Erwin V. Miller, Appellant-Petitioner v. Denita C. (Miller) Motley, Appellee-Respondent (2025)

MEMORANDUM DECISION

[1] Erwin V. Miller (“Husband”) challenges the distribution of proceeds from the sale of the marital residence (“the Residence”) he owned with his ex-wife, Denita C. (Miller) Motley (“Wife”). Husband presents three issues for appellate review, which we consolidate and restate as the following two issues:

I. Whether the trial court improperly allocated expenses to Husband and inequitably divided the proceeds; and

II. Whether the trial court abused its discretion in ordering Husband to pay a portion of Wife's attorney's fees.

[2] We affirm.

Facts and Procedural History

[3] In August 2013, the parties’ marriage was dissolved. The dissolution decree incorporated their written property settlement agreement (“the Agreement”), which contemplated the sale of the Residence, stating: “The parties agree that [the Residence] ․ shall be placed for sale, and the ‘net proceeds’ received by the parties after any sale will be divided 50/50 between them.” Appellant's App. Vol. II p. 17. The Agreement did not specifically address the parties’ jointly obtained mortgage on the Residence. Rather, the Agreement specifically addressed a handful of other debts and otherwise generally stated that the parties would “each be responsible for debts in their own names[.]” Id. at 18.

[4] The Agreement addressed remedies for breach, which included reasonable attorney's fees, stating: “Each party intends to and does hereby ․ indemnify, save[,] and hold the other harmless for all damages, losses, expenses, fees (including reasonable attorneys’ fees), and other costs and expenses incurred by reason of said party's violation or breach of any of the terms and conditions hereof.” Id. at 21. The Agreement also authorized the appointment of a Commissioner “for the purpose of executing any necessary documents upon the motion of either party should the appropriate party fail to execute such documents within ten (10) days of being requested to do so.” Id. at 23. The Agreement specified that, if it was necessary to appoint a Commissioner, the “responsible party” would “pay the reasonable costs and attorney's fees incurred in obtaining the appointment of the Commissioner.” Id. The Agreement also contained provisions regarding modification and waiver, specifying that “[a] modification or waiver of any of the provisions ․ shall be effective only if made in writing and executed with the same formality as th[e] Agreement, and approved by a Court of competent jurisdiction.” Id.

[5] Following the dissolution of their marriage, Husband and Wife continued to live in the Residence together for more than seven years. Wife moved out in October 2020. Around this time, they discussed that Wife would obtain a new residence, Husband would remain in the Residence for the time being, and they would sell the Residence “once [Wife] move[d].” Tr. Vol. II p. 12. Wife told Husband he would be responsible for the mortgage because she was “not living [t]here any longer.” Id. at 28. He responded, “[A]s long as you're leaving, that would be fine.” Id. Husband then made regular mortgage payments.

[6] The parties decided not to list the Residence immediately because Husband “never wanted to sell [the Residence] in the wintertime because he said it would be hard to sell.” Id. at 13. In the spring of 2021, Wife contacted Husband about selling the Residence. They had a “nasty conversation” during which Husband indicated that he “did not want to sell [the Residence].” Id. As Wife recounted, Husband said she “didn't deserve to have anything[.]” Id. “[T]o kind of stall,” he said “he needed to do some repairs.” Id. Wife hired counsel.

[7] On May 11, 2022, Wife filed a Verified Petition for Contempt and for Enforcement of Property Settlement Agreement, alleging Husband was not cooperating in efforts to sell the Residence. Around this time, Husband obtained a check from the home insurance company for $12,810.19 related to storm damage. He deposited this check into his personal account. Husband hired a contractor to carry out repairs but retained the insurance money and did not pay the contractor due to alleged issues in workmanship. This led to a mechanic's lien and the commencement of litigation related to the lien.

[8] In September 2022, the trial court held a hearing on Wife's motion. At the hearing, Husband sought reimbursement for improvements he made to the Residence after Wife moved out. The trial court found Husband in contempt of the Agreement, specifically finding that he “ignored [Wife's] requests to list [the Residence] for sale” and “willfully failed to list [the Residence] because he seeks reimbursement for funds he has expended.” Appellant's App. Vol. II p. 27. As a contempt sanction, the court ordered Husband to pay $390.00 to Wife's counsel. The court further ordered that the Residence be listed for sale within sixty days of its order entered on September 25, 2022. The court specified that, if either party “fail[ed] to cooperate to list [the Residence] for sale,” it would “appoint a Commissioner for the purpose of executing any documents necessary to list [the Residence],” and that it would appoint a Commissioner “upon the motion of either party and without need for a hearing.” Id.

[9] As for Husband's request that Wife reimburse him for improvements, the court noted that Husband claimed Wife “agreed in writing” to reimburse him, but “[t]he document was not signed by [Wife],” “[n]o such written representation or agreement was ever filed with the Court for its approval,” and “[n]o exhibits were offered into evidence at the hearing.” Id. The court determined that, without complying with provisions in the Agreement regarding “modification or waiver,” Husband “voluntarily incurred expenses to make improvements” to the Residence. Id. The court stated that Husband would “receive an equal share of any increased value to the home from the improvements made.” Id.

[10] In November 2022, Husband stopped paying the mortgage, which led to a foreclosure action. The court would later determine Husband stopped paying “because he was trying to recover the expenses he had incurred” to improve the Residence, “despite the Court's [September 2022] order.” Appealed Order p. 2.¹ On August 23, 2023, Wife moved for the appointment of a Commissioner, alleging that, “[a]lthough [Husband] previously cooperated to allow the listing for sale, [he] has refused to cooperate and take action necessary to allow the sale of the real estate to proceed.” Appellee's App. Vol. II p. 7. The trial court granted the motion the next day, appointing a Commissioner to “act in all respects on behalf of [Husband], and to take all action necessary to list” the Residence and “cooperate with the promotion, showing[,] and ultimate sale[.]” Id. at 10.

[11] On September 21, 2023, Wife moved for an order removing Husband from the Residence or, in the alternative, a hearing to show cause. She alleged that he “failed and/or refused to cooperate with the listing and showing of [the Residence]” and that it was “necessary that [he] be ordered to remove himself and stay away from the Residence” to successfully sell it. Id. at 11. Husband was previously represented by counsel, however, when Wife filed her motion, Husband was representing himself. Husband had not updated the records for electronic service of documents such that his former counsel was still designated as the recipient. The trial court scheduled a hearing for October 6, 2023, where Husband was represented by counsel at the hearing. Husband argued that he lacked proper notice of the hearing because his former counsel was served and he only actually learned of the hearing two days before it was held. Following the hearing, the trial court ordered that Husband vacate the Residence by December 2, 2023. In the interim, Husband was to “cooperate fully with any and all recommendations of the realtor,” including “leaving the Residence to allow for scheduled showings.” Appellant's App. Vol. II p. 31.

[12] On February 5, 2024, the Residence sold for $205,000.00. The associated settlement statement reflects that, after payment of expenses—including the Commissioner's fees and amounts incurred due to nonpayment of the mortgage—a total of $104,632.82 was deposited into Wife's counsel's trust account. Of that amount, $22,795.00 was earmarked for resolution of the mechanic's lien. The lien issue was later settled for $12,810.19, which was paid from the settlement funds in the trust account while Husband retained the $12,810.19 from the home insurance claim in his personal bank account.

[13] On June 11, 2024, Wife filed a motion titled “Motion for Order Directing Release of Funds from Attorney Trust Account, for Payment of Attorneys’ Fees[,] and to Set Hearing[.]” Appellee's App. Vol. II p. 15. She sought more than 50% of the proceeds, claiming Husband should be solely responsible for expenses stemming from his failure to “willingly comply with ․ orders to sell ․ the Residence,” as well as his failures to “make mortgage payments” and “properly pay for and/or account for claimed insurance losses[.]” Id. at 18. Wife also claimed Husband should be solely responsible for (1) “insurance settlement proceeds received and retained by [him],” (2) amounts “owed as a result of the Mechanic's Lien,” and (3) “[a]ll fees of the Commissioner[.]” Id. Additionally, Wife asked the trial court to award her “reasonable attorneys’ fees incurred in connection with enforcing the terms of th[e] Court's orders[.]” Id. at 18–19. Wife's counsel later submitted an affidavit regarding Wife's attorney's fees.

[14] On October 18, 2024, the trial court held a hearing on Wife's motion where Husband and Wife testified. The trial court took the matter under advisement and, on January 15, 2025, issued an order releasing funds and ordering payment of attorney's fees. The trial court incorporated its prior orders, including its determination that Husband had willfully breached his obligations under the Agreement by interfering with and obstructing Wife's efforts to sell the Residence. The court determined that Husband should be solely responsible for the Commissioner's fees as well as expenses associated with nonpayment of the mortgage, which resulted in the foreclosure action. These expenses totaled $9,063.24. The court noted that, had Husband not incurred these expenses, the net proceeds of the sale would have been $9,063.24 greater—in other words, there would have been $9,063.24 more to distribute. Using the greater amount, the court calculated that Wife's “50% share” of the net proceeds was $56,848.02. Appealed Order p. 3. The court further determined that, because Husband retained the $12,810.19 from the insurance check, Wife was entitled to $12,810.19 to offset this amount.

[15] In the end, the court distributed $69,658.21 to Wife, which left $22,164.42 remaining. As for Wife's request for attorney's fees, the court determined Husband should be responsible for $3,250.00, which was half the amount Wife incurred in pursuing her motion to distribute the proceeds. The court ordered the $3,250.00 to be paid to Wife's counsel, and ordered that $18,913.88 be distributed to Husband.² Husband now appeals.

Discussion and Decision

[16] At the outset, we note that the trial court entered sua sponte findings supporting its judgment. In this scenario, the findings control as to the issues they cover. See Ind. Trial Rule 52(D). We will not set aside a factual finding “unless clearly erroneous,” and must give “due regard ․ to the opportunity of the trial court to judge the credibility of the witnesses[.]” T.R. 52(A). A factual finding is clearly erroneous if there is no evidence to support it, either directly or by reasonable inference. Duncan v. Duncan, 81 N.E.3d 219, 224 (Ind. Ct. App. 2017). Moreover, although we defer to findings of fact, we owe no deference to conclusions of law. See, e.g., Bernel v. Bernel, 930 N.E.2d 673, 680 (Ind. Ct. App. 2010), trans. denied. To the extent an issue is not covered by the findings, we apply a general judgment standard of review. T.R. 52(D); McIntosh v. McIntosh, 222 N.E.3d 998, 1003 (Ind. Ct. App. 2003). Under this standard, we affirm on any legal theory supported by the evidence. McIntosh, 222 N.E.3d at 1003.

I. Distribution of Proceeds

[17] Husband argues it was improper for the trial court to “impos[e] mortgage and commissioner's fees solely upon [him],” claiming that doing so was contrary to the Agreement, inequitable, and tantamount to impermissibly modifying the Agreement. Appellant's Br. p. 4. We disagree, concluding that the trial court properly enforced the Agreement, including provisions specifically allocating responsibility for Commissioner's fees and damages stemming from breach.

[18] In a dissolution proceeding, “the parties may agree in writing to provisions for ․ the disposition of any property owned by either or both of the parties[.]” Ind. Code § 31-15-2-17(a). If approved, the terms “shall be incorporated and merged into the decree[.]” I.C. § 31-15-2-17(b). Notably, “[t]he disposition of property settled by [this type of] agreement ․ and incorporated and merged into the decree is not subject to subsequent modification by the court, except as the agreement prescribes or the parties subsequently consent.” I.C. § 31-15-2-17(c).

[19] The general prohibition on modification does not affect a court's authority to interpret and enforce the settlement provisions merged into the decree. See generally, e.g., Pherson v. Lund, 997 N.E.2d 367, 369 (Ind. Ct. App. 2013). When interpreting those provisions, a court's task “is one of contract interpretation.” Id. (quoting Ryan v. Ryan, 972 N.E.2d 359, 363 (Ind. 2012)). “This is because settlement agreements are contractual in nature and binding if approved by the trial court.” Id. (quoting Ryan, 972 N.E.2d at 363). The proper interpretation of a contract presents a pure question of law, which we review de novo. Id.

[20] “When interpreting a contract, our paramount goal is to ascertain and effectuate the intent of the parties.” Bernel, 930 N.E.2d at 682. “[U]nless the terms of the contract are ambiguous, they will be given their plain and ordinary meaning.” Ryan, 972 N.E.2d at 364 (quoting Shorter v. Shorter, 851 N.E.2d 378, 383 (Ind. Ct. App. 2006)). Indeed, “[c]lear and unambiguous terms in the contract are deemed conclusive, and when they are present[,] we will not construe the contract or look to extrinsic evidence, but will merely apply the contractual provisions.” Id. (quoting Shorter, 851 N.E.2d at 383). Although the proper interpretation of a contract presents a pure question of law, whether a party breached the contract generally presents a question of fact. Rogier v. Am. Testing & Eng'g Corp., 734 N.E.2d 606, 621 (Ind. Ct. App. 2000), trans. denied. Regarding breach, we review decisions enforcing a settlement agreement for an abuse of discretion, which occurs when the decision is clearly against the logic and effect of the facts and circumstances or the court has misinterpreted the law. See, e.g., Herber v. Bunting, 194 N.E.3d 1142, 1145 (Ind. Ct. App. 2022).

[21] We start with the Commissioner's fees allocated solely to Husband. Upon Wife's motion, the trial court appointed a Commissioner to facilitate the sale of the Residence. This was necessary because Husband continued to impede the efforts to sell the Residence. Husband claims the trial court erred in ordering him solely responsible for these fees. However, the Agreement specifically authorized the appointment of a Commissioner and specified that, if doing so was necessary, “the responsible party agrees to pay the reasonable costs and attorney's fees incurred in obtaining the appointment of the Commissioner.” Appellant's App. Vol. II p. 23. Because Husband's actions necessitated the appointment of the Commissioner, the trial court did not err in enforcing the Agreement and ordering Husband solely responsible for the resulting fees.

[22] Next, Husband claims the trial court erred in holding him solely responsible for fees associated with nonpayment of the mortgage, which Husband and Wife jointly obtained. Husband points out that the Agreement did not specifically address who was responsible for the mortgage. We note, however, that the Agreement contained an indemnification provision providing that each party would “indemnify, save[,] and hold the other harmless for all damages, losses, expenses, fees (including reasonable attorney's fees), and other costs and expenses incurred by reason of said party's violation or breach of any of the terms and conditions” of the Agreement. Id. at 21. Here, the trial court found Husband breached the Agreement by impeding efforts to sell the Residence.

[23] When Wife moved out in October 2020, the parties discussed selling the Residence in the spring of 2021. However, because of Husband's actions, the sale could not be completed until February 2024. Husband stopped paying the mortgage in November 2022 because he continued to try to recover expenses for the improvements to the Residence. Yet, in the September 2022 contempt order, the trial court specifically admonished Husband that he was not entitled to reimbursement. Rather than comply, Husband unilaterally discontinued payment of the mortgage, continued to reside in the residence, obstructed Wife's attempts to sell the Residence, and eventually had to be forcibly removed by court order. It is clear that Husband's unreasonable actions frustrated the sale of the Residence contemplated by the Agreement, resulting in additional costs that were properly charged against his share of the proceeds.

[24] Under the circumstances, we are not persuaded the trial court erred in ordering Husband solely responsible for the expenses incurred as a result of nonpayment in November 2022 and beyond. Indeed, it is fair to regard this allocation of expenses as a remedy for Husband's breach, where the remedy was expressly authorized by the indemnification provisions of the Agreement. See, e.g., id.³

[25] We turn next to Husband's contention that the trial court ultimately ordered an inequitable division of the settlement proceeds. He claims the trial court failed to “equitably assess both parties’ conduct and obligations” in enforcing the Agreement. Appellant's Br. p. 2. Among Husband's contentions is that he was not properly served notice of certain filings, however, he does not develop how he was prejudiced by the notice procedures. He also claims Wife should have made mortgage payments to avoid foreclosure. Moreover, Husband argues Wife “failed to list [the Residence] for sale even though she was a joint owner and could have done so.” Id. at 19. According to Husband, these matters, along with other alleged “misconduct,” effectively “permitted [Wife] to profit from the very behavior that impaired performance under the Agreement.” Id.

[26] Husband's arguments largely amount to requests to reweigh evidence, which we must decline. Because we have concluded that the Agreement authorized allocating the challenged liabilities to Husband, we are unpersuaded that the court inequitably divided funds obtained from the sale of the Residence.⁴ See I.C. § 31-15-2-17(c) (specifying that the disposition of property controlled by a marital settlement agreement “is not subject to subsequent modification by the court, except as the agreement prescribes or the parties subsequently consent.”). Nor are we persuaded there were procedural irregularities warranting disturbing the division of the sale proceeds. Here, we ultimately conclude that the division of the proceeds did not constitute a modification of the terms of the Agreement, but rather, as explained above, was consistent with the Agreement's provisions.

II. Attorney's Fees

[27] Husband challenges the order requiring him to pay $3,250.00 of Wife's attorney's fees. In general, we review an award of attorney's fees for an abuse of the trial court's discretion, which occurs when the decision is clearly against the logic and effect of the facts and circumstances or the court misinterpreted the law. Nardi v. King, 253 N.E.3d 1098, 1103 (Ind. 2025). To the extent the court's decision involves statutory interpretation, our review is de novo. Id.

[28] Here, the trial court determined that Wife had incurred “in the range of $6,500[.00]” in attorney's fees to prosecute her June 2025 motion seeking to distribute the sale proceeds. Appealed Order p. 3. The trial court ultimately found it “reasonable” that “[Husband] be responsible for $3,250[.00] of [Wife's] attorney fees,” which was half the amount incurred in pursuing the motion. Id. The court did not provide further explanation for its award of attorney's fees.

[29] Wife contends the award was justified under the indemnification provisions of the Agreement, which authorized the recovery of reasonable attorney's fees stemming from the other party's breach. We agree. Although it was likely necessary to hold proceedings on the distribution of proceeds irrespective of Husband's breach, a significant portion of the instant proceedings related to Husband's breach. Indeed, this case involved substantial argument and testimony on the issue of breach, which bore on the allocation of expenses.

[30] In the end, because of Husband's recalcitrance and subversion of his obligations under the Agreement, the instant proceedings were not as straightforward as they otherwise would have been. We therefore disagree with Husband's contention that the fee award was tantamount to a veiled attempt to impose contempt sanctions. Rather, we conclude that the fee award was consistent with the facts and circumstances and ultimately well within the trial court's discretion in enforcing the Agreement and providing Wife redress for Husband's breach.⁵

Conclusion

[31] The trial court properly allocated to Husband certain attorney's fees and expenses stemming from his breach of the Agreement, and therefore, the trial court did not err in its division of proceeds from the sale of the Residence.

[32] Affirmed.

FOOTNOTES

1.   Herein, we cite directly to the Appealed Order, which was submitted with the Appellant's Brief pursuant to Appellate Rule 46(A)(12), but not included in the Appendix as required by Appellate Rule 50(A)(2)(b).

2.   Under the trial court's order, it appears that fifty-four cents was not distributed. Nonetheless, the parties do not address this de minimis amount, nor do they challenge the trial court's mathematical computations.

3.   For the first time in his Reply Brief, Husband argues the trial court erred in determining that he contemptuously breached the Agreement; he has waived this argument. See, e.g., Gordon v. Purdue Univ., 862 N.E.2d 1244, 1250 (Ind. Ct. App. 2007) (“[A]n argument raised for the first time in a reply brief is waived.”).

4.   We separately consider the award of attorney's fees.

5.   Concluding the award was justified under the Agreement, we do not address other challenges to the award.

Foley, Judge.

Kenworthy, J. and Scheele, J., concur.