Court of Appeals of Indiana | Opinion 18A-DR-1125 | January 24, 2019 Page 1 of 8

ATTORNEY FOR APPELLANT

Jonathan R. Deenik

Deenik Law, LLC

Greenwood, Indiana

ATTORNEY FOR APPELLEE

Michael Cheerva

Emswiller Williams Noland & 

Clarke, LLC

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

Donald P. Katz,

Appellant-Petitioner,

v.

Lori B. Katz,

Appellee-Respondent.

January 24, 2019

Court of Appeals Case No.

18A-DR-1125

Appeal from the Hamilton 

Superior Court

The Honorable William J. Hughes, 

Judge

Trial Court Cause No.

29D03-1401-DR-888

Shepard, Senior Judge.

[1] When parties negotiate a court-approved property settlement during dissolution 

of marriage proceedings but later informally agree to carry out its terms through 

predictable, if different, means, does this latter path constitute an improper 

amendment of the original settlement?
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[2] Under the facts of this case, we conclude that the parties’ later arrangements fell 

within the larger terms of the formal decree and that Donald Katz was required 

to make additional property settlement payments to Lori Katz under the terms 

of their court-approved agreement. We affirm the trial court.

Facts and Procedural History

[3] In 2014, Donald filed a petition to dissolve the parties’ marriage. The marital 

estate included the parties’ house in Carmel, Indiana, a condominium in 

Colorado, and various investments and business interests. Donald and Lori 

negotiated a settlement agreement that the trial court approved and 

incorporated in a decree of dissolution on August 17, 2016. Among other 

provisions, the parties agreed the house and the condominium would be sold, 

and the proceeds would be used to pay off a mortgage and a line of credit 

secured by those properties. The agreement further stated Donald would pay 

Lori a monthly sum to equalize the division of marital assets. According to the 

agreement, if the parties later agreed to not sell either or both properties, Lori 

would be entitled to additional monthly payments “to add back the costs of sale 

that are no longer being incurred.” Appellant’s App. Vol. 2, p. 23.

[4] The home and condominium were listed for sale. On June 6, 2017, Donald 

and Lori signed a one-page document that Donald had drafted without an 

attorney. In the document, Donald and Lori explained they wanted to “modify 

[their] earlier arrangement” and remove the properties from listings for sale “for 

the foreseeable future.” Id. at 36. The document further states, “Donald P. 
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Katz has expressed a desire to continue to occupy the [house] and maintain [the 

condominium] as a second home.” Id. Donald and Lori further stated they 

wanted to “refinanc[e] the current loan secured by these properties into a more 

favorable mortgage program.” Id. Lori quitclaimed her interest in the house

after the document was signed, but she and Donald were still both parties to a 

mortgage on the property.

[5] On November 6, 2017, Donald filed a request for appointment of a 

commissioner. That document has not been provided to this Court. Lori 

responded by asking the trial court to either: order the sale of the house and 

condominium, or order Donald to make additional monthly payments to 

accurately account for the changed division of marital property.

[6] The court held an evidentiary hearing. On January 30, 2018, it denied

Donald’s request for appointment of a commissioner. The court granted Lori’s 

request for additional payments, increasing Donald’s monthly obligation from

154 payments (per the original divorce decree) to 186 payments. In its order, 

the court determined the additional payments were necessary because “[t]he 

parties agreed not to sell the marital home and condo as shown in [the June 6, 

2017 document].” Id. at 13. This appeal followed.

Issue

[7] Donald raises three issues, which we consolidate and restate as: Whether the 

trial court erred in ordering Donald to make additional payments to Lori.
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Discussion and Decision

[8] Neither party requested findings of fact and conclusions thereon, and the trial 

court did not issue any. We review the court’s order under a general judgment 

standard. A general judgment will be affirmed if it can be sustained upon any 

legal theory consistent with the evidence. Shelby Eng’g Co., Inc. v. Action Steel 

Supply, Inc., 707 N.E.2d 1026 (Ind. Ct. App. 1999). We neither reweigh the 

evidence nor judge the credibility of the witnesses. Bedford Recycling, Inc. v. U.S. 

Granules Corp., 634 N.E.2d 1361 (Ind. Ct. App. 1994), trans. denied.

[9] Donald argues the trial court erred in ordering him to make additional monthly 

payments to Lori due to their agreement not to sell the house and the

condominium. He claims the evidence showed he still intended to sell those 

properties later, and the court’s decision amounted to an improper modification 

of the settlement agreement.

[10] Settlement agreements are contractual in nature and bind the parties when the 

court merges and incorporates that agreement into the divorce decree. Shorter v. 

Shorter, 851 N.E.2d 378 (Ind. Ct. App. 2006). Once incorporated into a judicial 

decree, such agreements may not be altered, absent fraud, duress, or consent of 

the parties. Still, as Justice Sullivan observed for a unanimous Court, that 

“does not mean that a court has no authority to resolve a dispute over the 

interpretation of a settlement agreement or property-division order.” Ryan v. 

Ryan, 972 N.E.2d 359, 363 (Ind. 2012).
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[11] When such moments arise, and the terms of a contract are unambiguous, we do 

not construe its terms or look to extrinsic evidence. Deel v. Deel, 909 N.E.2d 

1028 (Ind. Ct. App. 2009). Unambiguous terms are conclusive, and we will 

merely apply the contractual provisions. Id.

[12] According to the parties’ settlement agreement, the house and the 

condominium were to be listed for sale and “remain listed until sold.” 

Appellant’s App. Vol. 2, p. 18. Donald could live in the house “until its sale,” 

but he was “solely responsible for all mortgages . . . and all other obligations 

associated with the marital residence.” Id. In addition, “[Donald] shall pay 

[Lori a] property settlement judgment of $3,600 a month for 154 months.” Id.

at 22. If the proceeds from the sale of the house and the condominium were 

less than certain specified amounts, then Lori’s settlement payments were to be 

reduced accordingly. By contrast, “[i]n the event there is a future agreement 

not to sell either or both of the properties, counsel for [Donald and Lori] shall 

calculate the extension of the payments to add back the costs of sale that are no 

longer being incurred.” Id. at 23. The unambiguous language of the agreement 

provides Lori is entitled to additional payments if the properties are removed 

from sale by agreement of the parties.

[13] Did the trial court properly determine the parties agreed not to sell the 

properties? Donald and Lori’s June 6, 2017 document states, “Donald P. Katz 

has expressed a desire to continue to occupy the [marital home] and maintain 

[the condominium] as a second home.” Id. Donald and Lori further stated 

they wanted to “refinance[e] the current loan secured by these properties into a 
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more favorable mortgage program.” Id. Lori later testified Donald had told her 

he planned to return the properties to sale listings, but he had not done so by the 

time of the evidentiary hearing. Tr. Vol. 2, p. 45. This is ample evidence from 

which the trial court could have reasonably concluded the parties had agreed to 

not sell the properties, and, further, that Donald intended to keep them for an 

extended period, thus triggering Donald’s contractual obligation to make 

additional payments to Lori. Donald points to evidence that he had removed 

the properties from sale listings on a temporary basis while he worked out

financing for his businesses. We see this as a request to reweigh the evidence.

[14] Donald further claims the June 6, 2017 document was not valid because it did 

not modify the settlement agreement. We agree the document did not modify 

the original settlement agreement, which required any modification to be 

submitted to a court for approval. Lori testified she wanted to submit the 

document to the trial court, but Donald refused.

[15] Even if the document did not modify the settlement agreement, it is sufficient 

evidence of the parties’ intent to not sell the properties. Donald does not 

dispute drafting or signing the document. In addition, the original settlement 

agreement unambiguously states the parties could make a “future agreement” 

to not sell the properties. Appellant’s App. Vol. 2, p. 23. Indeed, the 

agreement described how to calculate the additional payments to Lori if she and 

Donald agreed not to sell one or both of the properties. The original settlement 

agreement did not require that any future agreement must meet the 

requirements for a formal modification of the settlement agreement.
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[16] We conclude that the June 6, 2017 signed document, which reflected the 

parties’ agreement not to sell the properties, was explicitly contemplated by the 

terms of the original settlement.

1

 See Ind. Code § 31-15-2-17(c) (1997) (once an 

agreement on property disposition is incorporated into a decree, it may be 

modified “as the agreement prescribes or the parties subsequently consent”); see 

also Ring v. Ring, 51 N.E.3d 1245, 1250 (Ind. Ct. App. 2016) (noting the parties 

had agreed to sell a parcel of land, which was permissible under the terms of 

their property settlement agreement, but rejecting the proposed sale of a 

different parcel as an inappropriate modification because one party objected).

[17] Finally, Donald claims the trial court’s award of additional property settlement 

payments was unfair because he had no notice that the court would rule upon 

“the issue of whether the parties had agreed not to sell the properties.” 

Appellant’s Br. p. 12.

[18] The record shows otherwise. In Lori’s response to Donald’s request to appoint 

a commissioner, she claimed the settlement agreement required the parties to 

sell the marital home and the condominium. She further stated Donald had 

removed the properties from sale and she was entitled to either: (1) a court 

order to sell the properties; or (2) additional property settlement payments from 

Donald. Donald was clearly informed in advance of the hearing that Lori 

 

1 Donald also argues the trial court’s order effectively modified the original settlement agreement. To the 

contrary, the court merely applied the plain terms of the agreement by determining: the parties decided not 

to sell the home and the condominium; and, under the agreement, Lori was entitled to additional payments 

because of the decision not to sell.
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sought additional property settlement payments due to his withdrawal of the 

properties from sale, and he was by no means ambushed at the evidentiary 

hearing.

[19] For these reasons, we affirm the judgment of the trial court.

[20] Affirmed.

May, J., and Robb, J., concur.