Court of Appeals of Indiana | Memorandum Decision 49D03-1303-DR-9657 | January 28, 2015 Page 1 of 13

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.

ATTORNEYS FOR APPELLANT

Julie Dixon

Lori B. Schmeltzer

Ciyou & Dixon, P.C.

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Karen Celestino-Horseman

Austin & Jones, P.C.

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Nina Ozuyener, 

Appellant-Petitioner,

v.

Korkut Ozuyener,

Appellee-Respondent. 

January 28, 2015

Court of Appeals Cause No.

49A02-1404-DR-238

Appeal from the Marion Superior 

Court

The Hon. Patrick L. McCarty, Judge

Cause No. 49D03-1303-DR-9657

Bradford, Judge.
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Case Summary1

[1] On March 11, 2013, Appellant-Petitioner Nina Sidibe Ozuyener (“Wife”) filed 

a Petition for Dissolution of Marriage from her husband Appellee-Respondent 

Korkut Ozuyener (“Husband”). On September 13, 2010, Husband and Wife 

(collectively “the parties”) executed an estate planning package which included, 

among other things, a document entitled “Post-Nuptial Agreement” (“the 

Agreement”) which determined the distribution of marital assets in the event of 

death or divorce. Wife requested that the trial court enforce the Agreement. 

The trial court found that the Agreement was unenforceable due to a lack of full 

disclosure to Husband regarding the nature of the Agreement. On appeal, the 

parties dispute which Indiana statute governs the Agreement, whether the 

Agreement was supported by consideration, and whether the trial court abused 

its discretion in finding that the Agreement was unenforceable. Finding that 

the trial court did not abuse its discretion by rejecting the Agreement, we 

decline to address the additional issues. Affirmed. 

Facts and Procedural History

 

1 We heard Oral Argument in this case on January 8, 2014 and we thank counsel for the quality of 

their presentations. 
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[2] On March 11, 1999, Husband and Wife married. The couple had two children 

together. In July of 2010, the parties had an initial consultation with attorneys 

Hannah Joseph and Carly Turow (collectively the “Attorneys”) of the law firm 

of Joseph and Turow. Husband and Attorneys testified that the original 

purpose of the meeting was to discuss an estate planning package. Wife 

testified that the original purpose of the meeting was to discuss a prenuptial 

(later termed a postnuptial) agreement and only then did the Attorneys 

recommend a broader suite of estate planning documents. Turow and Wife 

testified that Husband initiated the conversation about a postnuptial agreement 

at the initial meeting and that he wanted a postnuptial agreement to prove to 

Wife that he did not marry her for her family’s money. The Attorneys agreed 

to represent both Husband and Wife in drafting the Agreement. On June 30, 

2010, Joseph sent an engagement letter addressed to both Husband and Wife 

confirming Attorneys’ representation of the parties. The engagement letter was 

signed only by Wife as “Client.” Respondent’s Ex. A. It is unclear whether the 

parties were orally advised of the potential for a conflict of interest and of the 

benefits of obtaining separate counsel. There was no such written advisement. 

Attorneys also represented Wife and her family in unrelated matters during the 

same period of time. 

[3] On September 13, 2010, the parties executed an estate planning package 

consisting of a durable power of attorney, designation of health care 

representative, last will and testament, funeral planning, and a document 

entitled “Post-Nuptial Agreement.” The Agreement sets forth, among other 
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things, how the parties’ assets would be divided in the event of divorce and 

allocates significantly more of the marital assets to Wife. This disproportionate 

allocation was intended to reflect the amount of assets contributed to the 

marriage by the parties. Specifically, Wife’s family had contributed a $300,000 

down payment on the couple’s family home (“the Diver’s Cove property”), and 

had purchased a Chicago property of which a fifty-percent interest was gifted to 

Wife. 

[4] The Agreement states that, in the event of divorce, the parties’ property was to 

be divided according to financial-declaration statements attached to the 

Agreement. Attorneys gave the parties template financial-declaration forms 

which Wife filled out for both parties and returned to Attorneys. The forms 

were unsigned. It is unclear whether the financial statements were attached to 

the executed agreement. The copy of the Agreement in the Attorneys’ file did 

not contain the financial-declaration forms. According to the financialdeclaration statements, the Agreement purported to give Wife exclusive 

ownership rights to the Diver’s Cove and Chicago properties, valued, in total, at 

$875,000 ($359,500 was still owed on those properties at the time the financialdeclaration forms were completed). The Agreement gives Husband exclusive 

rights to an Indianapolis property valued at $55,000. The Agreement also gives 

Wife sole ownership of two savings accounts worth $340,000 and gives 

Husband sole ownership of two savings accounts worth $8,500. Attorney 

Turow stated that the Agreement was not so much a division of property as a 

“clear allocation to the [Wife’s] side of the family.” Tr. p. 29. 
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[5] The details of the Agreement were developed throughout several emails 

between the Attorneys and the parties. Wife handled nearly all of the

communications with Attorneys. Although Husband was copied on the 

majority of the email communications, he was left out of several emails 

specifically pertaining to the Agreement, namely its distribution of marital 

property. Although his signature and initials are on the Agreement, Husband 

maintains that he was unaware that a postnuptial agreement had been prepared 

for execution along with the other estate planning documents, that he did not 

read or know that he was signing a postnuptial agreement, and that he was not 

informed or aware of the financial-declaration statements. English is 

Husband’s second language and he testified that he did not feel comfortable 

with his language skills when it came to reading technical documents. As such, 

throughout the course of the marriage, Husband relied heavily on Wife in 

conducting their family business affairs. Wife admitted to preparing Husband’s 

financial-declaration statement but stated that she sent it to Husband for review. 

Husband claims he was not aware he had signed a postnuptial agreement until 

Wife informed him of such after she filed for dissolution. 

[6] On March 11, 2013, Wife filed a Petition for Dissolution of Marriage and 

requested that the trial court enforce the Agreement. After a two-day hearing 

concerning the validity of the Agreement, the trial court found that the 

Agreement was invalid and unenforceable and issued the following findings: 

4. [Husband] does not deny that [h]is initials and signature 

appear[] on the post nuptial agreement but [claims] that he was 

unaware that it was in a stack with the other documents at the time, 
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that he did not read it, was not informed of it and did not see any 

exhibits or attachments in the way of financial statements which 

described and identified the property that each party would retain as 

solely theirs. 

5. [Husband] contends that he would not have signed the 

agreement had he known of its existence, that he did not participate in 

the preparation of any financial statements and the existence of same 

was not disclosed to him. Furthermore, that he was unaware of the 

agreement up to a point [in] time where [Wife] informed him of this 

shortly [] before proceeding with a dissolution of marriage action. 

6. [Husband] further testified that being unaware of the nature and 

meaning of a postnuptial agreement he resorted to internet research to 

determine such after being informed of the agreement’s existence by 

[Wife]. 

7. Evidence in the way of testimony from [Attorneys] had 

indicated that a discussion was had regarding a post nuptial agreement 

which included [Husband] but neither recalled any specific details 

about the discussions, questions asked if any by [Husband] with only 

one of the attorneys being present at the execution of the documents. 

8. Furthermore, there was no recall by the attorneys as to whether 

financial statements identifying what would be the sole or separate 

property of each party had been attached to the post nuptial agreement 

at the time of signing. 

9. The post nuptial agreement stipulated into evidence (previously 

filed with the court by the [Wife]) contained what appeared to be 

financial statements but unsigned by either party with a copy of the 

same agreement entered into evidence from the preparing attorneys file 

which was without said financial statements. 

10. Also introduced into evidence were numerous emails on the 

subject which [Husband] maintains he did not receive[] with some of 

the emails not copied to him as [Wife] testified that some things 
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deemed not important enough to copy him on regarding the 

postnuptial. 

11. [Husband] was further found to trust and rely greatly on [Wife] 

in conducting their business affairs. While it is undisputed that 

[Husband]’s initials and signature appear[] on the post nuptial 

agreement it is not clear that he was aware of the agreement and its 

existence at the time of signing while mixed in with other documents. 

[Husband] also testified that [he] believes that he is entitled to a half 

interest in the residential home which is titled to both parties. There 

had also been a clear lack of full disclosure in the absence of the 

financial statements identifying the property to remain the separate 

and sole property of each along with [Husband] not being copied on 

all emails. Such a lack of full disclosure also creates an unfairness, 

unreasonableness manifest inequity. 

The Court therefore find[s] that the postnuptial agreement 

although signed by the [Husband] was the product of unfairness not 

having an awareness of the meaning of a post nuptial agreement 

along with a lack of full disclosure as [Husband] was unaware of it[s] 

existence while signing other documents including the absence of the 

financial statements as attachments or exhibits identifying the 

property of each. The Court therefore determine[s] the post nuptial 

agreement invalid or unenforceable with [Wife]’s request for legal 

costs is denied. 

Appellant’s App. pp. 8-10. Additional facts will be provided where necessary. 

Discussion and Decision

I. Standard of Review

[7] Wife is appealing from a decision in which the trial court entered findings of 

fact and conclusions thereon.
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In the instant case, the trial court entered special findings of fact 

and conclusions of law pursuant to Ind. Trial Rule 52(A). Therefore, 

our standard of review is two-tiered: we first determine whether the 

evidence supports the trial court’s findings, and second, we determine 

whether the findings support the judgment. Boonville Convalescent 

Center, Inc. v. Cloverleaf Healthcare Services, Inc., 834 N.E.2d 1116, 1121 

(Ind. Ct. App. 2005), reh’g denied, trans. denied. Findings of fact are 

clearly erroneous when the record lacks any reasonable inference from 

the evidence to support them, and the trial court’s judgment is clearly 

erroneous if it is unsupported by the findings and the conclusions 

which rely upon those findings. Id. In establishing whether the 

findings or the judgment are clearly erroneous, we consider only the 

evidence favorable to the judgment and all reasonable inferences to be 

drawn therefrom. Id.

While conducting our review, we cannot reweigh the evidence 

or judge the credibility of any witness, and must affirm the trial court’s 

decision if the record contains any supporting evidence or inferences. 

Id. However, while we defer substantially to findings of fact, we do 

not do so for conclusions of law. Id. We evaluate conclusions of law 

de novo and owe no deference to a trial court’s determination of such 

questions. Id.

Briles v. Wausau Ins. Cos., 858 N.E.2d 208, 212 (Ind. Ct. App. 2006). “Sua 

sponte findings control only as to the issues they cover, and a general judgment 

will control as to the issues upon which there are no findings.” Morgal-Henrich 

v. Henrich, 970 N.E.2d 207, 210 (Ind. Ct. App. 2012) (citing Yanoff v. Muncy, 688 

N.E.2d 1259, 1262 (Ind. 1997)).

[A]ppellate courts give considerable deference to the findings of the 

trial court in family law matters .... [T]rial courts must exercise 

judgment, particularly as to credibility of witnesses, and we defer to 

that judgment because the trial court views the evidence firsthand and 

we review a cold documentary record. Thus, to the extent credibility 

or inferences are to be drawn, we give the trial court’s conclusions 

substantial weight. But to the extent a ruling is based on an error of 
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law or is not supported by the evidence, it is reversible, and the trial 

court has no discretion to reach the wrong result. 

MacLafferty v. MacLafferty, 829 N.E.2d 938, 941 (Ind. 2005).

II. Enforceability of Postnuptial Agreement

[8] Both this court and the Indiana Supreme Court have addressed the validity of 

postnuptial agreements several times. In each case, the reviewing court has 

begun its analysis by classifying the disputed postnuptial agreement as either a 

dissolution-settlement agreement or a reconciliation agreement. The outcome 

of this analysis determines the amount of discretion the trial court has to accept 

or reject the agreement.

Turning to the merits, our first guidepost in this case is Pond v. 

Pond, 700 N.E.2d 1130 (Ind. 1998). There, the Indiana Supreme 

Court discussed the difference between “reconciliation agreements” 

and “dissolution settlements.” Id. at 1132. The former are agreements 

(referred to as prenuptial, premarital, or antenuptial agreements) 

entered into in contemplation of marriage or its continuance and that 

generally must be enforced as written in the event of dissolution. Id. 

The latter are agreements entered into as a consequence of dissolution 

proceedings (post-nuptial agreements); they are governed by the 

Indiana Dissolution of Marriage Act (“the Act”), and their acceptance 

or rejection is within the trial court’s discretion. 

Beaman v. Beaman, 844 N.E.2d 525, 529 (Ind. Ct. App. 2006). Wife argues that 

the Agreement is a reconciliation agreement and, therefore, that the trial court’s 

discretion to reject the Agreement was limited. Husband argues the Agreement 

is a dissolution settlement and, as such, the trial court had greater discretion to 

reject the Agreement. 
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[9] We need not address this particular question as the outcome of this case would 

be the same regardless of the classification of the Agreement. Wife’s analysis of 

the law on postnuptial agreements was artfully articulated and accurate; 

however, the facts of this case do not support her conclusion that the trial court 

exceeded its discretion in this instance. Even applying the more stringent 

discretionary standard used for reconciliation agreements, we find that the trial 

court was within its discretion to reject the agreement. 

A. Discretionary Standard for Reconciliation Agreements

[10] Reconciliation agreements must generally be enforced as written and trial 

courts may only reject such agreements under a limited set of circumstances. 

Pond, 700 N.E.2d at 1132. Reconciliation agreements are valid and binding so 

long as they are entered into freely and fairly, without fraud, undue influence, 

duress, or misrepresentation, and are not, under the particular circumstances of 

the case, unconscionable. Gaskell v. Gaskell, 900 N.E.2d 13, 17 (Ind. Ct. App. 

2009); In re Marriage of Boren, 475 N.E.2d 690, 695 (Ind. 1985); Matter of Estate of 

Palamara, 513 N.E.2d 1223, 1229 (Ind. Ct. App. 1987). In applying this 

standard, our courts have looked at whether the parties to a marital agreement 

received full disclosure of the nature and extent of the rights they waived via the 

agreement and whether the parties fully disclosed their assets prior to execution 

of the agreement. Estate of Stack v. Venzke, 485 N.E.2d 907, 910-11 (Ind. Ct. 

App. 1985). A marital agreement is unconscionable if “there was a gross 

disparity in bargaining power which led the party with the lesser bargaining 

power to sign a contract unwillingly or unaware of its terms and the contract is 
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one that no sensible person, not under delusion, duress or distress would 

accept.” Rider v. Rider, 669 N.E.2d 160, 162 (Ind. 1996) (quoting Justus v. 

Justus, 581 N.E.2d 1265 (Ind. Ct. App. 1991)).

B. Discretionary Standard Applied

[11] Under the applicable standard of review, we “must affirm the trial court’s 

decision if the record contains any supporting evidence or inferences.” Briles, 

858 N.E.2d at 212. Although there is conflicting evidence regarding Husband’s 

subjective awareness of the Agreement, “we consider only the evidence 

favorable to the judgment and all reasonable inferences to be drawn therefrom,” 

and “we cannot reweigh the evidence or judge the credibility of any witness.” 

Id. 

[12] The Agreement was significantly unequal in its disposition of the marital assets, 

the Attorneys were acutely aware of this fact, and there were several emails 

between Wife and Attorneys which specifically addressed the unbalanced 

distribution and on which Husband was not copied. Despite the contentious 

and unbalanced nature of the Agreement, Attorneys agreed to represent 

Husband and Wife jointly and did not properly advise the parties of the 

apparent conflicts of interest. Husband claims that Attorneys breached the 

Indiana Rules of Professional Conduct Rule 1.7 by agreeing to represent the 

parties jointly and by failing to disclose conflicts of interests to Husband and/or 
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failing to obtain Husband’s consent to the same.2 Husband further claims that 

this created manifest inequities between the parties. The Rules of Professional 

Conduct are not law and whether an attorney breached the Rules is not 

determinative of the enforceability of a contract created as a consequence of an 

alleged breach. However, the fact that both Husband and Wife were 

represented by the same counsel indicates, at the very least, a lack of armslength bargaining in the formation of the Agreement. As mentioned above, “[a] 

contract is unconscionable if there was a gross disparity in bargaining power 

which led the party with the lesser bargaining power to sign a contract 

unwillingly or unaware of its terms and the contract is one that no sensible 

person, not under delusion, duress or distress would accept.” Rider, 669 N.E.2d 

at 162. Throughout their marriage, Husband relied heavily on Wife to handle 

the family’s business affairs and she admitted to taking care of and advising 

Husband on the majority of those matters. Moreover, the Agreement was 

developed exclusively based on Wife’s wishes. Wife testified that Husband did 

not ask for any changes or revisions to any of the executed documents with the 

exception of a preference on burial instructions in the event of his death. 

 

2 Husband highlights two potential conflicts of interest: (1) Attorneys’ representation of both Husband 

and Wife in drafting the Agreement, and (2) Attorneys’ representation of Wife and Wife’s family on other 

matters while simultaneously representing Husband and Wife. 
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[13] In its findings of fact, the trial court outlined evidence which suggested that 

Husband was unaware of the nature and terms of Agreement. Specifically, 

Husband claimed he was completely unaware of the Agreement prior to Wife’s 

filing for dissolution, Husband did not complete the financial-declaration 

statements, the financial-declaration statements were unsigned and not attached 

to the Attorneys’ copy of the Agreement, and it is unclear whether the financialdeclaration statements were attached to the original executed Agreement. It is 

difficult to see how Husband could fairly be bound by an Agreement which 

repeatedly references attached financial statements that were not actually 

attached, particularly when it is the substance of those statements that 

determines the core of the Agreement (i.e., what assets the parties would retain 

upon death or dissolution of marriage). 

[14] The trial court’s factual findings indicate that the Agreement was not entered 

into fairly and was the product of a lack of full disclosure as to the nature and 

terms of the Agreement. To find otherwise would require this court to reweigh 

the evidence, which we will not do. Because the trial court’s conclusion was 

supported by its findings, we cannot say that the judgment was clearly 

erroneous. 

[15] The judgment of the trial court is affirmed. 

Najam, J., and Robb, J., concur.