MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                              Jun 10 2016, 8:42 am
this Memorandum Decision shall not be
                                                                        CLERK
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                                   ATTORNEYS FOR APPELLEE
Derick W. Steele                                         DANIEL DUMOULIN, SR.
Raquet, Vandenbosch & Steele                             Cassandra A. Kruse
Kokomo, Indiana                                          Gregory L. Noland
                                                         Emswiller, Williams, Noland &
                                                         Clarke, P.C.
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel Dumoulin, II,                                     June 10, 2016
Appellant/Cross-Appellee-Intervenor,                     Court of Appeals Case No.
                                                         52A05-1505-DR-500
        v.                                               Appeal from the Miami Superior
                                                         Court
Daniel Dumoulin, Sr.,                                    The Honorable A. Christopher
Appellee/Cross-Appellant-Petitioner,                     Lee, Special Judge
                                                         Trial Court Cause No.
and                                                      52D02-0901-DR-11

Joan Dumoulin,
Appellee-Respondent



Crone, Judge.


Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016         Page 1 of 15
                                             Case Summary
[1]   After Daniel Dumoulin, Sr. (“Husband”), filed a petition to dissolve his

      marriage to Joan Dumoulin (“Wife”), she moved to have Daniel Dumoulin, II

      (“Son”), joined as an indispensable party to answer for his interest in various

      real properties. During the course of the proceedings, Husband claimed that

      Son owed an outstanding balance on Son’s agreement to purchase a bar called

      the Ultimate Place 2B (“the Ultimate”) from Husband and Wife. The trial

      court issued an order (“the Money Judgment”) entering judgment in favor of

      Husband and Wife on Husband’s claim.


[2]   Son appeals the Money Judgment, raising several issues: (1) he argues that the

      trial court lacked the authority to determine whether he owed monies to

      Husband and Wife because Son was never put on notice that either Husband or

      Wife was seeking a monetary judgment against him; (2) the trial court lacked

      subject matter jurisdiction because the issue was not ripe for review; (3) the

      Statute of Frauds bars Husband and Wife’s recovery on the agreement to

      purchase the Ultimate; and (4) the trial court abused its discretion by refusing to

      admit Exhibit J.


[3]   Husband cross-appeals, arguing that the trial court erred in denying his motion

      to correct error and his motion for relief from the trial court’s April 9, 2013

      order (“the April 2013 Order”), which determined ownership of various real

      estate.




      Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016   Page 2 of 15
[4]   We conclude that Son had notice that Husband was claiming that Son owed

      money, that the trial court had subject matter jurisdiction, that Son waived the

      Statute of Frauds defense, and that the trial court did not abuse its discretion in

      refusing to admit Exhibit J. We also conclude that Husband has waived the

      issue he raises on cross-appeal. Therefore, we affirm.


                                 Facts and Procedural History
[5]   Husband and Wife owned and operated the Ultimate, a sports bar in Kokomo.

      In 2005, Husband and Wife agreed to transfer the Ultimate to Son, but the

      parties vigorously dispute the terms of the agreement (“the Purchase

      Agreement”). Son claims that he agreed to pay off various debts in exchange

      for the Ultimate. Husband claims that, in addition to assuming various debts,

      Son agreed to pay cash for a total purchase price of $2,100,000. The parties do

      not dispute that Son assumed operation of the Ultimate in 2005 and has paid all

      debts and costs associated with it since its transfer to him.


[6]   After Son took over the operations of the Ultimate, its liquor license came up

      for renewal. The renewal involved hearings before the Alcohol and Tobacco

      Commission (“ATC”), during which both Husband and Son testified under

      oath that Son’s purchase price for the Ultimate was $2,100,000. The renewal of

      the Ultimate’s liquor license was the subject of Indiana Alcohol & Tobacco

      Commission v. Ultimate Place, LLC, No. 34A05-0804-CV-209 (Ind. Ct. App.

      Sept. 30, 2008), in which another panel of this Court concluded that “the

      evidence reveals that [Son] is responsible for paying $2.1 million for the

      business.” Id., slip op. at 6.
      Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016   Page 3 of 15
[7]   In January 2009, Husband filed a petition for marriage dissolution. Husband

      and Wife owned multiple parcels of real estate, including several on East 50

      North (“the E 50 N Properties”). In April 2012, Wife filed a motion to

      bifurcate hearing and join indispensable party, averring that certain property

      claimed as marital property by Husband was actually titled to Son and asking

      the trial court to add Son as a party to the dissolution proceedings and conduct

      a separate hearing to determine the marital estate. Following a hearing, the

      trial court granted Wife’s motion and ordered Son to be joined as an

      indispensable party.


[8]   In January 2013, all parties participated in mediation, but they were not

      successful in resolving the parties’ interests in the Ultimate or the E 50 N

      Properties. All the parties joined in a stipulation in which both Husband and

      Wife claimed a partial interest in the Ultimate. Appellant’s App. at 47. Later

      that month, a hearing was held to determine whether the disputed properties

      should be included or excluded from the marital estate, and Husband, Wife,

      and Son appeared. In February 2013, Son filed a motion for leave to reopen the

      evidence to submit a Family Settlement Agreement (“FSA”) for his purchase of

      the Ultimate to support his version of the Purchase Agreement. The FSA was

      only partially executed, having been signed by Husband but not by Wife or

      Son. The trial court did not rule on Son’s motion, and it does not appear that

      the trial court relied on the FSA in its April 2013 Order. In relevant part, the

      April 2013 Order concluded that the Ultimate and several of the E 50 N

      Properties were not marital assets. With regard to the Ultimate, the trial court


      Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016   Page 4 of 15
       concluded that Son had an oral agreement with Husband and Wife to purchase

       the Ultimate and that it was not a marital asset. Id. at 30-32. Significantly, the

       trial court also concluded that the payments required under the Purchase

       Agreement had not been completed, and that Husband and Wife had a

       remaining interest in Son’s promise to pay under the agreement. Id. at 32.


[9]    In May 2013, Husband filed a motion to correct error and a motion for relief

       from judgment challenging in pertinent part the trial court’s exclusion of the

       Ultimate and certain E 50 N Properties from the marital estate. Id. at 33-61.

       Son filed a response to Husband’s motions, in which he acknowledged that the

       parties’ interests in the Ultimate was the “most hotly disputed issue” and

       alleging that Husband and Wife had previously testified regarding their intent to

       divest themselves of any interest in the Ultimate and that Husband was “now

       seeking to ‘recapture’ the alleged monetary interest in the Ultimate.” Id. at 64.

       In September 2013, the trial court held a hearing on the motions.1 In October

       2013, the trial court issued an order denying Husband’s motion to correct error

       and his motion for relief from judgment with regard to the Ultimate and certain

       E 50 N Properties. 2 Id. at 67-68.


[10]   In January 2014, Husband filed an accounting concerning rents received and

       expenses paid for several rental properties pursuant to a preliminary order




       1
           The transcript of this hearing is not in the record before us.
       2
           The trial court granted Husband’s motion to correct error on issues not relevant to this appeal.


       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016                    Page 5 of 15
       issued at the onset of the dissolution. At Husband’s request, the trial court

       ordered that any objections to Husband’s accounting be filed on or before

       March 14, 2014. Wife submitted a written objection, but Son did not.

       Husband filed a response to Wife’s objections.


[11]   In April 2014, Husband, Wife, and Son attended a mediation session, which

       produced a stipulation and a mediator’s report. The parties were still disputing

       the purchase price for the Ultimate. Husband claimed that the outstanding

       balance due for the purchase of the Ultimate was $1,173,215.86, whereas Wife

       claimed that Son owed $137,000. Appellee’s App. at 58. In preparation for the

       final hearing, the parties engaged in discovery. In response to Son’s discovery

       request, Husband produced exhibits that he intended to submit at the final

       hearing showing the outstanding balance for the total purchase price of the

       Ultimate. In June 2014, Husband filed a motion in limine seeking to bar Son

       from introducing any evidence regarding Husband’s January 2014 accounting

       because Son had not filed any objection to it.


[12]   On December 10 and 11, 2014, a final hearing on the dissolution was held. The

       first day of the hearing was dedicated to presenting evidence on the purchase

       price of the Ultimate. Son offered the FSA into evidence without objection.

       Tr. at 17-18; Appellant’s App. at 52-61; Ex. AA. On the second day, Wife

       attempted to introduce Exhibit J, an accounting of property at 2605 E. 50 N.,

       which the trial court had previously determined was not a marital asset and was

       owned by Son. Husband objected. The trial court sustained Husband’s

       objection, explaining that the evidence was not relevant to the issues before it.

       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016   Page 6 of 15
       Husband testified regarding the ATC hearings, at which he stated under oath

       that Son purchased the Ultimate for $2,100,000, and he submitted the transcript

       of his ATC testimony. Id. at 165; Petitioner’s Ex. 5. Husband also submitted

       the transcript of Son’s testimony at the ATC hearing, which reveals that Son

       testified that the purchase price for the Ultimate was $2,100,000. Petitioner’s

       Ex. 2.


[13]   At the conclusion of the hearing, the trial court granted the dissolution of

       marriage, entered the dissolution decree, and took all pending issues under

       advisement. In January 2015, Son filed a motion to reconsider the trial court’s

       decision not to admit Exhibit J. On April 30, 2015, the trial court issued the

       Money Judgment against Son and in favor of Husband and Wife for

       $581,004.54 each. The Money Judgment included a memorandum, in which

       the trial court explained that it “cannot ignore the prior sworn testimony of

       [Husband] and [Son] that the purchase price was 2.1 million dollars,” and that

       Husband “concedes that part of that purchase price included the debts that

       [Son] has paid thus far, leaving a balance of $1,162,009.08.” Appellant’s App.

       at 95. This appeal ensued.


                                      Discussion and Decision

          Section 1 – The trial court did not lack authority to issue a
                             monetary judgment.
[14]   First, Son avers that he was joined as a party to the dissolution action to answer

       to his interests in the contested marital estate and was not put on notice by the


       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016   Page 7 of 15
       pleadings that either Husband or Wife was seeking a monetary judgment

       against him, and therefore, the trial court lacked authority to issue such an

       order. In support, he cites Noblesville Redevelopment Commission v. Noblesville

       Associates Ltd. Partnership, 674 N.E.2d 558 (Ind. 1996), in which our supreme

       court held that one of the named parties did not receive sufficient notice in the

       pleadings. Id. at 564-65. However, Noblesville is distinguishable because the

       issue in that case was whether the trial court properly granted a motion for a

       judgment on the pleadings.


[15]   Here, in contrast, Son has been substantially involved in the dissolution action

       for years and was made aware early on that Husband was claiming that Son

       had outstanding obligations under the Purchase Agreement. In January 2013,

       Son participated in mediation and joined in a stipulation indicating that both

       Husband and Wife claimed a partial interest in the Ultimate. Son also

       participated in the January 2013 evidentiary hearing to determine ownership of

       various properties. In its April 2013 Order, the trial court concluded that Son

       had an agreement with Husband and Wife to purchase the Ultimate and it was

       not part of the marital estate. The trial court also concluded that the payments

       required under the Purchase Agreement had not been completed and that

       Husband and Wife had a remaining interest in Son’s promise to pay under the

       agreement. Husband filed a motion to correct error claiming that Son agreed to

       pay off various debts plus an additional lump sum based on the difference

       between the purchase price and the actual amounts paid toward those debts.

       Husband’s motion to correct error, filed one and a half years before the final


       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016   Page 8 of 15
       hearing, reveals that Husband was making a claim that Son owed money for

       the purchase of the Ultimate. Son participated in another mediation to

       determine the purchase price of the Ultimate and the extent of his outstanding

       obligations. The first day of the final hearing was dedicated to determining

       whether Son owed Husband and Wife money for the purchase of the Ultimate.

       Son appeared and disputed the purchase price and whether he owed money to

       Husband and Wife. In light of this history, we conclude that Son had notice

       that a claim was being asserted against him. 3


           Section 2 – The trial court had subject matter jurisdiction.
[16]   Next, Son asserts that the trial court lacked subject matter jurisdiction because

       the issue was not ripe for review.

               Subject matter jurisdiction is the power of a court to hear and
               determine the general class of cases to which the proceedings
               before it belong. Whether a court has subject matter jurisdiction
               depends on whether the type of claim advanced by the petitioner
               falls within the general scope of authority conferred upon the
               court by constitution or statute. Included within subject matter
               jurisdiction is whether a claim is ripe for review. Ripeness relates
               to the degree to which the defined issues in a case are based on
               actual facts rather than on abstract possibilities, and are capable
               of being adjudicated on an adequately developed record.




       3
         Son also argues that the trial court was barred by the doctrine of res judicata based on the April 2013
       Order. However, his argument is unavailing because the April 2013 Order was not a final appealable order.
       See Zaremba v. Nevarez, 898 N.E.2d 459, 463 (Ind. Ct. App. 2008) (“‘For principles of res judicata to apply,
       there must have been a final judgment on the merits and that judgment must have been entered by a court of
       competent jurisdiction.’”) (quoting Matter of Sheaffer, 655 N.E.2d 1214, 1217 (Ind. 1995)).

       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016              Page 9 of 15
       Thomas ex rel. Thomas v. Murphy, 918 N.E.2d 656, 662-63 (Ind. Ct. App. 2009)

       (citations and quotation marks omitted), trans. denied (2010).


[17]   Son contends that the amount of his outstanding obligation under the Purchase

       Agreement will not be known until he pays all the obligatory debts under it.

       We disagree. The FSA, which Son submitted, required him to pay off the debts

       and remit the remaining purchase price within five years. Appellant’s App. at

       53. Also, Husband testified that Son agreed to satisfy all obligations for the

       purchase of the Ultimate within five years of the initiation of the transaction in

       2005 and that the deadline has passed. Tr. at 205. Accordingly, we conclude

       that the issue was ripe for review and that the trial court had subject matter

       jurisdiction.


             Section 3 – Son has waived his Statute of Frauds defense.
[18]   Son argues that the Statute of Frauds bars Husband and Wife from recovering

       under the Purchase Agreement. The Statute of Frauds requires any contract for

       the sale of real estate to be in writing. 4 However, contracts for the sale of real

       property that do not satisfy the Statute of Frauds are voidable, not void. Fox

       Dev., Inc. v. England, 837 N.E.2d 161, 166 (Ind. Ct. App. 2005); see also 14

       RICHARD R. POWELL, POWELL ON REAL PROPERTY § 81.02[1][a] (noting that



       4
           Indiana Code Section 32-21-1-1(b) provides,

               A person may not bring any of the following actions unless the promise, contract, or agreement
               on which the action is based, or a memorandum or note describing the promise, contract, or
               agreement on which the action is based, is in writing and signed by the party against whom the
               action is brought or by the party’s authorized agent … (4) An action involving any contract for
               the sale of land.

       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016              Page 10 of 15
       oral contract to convey real estate may be successful if Statute of Frauds defense

       is not raised in pleadings). The Statute of Frauds is an affirmative defense, and

       affirmative defenses must be specifically pled. Joyner v. Citifinancial Morts. Co.,

       800 N.E.2d 979, 982 (Ind. Ct. App. 2003); Ind. Trial Rule 8(C). Generally an

       affirmative defense, including the Statute of Frauds, is waived by failure to raise

       it in a timely fashion. See E & L Rental Equip., Inc. v. Wade Constr., Inc., 752

       N.E.2d 655, 660 (Ind. Ct. App. 2001) (concluding that E & L waived Statute of

       Frauds defense where it failed to include it in its responsive pleading and trial

       court properly denied E & L’s motion to amend pleading it filed after both

       parties presented their cases-in-chief); Uebelhack Equip., Inc. v. Garrett Bros., Inc.,

       408 N.E.2d 136, 140 (Ind. Ct. App. 1980) (concluding that Uebelhack waived

       Statute of Frauds defense where it did not raise it until its motion for judgment

       on the evidence). To preserve an affirmative defense, the party with the burden

       of proving the defense “must either have set forth the defense in a responsive

       pleading or show that the defense was litigated by the parties.” Lawshe v. Glen

       Park Lumber Co., 176 Ind. App. 344, 347, 375 N.E.2d 275, 277-78 (1978). “It is

       axiomatic that such a defense cannot be raised for the first time on appeal.” Id.


[19]   Here, Son does not direct us to any portion of the record showing that he

       argued to the trial court that the Purchase Agreement was unenforceable

       because it violated the Statute of Frauds. 5 In fact, he sought to introduce the




       5
         Son notes that Husband raised the Statute of Frauds defense in his motion to correct error, but that does
       not preserve the issue for Son.

       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016              Page 11 of 15
       FSA as early as February of 2013 as written evidence of the Purchase

       Agreement, although it appears that the trial court did not consider it in its

       April 2013 Order. At the final hearing, no one disputed that there was an

       agreement for Son to purchase the Ultimate from Husband and Wife. The only

       dispute was as to the purchase price. Son himself introduced the FSA against

       Husband as written evidence of the Purchase Agreement in an attempt to

       support his version of the terms of the agreement. Accordingly, we conclude

       that Son has waived his Statute of Frauds defense.


            Section 4 – The trial court did not abuse its discretion in
                          refusing to admit Exhibit J.
[20]   Son challenges the trial court’s refusal to admit Exhibit J. We will reverse the

       trial court’s decision to admit or exclude evidence only for an abuse of

       discretion. Estate of Carter v. Szymczak, 951 N.E.2d 1, 5 (Ind. Ct. App. 2011),

       trans. denied. An abuse of discretion occurs when the trial court’s decision is

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


[21]   Exhibit J is an accounting prepared by Wife regarding the collection of rental

       payments on property at 2605 E. 50 N. In its April 2013 Order, the trial court

       found that the 2605 E. 50 N. property was not a marital asset and was owned

       by Son. Son argues that on the first day of the final hearing “everyone agreed

       to allow Son to introduce evidence concerning the value of properties and

       monies owed to him through Wife’s testimony.” Appellant’s Br. at 13. Son’s

       characterization is not a fair reflection of what occurred. On the first day of the

       final hearing, Son’s counsel asked Wife whether she had knowledge regarding

       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016   Page 12 of 15
       Son’s financial situation relating to properties subject to the marital estate and

       whether she was going to deal with those issues the following day. Tr. at 27.

       At the end of the day, Son’s counsel indicated to the trial court that there were

       some accounting issues involving Son and that it was his understanding that

       they would be addressed on the second day. Id. at 228. The trial court simply

       responded, “Yes.” Id. Husband did not agree to the admission of any specific

       evidence and could not reasonably have been expected to object to evidence

       before learning its exact nature.


[22]   On the second day, Wife attempted to introduce Exhibit J. Husband objected.

       The trial court asked Wife’s counsel how Exhibit J was “going to help [it] make

       a decision here today.” Id. at 523. Wife’s counsel responded that Wife “made

       an accounting as to what she thinks the balance is due to her son.” Id. The trial

       court sustained Husband’s objection, explaining that it was refusing to admit

       the evidence because it was “getting a little off field on theories.” Id. The trial

       court excluded Exhibit J because it was not relevant to the issues that were

       currently before the court. We cannot say that the trial court abused its

       discretion in refusing to admit Exhibit J.


        Section 5 – Husband has waived the issue raised in his cross-
                                 appeal.
[23]   Husband contends that the trial court erred by denying his motion to correct

       error and his motion for relief from judgment. Specifically, he argues that the

       trial court erred in its April 2013 Order by excluding 2653 and 2625 of the E 50

       N properties from the marital estate. In its April 2013 Order, the trial court

       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016   Page 13 of 15
       concluded that “2653 E. 50 N. [was] conveyed by [Son] to John and Janet

       Corwell for good consideration and is not a marital asset,” and “2625 E. 50 N.

       is presently titled to [W]ife which [Son] built a house and transferred to [W]ife.

       She mortgaged and is paying for the property. Husband admits he made no

       payments on the real estate.” Appellant’s App. at 31.


[24]   In his appellee/cross-appellant’s brief, Husband’s argument challenging the trial

       court’s decision relies almost entirely on citations to his motion to correct error.

       Husband’s motion to correct error is not evidence in support of his argument.

       The remaining few citations in his argument are to the transcript of the final

       hearing rather than the January 2013 hearing upon which the April 2013 Order

       is based. In his appellee/cross-appellant’s reply brief, Husband attempts to

       remedy the deficiency by repeating his argument with citations to the transcript

       of the January 2013 hearing. Simultaneous with the filing of his appellee/cross-

       appellant’s reply brief, Husband submitted notice to this Court that he had filed

       in the trial court a supplemental transcript request for the court reporter to

       prepare the transcript of the January 2013 hearing. However, the case is fully

       briefed, the January 2013 transcript is not in the record before us, and there has

       been no request to this Court to hold the appeal in abeyance.


[25]   A party’s argument “must contain the contentions of the appellant on the issues

       presented, supported by cogent reasoning. Each contention must be supported

       by citations to the authorities, statutes, and the Appendix or parts of the Record

       on Appeal relied on.” Ind. Appellate Rule 46(A)(8)(a). The purpose of

       Appellate Rule 46 “is to aid and expedite review, and to relieve the appellate

       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016   Page 14 of 15
       court of the burden of searching the record and briefing the case.” Thacker v.

       Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). “It is well settled that we

       will not consider an appellant’s assertion on appeal when he has not presented

       cogent argument supported by authority and references to the record as

       required by the rules.” Id. “If we were to address such arguments, we would be

       forced to abdicate our role as an impartial tribunal and would instead become

       an advocate for one of the parties. This, clearly, we cannot do.” Shepherd v.

       Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). Therefore, we conclude that

       Husband has waived this issue for failing to present a cogent argument.


[26]   Based on the foregoing, we affirm the trial court in all respects.


[27]   Affirmed.


       Najam, J., and Robb, J., concur.




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