Court of Appeals of Indiana | Memorandum Decision 20A-DR-423 | September 10, 2020 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Heather M. Schuh-Ogle

Thomasson, Thomasson, Long & 

Guthrie, P.C.

Columbus, Indiana

ATTORNEYS FOR APPELLEE

Bryan L. Ciyou

Alexander N. Moseley

Ciyou and Dixon, P.C.

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Valerie (Watts) Padilla,

Appellant-Respondent,

v.

Donald Watts,

Appellee-Petitioner

September 10, 2020

Court of Appeals Case No.

20A-DR-423

Appeal from the 

Jackson Superior Court

The Honorable 

Bruce A. MacTavish, Judge

Trial Court Cause No.

36D02-1203-DR-119

Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-DR-423 | September 10, 2020 Page 2 of 9

Case Summary

[1] When Donald Watts (“Husband”) and Valerie (Watts) Padilla (“Wife”) 

divorced in 2012, they agreed that Wife would keep the marital home and 

refinance it into her sole name at “her earliest possible opportunity.” When 

Wife did not do so, Husband filed numerous motions with the trial court. 

Eventually, in February 2019, the parties agreed that the property would be sold 

rather than refinanced. But when Wife did not sell the property either, Husband 

filed more motions with the court. In December 2019, the court issued an order 

that if Wife didn’t sell the property within thirty days, it reserved the right to 

order an auction of the property. When Wife did not sell the property or file any

motions with the court in those thirty days, Husband asked the court to order 

an auction, which the court did. 

[2] Wife now appeals, arguing that the court erred by ordering an auction of the 

property. Because eight years have now passed since Wife agreed to refinance 

the property, the parties agreed in February 2019 that the property would be 

sold instead of refinanced, and the court warned Wife that an auction would be 

the next step if she did not sell the property, the court did not err when it 

ordered the property to be sold at an auction when Wife did not sell it. We 

therefore affirm.
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Facts and Procedural History

[3] Husband and Wife got married in 2006, and Husband filed for divorce in 2012.

The parties reached a settlement agreement, which was incorporated into their

July 2012 decree of dissolution. According to the agreement:

The parties own a certain tract of real estate, which has a 

common address of 810 West 2nd Street, Seymour, Indiana. The 

legal description of said real estate is incorporated by reference 

herein. As of the date of the decree, the real estate shall become 

the sole and individual property of [W]ife. Husband will execute 

and deliver to [W]ife a Quitclaim Deed, subject to all

encumbrances, including mortgages and real estate taxes. Wife 

will pay all mortgages, taxes, insurance and utilities and hold 

[H]usband harmless therefrom. Wife shall refinance the 

mortgage debt on said real estate [into] her sole name at her 

earliest possible opportunity[.]

Appellant’s App. Vol. II p. 17 (emphasis added).

[4] About a year later, in June 2013, Husband filed a Petition for Contempt and 

Affidavit in Support of Rule to Show Cause, alleging that Wife had not

refinanced the property. Id. at 20. In August 2013, the trial court issued an 

Order on Rule to Show Cause, ordering Wife to refinance the property within 

sixty days. Id. at 24. The court said if Wife could not refinance the property, 

Husband could list the property himself. Id. at 25. 

[5] In November 2013, Husband filed a second Petition for Contempt and Affidavit 

in Support of Rule to Show Cause, alleging that Wife had not refinanced the 

property within sixty days as ordered by the court. Id. at 26. The following 
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month, the court issued an Order on Rule to Show Cause, ordering Wife to 

appear at a hearing in January 2014. After several continuances, the hearing 

was held in April. Following the hearing, the court ordered Wife to refinance 

the property within sixty days with her father as co-signor. Id. at 30.

[6] There was no activity for four years until May 2018, when Husband filed a 

third Petition for Contempt and Affidavit in Support of Rule to Show Cause, 

alleging that Wife had still not refinanced the property as required by the 

parties’ 2012 settlement agreement and the court’s previous orders. Id. at 31. 

After several continuances, a hearing was held in February 2019. At this 

hearing, the parties agreed that the property would be sold instead of 

refinanced. Tr. Vol. II pp. 4-6. The court ordered Wife to sell the property 

within ninety days, continued the matter “generally,” and said if the parties 

needed a hearing, it would set one “really quick.” Id. at 6; see also Appellant’s 

App. Vol. II p. 44.

[7] In June 2019, Husband requested a hearing. He alleged that on April 5 the 

property was listed at $362,500—an amount “grossly higher” than the market 

value of the home, that on April 30 the listing price was reduced to $235,000, 

and that on May 19 the listing price was again reduced to $219,900—which was 

“still higher than comparable homes in the area.” Appellee’s App. Vol. II pp. 

43-44. According to Husband, Wife was “stall[ing]” to prevent the sale of the 

property and would continue to do so unless the court intervened. Id. at 44. The 

court set a hearing for August 15. Although it’s unclear from the record whether 
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a hearing was held on this date,1 on August 20 the court ordered Wife to sell the 

property within sixty days and set a review hearing for October 21. Appellant’s 

App. Vol. II p. 45.

[8] On September 23, Husband filed a fourth Petition for Contempt and Affidavit 

in Support of Rule to Show Cause. He alleged that when the court issued its 

August 20 order requiring Wife to sell the property within sixty days, the 

property was listed; however, Wife had since taken the property off the market 

and stopped paying the mortgage. Id. at 48. The court moved up the October 21 

hearing to October 10 to address the matter. Id. at 52. At the hearing, Wife’s 

counsel said Wife took the property off the market to make repairs and that the 

house was back on the market for $225,000 (increased from its previous listing

of $179,900). Tr. Vol. II p. 7. Husband’s counsel said Husband was tired of 

playing the “waiting game.” Id. at 8. The court ordered the property to “remain 

for sale” and that Wife communicate any offer to Husband. Appellant’s App. 

Vol. II p. 53. The court said if there was an issue regarding the selling price or if 

an auction needed to be set, it would set a hearing. Tr. Vol. II p. 8.

[9] On November 6, the court, on its own motion, set a review hearing for 

December 16. Appellant’s App. Vol. II p. 54. Although it’s unclear from the 

1 Wife requested a transcript of this hearing in her notice of appeal. Although the CCS says the August 15 

hearing was rescheduled, the August 20 order says a hearing was held on August 15. The table of contents for 

the transcript says no hearing took place on August 15. See Tr. Vol. I p. 2. 
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record whether a hearing was held on this date,2the court issued the following 

order on December 18:

The Court orders the parties[’] marital residence at 810 West 2nd

St, Seymour, IN 47274 sold by [Wife] within 30 days of today’s 

date or the Court reserves the right to select the realtor to handle 

the sale or to order the property auctioned off.

Id. at 55 (emphasis added). 

[10] On January 20, 2020, Husband filed a Motion for Court Order to Auction 

Marital Residence. Id. at 56. Husband alleged that since the court’s December

18 order, Wife had taken the property off the market and relisted it the week of 

January 13 with a new realtor for $199,000. Husband claimed that Wife was

“toying” with him, as she was “attempting to show that she is complying with

the Court’s Order to attempt to sell the residence, however, after any deadline 

in this case, [she] discontinues her attempt to sell the residence by removing the 

home from the real estate market or other means.” Id. at 57. Because over seven 

years had passed and Wife had still not refinanced or sold the property, 

Husband asked the court to order the property to be sold at an auction. On 

January 22, the court granted Husband’s motion and ordered the parties to 

agree to an auctioneer within seven days. Id. at 62. When Wife did not agree to 

2 Wife requested a transcript of this hearing in her notice of appeal. However, the CCS is silent as to whether 

a hearing was held on December 16. In addition, the table of contents for the transcript says no hearing took 

place on December 16. See Tr. Vol. I p. 2. 
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an auctioneer, Father asked the court to appoint one. The court appointed an 

auctioneer on February 10.

[11] Wife now appeals the trial court’s January 22 and February 10 orders, which 

have been stayed pending appeal.

Discussion and Decision

[12] Wife contends that the trial court erred by ordering an auction of the property. 

Specifically, she argues that the court’s order constituted an “improper 

modification” of the parties’ 2012 settlement agreement, which provided that

Wife would refinance the property. Appellant’s Br. p. 9. The problem with this 

argument is that the parties themselves agreed at the February 2019 hearing—

almost a year before the court ordered the auction—that the property would be 

sold rather than refinanced. See Appellant’s Reply Br. p. 5 (Wife admitting she 

“agreed to a sale of the residence”). In other words, it was the parties, not the 

court, who modified the 2012 settlement agreement. See Ind. Code § 31-15-2-17

(parties may agree to a property settlement but once that agreement is 

“incorporated and merged into the decree[, it] is not subject to subsequent

modification by the court, except as the agreement prescribes or the parties 

subsequently consent”). 

[13] Wife argues that her agreement to the property being sold instead of refinanced

did not include auctioning it because “[a]n auction of real estate is significantly 

different from the sale of real estate” and that therefore the court erred in 
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ordering the property to be sold at an auction. Appellant’s Br. p. 10. We 

disagree. First, an auction is a sale, so the court’s order is ultimately just an 

enforcement of the parties’ own agreement. Second, Husband has been waiting 

eight years to get his name off the mortgage. After the parties agreed at the 

February 2019 hearing to modify their 2012 settlement agreement, the court 

ordered Wife to sell the property on several occasions. Despite being given 

multiple chances, Wife did not sell the property. Instead, she listed the property 

above market value and even took it off the market twice. When the court 

warned Wife in December 2019 that if she didn’t sell the property within thirty 

days it reserved the right to order it to be sold at an auction, Wife did not 

challenge the court’s authority to order an auction or ask for more time. And 

when those thirty days passed with no word from Wife, Husband asked the 

court to order an auction, and the court granted Husband’s request. Because

eight years have now passed since Wife agreed to refinance the property at “her 

earliest possible opportunity,” the parties agreed in February 2019 that the 

property would be sold instead of refinanced, and the court warned Wife that 

an auction would be the next step if she did not sell the property, the court did 

not err when it ordered the property to be sold at an auction when Wife did not 

sell it. 

[14] Wife makes a related argument that the trial court denied her “due process of 

law” when it ordered the property to be sold at an auction “without the right to 

be heard.” Appellant’s Br. p. 7. Wife, however, was given the right to be heard. 

The court first floated the idea of an auction at the October 10 hearing; 
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however, Wife voiced no objection to this idea. On December 18, the court 

ordered that if Wife didn’t sell the property within thirty days, it reserved the 

right to sell the property at an auction. But Wife filed nothing in response to this 

order, such as alleging that the court did not have the authority to order an 

auction or requesting more time. Wife had at least thirty days to “be heard” on 

the issue of an auction but remained silent. There was no due-process violation. 

[15] Affirmed. 

Bailey, J., and Baker, Sr. J., concur.