Dewbrew v. Dewbrew

Decision Date20 June 2006
Docket NumberNo. 41A04-0510-CV-602.,41A04-0510-CV-602.
PartiesTina Marie DEWBREW, Appellant-Respondent, v. Herbert A. DEWBREW, Appellee-Petitioner.
CourtIndiana Appellate Court

Russell T. Clarke, Jr., Emswiller, Williams, Noland & Clark, P.C., Indianapolis, IN, Attorney for Appellant.

Deanne A. Dean-Webster, Robert W. Wright, Dean-Webster & Wright, LLP, Indianapolis, IN, Attorneys for Appellee.


RILEY, Judge.


Appellant-Respondent, Tina Marie Dewbrew (Tina), appeals the trial court's Findings of Fact and Conclusions of Law denying her Motion to Correct Error Or In The Alternative Set Aside Property Settlement And Custody Agreement.

We reverse and remand with instructions.


Tina raises two issues on appeal which we restate as follows:

(1) Whether the trial court erred by refusing to set aside a property settlement and custody agreement which did not include a provision for child support because the parties had agreed there was no need for it; and

(2) Whether the trial court erred by refusing to set aside a property settlement and custody agreement on the basis of "manifest inequity."


Tina and Appellee-Petitioner, Herbert A. Dewbrew (Herbert), were married on January 13, 1990. During their marriage, two daughters were born: B.D., born on January 22, 1991 and C.D., born on August 26, 1996. The parties contemplated a divorce in 2003 and, at that time, they discussed the assets, liabilities, and relative worth of the marital property, including their two businesses.

Tina and Herbert began discussing divorce again in January of 2004. On January 14, 2004, Herbert filed a petition for dissolution while both parties were still residing at the marital residence located on State Road 37 in Martinsville, Indiana. At Herbert's request, Carrie Miles (Miles), an attorney who had previously performed legal services for Herbert, drafted a divorce agreement. After meeting with both parties for approximately an hour to one and a half hours, Miles finalized the terms of the divorce agreement. On April 22, 2004, per Tina's request, Miles faxed a copy of the proposed settlement to attorney Jim MacAbee. Thereafter, in May 2004, Tina and Herbert visited Miles' office, at which time Tina first saw the proposed settlement. Even though she understood it was Herbert's intention get the document signed that day, Tina felt the agreement to be unfair and refused to sign. Both parties returned to the marital residence where an argument ensued. No further discussions regarding the property settlement agreement occurred between the parties until several weeks later.

Sometime in the next few weeks, Tina discovered that Herbert was involved in an extramarital affair. Deciding that reconciliation was no longer possible, Tina scheduled an appointment with Miles. Accompanied by her mother, Tina returned to Miles' office where she spent approximately an hour and a half with Miles reviewing the provisions of the proposed settlement. Tina questioned Miles with regard to the monetary part of the agreement and requested changes to be made with regard to the residence she was to receive. After contacting Herbert and receiving his acceptance of Tina's requested changes, Miles modified the agreement accordingly. Miles advised Tina to have the agreement reviewed by her attorney. Tina left Miles' office without signing the document.

On or about July 6, 2004, Tina stopped by Miles' office and signed the proposed settlement agreement. That same day, the parties' Property Settlement and Custody Agreement was filed and approved by the trial court by merger of the agreement into the Summary Decree of Dissolution. On August 4, 2004, Tina filed her Motion to Correct Error Or In The Alternative A Motion For Relief From Judgment. On June 15, 2005, the trial court heard evidence on Tina's motion. Thereafter, on August 11, 2005, the trial court entered findings of fact and conclusions of law sua sponte, denying Tina's motion.

Tina now appeals. Additional facts will be provided as necessary.

I. Standard of Review

When a trial court enters findings of fact and conclusions of law sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found. Scoleri v. Scoleri, 766 N.E.2d 1211, 1215 (Ind. Ct.App.2002). In reviewing the judgment, this court must determine whether the evidence supports the findings and whether the findings, in turn, support the conclusion and judgment. See id. We will reverse a judgment only when it is shown to be clearly erroneous, "i.e., when the judgment is unsupported by the findings of fact and conclusions entered on the findings." Id. For findings of fact to be clearly erroneous, the record must lack probative evidence or reasonable inferences from the evidence to support them. Id. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Cox. v. Cox, 833 N.E.2d 1077, 1080 (Ind.Ct. App.2005). In order to determine that a finding or conclusion is clearly erroneous, an appellate court's review of the evidence must leave it with the firm conviction that a mistake has been made. Id. In determining the validity of the findings or judgment, we consider only the evidence favorable to the judgment and all reasonable inferences to be drawn therefrom, and we will not reweigh the evidence or assess the credibility of witnesses. Scoleri, 766 N.E.2d at 1215. Finally, a general judgment may be affirmed on any theory supported by the evidence presented a trial. Id.

A party seeking to overturn her own property settlement agreement bears a substantial burden under Indiana law. To promote the amicable settlement of disputes that have arisen between the parties to a marriage attendant upon the dissolution of their marriage, Indiana Code section 31-15-2-17 provides that "the parties may agree in writing to provisions for the maintenance of either of them, the disposition of property, and the custody and support of their children." In drafting their own property settlement agreements, divorcing spouses have more flexibility than do divorce courts and may agree to provisions which a trial court could not order. See Wilson v. Wilson, 716 N.E.2d 486, 489 (Ind.Ct.App.1999). As here, a property agreement which is merged and incorporated into a divorce decree is a binding contract. Id. However, a court is not bound to accept every proffered settlement. Pond v. Pond, 700 N.E.2d 1130, 1136 (Ind.1998). "In reviewing a settlement agreement, a court should concern itself only with fraud, duress, and other imperfections of consent, or with manifest inequities, particularly those deriving from great disparities in bargaining power." Id. Nevertheless, the power to disapprove a settlement agreement must be exercised with great restraint. Id. Accordingly, a trial court should not reject such agreements just because it believes it could draft a better one. Id.

II. Child Support and Alimony

First, Tina contends that the trial court erred by failing to set aside a property settlement agreement which did not include a child support calculation pursuant to the Child Support Guidelines even though both parties testified at the hearing that they intended part of the alimony amount to be used for the support of the minor children.

In their Property Settlement and Custody Agreement, merged into the dissolution decree, the parties provided in Article III, Support of the Children and Exemptions, as follows: "1. General Support: As a result of the parenting time anticipated no support shall be paid by either party." (Appellant's App. p. 27). At the same time, Article IV, Settlement of Property and Debts, states in paragraph five:

Husband agrees to make alimony payments to the wife as follows:

1. $3,000.00 per month starting the first day of the month in which wife moves into 1675 W. Foxcliff, and continuing for 5 years.

2. Starting in the [s]ixth year husband's payments to wife shall be reduced to $1,000.00 per month for [f]ive (5) years at which time said payments shall terminate.

(Appellant's App. p. 29).

At the motion's hearing, Herbert clarified that the alimony was in fact a combination of alimony and child support. He testified, in pertinent part, that:

[HERBERT]: What we had talked about was that [Tina] would get a thousand dollars a month, and [B.D.] would get a thousand dollars a month, and [C.D.] would get a thousand dollars a month for the first five years, and that would give [Tina] time to get on her feet and get her schooling done and whatever she was going to do, and then the five years after that it would go down to a thousand dollars a month for [C.B.] ...

[COUNSEL]: And why would, why would it go down to a thousand dollars


[HERBERT]: Cause [B.D.] would be eighteen and on her own, and I'd already agreed to pay for all her schooling. And Tina would have, well she said what she was going to do was go back to night school and graduate from that, and then go to college. And then once again, once she got a boyfriend all that changed.

(Transcript p. 132).

Based on these facts before it, the trial court concluded:

Failure to Provide for Child Support

12. The Indiana [s]upreme [c]ourt has held that child support is not an obligation which can be contradicted away. Straub v. B.M.T., 645 N.E.2d 597 (Ind. 1994). In Straub, the court noted that:

We have treated custodial parents who receive child support as trustees of the payments of the use and benefit of the child. Neither parent has the right to contract away these support benefits. The right to the support lies exclusively with the child. Any agreement purporting to contract away these rights is directly contrary to this State's public policy of protecting the welfare of children, as it narrows the basis for support to one parent.

13. However, there are...

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