Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-198 | January 20, 2016 Page 1 of 12

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

Robert C. Becker

Richards, Boje, Pickering, 

Benner & Becker

Noblesville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Robert J. Lunsford,

Appellant-Defendant,

v.

Laurie (Lunsford) Knight,

Appellee-Plaintiff

January 20, 2016

Court of Appeals Case No.

29A02-1503-DR-198

Appeal from the Hamilton 

Superior Court

The Honorable David K. Najjar, 

Special Judge 

Trial Court Cause No.

29D02-0609-DR-934

Mathias, Judge.

[1] The marriage of Robert Lunsford (“Husband”) and Laurie (Lunsford) Knight 

(“Wife”) was dissolved in the Hamilton Superior Court in 2007. In 2011, Wife 

filed an affidavit for contempt citation because she did not receive payment as 
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agreed under the parties’ settlement agreement and subsequent agreed entry. 

The trial court did not find Husband in contempt but found that Husband owed 

Wife money under the agreements and that he was entitled to a $104,000 credit. 

The trial court did not issue an order until 2014 after Wife filed a motion to 

reduce to judgment. The court ordered Husband to pay Wife $896,000 under 

the parties’ settlement agreement and agreed entry. Husband filed a motion to 

correct error, which the trial court denied. Husband now appeals and raises the 

following two issues, which we restate as:

I. Whether the trial court erred in entering a post-dissolution judgment 

against Husband for proceeds from the sale of real estate when the real 

estate at issue sold at sheriff’s sale in foreclosure, rather than through a 

sale by Husband to a private, third party; and,

II. Whether the trial court erred in entering a post-dissolution judgment 

against Husband for a contingent payment to be made to Wife if Wife 

received bi-weekly psychological treatment, when she failed to provide 

proof of that treatment.

We affirm in part, reverse in part, and remand for proceedings consistent with 

this opinion.

Facts and Procedural History

[2] On September 7, 2007, Husband and Wife’s marriage was dissolved in 

Hamilton Superior Court. The parties’ decree of dissolution incorporated a final 

settlement agreement. The relevant part of the settlement agreement provides:

9. To effectuate an equitable distribution of the marital estate, 

Husband shall pay Wife the sum of $500,000 upon the sale of the 

Schulley Road real estate. In addition, Husband shall pay Wife 
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the sum of $100,000 per year for five years, with the first 

payment on or before November 15, 2007, and annually 

thereafter until paid in full. In the event that Husband fails to pay 

the amounts set forth above, Wife can request that Husband’s 

business interests be sold in order to satisfy the financial 

obligations set forth in this paragraph. 

Appellant’s App. p. 22. 

[3] The parties modified the settlement agreement with an agreed entry on March 

25, 2008, which in part provides: 

2. Pursuant to paragraph #9 of the Final Settlement Agreement 

incorporated in the Decree of Dissolution, respondent was 

obligated to pay petitioner the sum of $100,000 per year for five 

years. With respect to the $100,000 due in 2008, said obligation 

shall be satisfied whereby respondent shall pay the sum of $4,000 

per month commencing on April 15, 2008, and monthly 

thereafter with the balance of $68,000 to be paid on November 

15, 2008. Said payments are contingent upon the petitioner 

obtaining treatment with a psychologist on a biweekly basis until 

November 2008. Petitioner shall sign a release with her treating 

psychologist so that the respondent can verify treatment. 

Petitioner is not obligated to release any of her mental health 

records other than that she is being treated. In the event the 

respondent fails to pay the amount set forth above, petitioner can 

stop seeing a psychologist and she can seek to obtain a judgment 

for any unpaid amounts.

Appellant’s App. pp. 26-27. 

[4] On January 26, 2011, Wife filed an affidavit for contempt citation alleging that 

Husband had not paid her $500,000 upon the sale of the Schulley Road real 
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estate1 and that Husband had only paid $104,000 toward his obligations 

outlined in the settlement agreement and subsequent agreed entry. The trial 

court held a contempt hearing on March 28, 2011, and concluded that Husband 

was not in contempt but that Wife was “entitled to judgment in the unpaid 

amounts, in the amounts that were to be paid but not have been paid given [sic]

Mr. Lunsford credit for $104,000.00 in payments.” Tr. p. 22. The trial court did 

not enter a judgment in favor of Wife following the hearing.2

[5] On March 21, 2014, Wife filed a motion to reduce to judgment because no 

written order had been entered after the March 28, 2011 hearing. The trial court 

held a hearing on September 23, 2014, and issued a judgment on October 13, 

2014, for $896,0003 against Husband for unpaid obligations under the parties’ 

settlement agreement and agreed entry. Husband filed a motion to correct error 

on October 30, 2014, which the trial court subsequently denied. Husband now 

appeals.

 

1 Sometime after the entry of the parties’ decree of dissolution and final settlement agreement on September 

7, 2007, and before the hearing on Wife’s contempt petition on March 28, 2011, the Schulley Road real estate 

referred to in Paragraph 9 of the parties’ final settlement agreement was foreclosed and sold at a sheriff’s sale.

2 It is not entirely clear why the trial court did not enter a judgment after the March 28, 2011, hearing. Based 

on the transcript, it appears that Wife’s proposed order that was submitted to the court was marked with a 

post-it-note labeled, “Hold.” Tr. p. 30.

3 The trial court’s judgment included the amount owed to Wife by Husband upon the sale of the Schulley 

Road real estate, the 2008 contingent payment for which Wife was required to provide verification of biweekly psychological treatment, and the remaining three $100,000 payments Husband agreed to pay Wife in 

the settlement agreement.
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Standard of Review

[6] We must first note that Wife did not file an appellee’s brief. When an appellee 

fails to submit a brief, we do not undertake the burden of developing appellee’s 

arguments, and we apply a less stringent standard of review. Jenkins v. Jenkins, 

17 N.E.3d 350, 351 (Ind. Ct. App. 2014). We may reverse if the appellant 

establishes prima facie error, which is error at first sight, on first appearance, or 

on the face of it. Id. at 351-52. The prima facie error rule relieves our court from 

the burden of controverting arguments advanced in favor of reversal where that 

burden properly rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 

(Ind. Ct. App. 2002). We are still obligated to correctly apply the law to the 

facts in the record to determine whether reversal is required. Jenkins, 17 N.E.3d 

at 352. 

Discussion and Decision

[7] Husband argues that the trial court erred in entering a judgment against him 

that included payment to be made to Wife upon the sale of real estate when the 

real estate was not sold. Husband also argues that Wife was required to obtain

bi-weekly psychological treatment to receive the 2008 payment, but she failed to 

provide proof of treatment. Specifically, Husband contends that the trial court 

did not consider the plain and ordinary meaning of the parties’ settlement 

agreement and subsequent agreed entry when it entered its judgment in favor of 

Wife.
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[8] When dissolving a marriage, parties are free to negotiate their own settlement 

agreements and may incorporate those into a dissolution decree. Ind. Code § 

31-15-2-17. The settlement agreements then become binding contracts and are 

interpreted according to the general rules of contract construction. Shorter v. 

Shorter, 851 N.E.2d 378, 382-83 (Ind. Ct. App. 2006). 

[9] Unless the terms of the contract are ambiguous, they will be given their plain 

and ordinary meaning. Id. at 383. Clear 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. Terms are not ambiguous merely because the parties disagree as 

to the proper interpretation of those terms. Id. However, any ambiguity in a 

contract is construed against its drafter. Barney v. StoneMor Operating LLC, 953 

N.E.2d 554, 558 (Ind. Ct. App. 2011).

[10] Our supreme court has determined that the dissolution court that enters a 

property settlement agreement is in the best position to resolve questions of 

interpretation and enforcement of that agreement and thus retain jurisdiction to 

interpret the terms of their property settlement agreements and to enforce them. 

Shorter, 851 N.E.2d at 383. Nonetheless, interpretation of a settlement 

agreement, as with any other contract, presents a question of law, and we 

review it de novo. Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind. 2008). 
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A. The Schulley Road Real Estate

[11] Husband argues that the trial court did not consider the plain and ordinary 

meaning of the parties’ settlement agreement which provides, “Husband shall 

pay Wife the sum of $500,000 upon the sale of the Schulley Road real estate.” 

Appellant’s App. p. 22. Husband testified at the March 28, 2011 hearing that 

the Schulley Road real estate was foreclosed, and he obtained no proceeds from 

the sale. Tr. p. 16. Husband also testified that the property was sold at a sheriff’s 

sale. Tr. pp. 10, 16. 

[12] In considering the plain and ordinary meaning of this provision, it specifically 

states, “upon the sale of the real estate.” Wife reasonably expected to receive 

$500,000 when the real estate sold. Even though the real estate was sold at a 

sheriff’s sale that produced no proceeds for Husband, a sale still occurred. If 

Husband only intended to pay Wife if the sale produced net proceeds to him,

then the agreed entry could have included that in the language of the provision. 

Husband had the opportunity to ensure that his interests were protected in the 

agreed entry because his attorney drafted both the settlement agreement and the 

agreed entry.4 As a result, any ambiguity is construed against Husband. 

[13] This result is also contemplated by the provision in the settlement agreement

that allows Wife to seek the sale of Husband’s business assets if Husband fails

to pay Wife $500,000 upon the sale of the Schulley Road real estate or if he fails 

 

4 Wife consented to be unrepresented by counsel in signing the settlement agreement and agreed entry.
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to pay his $100,000 per year obligation to Wife. Therefore, the plain language 

of the agreement establishes Husband’s intent to pay Wife regardless of any 

profit or monetary gain the real estate sale generated. For all of these reasons, 

the trial court did not err in concluding that a sale of the Schulley Road real 

estate occurred and in including $500,000 in its judgment in favor of Wife.

B. Contingent Payment Based on Wife’s Psychological Treatment

[14] Husband also contends that the trial court erred in not applying the plain and 

ordinary meaning to the 2008 contingent payment provision. Husband agreed 

to pay Wife $4,000 per month beginning in April 2008 with the remaining 

$68,000 to be paid in November 2008, as long as Wife obtained verifiable biweekly treatment with a psychologist until November 2008.5 Although 

Husband contends that the court erred in interpreting the parties’ agreement, he 

specifically focuses on the fact that Wife never provided verification for her 

psychological treatment in 2008.

[15] The March 28, 2011, contempt hearing was clearly set to hear evidence on 

Husband’s liability for the $500,000 payment and to establish the extent of his 

liability on the $100,000 per year payments, one of which was contingent on 

proof of Wife receiving psychological counseling. However, the record discloses 

no evidence presented showing that Wife had obtained psychological treatment 

 

5 The parties’ settlement agreement provided that Husband pay Wife $100,000 for five consecutive years. The 

agreed entry only modified the 2008 payment. Husband does not dispute the amounts owed in 2009, 2010, 

and 2011 payments on appeal, so we will not address them here.
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as provided in the parties’ agreed entry. Neither party even mentioned that the 

2008 payment was contingent on Wife obtaining verifiable bi-weekly 

psychological treatment during the hearing. It was not until the September 23, 

2014, hearing on Wife’s motion to reduce to judgment that Husband argued 

that he did not owe Wife $100,000 for 2008 because she failed to provide 

verification of psychological treatment.6

[16] Nonetheless, because Wife filed her affidavit for contempt and set the March 

hearing, she had the burden to establish at that hearing that she was entitled to 

a judgment that included the 2008 payment by providing verification of her 

psychological treatment. “The burden of proof is normally allocated to a partyplaintiff initiating a proceeding and seeking relief.” Washington Twp. Fire Dep’t v. 

Beltway Surgery Ctr., 911 N.E.2d 590, 596 (Ind. Ct. App. 2009), trans. granted, 

opinion vacated (Feb. 24, 2010), opinion adopted sub nom, Washington Twp. Fire 

Dep’t v. Beltway Surgery Ctr., 921 N.E.2d 825 (Ind. 2010). Because Wife 

presented no evidence at the contempt hearing that she received bi-weekly 

psychological treatment from the time the agreed entry was signed in March 

2008 until November 2008, she is not entitled to the 2008 payment under the 

parties’ agreed entry. 

[17] Further, Husband is entitled to a $4,000 credit based on the April 15, 2008 

payment because it was part of the contingent provision requiring Wife to 

 

6 The record reflects that Husband paid Wife $4,000 on April 15, 2008 but made no further payments to Wife 

in 2008 as agreed. Tr. p. 19.
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provide verification of psychological treatment, which she failed to do.7 On 

remand, the trial court should add an additional $96,000 credit to Husband’s

already recognized 2007 payment credit of $104,000. This amounts to a total 

credit of $200,000 to be applied toward the post-dissolution judgment against 

him in favor of Wife.

Conclusion

[18] The trial court did not err in entering a post-dissolution judgment in favor of 

Wife against Husband that included payment based upon the sale of the 

Schulley Road real estate. However, we conclude that the trial court erred in 

adding the 2008 payment based on Wife’s lack of proof of the bi-weekly 

psychological treatment called for in the parties’ agreed entry as a condition 

precedent to Husband’s liability for those amounts. We therefore remand this 

case to the trial court for proceedings consistent with this opinion. 

[19] Affirmed in part, reversed in part, and remanded for proceedings consistent 

with this opinion. 

Bailey, J., concurs. 

Baker, J., concurs in part and dissents in part with opinion. 

 

7 The trial court credited Husband for this payment in its October 13, 2014, order. Appellant’s Br. at 12.
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IN THE

COURT OF APPEALS OF INDIANA

Robert J. Lunsford,

Appellant-Defendant,

v.

Laurie (Lunsford) Knight,

Appellee-Plaintiff.

Court of Appeals Case No.

29A02-1503-DR-198

Baker, Judge, concurring in part and dissenting in part.

[1] I fully concur with the majority on the first issue regarding the Schulley Road 

real estate. I respectfully dissent, however, on the second issue. The 2008 agreed 

entry provides that Husband’s 2008 $100,000 yearly obligation could have been 

satisfied by monthly payments of $4,000 and a final balance payment to be 

made at the end of the year. Wife, however, was only entitled to receive regular 

payments in this fashion if she provided proof that she was obtaining biweekly 

treatment by a psychologist. She did not provide this proof to Husband, nor did 

she provide any evidence to the trial court that she had received this treatment. 

As a result, Husband was not required to make the monthly payments of 

$4,000. 
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[2] This conclusion does not, however, mean that he does not owe Wife $100,000 

for 2008. It is apparent to me that the 2008 agreed entry modified the manner in 

which his obligation could be satisfied rather than modifying the obligation 

itself. In other words, nothing in the 2008 agreed entry changes the fact that he 

is required to pay Wife $100,000 per year for five years. As a result, I would 

affirm the trial court’s order with respect to the balance owed by Husband for 

2008. In all other respects, I concur with the majority.