MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                        Mar 09 2017, 5:30 am
court except for the purpose of establishing
                                                                     CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
James W. Ensley                                         Melinda K. Jackman-Hanlin
Greencastle, Indiana                                    Greencastle, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Elizabeth (Newman) Lewis,                               March 9, 2017
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        67A05-1609-DR-1981
        v.                                              Appeal from the Putnam Superior
                                                        Court
David Newman,                                           The Honorable Charles D. Bridges,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        67D01-0801-DR-20



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 67A05-1609-DR-1981 | March 9, 2017     Page 1 of 9
                                  Case Summary and Issue
[1]   In 2008, David and Elizabeth Newman divorced and the trial court

      incorporated the parties’ property settlement agreement into its dissolution

      decree. As a part of the agreement, David agreed to pay Elizabeth $1,000 per

      month in spousal maintenance unless Elizabeth remarried, in which case the

      spousal maintenance would be terminated. David also agreed to pay Elizabeth

      25% of the net profits of his book royalties (“Royalty”). In 2016, David moved

      to terminate his spousal maintenance obligation, alleging Elizabeth remarried.

      The trial court terminated David’s $1,000 spousal maintenance obligation, but

      ordered him to continue paying Elizabeth the Royalty obligation. David then

      filed a motion to correct error, arguing the Royalty obligation was intended to

      be a part of spousal maintenance. The trial court granted David’s motion and

      terminated his Royalty obligation. Thereafter, Elizabeth filed a motion to

      correct error, which the trial court denied. Elizabeth appeals, raising the sole

      issue of whether the trial court erred in terminating David’s Royalty obligation.

      Concluding the trial court did not err in terminating David’s Royalty

      obligation, we affirm.



                             Facts and Procedural History                                    1




      1
       We held oral argument in this case on February 24, 2017 as part of the Indiana State Bar Association’s
      Women’s Bench Bar Retreat at Culver Cove Resort in Culver, Indiana. We would like to comment on the
      collegiality and courtesy attorneys for both parties showed each other. It sets a standard all attorneys should

      Court of Appeals of Indiana | Memorandum Decision 67A05-1609-DR-1981 | March 9, 2017                Page 2 of 9
[2]   On December 30, 2008, the trial court dissolved the parties’ marriage and

      incorporated their property settlement agreement. The agreement provided,


               [David] agrees to pay [Elizabeth] spousal support/maintenance
               equal to [$1,000.00] per month through the Putnam County
               Clerk’s office pursuant to Indiana Code. [David] shall pay
               maintenance owed since August 2008. [Elizabeth] shall be
               entitled to said spousal maintenance to the earliest of one of the
               following events occurs: (1) [Elizabeth] remarries; (2) [Elizabeth]
               is eligible to begin receiving payments from [David]’s
               pension/retirement account. If pension/retirement payments are
               less than $1,000.00, then [David] will make up the difference. In
               addition to the $1,000.00 per month spousal maintenance
               payment, [Elizabeth] shall be entitled to 25% of the net profits of
               [David]’s book royalties. [Elizabeth]’s entitlement would include
               revisions to books that existed at the time the Decree of
               Dissolution was issued and any other books written in the future.


      Appellant’s Appendix, Volume 2 at 12-13.


[3]   Elizabeth remarried on April 11, 2016, and David filed a motion to terminate

      spousal maintenance four days later. Specifically, David requested the trial

      court terminate his obligations to pay Elizabeth $1,000.00 per month and the

      Royalty. On April 21, 2016, Elizabeth filed a response to the motion, agreeing

      David should no longer have to pay her $1,000.00 per month but contending

      the Royalty obligation was not spousal maintenance and should continue in




      strive to meet. We also commend counsel for their advocacy, thank the staff of the resort for their
      hospitality, and extend our appreciation to the attendees of the retreat for their participation.

      Court of Appeals of Indiana | Memorandum Decision 67A05-1609-DR-1981 | March 9, 2017                  Page 3 of 9
      perpetuity. On the same day, the trial court issued an order terminating spousal

      maintenance but ordering David to continue paying the Royalty obligation.


[4]   On May 20, 2016, David filed a motion to correct error and attached evidence

      he would present at a hearing on the matter. Elizabeth did not file a response to

      the motion. On June 27, 2016, the trial court issued an order granting David’s

      motion to correct error and ordered the April 21 order be corrected to terminate

      the Royalty obligation, stating the Royalty obligation “shall be considered as

      post-dissolution maintenance.” Id. at 43.


[5]   On July 22, 2016, Elizabeth filed a motion to correct error, arguing the property

      settlement agreement did not consider the Royalty obligation to be spousal

      maintenance. Elizabeth did not attach any evidence to her motion. On August

      2, 2016, David filed a response and included his affidavit which stated

      Elizabeth never objected to treating the Royalty obligation as maintenance,

      letters from his accountant noting the Royalty obligation was treated as

      maintenance for tax purposes, cashier checks from 2015 indicating he included

      the Royalty obligation payment once a year on top of his regular $1,000

      monthly payment, and his 2015 tax return indicating the Royalty obligation

      was treated as maintenance. Specifically, he claimed the property settlement

      agreement dictated the Royalty payments were a part of his spousal

      maintenance obligation and such a conclusion was supported by extrinsic

      evidence. The trial court denied Elizabeth’s motion the following day.

      Elizabeth filed her notice of appeal on September 1, 2016, and this appeal

      ensued.

      Court of Appeals of Indiana | Memorandum Decision 67A05-1609-DR-1981 | March 9, 2017   Page 4 of 9
                                Discussion and Decision
                                                I. Waiver
[6]   As a threshold matter, David argues Elizabeth has forfeited her right to appeal.

      Specifically, he interprets Elizabeth’s motion to correct error as a response to

      his motion to correct error—rather than a separate and independent motion—

      and therefore claims Elizabeth’s motion was untimely under Indiana Trial Rule

      59(H). We disagree.


[7]   Trial Rule 59(H) provides the following when a party files a motion to correct

      error based on evidence outside the record:

              (1) When a motion to correct error is based upon evidence
              outside the record, the motion shall be supported by affidavits
              showing the truth of the grounds set out in the motion and the
              affidavits shall be served with the motion.


              (2) If a party opposes a motion to correct error made under this
              subdivision, that party has fifteen (15) days after service of the
              moving party’s affidavits and motion, in which to file opposing
              affidavits.


              (3) If a party opposes a motion to correct error made under this
              subdivision, that party has fifteen (15) days after service of the
              moving party’s affidavits and motion, in which to file its own
              motion to correct errors under this subdivision, and in which to
              assert relevant matters which relate to the kind of relief sought by
              the party first moving to correct error under this subdivision.




      Court of Appeals of Indiana | Memorandum Decision 67A05-1609-DR-1981 | March 9, 2017   Page 5 of 9
      (Emphasis added.) Relevant here, Rule 59(H) affords a party the discretion to

      respond to an opposing party’s motion to correct error. In the event a party

      files a motion to correct error and the trial court then alters, modifies, or

      supplements its findings or judgment, the parties have the discretion to either

      (1) file a new motion to correct error, or (2) immediately seek appellate review.2

      See Breeze v. Breeze, 421 N.E.2d 647, 650 (Ind. 1981).


[8]   Here, David moved to correct error pursuant to Trial Rule 59(H). Elizabeth did

      not, nor was she required to, file a response to David’s motion to correct error.

      See Ind. Trial Rule 59(H)(2)-(3). In granting David’s motion to correct error,

      the trial court modified its April 21 order and terminated David’s obligation to

      pay Elizabeth the Royalty. This alteration amounted to a change in the

      judgment and Elizabeth therefore had the discretion to file either a motion to

      correct error with the trial court or a notice of appeal with this court. See Breeze,

      421 N.E.2d at 650. David’s argument fails.3




      2
        We further note apart from Elizabeth’s challenge to the trial court’s decision to terminate David’s Royalty
      obligation discussed below, she also claims the trial court violated Trial Rule 59(J) in failing to explain its
      reasons for granting David’s motion to correct error. Elizabeth is correct Rule 59(J) requires a trial court to
      “specify the general reasons” for granting corrective relief. Here, the trial court specified in its order the
      property settlement agreement dictated its decision. This argument fails.
      3
        We also take this opportunity to address some confusion on behalf of the parties and also David’s more
      specific claims of waiver. On the face of Elizabeth’s brief, it appears she is arguing the trial court erred in
      granting David’s motion to correct error, an observation David also relies on in support of his waiver
      argument. David is correct Elizabeth cannot appeal the trial court’s ruling on David’s motion to correct error
      because Elizabeth chose to file a subsequent motion to correct error instead of appealing the decision directly.
      See Mann v. Mann, 528 N.E.2d 821, 823 (Ind. Ct. App. 1988), trans. denied. However, given the procedural
      timeline, coupled with the parties’ arguments in their briefs and at oral argument focusing solely on whether
      the trial court erred in terminating David’s Royalty obligation, it is apparent Elizabeth can only appeal the

      Court of Appeals of Indiana | Memorandum Decision 67A05-1609-DR-1981 | March 9, 2017                 Page 6 of 9
                            II. Property Settlement Agreement
[9]   Elizabeth is appealing from the trial court’s denial of her motion to correct error

      in which she challenged the trial court’s interpretation of the property

      settlement agreement. We review rulings on motions to correct error for an

      abuse of discretion. Walker v. Kelley, 819 N.E.2d 832, 836 (Ind. Ct. App. 2004).

      An abuse of discretion occurs if the trial court’s decision was against the logic

      and effect of the facts and circumstances before the court or if the court

      misapplied the law. Id. Where, as here, we are interpreting a property

      settlement agreement, we review the matter de novo. Shorter v. Shorter, 851

      N.E.2d 378, 382 (Ind. Ct. App. 2006).


               When interpreting these agreements, we apply the general rules
               applicable to the construction of contracts. That is, unless the
               terms of the contract are ambiguous, they will be given their plain
               and ordinary meaning. Clear and unambiguous terms in the
               contract are deemed conclusive, and when they are present we
               will not construe the contract or look to extrinsic evidence, but
               will merely apply the contractual provisions. Terms are not
               ambiguous merely because the parties disagree as to the proper
               interpretation of those terms. Our Supreme Court has
               determined that the dissolution court that enters a property
               settlement agreement is in the best position to resolve questions
               of interpretation and enforcement of that agreement and thus
               retain jurisdiction to interpret the terms of their property
               settlement agreements and to enforce them.
               ***



      trial court’s denial of her motion to correct error and Elizabeth has not forfeited her right to appeal that
      decision.



      Court of Appeals of Indiana | Memorandum Decision 67A05-1609-DR-1981 | March 9, 2017                   Page 7 of 9
               Where an instrument is ambiguous, we will consider all relevant
               evidence, including extrinsic evidence, to discern the meaning of
               the instrument’s provisions. Ultimately, our goal is to determine
               the parties’ intent in crafting those provisions, and to effectuate
               that intent.


       Id. at 383-84 (citations omitted).


[10]   Our review of the four corners of the agreement unambiguously dictates the

       parties intended for the Royalty obligation to be included as spousal

       maintenance that would terminate upon Elizabeth’s remarriage. In support, we

       note the Royalty obligation provision is located in the same paragraph as

       David’s $1,000 per month spousal maintenance obligation, and further, the

       phrase “in addition to the $1,000 per month spousal maintenance payment” merely

       modifies the amount of spousal maintenance David owed, not the

       characterization of the type of payment. Appellant’s App., Volume 2 at 12

       (emphasis added). Stated differently, had the agreement only stated “in

       addition to spousal maintenance,” we may have found the agreement

       ambiguous as to whether the Royalty obligation was intended to be

       characterized as a separate type of support. But here, the location of the

       language coupled with the plain and ordinary meaning of the language

       unambiguously shows the parties intended to treat the Royalty obligation as

       spousal maintenance and therefore the trial court properly terminated David’s




       Court of Appeals of Indiana | Memorandum Decision 67A05-1609-DR-1981 | March 9, 2017   Page 8 of 9
       Royalty obligation.4 The trial court did not err in denying Elizabeth’s motion to

       correct error.



                                                  Conclusion
[11]   The trial court did not err in terminating David’s Royalty obligation and

       therefore did not abuse its discretion in denying Elizabeth’s motion to correct

       error arising from that decision. Accordingly, we affirm.


[12]   Affirmed.


       Baker, J., and Barnes, J., concur.




       4
         At oral argument, counsel for each party discussed the effect extrinsic evidence may have on this case,
       especially Elizabeth’s choice not to submit extrinsic evidence. We certainly acknowledge Elizabeth did not
       submit any extrinsic evidence to the trial court, believing the agreement was unambiguous in her favor.
       However, we take this opportunity to make clear our decision does not rest on any evidence outside the four
       corners of the couple’s property settlement agreement and without regard to David’s additional designated
       evidence, and Elizabeth’s decision not to submit any extrinsic evidence has no effect on our decision. In
       addition, we further agree with Elizabeth’s counsel that, from her perspective, there is no extrinsic evidence
       that could have been admitted in support of her contentions.

       Court of Appeals of Indiana | Memorandum Decision 67A05-1609-DR-1981 | March 9, 2017                Page 9 of 9
