Stolberg v. Stolberg

• Decision Date: 15 May 1989
• Docket Number: No. 28A04-8804-CV-139,28A04-8804-CV-139
• Citation: 538 N.E.2d 1
• Parties: Eric C. STOLBERG, Appellant (Respondent Below), v. Diana L. STOLBERG, Appellee (Petitioner Below).
• Court: Indiana Appellate Court

Page 1

538 N.E.2d 1

Eric C. STOLBERG, Appellant (Respondent Below), v. Diana L. STOLBERG, Appellee (Petitioner Below).

No. 28A04-8804-CV-139.

Court of Appeals of Indiana Fourth District.

May 15, 1989.

Andrew C. Mallor, Mallor Grodner & Bohrer, Bloomington, for appellant.

Thomas A. Berry, Berry Benson Brown Mills & Shapiro, Bloomington, David A. Reidy, Jr., Bloomington, for appellee.

CONOVER, Presiding Judge.

Respondent-appellant Eric Stolberg (Eric) appeals the trial court's grant of petitioner-appellee Diana Stolberg's (Diana) petition for rehearing and the trial court's subsequent voiding of the dissolution decree as it related to property distribution.

We reverse.

We address only the issue of whether the trial court erred in voiding the dissolution decree as it related to property distribution.

On September 21, 1970, Diana and Eric were married. There was one child born of the marriage. In January, 1986, Diana filed a petition for dissolution of marriage. Final hearing was set for August, 1986. At the final hearing, the trial judge directed the parties to negotiate further and arrive at a settlement regarding distribution of the marital assets and the custody of their child. After more than four hours of negotiation, their attorneys informed the trial judge there was an oral agreement. The trial judge then asked the parties to testify as to what they had agreed upon.

Eric under oath told the court he would receive his IRA, life insurance, vehicle, jewelry, 1985 tax refund, the furnishings in his possession, his interest in a realty company, and a closely held corporation under their agreement. Additionally, he would receive certain partnerships and properties, subject to Diana's receiving one-half the net cash distributions and one-half the net sale price thereof. Also, he had agreed to assume liabilities and notes totaling $92,154 and other marital debts totaling $900. Diana was to receive her IRA, vehicle, jewelry, the marital residence, furnishings, and a one-half interest in the net cash flow of the business projects. She also would receive $1500 per month in maintenance for twelve months, as well as $25,000 in cash. ¹ Eric would pay $11,000 toward Diana's attorney and expert witness fees, also.

Diana testified she believed Eric made a full and fair disclosure of all marital assets and asked the trial judge to approve the settlement. At the conclusion of Diana's testimony, the trial judge cautioned her the dissolution order would be final regarding property distribution. He further explained the oral agreement testified to would be put in writing and incorporated into the final decree. He concluded by informing Diana there would be a full and complete hearing on the evidence if she did not agree. She agreed. ²

The trial judge directed the parties' attorneys to reduce the agreement to writing and present it for the court's acceptance. After a written draft was prepared, it was submitted to the trial judge who incorporated it verbatim into the proposed decree. Diana received an unsigned copy of the written decree, and four days later received a copy of the decree signed by the judge.

Diana received and accepted her share of the property distribution pursuant to the dissolution decree, including the marital residence, the $25,000 lump sum payment and maintenance. She did not receive any money from the net cash distributions of the partnerships and properties in which she owned a one-half interest only because no cash distributions were made during the months following the decree. She filed no motion to correct errors within 60 days from the entry of the decree about which she later made complaint.

Approximately six months later, Diana requested a rehearing pursuant to Ind. Rules of Procedure, Trial Rule 60(B). Diana claimed the dissolution decree was void because the marital assets were not properly distributed. She also claimed Eric had misrepresented material facts during discovery and negotiations. The trial judge granted Diana's request for a rehearing.

At the rehearing, both parties presented evidence. The trial judge found there was no agreement in writing between the parties and, therefore, no valid agreement had been incorporated into the dissolution decree, and declared the dissolution decree void as it related to property distribution. Eric now appeals.

He contends the trial court improperly granted Diana's Trial Rule 60(B) motion. He contends the trial court abused its discretion when it found there was no written agreement between the parties and set aside the dissolution decree as it related to property division.

In its judgment, the court stated:

... the Court finds and orders that there was no agreement in writing between the parties and, therefore, no valid agreement to incorporate and merge into the final decree. Further, there was no final hearing on the merits as to property disposition other than the parties attempted recitation of a verbal property settlement agreement and the Court did not, as a result, consider the necessary statutory factors prior to entering judgment. Therefore, there being no valid division of property, the decree, in regard to property division, is void. ³

(R. 10).

Property distribution may occur in one of two ways. First, the parties may enter into a written agreement, the terms of which may be approved by the trial court and incorporated into the dissolution decree. I.C. 31-1-11.5-10. Second, if the parties choose not to enter into a written settlement or the trial judge rejects the parties' agreement, then the trial court must dispose of the property pursuant to I.C. 31-1-11.5-3, which lists several factors to be considered prior to distributing the property. Waitt v. Waitt (1977), 172 Ind.App. 357, 360 N.E.2d 268, 272.

Ind. Rules of Procedure, T.R. 60(B)(6) authorizes a trial court to grant relief from a void judgment "upon such terms as are just." On appeal, we will set aside a trial court's ruling in this regard only if it constitutes an abuse of discretion. DuShane v. DuShane (1985), Ind.App., 486 N.E.2d 1106. An abuse of discretion will be found only where the court's conclusion and judgment is an erroneous one. Graham v. Schreifer (1984), Ind.App., 467 N.E.2d 800, 802. That is to say, a trial court's order granting a T.R. 60(B) motion must be one clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id.

Here, contrary to the trial judge's finding, it is apparent the agreement should not have been declared void. Ind.Code 31-1-11.5-10, which governs property distribution agreements, provides:

Sec. 10. Agreements. (a) To promote the amicable settlements of disputes that have arisen or may arise between the parties to a marriage attendant upon the dissolution of their marriage, the parties may agree in writing to provisions for the maintenance of either of them, the disposition of any property owned by either or both of them and the custody and support of their children.

(b) In an action for dissolution of the marriage the terms of the agreement if approved by the court shall be incorporated and merged into the decree and the parties ordered to perform them, or the court may make provisions for disposition of property, child support, maintenance, and custody as provided in this chapter.

(c) The disposition of property settled by such an agreement and incorporated and merged into the decree shall not be subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent. (Emphasis supplied)

The statute on its face requires (a) an agreement between the parties which is (b) reduced to writing. There is no statutory requirement the written agreement need be signed by the parties. Here, the facts indicate such an agreement was made. The substance of the agreement was testified to by Eric and orally accepted by Diana. The trial court interrogated both parties on the content of the agreement and their understanding thereof. Upon questioning, Diana affirmed her request for approval of the settlement as stated by Eric. Unquestionably, both Eric and Diana intentionally, with full knowledge of the eventual outcome, entered into a joint agreement. The settlement was put in writing by both parties' attorneys to fulfill the statute's obvious purpose to eliminate any confusion as to what the parties had agreed upon, prior to the incorporation thereof into the trial court's decree. The court reviewed and approved the agreement, thereafter incorporating it into the dissolution decree. Diana received a copy of the written agreement both before and after the judge signed it. Diana did not object at any stage of the proceedings. The entry of that judgment became final and binding upon both Diana and Eric.

Diana maintains she and Eric never reached a genuine agreement, or "meeting of the minds." She asserts such an agreement is a requirement; however, she fails to cite any authority in support of this proposition. In any event, the undisputed evidence demonstrates agreement concerning property settlement was reached.

Diana next maintains no written agreement was ever made, as required by statute. Rather, she asserts the agreement signed by the trial judge was merely "written evidence of an oral agreement." We fail to see any real distinction between a written agreement and written evidence of an oral agreement. The distinction is one of semantics rather than substance. It was the written agreement contemplated by the statute.

Diana further contends she should have been presented with the written agreement for her signature. She maintains both she and Eric were required by Indiana law and policy to sign the agreement. She further maintains she rejected the document when she eventually received it believing it did not accurately represent her earlier oral assent. Had the document...