                                                              FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                   Sep 12 2012, 10:00 am
court except for the purpose of
establishing the defense of res judicata,                          CLERK
collateral estoppel, or the law of the case.                     of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

DANIEL J. VANDERPOOL                            PATTI J. TAYLOR
Warsaw, Indiana                                 Warsaw, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BRAD A. FISHER,                                 )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )        No. 43A03-1202-DR-86
                                                )
BRANDY FISHER,                                  )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE KOSCIUSKO SUPERIOR COURT
                           The Honorable Duane G. Huffer, Judge
                              Cause No. 43D01-0709-DR-808


                                    September 12, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

       Appellant-Petitioner, Brad Fisher (Brad), appeals the trial court’s Order denying

his verified petition to deem judgment paid in favor of Appellee-Respondent, Brandy

Brady, f/k/a Brandy Fisher (Brandy).

       We dismiss.

                                          ISSUE

       Although Brad raises two issues on appeal, we find Brandy’s issue on cross-appeal

is dispositive and we restate it as follows: Whether the doctrine of res judicata precludes

Brad’s appeal.

                       FACTS AND PROCEDURAL HISTORY

       Brad and Brandy were married before September of 2007. One child was born of

the marriage.    On September 27, 2007, Brad filed a petition for dissolution of the

marriage. On May 5, 2010, the trial court held a final hearing on the petition. The parties

had agreed to bifurcate custody, support, and visitation issues and only presented

evidence on the division of the marital estate. On May 12, 2010, the trial court entered

the Decree of Dissolution.

       The Decree contained the trial court’s findings on the martial estate and divided

the couple’s assets and liabilities. The marital assets were valued at $128,342 and the

marital debt totaled $167,208, resulting in a net marital estate of negative $38,866. The

trial court awarded Brad marital assets in the amount of $16,316 and debt in the amount

of $14,221. Brandy was awarded marital assets totaling $119,026 and debts totaling
                                      2
$152,957. Notably, Brandy received half of Brad’s individual retirement account and the

marital home. The marital home was valued at $115,000 but carried indebtedness in the

amount of $141,765, consisting of a mortgage and home equity loan, upon which the

parties were joint obligors. The end result of the trial court’s property division resulted in

a positive award to Brad in the amount of $2,095 and negative award to Brandy in the

amount of $33,931.

          “To equalize the property and debt of the parties,” the Decree awarded Brandy a

judgment of $20,000, payable in forty-eight monthly installments beginning June 1,

2010. (Appellant’s App. p. 21). The purpose of the payments was “to defray the expense

of [the] mortgage and home equity payment on the former marital dwelling.”

(Appellant’s App. p. 21). Interest of 8% per annum was to be assessed for untimely

payments. The judgment was made contingent in that “if the mortgage and/or home

equity loan should be foreclosed and [Brad] is current in payments required herein, any

sums remaining unpaid by [Brad] to [Brandy] shall be deemed paid.” (Appellant’s App.

p. 21).

          In June and July of 2010, Brad made his two installment payments on the $20,000

judgment. On July 1, 2010, a complaint for foreclosure on the mortgage secured by the

martial property was filed. On July 29, 2010, Brad filed for bankruptcy and discharged

his indebtedness on the mortgage and home equity line on December 15, 2010.

          On November 4, 2010, a judgment was entered in the foreclosure action. On

November 19, 2010, Brandy filed a motion to enforce and modify the Decree. The

                                              3
motion alleged that Brad had failed to transfer half of his IRA and to make monthly

installment payments on the $20,000 judgment after his July 2010 payment. Brandy

requested the trial court to enforce such obligations under the Decree. She also argued

that the $20,000 judgment was a support obligation and thus non-dischargeable in Brad’s

bankruptcy. As the Decree did not so expressly provide, Brandy requested modification

of that provision in the Decree.

       On December 21, 2010, the trial court held a hearing on Brandy’s motion and

entered its Order clarifying the Decree. The trial court concluded that the $20,000

judgment was “to effectuate and provide the support necessary to ensure the daily needs

of [Brandy]” and the parties’ child.” (Appellant’s App. p. 28). In particular, it found that

the $20,000 judgment was a support obligation because the award of the marital home to

Brandy was based on her inability to pay the mortgage and home equity loan and the lack

of another residence to house the parties’ child. On December 24, 2010, Brandy filed for

bankruptcy, which resulted in the discharge of her indebtedness under the mortgage and

home equity loan on April 4, 2011.

       On January 19, 2011, Brad filed a motion to correct error, contending that the

December 21, 2010 Order was erroneous because the $20,000 judgment was not intended

as a support obligation, but rather a “self-adjusting mechanism” whereby the Decree’s

equitable division of property would be preserved in the event that Brandy failed to pay

the mortgage. (Appellee’s App. p. 1). Because the parties were joint obligors on the

mortgage and home equity loan and Brandy was not required to refinance, Brad argued

                                             4
that the trial court had intended that he be liable for only $20,000, which would be

“deemed paid” in the event of foreclosure. (Appellee’s App. p. 1). However, Brad

asserted that by determining the $20,000 judgment to be a support obligation, the trial

court had impermissibly modified the Decree and thereby contravened its intent that Brad

not be liable for the entire amount of the mortgage and home equity loan. Brad’s motion

to correct error therefore requested the trial court to “vacate the December 21, 2010

[O]rder” and “find that the $20,000 [judgment] was deemed paid when the mortgage

foreclosure action was filed in July of 2010.” (Appellee’s App. p. 2).

      On January 24, 2011, Brandy filed her response arguing that Brad’s failure to

make all payments under the Decree and provisional support orders caused the July 2010

foreclosure proceedings and that she declared bankruptcy to stave off foreclosure

proceedings. On January 25, 2011, the trial court denied Brad’s motion to correct error.

On February 24, 2011, Brad filed a notice of appeal. However, on June 24, 2011, Brad

filed a motion to dismiss his appeal under Indiana Appellate Rule 36(A). On July 12,

2011, this court dismissed Brad’s appeal with prejudice.

      On December 5, 2011, Brad filed his Motion to Deem Judgment Paid. The

Motion alleged a number of facts contained in Brad’s earlier motion to correct error, but

omitted argument on the propriety of the trial court’s prior modification of the Decree.

On December 6, 2011, Brandy responded that the issue was barred by res judicata since

the Motion contained allegations made in Brad’s prior motion to correct error and did not

contain new material facts. On January 27, 2012, the trial court issued its Order denying

                                            5
Brad’s motion. The trial court found that Brad had not met the contingency provided for

in the Decree because Brad was not current in his payments at the time of foreclosure.

       Brad now appeals and Brandy cross-appeals. Additional facts will be provided as

necessary.

                              DISCUSSION AND DECISION

                                     CROSS-APPEAL

       On cross-appeal, Brandy asserts that Brad’s present appeal is precluded by the

doctrine of res judicata. Specifically, Brandy argues claim preclusion applies because

Brad’s appeal raises issues already asserted by him in his prior appeal, which had been

dismissed with prejudice. We find Brandy’s cross-appeal to be dispositive.

       Res judicata prevents the repetitious litigation of that which is essentially the same

dispute. In re L.B., 889 N.E.2d 326, 333 (Ind. Ct. App. 2008). The principle of res

judicata is divided into two branches: claim preclusion and issue preclusion. Id. Claim

preclusion applies where a final judgment on the merits has been rendered which acts as a

complete bar to a subsequent action on the same issue or claim between those parties and

their privies.   Id.   Issue preclusion, also referred to as collateral estoppel, bars the

subsequent relitigation of the same fact or issue where the fact or issue was necessarily

adjudicated in a former suit and the same fact or issue is presented in a subsequent action.

Id. When, as here, a party argues that the claim preclusion component of res judicata

applies, four factors must be present, namely: (1) the former judgment must have been

rendered by a court of competent jurisdiction; (2) the former judgment must have been

                                             6
rendered on the merits; (3) the matter now in issue was, or could have been, determined

in the prior action; and (4) the controversy adjudicated in the former action must have

been between parties to the present suit or their privies. Id.

       There is no dispute that three of the above requirements are met here. First, there

is no dispute that this court did not lack jurisdiction over the parties and the subject

matter in both appeals. Second, either party may move to dismiss a claim and a dismissal

with prejudice constitutes a dismissal on the merits. Afolabi v. Atlantic Mortgage &

Investment Corp., 849 N.E.2d 1170, 1173 (Ind. Ct. App. 2006). Thus, a dismissal with

prejudice is conclusive of the rights of the parties and is res judicata as to any questions

that might have been litigated. Id. Third, the parties here are identical to those in the

prior appeal.

       Turning to the remaining issue, we consider whether the $20,000 judgment, which

Brad argues should have been deemed paid upon the initiation of foreclosure proceedings

in July 2010, was or might have been litigated in the prior appeal. We conclude that it

was.

       Brad’s prior appeal resulted from proceedings supplemental brought by Brandy to

enforce, modify, as well as remove language pertaining to the $20,000 judgment from the

Decree. Although the trial court agreed with Brandy that Brad’s obligation to pay the

$20,000 judgment was a support obligation, the December 21, 2010 Order did not

remove the language requested by Brandy, nor hold Brad in contempt for failing to make



                                              7
installment payments on the $20,000. Thereafter, Brad filed a motion to correct errors

alleging grounds and requesting relief as follows:

   8. After the [c]ourt’s order of May 12, 2010, [Brad] began making the
      payments ordered to [Brandy] against the $20,000. He made those
      payments in June and July [of 2010].
   9. On July 1, 2010 the mortgage company filed its foreclosure action [].
      Pursuant to the terms of the [Decree], the “sums remaining unpaid on the
      $20,000.00 to [Brandy] were then “deemed paid[.”] While [Brad’s
      obligation to [Brandy] then became fulfilled, his obligation to the mortgage
      company was still active. He was therefore bound to pay the mortgage
      company $126,000.00 in spite of the court’s order for [Brandy] to pay.

   WHEREFORE, [Brad] requests that the [c]ourt vacate the December 21, 2010
   [O]rder, find that the $20,000 obligation was deemed paid when the mortgage
   foreclosure action was filed in July of 2010.”

(Appellee’s App. p. 2). The trial court denied Brad’s motion to correct error and Brad

filed his notice of appeal. Subsequently, Brad requested dismissal of the appeal, which

this court granted with prejudice.

       Brad’s Motion to Deem Judgment Paid alleged grounds and requested relief as

follows:

   5. After the entry of the [c]ourt’s Decree, [Brad] made the payments ordered
      to [Brandy] in June and July of 2010.
   6. On July 1, 2010, the mortgage company filed to foreclose the mortgage and
      home equity loan.
   7. On December 21, 2010, in response to a [m]otion filed by [Brandy], the
      [c]ourt interpreted the Decree to state that it was in the nature of support.
      Although [Brandy] had asked in her [m]otion for the [c]ourt to modify the
      Decree and remove the language regarding the payment obligation being
      deemed paid on the foreclosure, the [c]ourt did not do so.
   8. The parties have both since filed bankruptcy.
                                            8
   9. The [c]ourt should deem the order to pay the $20,000.00 to be paid, as
      stated in the [c]ourt’s Decree.

   WHEREFORE, [Brad] requests that the [c]ourt enter an order showing the
   contingent judgment herein paid, and for all other relief just and proper in the
   premises.

(Appellant’s App. p. 29).

       It is apparent that Brad’s earlier motion to correct error contained the same prayer

for relief and alleged the same facts, namely that Brad’s obligation to pay the $20,000

judgment had been fulfilled. In arguing against claim preclusion, Brad contends that the

prior appeal was not on the merits because the trial court’s December 21, 2011 Order

only determined that the $20,000 judgment was a support obligation and therefore could

not provide him with the relief sought in the Motion to Deem Judgment Paid. He further

asserts that the motion to correct error did nothing to contradict that insofar as “it is the

underlying order complained in the [m]otion to [c]orrect [error] that is appealed.”

(Appellant’s Reply p. 3). Brad’s argument mischaracterizes his motion to correct error.

The motion to correct error alleged that Brad did not have an obligation to pay Brandy,

not simply that the trial court erred by characterizing his obligation in the nature of

support. It is this claim that forms the basis of Brandy’s claim preclusion argument in the

present appeal.

       Claim preclusion therefore bars Brad from asserting this claim on appeal.

Consequently, we do not review Brad’s contentions on the trial court’s denial of his



                                             9
Motion to Deem Judgment Paid or the propriety of the trial court’s modification of the

Decree.

                                   CONCLUSION

      Based on the foregoing, we dismiss Brad’s instant appeal.

      Dismissed.

BAILEY, J. and CRONE, J. concur




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