Court of Appeals of Indiana | Opinion 33A01

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- 1024 | March 17, 2016 Page 1 of 12 A TTORNEY FOR A PPELLANT Abbigail A. Rohmiller Amy Noe Law Richmond, Indiana A TTORNEY S FOR A PPELLEE R. Scott Hayes Joel E. Harvey Hayes Copenhaver Crider Harvey, LLP New Castle, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Jeffery Allen Ring , Appellant

- Respondent ,

v. 

### Kimberly S. Ring, Appellee

- Petitioner. March 17, 2016 Court of Appeals Ca se No. 33A01

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- 1024 Appeal from the Henry C ircuit Court The Honorable Mary G. Willis, Judge Trial Court Cause No. 33C01

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- 282

Riley , Judge
.Court of Appeals of Indiana | Opinion 33A01

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- 1024 | March 17, 2016 Page 2 of 12 

### STATEMENT OF THE CASE

[1] Appellant

- Respondent, Jeffery A. Ring ( Jeffery ), appeals the trial court’s Order
A ppointing Commissioner to Operate and Sell F arm Real Estate to Satisfy Petitioner’s Judgment following its Decree of Dissolution of Marriage to Appellee

- Petitioner, Kimberly S. Ring ( Kimberly ).

[2] We affirm in part , and reverse in part

.


### ISSUE S

[3] Jeffery raises one issue on appeal, which we restate as follo ws :
1) Whether the parties’ subsequent agreement to sell a small parcel of a farm was a permissible modification of the dissolution decree ; and
2) Whether the trial court ’s appointment of a commissioner to operate and sell the farm following Jeffery’s non

- comp liance with the terms of the dissolution decree was a n im permissible modification of the dissolution decree

.


### FACTS AND PROCEDURAL HISTORY

[4] Jeffery and Kimberly were married in October 1991. During their marriage, they had two children, both of whom are emancipated. Jeffery was a farmer and Kimberly worked for the Union School Corporation. Jeffery farmed his

own land as well as rented agricultural land

. By th e time the parties separated, they had acquired two parcels of farm land, one consisting of approximately 145 acres ( Parcel A ) and one consisting of approximately 79 acres ( Parcel B ) , silage,Court of Appeals of Indiana | Opinion 33A01

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- 1024 | March 17, 2016 Page 3 of 12 farming equipment, machinery, livestock, and other property. Par cel A was valued at $929,500 , and Parcel B was valued at $471,600 . Both parcels secure d three loans with a total amount of approximately $170,000

. 1 At the time of the separation, the total marital estate, after subtracting liabilities, had a value of $2, 353,854.89.

[5] On October 18, 2012 , Kimberly filed a petition to dissolve the parties’ marriage. The trial court held a final dissolution hearing on November 19, 2014 and entered its Decree of Dissolution of Marriage on December 9, 2014. The trial court determined that an equal division of the marital estate betw een the parties was equitable and granted Jeffery possession of the marital home, Parcel A and Parcel B , and farming equipment. To realize the equitable distribution of the martial estate, the trial court ordered Jeffery to pay $1,140,825.45 t o Kimberly under the following conditions:
[Jeffery] has testified that he has made [an] effort to borrow funds and that he is able to borrow the sum of $400,000. The [trial court] directs him to do so immediately and directs [Kimberly] to cooperate by signing such documents as are necessary to enable [Jeffery] to borrow against [ Parcel A and Parcel B ]. In the event [Jeffery] is unable to borrow said sum, he is directed to borrow the maximum amount tha t he can borrow and to pay the same to [Kimberly] immediately. [Jeffery] shall have ninety (90) days from the date of this [D] ecree to complete the l o an application

1 Jeffery admits to the total loan amount, but does not specify the distribution of it as to the parcels of land

. ( Ex. 2 ); (Transcript p. 35).Court of Appeals of Indiana | Opinion 33A01

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- 1024 | March 17, 2016 Page 4 of 12 process. Upon receiving funds, they shall be paid over to [Kimberly] immediately.

* * *
[ A fter payment of $400,000 to Kimberly , the balance ] shall be paid in full with interest at the rate of 5.5% per annum within ten (10) years of the date hereof with a minimum of $75,000 being paid each year on or before the anniversary of this Decree. T he judgment shall be a lien on all real estate owned by [Jeffery] junior in priority only to the loan [Jeffery] has been directed to obtain in this paragraph.
(Appellant’s App. pp. 51

- 52).

[6] Shortly thereafter , Jeffery and the parties’ son borrowed $413,000 from a bank to purchase a farm for the son. The new loan was secured by Parcel A. Due to the new loan, Jeffery was unable to obtain $400,000 to satisfy the judgment

.

[7] On March 23, 2015, Kimberly filed a Citation for Contempt alleging that Jeffery had failed to comply with the trial court’s order to complete the loan application process within ninety days from the Decree of Dissolution of Marriage

. 2 On May 18, 2015, Kimberly filed a Request for Orders to Enforce Decree of Dissolution of Marriage r equesting the trial court to appoint a commissioner to sell the farms to satisfy the judgment. The trial court held a hearing on June 17, 2015, and, on June 30, 2015, the trial court entered its

2 There is no indication in t he record that Jeffery was found in contempt for failing to complete the loan application

.Court of Appeals of Indiana | Opinion 33A01

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- 1024 | March 17, 2016 Page 5 of 12 order a ppointing Halderman Farm Management Service, Inc. (Co mmissioner) as a commissioner. The trial court authorized Commissioner to
[U]se its best efforts to maximize the value of the farms and the farming operation to achieve satisfaction of the judgment held by [Kimberly].

* * *
a. [T]ake possession and opera te the two (2) farms

. . . . b. [P]ay to the [c]ourt for the benefit of [Kimberly] all revenue generated by the farm operations over and above the costs expended to generate said revenue.
c. [P]ay itself for services consistent with its usual and custo mary management fees.

* * *
e. [S]ell so much of the farm real estate as Commissioner believes to be prudent to maximize the value of the said farm real estate . .

. . (Appellant’s App. p p. 76

- 77).

[8] On August 26, 2015, Kimberly filed another Citation fo r Contempt alleging that Jeffery made misleading representations to the trial court regarding his efforts to borrow the funds and that Jeffery failed to cooperate with Commissioner. On October 5, 2015, the trial court held a hearing on the citation. At t he conclusion of the hearing, Jeffery and Kimberly agreed thatCourt of Appeals of Indiana | Opinion 33A01

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- 1024 | March 17, 2016 Page 6 of 12 Commissioner would sell Parcel B to satisfy the judgment and that the c itation would remain pending. The trial court approved the parties’ agreement in its order on October 7, 2015.

[9] Jeffery n ow appeal s . Additional facts will be provided as necessary.



### DISCUSSION AND DECISION

I. Permissible Modification
[10] Jeffery ’s appeal is centered on the trial court’s appointment of Commissioner. After filing the appeal, however, Jeffery and Kimberly agreed to sell Parcel B with the help of Commissioner to satisfy the judgment. P roperty distribution settlements approved as part of a dissolution may be modified only where both parties consent or where there is fr aud, undue influence, or duress

. Johns on v. Johnson , 920 N.E. 2d 253, 258 (Ind. 2010); see also Marriage of Snow v. England, 862 N.E.2d 664, 668 (Ind. 2007) ( as with other contracts, a division of property may only be modified according to the terms of the agreement, if the parties consent , or if fraud or duress occurs ); Myers v. Myers , 560 N.E.2d 39, 42 (Ind. 1990) (a property settlement agreement incorporated into a final dissolution decree and order may not be modified unless the agreement so provides or th e parties subsequently consent ). As such, following our review of the record, we conclude that the parties’ subsequent agreement to sell Parcel B approved by the trial court was a permissible post

- dissolution modification of the ir property distribution settlement

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- 1024 | March 17, 2016 Page 7 of 12 I I. Impermissible Modif ication
[11] As to Parcel A, Jeffery argues that the appointment of Commissioner to operate and, if needed, sell the farms was an impermissible modification of the dissolution decree

. Kimberly responds that it was not a modification but an enforcement remedy p ursuant to Indiana Code section 31

- 15

- 7

- 10. 3

[12] Recently, o ur supreme court provided a comprehensive analysis of the law concerning the post

- dissolution modification of property distribution between former spouses in Ryan v. Ryan , 972 N.E.2d 359 (Ind. 2012). The Ryan court reviewed the language of Indiana Code sections 31

- 15

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- 17(c) and

- 7

- 9.1 and reiterated that the legislature unambiguously prohibited the post

- dissolution modification of property distribution agreement s between former spouses, except in case of fraud or where both parties consent , because they are economic in nature

— ordinary contracts

— and as with other contracts, may only be modified according to their terms

. Ryan , 972 N.E. at 361

- 63.

[13] Jeffery specifically points to the language of the dissoluti on decree and asserts that he was only r equired “to complete the loan application process within ninety days” and, if he fail ed to obtain the loan, to “borrow the maximum amount that he [could] borrow.” (Appellant’s Br. p. 5). Jeffery insists that ther e was no obliga tion to seek an outside person to manage or sell the land to satisfy the judgment. Although a court has no authority to modify a property

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3 Kimberly does not allege that their original agreement incorporated in to th e dissolution decree was made fraudulently.Court of Appeals of Indiana | Opinion 33A01

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- 1024 | March 17, 2016 Page 8 of 12 settlement agreement , it does not mean that a court has no author ity to resolve a dispute over the interpretation of a settlement agreement or property

- division order. Ryan , 972 N.E2d at 363. When a party asks a court to clarify a settlement agreement, the court ’ s task is one of contract interpretation. Id. This is because settlement agreements are contractual in nature and binding if approved by the trial court. Id. As s uch, a settlement agreement is interpreted according to the general rules for contract con struction. Id. at 364

. That is, unless the ter ms of the contract are ambiguous, they will be given their plain and ordinary meaning. Id. 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 wi ll merely apply the contractual provisions. Id. As this dispute requires us to interpret the decree of dissolution, our standard of review is de novo

. See , e.g. , Bd. of Comm ’ rs of Cnty. of Jefferson v. Teton Corp. , 30 N.E.3d 711, 713 (Ind. 2015)

.

[14] In Rya n, the parties agreed to sell two properties they owned and divide the proceeds, subject to a proviso that neither party was required to accept a sale yielding net proceeds below specified minimums. Ryan , 972 N.E.2d at 360. After almost 20 months on the market, the parties were unable to sell their properties, so the former husband moved the trial court to order the properties to be sold at the prevailing fair market value. Id . at 361. The trial court denied the motion an d, on appeal, our supreme court affirmed. Id . at 371. The Ryan court found that there was “no ambiguity in the language of the parties’ agreement that would permit [the court] to conclude as a matter of contract lawCourt of Appeals of Indiana | Opinion 33A01

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- 1024 | March 17, 2016 Page 9 of 12 that [the former wife was] bound to ag ree to sales prices for the properties ... less than those stated in the agreement.” Id . at 364

- 65. Even though, the former husband was trying to label his request as a clarification, in fact, it was a request to modify the original agreement. Id . at 365.

[15] Here, similarly, the language of the parties’ agreement was unambiguous. According to the dissolution decree, Jeffery was required to submit his loan application, and if denied, try again. There was no language requiring the parties to sell the la nd to satisfy the judgment in their original agreement.

[16] Kimberly, in turn, maintains that Jeffery’s assertion wa s a “mischaracterization” of the trial court’s order. (Appellee’s Br. p. 6). The trial court’s appointment of Commissioner, she continues, w as an enforcement remedy consistent with the appointment of a receiver, which was a permitted method of enforcing an order issued in a dissolution proceeding. To support her argument, Kimberly cites to Gore v. Gore , 527 N.E.2d 191 , 198 (Ind. Ct. App. 1988 ).

[17] In Gore , the former husband operated a pub. Id . at 192. After finding the former husband in contempt three times for violating the order restraining him from disposing of potential marital assets , the trial court appointed a receiver over the pub

. Id . On appeal, the Gore court reversed the imposition of the

rece ivership over the pub because there was no evidence presented to show that the receivership was necessary to secure ample justice to the parties. Id . at 199.Court of Appeals of Indiana | Opinion 33A01

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- 1024 | March 17, 2016 Page 10 of 12 “[A] receivership [over a busi ness operation] is a dangerous remedy which could injure rather than protect the marital estate.” Id

. The appointment of a receiver is essentially a prerogative of equity, which may be exercised as a means of conserving the property or assets for the be nefit of all parties in interest. The court will be authorized to appoint a receiver if it appears that, through fraud, mismanagement, misconduct, or otherwise, there is a likelihood that the property will be squandered, wasted, misappropriated or unlawfu lly diverted without the court’s intervention. But, absent threatened destruction or dissipation of the property , or where there is no good cause to believe that benefit would result from the appointment of a receiver, then the court should decline to mak e such an appointment. The power to appoint a receiver is a delicate one which is reluctantly exercised by the courts. The power to act rests very largely within the sound discretion of the court. A receiver should be appointed only when the court is sa tisfied that the appointment will promote the interests of one or both parties, that it will prevent manifest wrong, imminently impending, and that the injury resulting will not be greater than the injury sought to be averted.

Id . at 196

- 97 ( citations omi tted)

.

[18] We find the Gore court’s decision instructive. T he evidence and circumstances of the present case , similarly , do not warrant the imposition of the receivership

over Jeffery’s farm

. There was no evidence presented to show that Jeffery was mishandli ng his farming operation. C onversely, the record reveals that Jeffery was farming the land even after the appointment of Commissioner

. There was no evidence presented to show that Jeffery lacked experience or ability to farm. In fact, farming was his and his family’s livelihood for generations. Jeffery didCourt of Appeals of Indiana | Opinion 33A01

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- 1024 | March 17, 2016 Page 11 of 12 not do anything wrong with his farm to warrant the court’s intervention. His alleged refusal to cooperate with Commissioner and an attempt to make himself less attractive to the len ding institutions have nothing to do with the successful handling of his farm, which is the crux of the receivership law. See , e.g. , Tormohlen v. Tormohlen , 1 N.E.2d 596 (Ind. 1936) (held that a receivership was not warranted over a large chicken hatchery because a farmer left trusted persons to handle the farm to prevent waste before fleeing the state to escape the dissolution court’s jurisdiction).

[19] Accordingly, because the language of the dissolution decree was unambiguous, we conclude that the tri al court’s appointment of Commissioner to operate and, if needed, sell Parcel A was an impermissible modification of the original terms between the parties because it went beyond Jeffery’s obligation to attempt to obtain a loan to satisfy the judgment. Al so, we reverse the appointment of Commissioner as to Parcel A because no evidence was presented to show that Jeffery was likely to mismanage, waste, misappropriate, or otherwise harm his farm which could have warranted the court’s intervention and would ha ve been necessary to secure ample justice to the parties. Finally, w e reiterate that this decision is limited to Parcel A because Jeffery and Kimberly had successfully modified their property dissolution agreement as to Parcel B by subsequently agreeing t o sell Parcel B with the help of Commissioner.Court of Appeals of Indiana | Opinion 33A01

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### CONCLUSION

[20] Based on the foregoing, we hold that the parties ’ subsequent agreement to sell Parcel B was a permissible modification of their original marital property disposition settlement, and , as to Parcel A , the trial court’s appointment of Commissioner without Jeffery’s consent and without assertion of fraud was an impermissible modification of the parties’ original agreement.

[21] Affirmed in part, and reversed in part

.

[22] Najam, J. and May, J. concur