record suggests the opposite, as the CCS entry
       indicating the issuance of the decree appears before the entry indicating Wife’s motion to withdraw the
       Agreement.



       Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018                                  Page 12 of 14
           D. Whether the Trial Court Erroneously Failed to Consider
               Whether the Agreement Was Just and Reasonable
[18]   Finally, Wife argues that the trial court was required to explicitly determine that

       the Agreement was just and reasonable before approving it. Specifically, Wife

       argues that “the statutes require trial courts to insist upon a written agreement

       or perform an analysis of factors listed at I.C. 31-15-7-5.”3 Appellant’s Br. p.

       38. Even if we assume, arguendo, that these are, in fact, the only two options

       available to the trial court, we have already determined that the recitation of the

       Agreement’s terms into the record, coupled with the parties’ assent to them

       under oath, satisfies the writing requirement of Indiana Code section 31-15-2-

       17(a). Wife has failed to establish error in this regard.



                                                   Conclusion


       3
           Indiana Code section 31-15-7-5 provides as follows:
                  The court shall presume that an equal division of the marital property between the parties
                  is just and reasonable. However, this presumption may be rebutted by a party who
                  presents relevant evidence, including evidence concerning the following factors, that an
                  equal division would not be just and reasonable:
                       (1) The contribution of each spouse to the acquisition of the property, regardless of
                       whether the contribution was income producing.
                       (2) The extent to which the property was acquired by each spouse:
                            (A) before the marriage; or
                            (B) through inheritance or gift.
                       (3) The economic circumstances of each spouse at the time the disposition of the
                       property is to become effective, including the desirability of awarding the family
                       residence or the right to dwell in the family residence for such periods as the court
                       considers just to the spouse having custody of any children.
                       (4) The conduct of the parties during the marriage as related to the disposition or
                       dissipation of their property.
                       (5) The earnings or earning ability of the parties as related to:
                            (A) a final division of property; and
                            (B) a final determination of the property rights of the parties.

       Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018                                  Page 13 of 14
[19]   We conclude that the Agreement was not required to be reduced to writing or

       signed before approval by the trial court, Wife did not timely repudiate the

       Agreement, and the trial court did not err in failing to find that the Agreement

       was just and reasonable. Consequently, we further conclude that the trial court

       did not err in denying Wife’s motion to correct error or in failing to grant her

       relief from judgment.


[20]   We affirm the judgment of the trial court.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 18A-DR-326 | June 25, 2018         Page 14 of 14
