Donald P. Katz v. Lori B. Katz

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In 2014, Donald filed a petition to dissolve the parties’ marriage. The marital

estate included the parties’ house in Carmel, Indiana, a condominium in

Colorado, and various investments and business interests. Donald and Lori

negotiated a settlement agreement that the trial court approved and

incorporated in a decree of dissolution on August 17, 2016. Among other

provisions, the parties agreed the house and the condominium would be sold,

and the proceeds would be used to pay off a mortgage and a line of credit

secured by those properties. The agreement further stated Donald would pay

Lori a monthly sum to equalize the division of marital assets. According to the

agreement, if the parties later agreed to not sell either or both properties, Lori

would be entitled to additional monthly payments “to add back the costs of sale

that are no longer being incurred.” Appellant’s App. Vol. 2, p. 23.

[4] The home and condominium were listed for sale. On June 6, 2017, Donald

and Lori signed a one-page document that Donald had drafted without an

attorney. In the document, Donald and Lori explained they wanted to “modify

[their] earlier arrangement” and remove the properties from listings for sale “for

the foreseeable future.” Id. at 36. The document further states, “Donald P.

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Katz has expressed a desire to continue to occupy the [house] and maintain [the

condominium] as a second home.” Id. Donald and Lori further stated they

wanted to “refinanc[e] the current loan secured by these properties into a more

favorable mortgage program.” Id. Lori quitclaimed her interest in the house

after the document was signed, but she and Donald were still both parties to a

mortgage on the property.

[5] On November 6, 2017, Donald filed a request for appointment of a

commissioner. That document has not been provided to this Court. Lori

responded by asking the trial court to either: order the sale of the house and

condominium, or order Donald to make additional monthly payments to

accurately account for the changed division of marital property.

[6] The court held an evidentiary hearing. On January 30, 2018, it denied

Donald’s request for appointment of a commissioner. The court granted Lori’s

request for additional payments, increasing Donald’s monthly obligation from

154 payments (per the original divorce decree) to 186 payments. In its order,

the court determined the additional payments were necessary because “[t]he

parties agreed not to sell the marital home and condo as shown in [the June 6,

2017 document].” Id. at 13. This appeal followed.

Issue

[7] Donald raises three issues, which we consolidate and restate as: Whether the

trial court erred in ordering Donald to make additional payments to Lori.

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Discussion and Decision

[8] Neither party requested findings of fact and conclusions thereon, and the trial

court did not issue any. We review the court’s order under a general judgment

standard. A general judgment will be affirmed if it can be sustained upon any

legal theory consistent with the evidence. Shelby Eng’g Co., Inc. v. Action Steel

Supply, Inc., 707 N.E.2d 1026 (Ind. Ct. App. 1999). We neither reweigh the

evidence nor judge the credibility of the witnesses. Bedford Recycling, Inc. v. U.S.

Granules Corp., 634 N.E.2d 1361 (Ind. Ct. App. 1994), trans. denied.

[9] Donald argues the trial court erred in ordering him to make additional monthly

payments to Lori due to their agreement not to sell the house and the

condominium. He claims the evidence showed he still intended to sell those

properties later, and the court’s decision amounted to an improper modification

of the settlement agreement.

[10] Settlement agreements are contractual in nature and bind the parties when the

court merges and incorporates that agreement into the divorce decree. Shorter v.

Shorter, 851 N.E.2d 378 (Ind. Ct. App. 2006). Once incorporated into a judicial

decree, such agreements may not be altered, absent fraud, duress, or consent of

the parties. Still, as Justice Sullivan observed for a unanimous Court, that

“does not mean that a court has no authority to resolve a dispute over the

interpretation of a settlement agreement or property-division order.” Ryan v.

Ryan, 972 N.E.2d 359, 363 (Ind. 2012).

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[11] When such moments arise, and the terms of a contract are unambiguous, we do

not construe its terms or look to extrinsic evidence. Deel v. Deel, 909 N.E.2d

1028 (Ind. Ct. App. 2009). Unambiguous terms are conclusive, and we will

merely apply the contractual provisions. Id.

[12] According to the parties’ settlement agreement, the house and the

condominium were to be listed for sale and “remain listed until sold.”

Appellant’s App. Vol. 2, p. 18. Donald could live in the house “until its sale,”

but he was “solely responsible for all mortgages . . . and all other obligations

associated with the marital residence.” Id. In addition, “[Donald] shall pay

[Lori a] property settlement judgment of $3,600 a month for 154 months.” Id.

at 22. If the proceeds from the sale of the house and the condominium were

less than certain specified amounts, then Lori’s settlement payments were to be

reduced accordingly. By contrast, “[i]n the event there is a future agreement

not to sell either or both of the properties, counsel for [Donald and Lori] shall

calculate the extension of the payments to add back the costs of sale that are no

longer being incurred.” Id. at 23. The unambiguous language of the agreement

provides Lori is entitled to additional payments if the properties are removed

from sale by agreement of the parties.

[13] Did the trial court properly determine the parties agreed not to sell the

properties? Donald and Lori’s June 6, 2017 document states, “Donald P. Katz

has expressed a desire to continue to occupy the [marital home] and maintain

[the condominium] as a second home.” Id. Donald and Lori further stated

they wanted to “refinance[e] the current loan secured by these properties into a

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more favorable mortgage program.” Id. Lori later testified Donald had told her

he planned to return the properties to sale listings, but he had not done so by the

time of the evidentiary hearing. Tr. Vol. 2, p. 45. This is ample evidence from

which the trial court could have reasonably concluded the parties had agreed to

not sell the properties, and, further, that Donald intended to keep them for an

extended period, thus triggering Donald’s contractual obligation to make

additional payments to Lori. Donald points to evidence that he had removed

the properties from sale listings on a temporary basis while he worked out

financing for his businesses. We see this as a request to reweigh the evidence.

[14] Donald further claims the June 6, 2017 document was not valid because it did

not modify the settlement agreement. We agree the document did not modify

the original settlement agreement, which required any modification to be

submitted to a court for approval. Lori testified she wanted to submit the

document to the trial court, but Donald refused.

[15] Even if the document did not modify the settlement agreement, it is sufficient

evidence of the parties’ intent to not sell the properties. Donald does not

dispute drafting or signing the document. In addition, the original settlement

agreement unambiguously states the parties could make a “future agreement”

to not sell the properties. Appellant’s App. Vol. 2, p. 23. Indeed, the

agreement described how to calculate the additional payments to Lori if she and

Donald agreed not to sell one or both of the properties. The original settlement

agreement did not require that any future agreement must meet the

requirements for a formal modification of the settlement agreement.

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[16] We conclude that the June 6, 2017 signed document, which reflected the

parties’ agreement not to sell the properties, was explicitly contemplated by the

terms of the original settlement.1 See Ind. Code § 31-15-2-17(c) (1997) (once an

agreement on property disposition is incorporated into a decree, it may be

modified “as the agreement prescribes or the parties subsequently consent”); see

also Ring v. Ring, 51 N.E.3d 1245, 1250 (Ind. Ct. App. 2016) (noting the parties

had agreed to sell a parcel of land, which was permissible under the terms of

their property settlement agreement, but rejecting the proposed sale of a

different parcel as an inappropriate modification because one party objected).

[17] Finally, Donald claims the trial court’s award of additional property settlement

payments was unfair because he had no notice that the court would rule upon

“the issue of whether the parties had agreed not to sell the properties.”

Appellant’s Br. p. 12.

[18] The record shows otherwise. In Lori’s response to Donald’s request to appoint

a commissioner, she claimed the settlement agreement required the parties to

sell the marital home and the condominium. She further stated Donald had

removed the properties from sale and she was entitled to either: (1) a court

order to sell the properties; or (2) additional property settlement payments from

Donald. Donald was clearly informed in advance of the hearing that Lori



1 Donald also argues the trial court’s order effectively modified the original settlement agreement. To the contrary, the court merely applied the plain terms of the agreement by determining: the parties decided not to sell the home and the condominium; and, under the agreement, Lori was entitled to additional payments because of the decision not to sell.

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sought additional property settlement payments due to his withdrawal of the

properties from sale, and he was by no means ambushed at the evidentiary

hearing.

For these reasons, we affirm the judgment of the trial court.