      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                Dec 15 2017, 7:53 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                       CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
      estoppel, or the law of the case.                                              and Tax Court




      ATTORNEY FOR APPELLANT
      Dale W. Arnett
      Winchester, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Dennis Parrish,                                         December 15, 2017
      Appellant,                                              Court of Appeals Case No.
                                                              68A05-1705-DR-1128
              v.                                              Appeal from the Randolph Circuit
                                                              Court
      Susan Parrish Purcell,                                  The Honorable Jay L. Toney,
      Appellee.                                               Judge
                                                              Trial Court Cause No.
                                                              68C01-1205-DR-402



      Barnes, Judge.


                                             Case Summary
[1]   Dennis Parrish appeals the trial court’s interpretation of his marital settlement

      agreement with Susan Parrish Purcell (“Purcell”). We affirm.



      Court of Appeals of Indiana | Memorandum Decision 68A05-1705-DR-1128 | December 15, 2017          Page 1 of 8
                                                     Issue
[2]   The sole issue before us is whether the trial court erred in interpreting the

      parties’ marital settlement agreement as requiring Parrish to divide with Purcell

      all proceeds from the parties’ wind farm lease agreement.


                                                    Facts
[3]   During the parties’ thirty-six year marriage, they entered into a wind farm

      project lease and agreement (“WF Contract”) wherein Horizon Wind Energy,

      LLC (“Horizon”), agreed to lease a portion of the parties’ farmland for the

      operation of “a commercial wind power electric generation facility consisting of

      wind-power turbines and generators and other related equipment[.]” Joint

      Exhibit 2 p. 1.


[4]   On April 11, 2012, Purcell filed for dissolution of the parties’ marriage. On

      October 15, 2012, the parties, pro se, filed a marital settlement agreement

      (“Settlement”) which, in part, addressed the WF Contract. The trial court

      approved the Settlement, and the marriage was dissolved. The Settlement

      provided in part:


              The terms of this divorce settlement has [sic] been decided and
              agreed upon by both Susan Parrish [Purcell] and Dennis Parrish.
              This Agreement will remain valid until paid in full by Dennis
              Parrish to [Purcell] regardless of marital status or remarriage of
              either party. . . . .


                                                   *****



      Court of Appeals of Indiana | Memorandum Decision 68A05-1705-DR-1128 | December 15, 2017   Page 2 of 8
              These payments are not for spousal maintanence [sic] or child
              support, they are a settlement from propertys [sic] that was [sic]
              acquired during the 35 year marriage located at [redacted],
              Modoc, Indiana 47358 [(“Farm”)].


              Payment amounts and dates that were agreed upon by [the
              parties] are as follows:


                      1) 5,000.00 from fall harvest to be paid every year no later
                         than Dec. 31[;]


                      2) 2,500.00 paid by December 15[; and]


                      3) 2,500.00 paid by March 30[.]


              Payments will be made by [Parrish] to [Purcell] as listed above
              with first payment starting in Fall of 2012 and continuing yearly
              until last payment is made in March of 2023.


              Any windmill energy contracts that are signed for leasing on the
              farmland owned and operated by [Parrish] will have income
              divided equally between [the parties] until both children . . . have
              graduated college, at which time full right of income from wind
              energy will return to [Parrish].


              Upon divorce both [Parrish] and [Purcell] will hold sole
              ownership of their household residence. . . . .


      App. Vol. IV pp. 19-21.


[5]   On January 6, 2017, Purcell filed an information for a contempt citation

      wherein she alleged that Parrish had withheld income statements and monies


      Court of Appeals of Indiana | Memorandum Decision 68A05-1705-DR-1128 | December 15, 2017   Page 3 of 8
due to her under the WF Contract and had, thereby, failed to comply with the

Settlement.1 At the hearing on the contempt motion on February 24, 2017,

Purcell testified that Parrish owed her $17,500 in farm payments as well as an

unknown sum of unpaid windmill payments for 2015 and 2016. Parrish

testified that, in 2015, he collected taxable income of $13,695 under the WF

Contract, of which only $5,000 was income from electricity generation; the

balance, he maintained, was acreage rental income that was his alone in

compensation for Horizon’s use of the farmland for access roads, towers,

underground wiring footage, and related uses that rendered the land unsuitable

for farming. At the close of the hearing, the trial court found Parrish in

contempt.




1
 Purcell’s exhibits included a check from Parrish in the amount of $625.00 and his accompanying note
which stated:

         Sue, this is the quarter payment that the Turbine makes for Electric. This will come 4
         times per year.

         $5000 Total
         2500   Half
         ÷ By 4

         I feel that your [sic] very selfish asking for this, it belongs to the Farm which you left. I’ll
         make the $5000 payment at Harvest but the other [two] 2500 payment [sic] will depend
         on Beans price. When I sign [sic] the [marital settlement agreement] Beans were $13 and
         [are] now around [$]9.50, lost acres. Can’t do it I have to survive to [sic]. Need to talk
         about it.

App. Vol. III pp. 9-10. The “lost acres” reference pertains to a forced sale of sixty acres of
farmland that was occasioned by financial hardships that Parrish experienced.




Court of Appeals of Indiana | Memorandum Decision 68A05-1705-DR-1128 | December 15, 2017                    Page 4 of 8
[6]   At a review hearing on April 21, 2017, the parties asked the trial court to

      determine what portion of the proceeds from the WF Contract was subject to

      division under the Settlement. That day, the trial court entered an Order that

      stated:


                1.     That the parties agree that Dennis Parrish is in arrears on
                his payments to [Purcell] under the Marital Settlement
                Agreement in the sum of $20,000.00 as of April 21, 2017.


                2.     That the parties request the Court to define the term
                “windmill energy contracts” as the term ‘is used on page 3 of the
                parties’ Marital Settlement Agreement.


                3.    That [Purcell] believes that income from “windmill energy
                contracts” includes all income received from Horizon Wind
                Energy . . . .


                4.   That [Parrish] believes the term should be interpreted to
                mean only the amount paid for the “Generating Units” portion[.]


                5.     That there is no provision in the Marital Settlement
                Agreement which divides the proceeds from the Lease other than
                the paragraph which discusses “windmill energy contracts.”


                6.     That if the Court limits the meaning of the “windmill
                energy contracts” to include only the amounts received for the
                “Generating Units”, there would be no provision for division of
                other amounts paid pursuant to the Lease.


                7.     That the Court should interpret the parties’ agreement
                consistent with the document’s plain meaning if possible.



      Court of Appeals of Indiana | Memorandum Decision 68A05-1705-DR-1128 | December 15, 2017   Page 5 of 8
                  8.    That by not including any other provision for allocating
                  proceeds from the Lease, it appears that the parties intended to
                  include all proceeds in the term “windmill energy contracts”.


                         IT IS THEREFORE ORDERED, ADJUDGED AND
                  DECREED BY THE COURT that Dennis Parrish is in arrears
                  on his payments to [Purcell] under the Marital Settlement
                  Agreement in the sum of $20,000.00 as of April 21, 2017.


                         IT IS FURTHER ORDERED, ADJUDGED AND
                  DECREED BY THE COURT that [Parrish]’s obligation to
                  [Purcell] under the Lease includes all proceeds received from the
                  wind farm parent company, to be divided according to the terms
                  of the Marital Settlement Agreement.


      App. Vol. II pp. 21-22. Parrish now appeals.


                                                      Analysis
[7]   Parrish argues that the trial court erred in its interpretation of a provision of the

      Settlement. Specifically, he challenges the trial court’s interpretation of

      “windmill energy contracts” to “include payment for acreage, access road,

      underground wiring footage and interference with quite [sic] enjoyment of the

      occupied residence on the farm instead of only the payment for the energy

      generating units[.]” Appellant’s Br. at p. 4.2


[8]   We initially note that Purcell has failed to file an appellee’s brief. In such a

      situation, we will not undertake the burden of developing arguments for her.



      2
          Purcell did not file an appellee’s brief.


      Court of Appeals of Indiana | Memorandum Decision 68A05-1705-DR-1128 | December 15, 2017   Page 6 of 8
       Cox v. Cantrell, 866 N.E.2d 798, 810 (Ind. Ct. App. 2007). We apply a less

       stringent standard of review, and we may reverse the trial court’s decision if the

       appellant can establish prima facie error. Id. Prima facie means “at first sight,

       on first appearance, or on the face of it.” Id.


[9]    Upon dissolution of marriage, parties are free to craft their own settlement

       agreement, and such agreements are contractual in nature and binding. Niccum

       v. Niccum, 734 N.E.2d 637, 639 (Ind. Ct. App. 2000). General rules applicable

       to the construction of contracts govern the construction of settlement

       agreements. Id.


               The interpretation and construction of contract provisions is a
               function for the courts. On appeal, our standard of review is
               essentially the same as that employed by the trial court. Unless
               the terms of a contract are ambiguous, they will be given their
               plain and ordinary meaning. The terms of a contract are not
               ambiguous merely because controversy exists between the parties
               concerning the proper interpretation of terms. Where the terms
               of a contract are clear and unambiguous, the terms are conclusive
               and we will not construe the contract or look at extrinsic
               evidence, but will merely apply the contractual provisions.


       Id. (internal citations omitted).


[10]   Here, the lone provision in the Settlement concerning the WF Contract clearly

       and unambiguously states that income from the WF Contract is to be divided

       equally between the parties. The Settlement thus implicitly contemplated that

       the parties would receive identical payments. Had the parties intended to

       distinguish between income from electricity generation and income from other

       Court of Appeals of Indiana | Memorandum Decision 68A05-1705-DR-1128 | December 15, 2017   Page 7 of 8
       uses of the farmland, as Parrish contends, they should have so stated. See

       Niccum, 734 N.E.2d at 639 (“Where the terms of a contract are clear and

       unambiguous, the terms are conclusive and we will not construe the contract or

       look at extrinsic evidence, but will merely apply the contractual provisions.”).

       We decline to find an ambiguity merely because Parrish disagrees with Purcell’s

       reading of the parties’ Settlement. See id. (“The terms of a contract are not

       ambiguous merely because controversy exists between the parties concerning

       the proper interpretation of terms.”). Because the terms of the Settlement are

       unambiguous, we will not consider extrinsic evidence regarding the parties’

       intentions and the particulars of the WF Contract. Additionally, we agree with

       the trial court that, by electing against including other provisions for allocating

       proceeds from the WF Contract, “it appears that the parties intended to include

       all proceeds in the term ‘windmill energy contracts.’” App. Vol. II p. 22. We

       conclude that the trial court did not err in its interpretation of the Settlement

       provision.


                                                Conclusion
[11]   The trial court did not err in interpreting the unambiguous Settlement provision

       concerning the WF Contract according to its plain and ordinary meaning. We

       affirm.


       Affirmed.


       May, J., and Bradford, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 68A05-1705-DR-1128 | December 15, 2017   Page 8 of 8
