BROWN v. BROWN (2026)

MEMORANDUM DECISION

[1] David Brown appeals the trial court's order requiring him to remove his former wife, Kimberly Brown, from the mortgage on their marital home. Their initial dissolution agreement awarded David the house and all debt associated with it, but Kimberly's name remained on the mortgage. This left her liable for the substantial debt tied to property awarded solely to David. We conclude the court's order to remove Kimberly's name from the mortgage was a permissible clarification of the decree's existing obligation to hold Kimberly “harmless” from the debt. We therefore affirm the order in that respect.

[2] David also appeals the trial court's award of $1,500 in attorney's fees to Kimberly. We agree that the court lacked a sufficient basis to award them, and we reverse that portion of the order.

Facts

[3] When the parties divorced in 2019, the dissolution court entered an Order of Property Distribution (Distribution Order). Among other things, David was awarded the marital residence, which was valued at $335,900 but was subject to a $234,000 mortgage in both David's and Kimberly's names. The Distribution Order provided that David was to keep the residence as “his sole and separate propert[y],” pay the mortgage on it, and “hold [Kimberly] harmless thereon.” App. Vol. II, pp. 12-13. The Distribution Order also required David to make an equalization payment of $66,098 to Kimberly and provided: “Once [Kimberly] has received her share of the estate she is to then sign over her interest to [David]” in the residence. Id. at 12.

[4] Soon after their divorce, David filed for bankruptcy. Through his bankruptcy plan, David maintained possession of the marital home. When he eventually finished paying the entire equalization payment to Kimberly in early 2025, David requested that Kimberly sign over her interest in the property, pursuant to the Distribution Order. He provided her with a quitclaim deed to do so, but Kimberly refused to sign it until David removed her name from the mortgage. David then moved to compel Kimberly to sign the deed, and in response, Kimberly moved to compel David to remove her name.

[5] At a hearing on both motions to compel, David argued that the Distribution Order did not require him to remove Kimberly's name and, in effect, refinance the mortgage. Therefore, any order to do so would constitute a modification of the Distribution Order, for which there was no legal basis. Kimberly responded that removing her name from the mortgage would not create a new obligation for David and was merely a method of complying with the Distribution Order's existing requirement to hold her harmless on the debt. She also argued that the mortgage constituted the vast majority of her debt and made it difficult for her to obtain a mortgage of her own. Kimberly testified that she had received numerous notices of late payments on the mortgage.

[6] The trial court took the matter under advisement. Kimberly then orally requested the court to award her attorney's fees if she prevailed. David objected because, unlike him, Kimberly had not included such request in her written motion. The trial court took that matter under advisement as well, and each party submitted an affidavit detailing the hours billed by their respective attorneys.

[7] The court eventually entered an order requiring David to remove Kimberly's name from the mortgage (Mortgage Provision) and awarding Kimberly $1,500 in attorney's fees (Fees Provision). David appeals.

Discussion and Decision

[8] David raises two issues on appeal: (1) whether the trial court impermissibly modified the decree by ordering him to remove Kimberly from the mortgage; and (2) whether the court erred by awarding Kimberly attorney's fees.

I. Mortgage Provision

[9] David first claims the trial court's Mortgage Provision modified the parties’ decree in violation of Indiana Code § 31-15-7-9.1. This statute bars the modification of a property distribution absent fraud, which was not alleged here. However, a dissolution court retains jurisdiction to interpret and enforce its own decree. Shepherd v. Tackett, 954 N.E.2d 477, 480 (Ind. Ct. App. 2011). A court “may construe and clarify [a decree] in the case of uncertainty, in order to sustain the decree, rather than defeat it.” Id. at 482. “[A]n order is not merely a clarification where it makes substantial changes in the original decree.” Id. (noting the award of more property to one party or creation of new obligation as examples of substantial changes).

[10] Therefore, the question presented here is whether the Mortgage Provision constituted an impermissible modification of the Distribution Order, or whether it was merely a clarification of existing obligations. Because this is a question of law, we review it de novo. See Est. of Estridge v. Taylor, 187 N.E.3d 275, 280 (Ind. Ct. App. 2022). We conclude the Mortgage Provision constituted a clarification.

[11] One of the obligations set out in the Distribution Order required David to “hold [Kimberly] harmless” from the mortgage debt. App. Vol. II, pp. 13. However, the Distribution Order did not specify how David was to accomplish this. It did not define whether “hold harmless” meant merely making timely payments on the existing mortgage still attached to Kimberly or whether it required removing Kimberly from the debt entirely. This ambiguity required clarification, and the Mortgage Provision did just that. It specified the means by which David must fulfill his pre-existing obligation to hold Kimberly harmless—by relieving her of personal liability on the mortgage.

[12] The Distribution Order's intent is discernible: David gets the house, Kimberly does not, and David alone is to bear the burden of the mortgage. This clear allocation of responsibility for the debt does not support David's reading that the Distribution Order permitted Kimberly to remain indefinitely liable on the mortgage. The Distribution Order also required that Kimberly sign over the property once the equalization payment was received, further demonstrating the trial court's intent to remove all of Kimberly's interests from the residence.

[13] The Mortgage Provision conforms with this intent by concluding the Distribution Order's “hold harmless” provision means freeing Kimberly from ongoing liability on a debt tied to property awarded solely to David. We therefore conclude that the trial court permissibly clarified, rather than modified, the Distribution Order. See Shepherd, 954 N.E.2d at 482 (finding order was permissible clarification because it “did not schedule a new obligation” but merely provided “a clarification of an existing obligation”).¹

II. Fees Provision

[14] David next challenges the trial court's Fees Provision, in which it awarded $1,500 in attorney's fees to Kimberly. The court did not specify the basis for the fees. A trial court has broad discretion to impose attorney's fees, and we review such award for an abuse of that discretion. Ratliff v. Ratliff, 804 N.E.2d 237, 249 (Ind. Ct. App. 2004). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court. Id.

[15] We also note that Kimberly did not file an appellee's brief. In such situation, we do not undertake the burden of developing an argument on the appellee's behalf, though “we remain obligated to reach the correct result dictated by the law and facts.” T.J. v. J.J., 270 N.E.3d 979, 986 (Ind. Ct. App. 2025), reh'g denied. We review for prima facie error, which is error “at first sight, on first appearance, or on the face of it.” Id.

[16] Generally, parties pay their own fees. Minser v. DeKalb Cnty. Plan Comm'n, 170 N.E.3d 1093, 1102 (Ind. Ct. App. 2021). “In the absence of statutory authority or an agreement between the parties to the contrary—or an equitable exception—a prevailing party has no right to recover attorney fees from the opposition.” Id. (citation omitted).

[17] In dissolution-related proceedings, a trial court “periodically may order a party to pay a reasonable amount” for attorney's fees. Indiana Code § 31-15-10-1(a). Though the court is not required to explain its award, “the trial court must consider the resources of the parties, their economic condition, the ability of the parties to engage in gainful employment and to earn adequate income, and other factors that bear on the reasonableness of the award.” Estridge, 187 N.E.3d at 282 (quoting Hartley v. Hartley, 862 N.E.2d 274, 286 (Ind. Ct. App. 2007)). “Consideration of these factors promotes the legislative purpose behind the award of attorney fees, which is to insure that a party in a dissolution proceeding, who would not otherwise be able to afford an attorney, is able to retain representation.” Id. (same). “When one party is in a superior position to pay fees over the other party, an award is proper.” Eads v. Eads, 114 N.E.3d 868, 879 (Ind. Ct. App. 2018). Additionally, “[a] party's misconduct that directly results in additional litigation expenses may also be considered.” Id.

[18] Here, there is no evidence in the record to support the Fees Provision based on these considerations. First, the only evidence submitted in support of Kimberly's request for attorney's fees was an affidavit detailing the hours billed by her attorney. Little information about the financial positions of the parties was otherwise revealed in the record. It had been over six years since the dissolution and property distribution occurred, so the financial information from the Distribution Order was not current. And since the parties’ dissolution, David had filed for bankruptcy and finished paying the equalization payment to Kimberly. The record does not reveal the current employment status, income, or resources of Kimberly or David. Without evidence of the parties’ current economic resources and ability to earn income, the trial court lacked the factual foundation necessary to determine whether one party was in a superior position to pay fees. See id.

[19] Nor is there any evidence of misconduct resulting in additional litigation expenses. See id. The trial court made no findings of bad faith, vexatious conduct, or abuse of the judicial process. The record here reveals a bona fide dispute about the meaning of the Distribution Order, not conduct approaching sanctionable behavior.

[20] Without evidence of either the relative financial positions of the parties or any misconduct, the Fees Provision cannot be sustained under Indiana Code § 31-15-10-1(a). Cf. Ratliff, 804 N.E.2d at 249 (affirming denial of attorney's fees where record showed no sufficient disparity in financial resources and no misconduct). And because there was no evidence of misconduct, the Fees Provision also cannot be sustained under either the trial court's statutory or inherent authority to sanction litigation misconduct. See Ind. Code § 34-52-1-1(b) (permitting shifting of attorney's fees after finding party engaged in frivolous or bad-faith litigation); River Ridge Dev. Auth. v. Outfront Media, LLC, 146 N.E.3d 906, 915 (Ind. 2020) (recognizing court's inherent power to sanction after finding party acted in bad faith).

[21] Given the foregoing, we find the trial court abused its discretion by awarding Kimberly attorney's fees.

Conclusion

[22] We conclude the trial court permissibly clarified—not modified—the Distribution Order by ordering David to remove Kimberly's name from the mortgage. We therefore affirm the Mortgage Provision portion of the court's order. However, we find the trial court ordered David to pay Kimberly's attorney's fees without a proper basis. Accordingly, we reverse the court's Fees Provision.

[23] Affirmed in part, reversed in part.

FOOTNOTES

1.   David also challenges the sufficiency of the evidence supporting the trial court's finding that Kimberly suffered harm, arguing the court improperly relied on hearsay testimony about late payments. But the court had authority to clarify its order without a showing of actual harm; therefore, we do not address that issue.

Weissmann, Judge.

Bradford, J., and DeBoer, J., concur.