      MEMORANDUM DECISION
                                                                                     FILED
      Pursuant to Ind. Appellate Rule 65(D), this                                Sep 01 2017, 8:17 am
      Memorandum Decision shall not be regarded as                                   CLERK
      precedent or cited before any court except for the                         Indiana Supreme Court
                                                                                    Court of Appeals
      purpose of establishing the defense of res judicata,                            and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Joseph A. Christoff                                      Michael T. Yates
      Christoff & Christoff                                    More Miller & Yates
      Fort Wayne, Indiana                                      Fort Wayne, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Joseph Lee Smith,                                        September 1, 2017

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               02A03-1612-DR-2724
              v.                                               Appeal from the Allen Superior
                                                               Court.
                                                               The Honorable Charles F. Pratt,
      Margie Lee Smith,                                        Judge.
      Appellee-Respondent.                                     The Honorable Sherry A. Hartzler,
                                                               Magistrate.
                                                               Trial Court Cause No.
                                                               02D07-0211-DR-770



      Friedlander, Senior Judge

[1]   Joseph Lee Smith appeals the trial court’s award of damages to him, claiming

      the award is insufficient and should not be payable in installments. He further

      appeals the trial court’s refusal to hold his ex-wife Margie Lee Smith in

      contempt of court. We affirm in part, reverse in part, and remand with

      instructions.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017           Page 1 of 20
[2]   Joseph and Margie married in 1991 and separated in 2002. They did not have

      any children together. On November 15, 2002, Joseph filed a verified petition

      for dissolution of marriage. The parties engaged in settlement negotiations and

      filed a written settlement agreement. The trial court approved the agreement on

      January 14, 2005, and incorporated it into a decree dissolving the parties’

      marriage. Among other provisions, the agreement required Margie to pay

      Joseph twenty-five percent of her “gross monthly” pension payments from the

      State of Indiana’s Public Employees Retirement Fund (PERF) and to disclose

      to Joseph on an annual basis the amount PERF paid her per month.

      Appellant’s Appendix Vol. II, p. 23.


[3]   On February 27, 2015, Joseph filed a Verified Information for Contempt,

      Alternatively Breach of Contract. He amended the Verified Information on

      June 5, 2015. Joseph claimed Margie had missed several monthly payments.

      He further claimed Margie received additional pension funds as enhancements

      to her monthly check or as standalone extra payments at the end of the year but

      was not giving him his twenty-five percent share of those additional funds.

      Finally, Joseph argued Margie had failed to disclose to him on an annual basis

      the amount that PERF paid her per month. Margie did not dispute that she

      had failed to make several monthly payments to Joseph but claimed he was not

      entitled to a share of her additional payments.


[4]   The trial court held an evidentiary hearing. On June 20, 2016, the court issued

      an order determining Margie had failed to comply with the agreed judgment by

      missing several payments and by paying Joseph from her net pension income

      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 2 of 20
      rather than her gross monthly payments. The court declined to find she was in

      contempt of court. The court further determined Margie was not required to

      pay Joseph a share of her additional funds from PERF. Finally, the court

      ordered Margie to pay Joseph $3,287.85 in damages at the rate of twenty-five

      dollars per month, plus $4,512.50 in attorney’s fees at the rate of fifty dollars per

      month.


[5]   Next, Joseph filed a motion to correct error. The court corrected a scrivener’s

      error in the judgment but otherwise denied the motion. This appeal followed.


[6]   Joseph raises four issues, which we restate as: (1) whether the trial court erred

      in determining Joseph was not entitled to a share of Margie’s additional

      pension payments; (2) whether the trial court erred in ordering Margie to pay

      damages and attorney’s fees in installments; (3) whether the trial court abused

      its discretion in concluding that Margie was not in contempt of court; and (4)

      whether Joseph is entitled to appellate attorney’s fees per the settlement

      agreement.


                               1. Additional Pension Payments
[7]   Joseph argues Margie is obligated under their settlement agreement to give him

      a portion of her additional pension payments. Margie responds that she is

      required to give him a share of her regular monthly pension payments and

      nothing more.


[8]   When dissolving a marriage, the parties are free to craft an agreement providing

      for the disposition of property. Bailey v. Mann, 895 N.E.2d 1215 (Ind. 2008).
      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 3 of 20
       Settlement agreements become binding contracts when incorporated into the

       dissolution decree. Id. A trial court may entertain requests to clarify and

       interpret a settlement agreement after it has been incorporated into a dissolution

       decree, pursuant to ordinary contract law principles. Beaman v. Beaman, 844

       N.E.2d 525 (Ind. Ct. App. 2006). Interpretation of a settlement agreement, as

       with any other contract, presents a question of law and is reviewed de novo.

       Bailey, 895 N.E.2d 1215.


[9]    The terms of a settlement agreement will be given their plain and ordinary

       meaning unless they are ambiguous. Pherson v. Lund, 997 N.E.2d 367 (Ind. Ct.

       App. 2013). Where the terms are clear and unambiguous, we will not construe

       the contract or look at extrinsic evidence. Magee v. Garry-Magee, 833 N.E.2d

       1083 (Ind. Ct. App. 2005). The terms of a contract are ambiguous only when

       reasonably intelligent persons would honestly differ as to the meaning of those

       terms. Bressler v. Bressler, 601 N.E.2d 392 (Ind. Ct. App. 1992). If there is an

       ambiguity, parol evidence is considered to clarify the ambiguity. Magee, 833

       N.E.2d 1083. The goal is to determine the intent of the parties when they made

       the agreement. McDivitt v. McDivitt, 42 N.E.3d 115 (Ind. Ct. App. 2015), trans.

       denied.


[10]   The parties’ settlement agreement provides: “The subject matter of this

       Agreement is the settlement of the respective rights of Husband and Wife to all

       property, both real and personal, now in their name and/or possession.”

       Appellant’s App. Vol. II, p. 20. The contract further states:



       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 4 of 20
               Wife shall pay to Husband on a monthly basis, an amount equal
               to twenty-five percent (25%) of her gross monthly payment from
               Wife’s pension from the State of Indiana Public Employees
               Retirement Fund. Provided however, the first two such
               payments·from Wife to Husband shall be in an amount equal to
               fifty percent (50%) of Wife’s net payment from said pension and
               thereafter said payments shall be in an amount equal to twenty-
               five percent (25%) of her gross monthly payment from said
               pension. Such payments shall commence October 15, 2004 and
               shall be paid by Wife to Husband on the 15th of each month
               thereafter until terminated as indicated herein. Such payments
               shall terminate upon the earliest occurrence of the following: 1.
               The expiration of 20 years of the date of the decree of dissolution
               in this cause; 2. The death of Wife; or 3. The death of Husband.

               Wife shall provide to Husband written documentation of the
               amount of said monthly pension payment to Wife on an annual
               basis. Should Wife make any other subsequent withdrawals from
               such pension, she shall pay to Husband an amount equal to
               twenty-five percent (25%) of any such other gross withdrawal or
               any other available death benefit. Husband shall be entitled to
               receive, from Wife’s estate, twenty-five percent (25%) of any such
               other gross withdrawal or any other available death benefit from
               said pension.

       Id. at 23.


[11]   As noted above, PERF issued to Margie her additional pension payments by

       two methods: (1) as funds added to her “gross monthly payment;” and (2) a

       standalone payment at the end of the year. Based on the plain language of the

       settlement agreement, any funds added to Margie’s “gross monthly payment”

       should have been included in calculating the monthly twenty-five percent share

       Margie owed to Joseph. Margie is obligated to pay Joseph twenty-five percent

       of her gross monthly payment, regardless of amount, and the settlement
       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 5 of 20
       agreement does not exclude any additional funds that PERF may add to the

       monthly payments.


[12]   As for the standalone additional annual payments, the settlement agreement

       does not mention them, focusing instead on Margie’s gross monthly payments.

       The agreement purports to dispose of the parties’ rights to all marital property,

       and the additional pension payments would appear to be marital property. See

       Ind. Code § 31-9-2-98 (1997) (marital property includes “a present right to

       withdraw pension or retirement benefits” and “the right to receive pension or

       retirement benefits . . . that are vested . . . but that are payable after the

       dissolution of marriage”). The agreement is ambiguous as to whether Joseph is

       entitled to a twenty-five percent share of the standalone payments. See Shepherd

       v. Tackett, 954 N.E.2d 477 (Ind. Ct. App. 2011) (divorce decree ambiguous as to

       husband’s obligation to make mortgage payments for marital home).


[13]   We may consider parol evidence to resolve the ambiguity. The parties did not

       present to the trial court any evidence as to their intent with respect to the
                                                                                        1
       standalone payments at the time they drafted the agreement. At the time the

       agreement was drafted the parties anticipated monthly pension payments, but it

       is unclear whether they were aware Margie would receive additional payments.

       The trial court erred in concluding Joseph is not entitled to twenty-five percent



       1
         Joseph claims that Margie drafted the agreement and argues that it should be interpreted against her.
       During oral argument on Joseph’s motion to correct error, his counsel conceded “we were both involved
       involved [sic] in the drafting [and Margie’s counsel] was just the primary drafter.” September 12, 2016
       Hearing Tr. p. 5. We decline to construe the agreement against Margie.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017       Page 6 of 20
       of the standalone pension payments because the record is inadequate to

       determine the parties’ intent. We reverse and remand for the court to: (1)

       calculate Joseph’s share of the additional amounts that PERF added to

       Margie’s gross monthly payments and adjust the damages award accordingly;

       and (2) hear evidence as to the parties’ intent at the time the agreement was

       drafted with respect to standalone additional payments from PERF and

       determine whether the payments are subject to the settlement agreement.


                                      2. Installment Payments
[14]   Joseph argues the trial court lacked the authority to allow Margie to pay

       damages and attorney’s fees in installments. Margie responds that the court

       acted appropriately due to her limited economic circumstances. Resolving this

       issue requires application of the governing statute. We apply a de novo

       standard of review to questions of statutory interpretation. G.S. v. M.S., 69

       N.E.3d 500 (Ind. Ct. App. 2017).


[15]   The trial court had the authority to impose installment payments in the original

       divorce decree. See Ind. Code § 31-15-7-4 (1997) (a court shall divide marital

       estate “in a just and reasonable manner,” including ordering one spouse to pay

       an amount where necessary, “either in gross or installments”). Joseph argues

       that he presents a simple claim of breach of contract, and the court’s installment

       plan prevents him from being made whole in a reasonable manner because it

       will take years for Margie to pay off the judgment and attorney’s fees award in

       increments of twenty-five and fifty dollars. He further claims the court should


       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 7 of 20
       have simply entered a judgment for the total amounts Margie owed him and

       allowed him to pursue proceedings supplemental to collect.


[16]   The statute that governs enforcement of dissolution decrees provides:

               Notwithstanding any other law, all orders and awards contained
               in a dissolution of marriage decree or legal separation decree may
               be enforced by:
               (1) contempt;
               (2) an income withholding order; or
               (3) any other remedies available for the enforcement of a court
               order;
               except as otherwise provided by this article.

       Ind. Code § 31-15-7-10 (2006).


[17]   The statute grants the trial court wide discretion to ensure meaningful

       compliance with a dissolution decree. For example, in Cope v. Cope, 846 N.E.2d

       360 (Ind. Ct. App. 2006), the parties executed a decree that provided wife

       would receive a portion of husband’s military pension, in installments, through

       a qualified domestic relations order (QDRO) or other method approved by the

       military. The military refused to recognize the QDRO, and husband refused to

       make payments on his own. Wife sought to enforce the settlement agreement,

       and the trial court garnished husband’s wages. A panel of this court affirmed

       the trial court’s decision, concluding the trial court acted appropriately because

       garnishment was the “only practical recourse.” Id. at 363.


[18]   In this case, the court concluded Margie breached the agreement, but she was

       seventy-four years old and “of meager means and resources.” Appellant’s App.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 8 of 20
       Vol. II, p. 12. The court did not err in attempting to balance the parties’

       interests by establishing a realistic payment plan.


[19]   Joseph argues the court unfairly prevented him from seeking to enforce the

       judgment through proceedings supplemental. We disagree. Nothing in the

       court’s order prevents Joseph from seeking to enforce the judgment if Margie

       misses an installment payment for damages or attorney’s fees.


[20]   Joseph further claims the installment plan is, in substance, an inappropriate

       modification of the terms of the agreement. “Orders concerning property

       disposition” in an action for dissolution of marriage “may not be revoked or

       modified, except in case of fraud.” Ind. Code § 31-15-7-9.1 (1998). A court

       retains jurisdiction to interpret the terms of the decree and decide questions

       pertaining to its enforcement. Shepherd, 954 N.E.2d 477. Clarifying a

       settlement agreement, consistent with the parties’ intent, is not the same as

       modifying the agreement. Id.


[21]   We cannot agree that the court modified the settlement agreement by ordering

       payment of damages and attorney’s fees on an installment basis. None of the

       terms of the agreement have changed. Margie still owes Joseph twenty-five

       percent of her monthly payments and must compensate him for missed

       payments. The court merely devised a plan that Margie can afford and is most

       likely to result in compliance with the settlement agreement. See id. at 482 (trial

       court did not modify decree but instead clarified terms under which husband

       was to make monthly payments to wife).


       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 9 of 20
                                                3. Contempt
[22]   Joseph claims the trial court should have held Margie in contempt because she

       disregarded the settlement agreement. Margie responds that the trial court

       acted appropriately because she did not willfully violate the agreement.


[23]   A person engages in “indirect contempt of court” when he or she “is guilty of

       any willful disobedience of any process, or any order lawfully issued.” Ind.

       Code § 34-47-3-1 (1998). Whether a party is in contempt of court is a matter for

       the trial court’s discretion, and its decision will be reversed only for an abuse of

       discretion. In re Paternity of M.F., 956 N.E.2d 1157 (Ind. Ct. App. 2011). A

       court abuses its discretion when its decision is against the logic and effect of the

       facts and circumstances or is contrary to law. Id. We will neither reweigh the

       evidence nor judge the credibility of witnesses. Piercey v. Piercey, 727 N.E.2d 26

       (Ind. Ct. App. 2000).


[24]   The trial court determined, and Margie does not dispute, that she violated the

       settlement agreement by missing several monthly payments to Joseph and by

       paying him from her net pension income rather than in gross pension income.

       The record demonstrates Margie failed to make ten payments because she

       experienced unexpected financial difficulties, including being unable to work

       for several weeks in 2014-15 due to illness. Although she receives pension

       payments and a paycheck, her income is limited. Further, Margie did not

       appear to understand the difference between gross and net income. Despite

       these factors, Margie had otherwise managed to make monthly payments to


       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 10 of 20
       Joseph for almost a decade. This evidence supports a conclusion that she did

       not willfully disobey the dissolution decree.


[25]   Joseph points out that Margie also failed to give him an annual statement of the

       amount she received from PERF per month, in violation of the settlement

       agreement. Margie testified that Joseph never requested a statement until he

       filed his petition for contempt, ten years after the agreement was executed.

       Margie was solely responsible for fulfilling her obligations under the agreement,

       but the trial court could have reasonably determined that Margie’s failure to

       provide an annual statement was not a willful, material violation if her

       noncompliance was unobjectionable for a decade. The trial court did not abuse

       its discretion. See Topolski v. Topolski, 742 N.E.2d 991 (Ind. Ct. App. 2001) (no

       abuse of discretion in failing to find husband in contempt of divorce decree;

       husband missed some child support payments but paid much of child’s college

       expenses).


                                       4. Appellate Attorney’s Fees
[26]   Joseph argues he is entitled to appellate attorney’s fees per the terms of the
                                       2
       settlement agreement. The trial court awarded attorney’s fees to Joseph due to

       Margie’s breach of the settlement agreement.




       2
           He does not present a claim for appellate attorney’s fees under Indiana Appellate Rule 66(E).


       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017            Page 11 of 20
[27]   Each party pays his or her own attorney’s fees absent an agreement between the

       parties, statutory authority, or a rule to the contrary. Fackler v. Powell, 891

       N.E.2d 1091 (Ind. Ct. App. 2008), trans. denied. A contractual clause that

       allows for the recovery of attorney’s fees will be enforced according to its terms

       unless it violates public policy. Steiner v. Bank One Indiana, N.A., 805 N.E.2d

       421 (Ind. Ct. App. 2004).


[28]   The portion of the settlement agreement that governs attorney’s fees provides as

       follows:

               G. INDEMNIFICATION.
               Each party agrees to indemnify and save and hold the other
               harmless from all damages, losses, expenses (including attorney’s
               fees), costs and other fees incurred by reason of the other’s
               violation or breach of any of the terms and conditions hereof.

       Appellant’s App. Vol. II, p. 25.


[29]   In Fackler, the parties to a dissolution of marriage case negotiated a settlement

       agreement. The agreement included an indemnification clause that is almost

       identical to the clause at issue here, replacing the word “other’s” with

       “indemnitor’s.” 891 N.E.2d at 1098. Wife argued that Husband failed to pay

       her money she was owed under the settlement agreement. Husband prevailed

       in the trial court. On appeal, this Court determined the trial court erred and

       Husband had breached the agreement by failing to fully compensate Wife. The

       Court further determined that, pursuant to the indemnification clause, Husband

       owed Wife attorney’s fees because of his breach, in an amount to be determined

       by the trial court.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 12 of 20
[30]   In the current case, we affirm the trial court’s decision that Margie was not in

       contempt, but we also conclude Joseph is entitled to at least a portion of the

       additional pension payments Margie received. Margie breached the settlement

       agreement to a greater extent than the trial court determined, and Joseph is

       entitled to an award of appellate attorney’s fees pursuant to the indemnification

       clause. The trial court shall calculate the amount of the attorney’s fees on

       remand.


[31]   For the reasons stated above, we affirm the judgment of the trial court in part,

       reverse in part, and remand for further proceedings not inconsistent with this

       opinion.


[32]   Judgment affirmed in part, reversed in part, and remanded with instructions.


       Riley, J., concurs in part and concurs in result in part with separate opinion.


       Najam, J., concurs in part and dissents in part with separate opinion




       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 13 of 20
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Joseph Lee Smith,                                        Court of Appeals Case No.
                                                                02A03-1612-DR-2724
       Appellant-Petitioner,

               v.

       Margie Lee Smith,
       Appellee-Respondent.




       Riley, Judge concurring in result on Issue I, and concurring in Issues II, III,

       and IV.


[33]   I concur in result on Issue I, and concur in Senior Judge Friedlander’s lead

       opinion on Issues Two, Three, and Four. Unlike Judge Najam, I cannot

       conclude that the settlement agreement is unambiguous with respect to the

       standalone retirement payments Margie receives at the end of the year. While

       analyzing the issue differently, I concur with Senior Judge Friedlander that the

       Issue should be remanded to the trial court for further evidence.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 14 of 20
[34]   The explicit language of the settlement agreement, which was accepted by both

       parties, states clearly that Margie has to pay Joseph “twenty-five percent of her

       gross monthly” pension payments. (Appellant’s App. Vol. II, p. 23). As the

       standalone payment is paid to Margie on a yearly basis, and not on a monthly

       basis, I would conclude that, under the terms of the settlement agreement,

       Joseph is not entitled to a twenty-five percent share thereof. Nevertheless, as

       this particular clause of the settlement agreement is subject to three different

       legal interpretations, the agreement, by definition, must be ambiguous. For that

       reason, I concur in result and agree to remand Issue I to the trial court to allow

       the parties to present further evidence on their intent with respect to the

       standalone payment at the time of drafting the agreement. I concur with the

       majority in all other respects.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 15 of 20
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Joseph Lee Smith                                         Court of Appeals Case No.
                                                                02A03-1612-DR-2724
       Appellant-Petitioner,

               v.

       Margie Lee Smith,
       Appellee-Respondent.




       Najam, Judge, concurring in part and dissenting in part.

[35]   I concur in Senior Judge Friedlander’s lead opinion on Issues Three and Four

       but respectfully dissent on Issue One. On that issue, I would hold that the

       settlement agreement is unambiguous and that judgment should be entered for

       Husband. Thus, I would also instruct the trial court on remand to recalculate

       the installment payments discussed in Issue Two of the lead opinion.


[36]   The settlement agreement states as follows:




       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 16 of 20
               Wife shall pay to Husband on a monthly basis[] an amount equal to
               twenty-five percent (25%) of her gross monthly payment from Wife’s
               pension from [PERF]. . . .
               Wife shall provide to Husband written documentation of the amount
               of said monthly pension payment to Wife on an annual basis. Should
               Wife make any other subsequent withdrawals from such pension, she shall pay
               to Husband an amount equal to twenty-five percent (25%) of any such other
               gross withdrawal or any other available death benefit. Husband shall be
               entitled to receive, from Wife’s estate, twenty-five percent (25%) of any such
               other gross withdrawal or any other available death benefit from said pension.
       Appellant’s App. Vol. II at 23 (emphases added).


[37]   By its plain terms, the agreement provides both that Husband is entitled to

       twenty-five percent of gross monthly payments as well as to twenty-five percent

       of “any other subsequent withdrawals.” It is immaterial whether distributions

       from Wife’s PERF account are called “payments” or “withdrawals.” The

       purpose of the agreement’s provisions is clear: Husband is entitled to twenty-

       five percent of whatever gross sums Wife receives from her PERF account

       whether those sums are distributed as regular or irregular payments or

       withdrawals, without exception. This is further confirmed by the final sentence

       in the last paragraph above, which provides that Husband is entitled to receive

       from Wife’s estate twenty-five percent of any such other gross withdrawal or

       any other available death benefit from Wife’s PERF pension.


[38]   In this agreement, the terms “payments” and “withdrawals” are used

       interchangeably. This is apparent from the phrase, “any other subsequent

       withdrawals.” (Emphasis added.) Here, “any” plainly means “all.” And, here,

       “other . . . withdrawals” refers directly to “gross monthly payments,” which is


       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 17 of 20
       the only possible antecedent. The text demonstrates that “gross monthly

       payments” are deemed withdrawals and that “other . . . withdrawals” are

       deemed payments. The agreement provides that Husband is entitled to twenty-

       five percent of “any such other gross withdrawal” (emphasis added); that is, in

       addition to the gross monthly payments, he is entitled to a share of any “other”

       gross withdrawal. This is the only interpretation that gives meaning to the

       word “other,” which is used three times in the same paragraph.


[39]   The words “other” and “such other” require an antecedent. Otherwise, those

       words are surplusage and meaningless. But we may not excise those words

       from the agreement. Our Supreme Court has been clear that, in reading

       contracts, our ultimate goal is to determine the intent of the parties at the time

       that they made the agreement. Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 813

       (Ind. 2012). “We begin with the plain language of the contract, reading it in

       context and, whenever possible, construing it so as to render each word, phrase,

       and term meaningful, unambiguous, and harmonious with the whole.” Id. By

       using the word “other” to modify the word “withdrawal,” there is no question

       that the parties considered payments to be withdrawals and that they

       contemplated and provided for the payment of twenty-five percent of “any”

       withdrawals “other” than monthly payments to be made to Husband.


[40]   The agreement connects the words “payments” and “withdrawals” and uses

       them interchangeably. The phrases “any other subsequent withdrawals,” “any

       other gross withdrawal,” and “any such other gross withdrawal” are catch-all

       provisions that refer back to the only “other” withdrawals mentioned in the

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 18 of 20
       agreement: the gross monthly payments. These catch-all provisions

       demonstrate the parties’ intent that Husband is to receive twenty-five percent of

       “any” gross distributions from Wife’s PERF account.


[41]   Any distribution other than the monthly payments—including any standalone,

       additional annual payment—is an “other gross withdrawal” and, thus, falls

       squarely within the plain language of the agreement. And, significantly, the

       agreement does not say that husband is entitled only to twenty-five percent of

       the “gross regular monthly payment.” The word “regular” does not appear in

       the agreement. See B&R Oil Co. v. Stoler, ___ N.E.3d ___, 2017 WL 22334035

       (Ind. Ct. App. May 30, 2017) (we “must interpret the contract as written, not as

       it might have been written”), trans. pending.


[42]   In sum, I would reverse the trial court’s judgment for Wife on Issue One.3 The

       plain meaning of the settlement agreement demonstrates the parties’ intent to

       have Husband receive twenty-five percent of all gross distributions from the

       PERF account. Thus, I would also remand with instructions for the trial court

       to recalculate the installment payments due to Husband that are discussed in




       3
         If the agreement were ambiguous, as the lead opinion concludes, then the proper disposition would be to
       affirm the trial court’s judgment. Husband appeals from a negative judgment, which requires him to show
       that “the evidence leads to but one conclusion and the trial court reached an opposite conclusion.” Burnell v.
       State, 56 N.E.3d 1146, 1150 (Ind. 2016). If the agreement were ambiguous, then Husband had the
       opportunity to present evidence to the trial court, and, having failed to meet his burden of proof, Husband
       would not be entitled to a remand.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017         Page 19 of 20
Issue Two of the lead opinion. I concur in Senior Judge Friedlander’s

resolution of Issues Three and Four.


.




Court of Appeals of Indiana | Memorandum Decision 02A03-1612-DR-2724 | September 1, 2017   Page 20 of 20
