Opinion
23A-DR-2927
07-02-2024
William J. Page, Appellant-Petitioner v. Valarie J. Page, Appellee-Respondent
ATTORNEY FOR APPELLANT Stacy L. Kelley Glaser & Ebbs Indianapolis, Indiana ATTORNEY FOR APPELLEE Jenna L. Heavner Coots Henke & Wheeler, P.C. Carmel, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Danielle Gaughan, Judge Trial Court Cause No. 49D15-1207-DR-27801
ATTORNEY FOR APPELLANT
Stacy L. Kelley
Glaser & Ebbs
Indianapolis, Indiana
ATTORNEY FOR APPELLEE
Jenna L. Heavner
Coots Henke & Wheeler, P.C.
Carmel, Indiana
Crone and Bradford Judges concur.
MEMORANDUM DECISION
Tavitas, Judge.
Case Summary
[¶1] In this post-dissolution proceeding, the trial court awarded Valarie Paige ("Wife") one-half of the net proceeds from the sale of the marital residence ("the Residence") that she previously shared with William Page ("Husband"). The trial court also denied a petition filed by Husband to hold Wife in contempt for allegedly interfering with Husband's interest in the Residence. Husband appeals and claims that: (1) the trial court clearly erred by awarding Wife any of the proceeds from the sale of the Residence, and (2) the trial court clearly erred by not finding Wife in contempt. We disagree and, accordingly, affirm.
Although the parties have been divorced for some time now, the dissolution agreement at issue in this case refers to them as "Husband" and "Wife." For simplicity, we do likewise.
Issues
[¶2] Husband presents two issues on appeal, which we restate as:
I. Whether the trial court clearly erred by awarding Wife one-half of the proceeds from the sale of the Residence.
II. Whether the trial court clearly erred by denying Husband's petition to hold Wife in contempt for allegedly interfering with Husband's interest in the Residence.
Facts
[¶3] Husband and Wife were married in May 1981. Their marriage was dissolved on October 11, 2012, and the distribution of the marital estate was settled via a settlement agreement ("the Agreement") executed by the parties and accepted by the trial court. The Agreement provided:
II. SETTLEMENT OF PROPERTY RIGHTS
Section 2. Real Property. Husband shall retain sole possession and shall be solely responsible for the mortgage payment, insurance, taxes, utilities, homeowners association dues, maintenance and upkeep of the marital residence . . . and hold Wife harmless including indemnity and attorney fees. Wife shall pay ½ of the mortgage, taxes, and insurance on the marital residence until the mortgage is paid in full. The parties anticipate the mortgage shall be paid in full within 2 years of final dissolution. In the alternative, Husband may assume, refinance or sell the marital residence within 2 years of final dissolution to remove Wife's name from the mortgage. Wife shall execute a Quitclaim Deed to remove her name from the title of the marital residence upon satisfaction of the mortgage or at a closing. In the event Husband sells the marital residence, the parties shall equally divide any and all equity in the residence after all closing costs, fees, liens, debts, [and] encumbrances have been paid in full.
III. CURRENT INDEBTEDNESS & ASSETS
With respect to the liabilities not specifically covered under the terms of this Agreement, each of the Parties shall be responsible for the debts and obligations which he or she has incurred individually since the date of separation. . . .
Appellant's App. Vol. II pp. 31-33 (emphasis added). The Agreement was drafted by Husband's counsel; Wife was unrepresented at the time.
[¶4] Both parties paid their share of the mortgage, taxes, and insurance on the Residence until the mortgage was paid in full in 2015. On May 7, 2016, under the Agreement, Wife then filed a quitclaim deed to remove her name from the title of the Residence. Husband married Joyce Page in 2019, and he and Joyce obtained a home equity line of credit for the Residence, mostly to pay for repairs after the ceiling of the dining room collapsed. Husband and Joyce also made other upgrades to the home.
[¶5] On May 3, 2023, Wife discovered that Husband and Joyce had listed the Residence for sale. Wife, accordingly, contacted Husband to remind him of her claim to one-half of the net proceeds of the sale of the Residence. Husband claimed he had forgotten about this portion of the Agreement and told Wife that she would bankrupt him and cause him and Joyce to divorce. Only during this conversation did Wife learn of the 2019 home equity loan encumbering the Residence.
[¶6] On May 19, 2023, to preserve her interest in the proceeds from the sale of the property, Wife recorded a lis pendens notice. On June 5, 2023, she filed an Emergency Motion to Escrow Net Proceeds, in which she requested that the trial court issue an emergency order under Trial Rule 65 requiring that the net proceeds from any sale of the Residence be placed in escrow pending a hearing on her interest in the net proceeds. Husband then filed a petition to hold Wife in contempt for allegedly interfering with his marketable title in the Residence. The trial court neither granted nor denied the emergency motion and instead set a status conference to be held on June 21, 2023.
[¶7] Before the hearing was held, the trial court, on June 13, 2023, approved an agreement by the parties, which called for Wife to release the lis pendens notice and for Husband to place the net proceeds from the sale of the Residence into his attorney's trust account. Husband and Joyce closed on the sale of the Residence on June 21, 2023, for approximately $235,927.57 which was $10,000 less than the initial prospective buyer had agreed to pay in May 2023, before Wife filed her lis pendens notice. After deducting $100,301.35 to pay off Husband and Joyce's home equity loan, a total of $135,626.57 was deposited into Husband's attorney's trust account.
[¶8] At the June 21 status conference, the trial court scheduled a hearing on the issue of the proceeds of the sale of the Residence and Husband's contempt petition to be held on September 22, 2023. Two days after the hearing, the trial court entered an order that provides:
2. Section 2 "Real Property" of the Agreement provides: "In the event Husband sells the marital residence, the parties shall equally divide any and all equity in the residence after all closing costs, fees, liens, debts, encumbrances have been paid in full."
3. Section 3 of the Agreement further provides: "With respect to the liabilities not specifically covered under the terms of this Agreement, each of the Parties shall be responsible for the debts and obligations which he or she has incurred individually since the date of separation."
4. The Court finds that the total proceeds to be divided, excluding the additional mortgage belonging to [Husband],amount to $235,927.57. . . .
5. [Wife]'s one-half share of $235,927.57 is $117,963.79.
6. [Husband]'s Counsel shall pay to [Wife] the total amount of $117,963.79 from her attorney trust account within ten days (10).
7. [Husband]'s Verified Petition for Contempt Citation filed June 11, 2023, is DENIED.
8. Each party shall pay his or her own attorney fees incurred in this action.Appellant's App. Vol. II pp. 8-9. Husband now appeals.
The trial court did not deduct the balance of the home equity loan Husband obtained after the original mortgage was paid, apparently on grounds that Wife was not a party to the loan and was unaware of the loan. Husband does not claim that this was improper. Indeed, Section 3 of the Agreement states that each party was to be responsible for the debts he or she incurred individually since the date of separation. Instead, he argues that the trial court should have awarded none of the proceeds of the sale of the Residence to Wife.
Discussion and Decision
I. The trial court did not clearly err by awarding Wife one-half of the proceeds from the sale of the Residence.
[¶9] Husband claims that the trial court clearly erred by awarding Wife $117,963.72 from the proceeds from the sale of the Residence. Husband claims that the trial court's actions violated Trial Rule 65 and are contrary to the clear and unambiguous language of the Agreement.
A. Emergency Motion
[¶10] Husband first argues that the trial court clearly erred by granting Wife's emergency motion to place the proceeds from the sale of the Residence in escrow. Specifically, Husband argues that the issue of the proceeds from the sale of the Residence was not properly before the trial court and was inconsistent with Indiana Trial Rule 65, which requires the applicant for a preliminary injunction to give security to cover the costs and damages that may be incurred or suffered by a party who is later determined to have been wrongfully enjoined or restrained.
[¶11] In addressing this argument, we first note that the trial court did not grant Wife's emergency motion. As discussed above, after Wife filed her emergency motion, Husband filed his contempt petition. On June 12, 2023, the parties entered into an Agreed Entry, which provided: "The parties dispute whether former Wife should be entitled to any proceeds from the sale of the former marital residence and anticipate requesting the Court [to] set all pending pleadings for hearing at the attorneys only conference scheduled for June 21, 2023." Appellant's App. Vol. II pp. 20-21. The parties also agreed to keep any proceeds from the sale of the Residence in Husband's attorney's trust account until further order of the court. Id. This agreed entry effectively mooted Wife's emergency motion to place the proceeds from the sale of the Residence in escrow. Wife's request for injunctive relief was resolved by the parties' agreement, and Husband's argument that the trial court failed to properly comply with Indiana Trial Rule 65, governing injunctive relief, is misplaced.
Still, Husband complains that Wife's emergency motion contained several errors, such as misstating the date of the dissolution of the parties' marriage, not complying with the requirement that the motion contain an affirmation statement, and failing to give security. Husband made none of these arguments to the trial court regarding the sufficiency of Wife's emergency motion. An appellant may not present an argument for the first time on appeal. Wireman v. LaPorte Hosp. Co., LLC, 205 N.E.3d 1041, 1046 (Ind.Ct.App. 2023), reh'g denied, trans. denied.
B. Final Allocation of Proceeds
[¶12] Husband also claims that the trial court erred by awarding Mother one-half of the net proceeds of the sale of the Residence because Mother only filed a motion to place the proceeds in escrow, not to allocate the proceeds between the parties. When Wife filed her Emergency Motion, Wife requested that the trial court place the proceeds in escrow "pending a hearing on the allocation of the same; that a hearing date be set; and all other and appropriate relief." Appellant's App. Vol. II p. 12 (emphasis added). The parties' Agreed Entry provided that the parties disputed whether Wife should be entitled to any of the proceeds and "anticipate[d] requesting the Court to set all pending pleadings for hearing at the attorneys only conference scheduled for June 21, 2023." Id. at 20. The parties, thus, agreed to hold any proceeds from the sale of the Residence in escrow pending final resolution of the matter.
[¶13] After the June 21 status conference, the trial court set a hearing for September 22, 2023, and made an entry into the Chronological Case Summary ("CCS") stating, "Parties request a 60 minute hearing to resolve [the] core issue of how proceeds from sale of marital residence should be distributed." Appellant's App. Vol. II p. 4 (emphasis added). At the hearing, both parties presented evidence and argument on whether Wife should receive any proceeds from the sale of the Residence. Indeed, at the beginning of the September 22 hearing, the trial court stated, "this hearing today is for the purpose of allocation." Tr. Vol. II p. 4. At no time did Husband object that the issue of the final allocation of the proceeds was not properly before the court; instead, he argued that there was no authority for granting Wife one-half of the proceeds.
[¶14] Under these circumstances, we cannot say that the issue of the final allocation of the proceeds from the sale of the Residence was not properly before the trial court at the September 22 hearing. It is well settled that [u]nder Indiana Trial Rule 15(B), "the issues of a case are not necessarily determined by the pleadings, but can be altered by the evidence adduced at trial and the implied consent of the parties." Bogner v. Bogner, 29 N.E.3d 733, 745 (Ind. 2015) (citing Quinn v. Threlkel, 858 N.E.2d 665, 674 (Ind.Ct.App. 2006)); see also Sutton v. Sutton, 773 N.E.2d 289, 295-96 (Ind.Ct.App. 2002). The issue of the final allocation of the proceeds was before the trial court by both the express and implied consent of the parties. The trial court, accordingly, did not err in addressing this issue in its final order. See Bogner, 29 N.E.3d at 745 (holding that trial court did not err in considering the issue of which party would receive income tax exemption for their child where the mother raised the issue at the beginning of the proceedings and the father was given a full opportunity to present his argument and never objected to the issue being raised or to the evidence offered by mother).
[¶15] To the extent that Husband argues the trial court erred by awarding Wife any of the proceeds from the sale of the Residence, we also disagree. On appeal, we interpret settlement agreements de novo. Scott v. Corcoran, 135 N.E.3d 931, 939 (Ind.Ct.App. 2019) (citing Copple v. Swindle, 112 N.E.3d 205, 210 (Ind.Ct.App. 2018)). "Settlement agreements are contractual in nature and binding on the parties once 'the dissolution court merges and incorporates that agreement into the divorce decree.'" Id. (quoting Copple, 112 N.E.3d at 210). Accordingly, "the rules governing contracts are applicable when we interpret the terms of the agreement. If the terms are clear and unambiguous, those terms 'are deemed conclusive.'" Id. (quoting Copple, 112 N.E.3d at 210).
Husband briefly argues that the trial court erred by admitting and considering extrinsic evidence regarding the terms of the Agreement. The trial court's final order, however, considers only the clear and unambiguous terms of the Agreement, as do we.
[¶16] Here, the Agreement provided that "Husband shall retain sole possession and shall be solely responsible for the mortgage payment, insurance, taxes, utilities, homeowners association dues, maintenance and upkeep of the marital residence . . . and hold Wife harmless including indemnity and attorney fees." Appellant's App. Vol. II p. 40. The Agreement also obligated Wife to pay one-half of the mortgage, taxes, and insurance until the mortgage was paid in full, at which time Wife was to execute a quitclaim deed to remove her name from the title. Id. Most relevant to the issue before us, the Agreement then provided, "In the event Husband sells the marital residence, the parties shall equally divide any and all equity in the residence after all closing costs, fees, liens, debts, [and] encumbrances have been paid in full." Id. (emphasis added). Husband claims that, once Wife executed the quitclaim deed, she no longer had any interest in the Residence. We disagree.
[¶17] The Agreement is clear and unambiguous: in the event that Husband sells the Residence, he and Wife were to equally divide "any and all equity in the residence" after all fees and encumbrances were paid in full. Nothing in the Agreement suggests that this provision was to be inapplicable after Wife executed the quitclaim deed.
Even if this provision was ambiguous-and it is not-we would construe any ambiguity against Husband, whose counsel drafted the Agreement. See Celadon Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 839 (Ind.Ct.App. 2017) ("An ambiguous contract should be construed against the party who furnished and drafted the agreement."), trans. denied; see also Russell v. State, 34 N.E.3d 1223, 1227 (Ind. 2015) (noting that courts construe contracts against the drafting party).
[¶18] The net proceeds from the sale of the Residence was $235,927.57. One-half of this amount is $117,963.79, which is what the trial court ordered Husband to pay Wife. Accordingly, the trial court did not clearly err in awarding Wife one-half of the net proceeds from the sale of the Residence.
II. The trial court did not clearly err by denying Husband's petition to hold Wife in contempt.
[¶19] Husband also claims that the trial court clearly erred by denying his petition to hold Wife in contempt for filing a lis pendens notice claiming an interest in the proceeds from the sale of the Residence. This argument depends on Husband's claim that Wife had no interest in the proceeds from the sale of the Residence. As we have rejected that argument above, Husband's argument on his contempt petition also fails. That is, Wife had a legitimate interest in the proceeds of the sale of the Residence, and her action of recording a lis pendens notice did not illegitimately interfere with Husband's interest in the residence. The trial court, therefore, did not err in denying Husband's petition to hold Wife in contempt.
Conclusion
[¶20] The trial court did not clearly err by awarding Wife one-half of the net proceeds from the sale of the Residence. The Agreement clearly and unambiguously provided that Wife was entitled to one-half of such proceeds should Husband ever sell the Residence. Husband waived any argument regarding the alleged errors and inaccuracies in Wife's emergency motion because he failed to present such arguments to the trial court. Because the parties subsequently agreed to place the proceeds into Husband's attorney's trust account, Mother's emergency motion was moot, and the trial court's order was not subject to the requirements of injunctive relief pursuant to Trial Rule 65. Husband's argument that the trial court erred by denying Husband's petition to hold Wife in contempt for filing a lis pendens notice depends on his claim that Wife had no interest in the proceeds, which is incorrect. Accordingly, we affirm the trial court's judgment.
[¶21] Affirmed.
Crone, J., and Bradford, J., concur.