Court of Appeals of Indiana | Memorandum Decision 18A-DR-794 | August 9, 2018 Page 1 of 11

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

Angela L. Freel

Jackson Kelly, PLLC

Evansville, Indiana

ATTORNEY FOR APPELLEE

Kelly A. Lonnberg

Stoll Keenon Ogden, PLLC

Evansville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In Re the Marriage of:

Jeffrey E. Nelson,

Appellant-Respondent,

v.

Julie A. Nelson,

Appellee-Petitioner.

August 9, 2018

Court of Appeals Cause No.

18A-DR-794

Appeal from the Vanderburgh 

Superior Court

The Honorable Leslie C. Shively, 

Judge

Trial Court Cause No. 82D01-1601-

DR-32

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-794 | August 9, 2018 Page 2 of 11

STATEMENT OF THE CASE

[1] Appellant- Respondent, Jeffrey Nelson (Husband), appeals the provisional

order requiring the sale of the matrimonial home he jointly owns with AppelleePetitioner, Julie Nelson (Wife). 

[2] We reverse.

ISSUE

[3] Husband presents a single issue on appeal, which we restate as: Whether the 

trial court erred by ordering the sale of the parties’ matrimonial home through a 

provisional order. 

FACTS AND PROCEDURAL HISTORY

[4] On April 28, 2012, the parties married in Illinois. A day before their wedding, 

the parties executed a prenuptial agreement (Agreement). The parties 

respectively attached to the Agreement, Schedule A and Schedule B outlining 

Husband’s and Wife’s premarital assets and debts. In addition, the Agreement

contained clauses stipulating that it is to be construed under Illinois law.

[5] On January 8, 2016, Wife filed a Verified Petition for Dissolution of Marriage

and a Verified Motion for Provisional Order, seeking spousal support and the 

preliminary award of attorney fees. On May 2, 2016, the trial court issued a 

Provisional Order maintaining the status quo, and that meant that parties were 

not allowed to sell jointly held property. The order required Husband to pay 

Wife’s rent; however, Wife was responsible for her utilities. Also, Husband was 
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ordered to pay monthly support of $2,500 to Wife, as well as $2,000 to Wife’s 

attorney. Husband was granted temporary possession of the marital home 

located at 1000 Oak Trace Road, Evansville, Indiana, however, Husband was 

required to maintain the home and pay for all of its debts and expenses. 

[6] On October 3, 2017, Wife filed an Information for Contempt and Petition for 

Expert and Attorney Fees. Wife alleged that Husband should be found in 

contempt since he had “abandoned the home, left it in disrepair, damaged some 

of the personal property[,] and not maintained the home in selling condition.” 

(Appellant’s App. Vol. II, p. 66). Wife claimed that the Provisional Order 

required Husband to “permit a personal property appraisal,” but, “Husband 

[had] refused to allow certain items of personal property to be appraised.” 

(Appellant’s App. Vol. II, p. 67). Also, Wife argued that Husband had not paid 

the bi-annual property taxes and annual home insurance. Wife additionally

alleged that Husband was “not residing primarily in the marital residence” and 

that the “residence should be listed for sale.” (Appellant’s App. Vol. II, p. 67). 

Finally, Wife requested the award of additional attorney fees and expert witness 

fees.

[7] On January 2, 2018, the trial court conducted a hearing on Wife’s contempt 

petition. On January 29, 2018, the trial court issued a Supplemental 

Provisional Order directing Husband to pay all pending debts and taxes relating 

to the parties’ home no later than January 31, 2018. Also, Husband was 

ordered to pay additional attorney and expert witness fees, and the trial court 

noted that Husband was free to claim a partial set-off at the final hearing. The 
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trial court denied Wife’s request to possess the marital residence. However, the 

trial court allowed Wife or her counsel to access the “house and take pictures” 

of personal property for appraisal purposes. (Appellant’s App. Vol. II, p. 79). 

Husband appealed that order, mainly challenging the award of attorney and 

expert fees in favor of Wife. In addition to filing his notice of appeal, Husband 

filed a motion to stay the Supplemental Provisional order due to his Notice of 

Appeal.

[8] On February 26, 2018, the trial court conducted a hearing on Husband’s 

motion to stay the Supplemental Provisional Order pending his appeal. On 

March 26, 2018, the trial court granted stay on the payment of attorney and 

expert fees pending the resolution of Husband’s appeal on that issue. The trial 

court then ordered as follows:

2. The parties are ordered to list the jointly owned real estate for sale 

with Carol McClintock of Tucker Realty or Janice Miller of ERA 

Realty effective immediately over . . . Husband’s objection.

3. Any offers should be made to the realtor and then discussed 

between the parties, whether offers come from a party or third parties.

4. Should the parties not agree to accept any offer received or agree on 

a counteroffer, the [trial court] will retain jurisdiction and hearing will 

be scheduled. 

5. Parties are ordered not to distribute any net sale proceeds and said 

monies shall be held in the trust account of Husband’s counsel.

6. Final hearing set for April 4, 2018, is vacated and reset to August 

13, 2018, at 9:00 a.m., reserving two days.
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(Appellant’s App. Vol. II, p. 15). 

[9] Husband now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[10] A question which we must decide, and which has received considerable 

attention by both parties, concerns the law which should govern this dispute. 

Wife has taken the position that the substantive law of Illinois should apply, 

while Husband favors the application of Indiana procedural law.

[11] The parties’ prenuptial agreement defined and delineated the parties premarital 

property and debts; determined how marital property is to be divided upon 

divorce; and stipulated the application of Illinois law on substantive issues. 

With that said, the following provisions are pertinent to this appeal:

3. Assets and Liabilities as Separate Property. Each of the parties 

agree that all property, whether real or personal, belonging to the other 

party at the commencement of their marriage, and as outlined in 

Schedules A and B attached hereto, including, if applicable, any assets 

acquired by each of them in their separate names while living together 

outside the marital relationship or attributable to any appreciation in 

value of such property, whether such enhancement is due to market 

conditions or to the services, skills or efforts of either of the parties and 

all property hereafter acquired by the other party by either bequest, 

devise, gift or inheritance, and all property acquired in exchange for 

separate property, shall remain the separate property of the other party 

during their lifetime and after their death and in the event of a divorce, 

annulment, separation or dissolution subject to agreements herein 

contained, excluding any property acquired by either bequest, devise, 

gift or inheritance or otherwise addressed hereto.
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Excluding any property, real or personal, acquired by either bequest, 

devise, gift or inheritance or otherwise addressed heretofore, the 

parties further agree that any property, assets, proceeds, jointly held 

accounts, furniture, furnishings shall be considered to be marital 

property. Marital property shall also include any property acquired 

before the marriage which is given to the spouse by retitling in the 

other spouse’s name or in the joint name of the parties with the right of 

survivorship during the period of marriage. Upon the divorce, 

annulment, separation or dissolution, then the property obtained 

during the course of marriage shall be divided equally between the 

parties, even in the event the property, proceeds, or assets acquired 

after the date of marriage are titled in only one parties’ name so long as 

the above described marital funds, assets, proceeds or income are 

utilized for the acquisition of the property.

***

11. Construction. The terms and provisions of this Agreement shall 

be construed and interpreted in accordance with the law of the 

jurisdiction of the State of Illinois in such case made and provided, 

whether or not the parties continue to reside in the State of Illinois 

subsequent to their marriage.

***

25. Illinois Law To Be Applied. In the event that at any time during 

the existence of the marital relation between the parties, they should be 

or become residents of a state under the laws of which Husband and 

Wife acquire property interests commonly known as community 

property or any other property and interests different from the property 

interests of Husband and Wife under the laws of the State of Illinois, 

their property interests shall nevertheless remain the same as they 

would have been under the terms of the of this Agreement construed in 

accordance with the laws of the State of Illinois . . . .

(Appellant’s App. Vol. II, pp, 56,58). In light of the above provisions, Husband 

subsequently argues that
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[T]he fact the parties entered into a [p]renuptial Agreement with an 

Illinois choice of law provision does not impact or alter the fact the 

procedural law of Indiana controls in this case. Per statute, the parties 

may request and potentially receive, if appropriate, orders for 

temporary maintenance or support, temporary restraining orders, 

custody orders, and orders for the possession of property. The 

statutory provisions do not, however, provide for the sale of real estate 

during the provisional period. For that reason alone, the trial court’s 

order should be reversed.

(Appellant’s Br. p. 8). In turn, Wife contends that the parties’ prenuptial 

agreement calls for the application of Illinois law on the disposition of marital 

assets. Wife then directs us to Section 501 (a)(3) of the Illinois Marriage and 

Dissolution of Marriage Act, which provides that temporary orders during 

divorce proceedings may include the “sale of assets.” Wife, therefore sustains 

that “Illinois substantive law allows for an order to sell real estate during the 

pendency of a divorce action,” and the trial court’s order requiring the parties to 

list their marital home for sale is not erroneous. (Appellees’ Br. p. 6). 

[12] Generally, Indiana courts will give effect to the parties’ agreement as to 

controlling law. JKL Components Corp. v. Insul-Reps, Inc., 596 N.E.2d 945, 950 

(Ind. Ct. App. 1992). A contract provision that an agreement is to be governed 

by the law of another state operates only as to the substantive law of that state, 

and the procedural law of the forum state applies to procedural issues. Simon

Prop. Grp., L.P. v. Acton Enterprises, Inc., 827 N.E.2d 1235, 1237 (Ind. Ct. App. 

2005). Laws which fix duties, establish rights and responsibilities among and 

for persons, natural or otherwise, are substantive in character, while those 

which merely prescribe the manner in which such rights and responsibilities 
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may be exercised and enforced in a court are procedural. JKL Components Corp., 

596 N.E.2d at 950. 

[13] Husband argues that

First, in reviewing the [Indiana] statutory provisions, one will note 

provisional orders are initiated by motion of the parties accompanied 

by a separate affidavit. A hearing is then required with an order to 

follow. Per the statute, the parties may not request the sale of real 

estate and/or obtain an order for the sale of real estate. They may 

merely request the possession of property. Moreover, the trial court 

may enter an order for the possession of property, but not an order for 

the sale of said property. All of which is consistent with the temporary 

nature of the orders, and the goal of maintaining the status quo while 

the dissolution of marriage action is pending.

Herein, there was no motion for provisional relief pending before the 

trial court. The motion before the court was a request to stay 

enforcement of the Supplemental Provisional Order while [his] appeal 

was pending. The last motion filed by either party regarding the real 

estate was [Wife’s] . . . Information for Contempt. A hearing was 

conducted on the same, and no finding of contempt was issued. 

[Wife’s] . . . request for immediate possession of the marital residence 

was denied, and there was no order issued for the sale of any real 

estate. For whatever reason, at the hearing on [Husband’s] motion to 

stay, the trial court on its own motion, and over the objection of 

[Husband], ordered the parties’ jointly owned real estate be 

immediately listed for sale. The trial court’s order was clearly outside 

the statutory authority, and the trial court should be reversed. 

(Appellant’s Br. pp. 11-12). 

[14] To the extent that Husband refers to the arguments proffered at the hearing on 

his motion to stay the Supplemental Provisional Order, we observe that 

Husband failed to provide that transcript. Although a failure to include a 
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transcript is “not fatal to the appeal, failure to include a transcript works a 

waiver of any specifications of error which depend upon the evidence.” Lifeline 

Youth & Family Servs., Inc., v. Installed Bldg. Products, Inc., 996 N.E.2d 808, 814 

(Ind. Ct. App. 2013) (quoting In re Walker, 665 N.E.2d 586, 588 (Ind. 1996)). 

Husband has chosen to rest his appeal on the “appendices and supplement 

appendix filed by the parties along with the legal arguments raised” in his 

appellate brief. (Appellant’s Reply Br. p. 5). Husband’s arguments on appeal 

are centered on the interpretation and scope of Indiana Code section 31-15-4-8 

governing provisional orders during dissolution proceedings. 

[15] We review the construction of statutes de novo, giving no deference to the trial 

court’s interpretation because the interpretation of a statute is a question of law. 

Kaser v. Barker, 811 N.E.2d 930, 932 (Ind. Ct. App. 2004), trans. denied. 

Appellate courts independently review the statute’s meaning and apply it to the 

facts of the case under review. Id. We may not construe a statute in a manner 

that would impair the function the legislature intended it to possess. Id. Our 

goal is to ascertain the intent of the legislature by giving effect to the language 

that was used. Id. If the language of a statute is clear and unambiguous, it is 

not subject to judicial interpretation. Id. We must not interpret one provision 

of a statute so as to render other provisions of the same meaningless. Id. 

[16] In our view, Indiana Code section 31-15-4-8, is a procedural statute, therefore, 

we conclude that this controversy must be governed by the law of the forum 

state, i.e.,. Indiana. See Homer v. Guzulaitis, 567 N.E.2d 153, 156 (Ind. Ct. App.

1991). Because this controversy may be resolved by procedural law without 
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resort to substantive law, the contractual provision regarding Illinois choice of 

law does not govern this dispute, and we apply Indiana law. See Ashley v. State, 

757 N.E.2d 1037, 1040 (Ind. Ct. App. 2001) (noting that procedural and 

remedial matters are governed by law of forum state).

[17] Applying Indiana law in this appeal, we first note Indiana Code section 31-15-

4-1(a) provides that either party to a dissolution action or legal separation 

action may file a motion for temporary relief. Such motions must be 

accompanied by an affidavit setting forth the facts supporting the motion. I.C.

§ 31-15-4-2. A trial court is required to set such motions for hearing, and must 

hold the hearing and rule on the petition within twenty-one days after the 

petition is filed. I.C. § 31-15-4-4; -6. “The determination of temporary orders 

in a dissolution proceeding is committed to the sound discretion of the trial 

court, and it may issue orders for temporary maintenance or support, temporary 

restraining orders, custody orders, [or] orders for possession of property to the 

extent it deems just and proper.” Id. (citing I.C. § 31-15-4-8). The provisional 

order “is designed to maintain the status quo of the parties.” Mosley v. Mosley, 

906 N.E.2d 928, 929 (Ind. Ct. App. 2009) (quoting Bertholet v. Bertholet, 725 

N.E.2d 487, 498 (Ind. Ct. App. 2000)). “A provisional order is temporary in 

nature and terminates when the final dissolution decree is entered or the 

petition for dissolution is dismissed.” Id. at 930 (citing Ind. Code § 31-15-4-14). 

[18] We agree with Husband that there was no motion for provisional relief pending 

before the trial court. The motion before the trial court was a request to stay 

enforcement of the Supplemental Provisional Order pending Husband’s appeal. 
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Moreover, Indiana Code section 31-15-4-8 provides the scope of a provisional 

orders—i.e., temporary maintenance or support, temporary restraining orders, 

custody orders, or orders for possession of property. There is no provision

under Indiana Code section 31-15-4-8 authorizing the sale of martial assets 

while divorce proceedings are ongoing. Based on our interpretation of the 

relevant statutory provisions, we conclude that the trial court’s order instructing 

the parties to list their matrimonial home for sale during divorce proceedings is 

erroneous, therefore, we reverse that order. 

CONCLUSION

[19] In light of the foregoing, we conclude that the trial court erred by ordering the 

sale of the matrimonial home while the parties’ divorce is pending. 

[20] Reversed. 

[21] May, J. and Mathias, J. concur