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. Feb 18 2014, 9:22 am
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE: S. ADAM LONG GLENN A. GRAMPP LONG & MATHIES LAW FIRM Evansville, Indiana Boonville, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF:
EARIKA FUSSNER ) ) Appellant, ) ) vs. ) No. 87A01-1306-DR-261 ) CLINT FUSSNER, ) ) Appellee. )
APPEAL FROM THE WARRICK SUPERIOR COURT NO. 1 The Honorable Keith A. Meier, Judge Cause No. 87D01-1004-DR-169
February 18, 2014 MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge The marriage of Earika Fussner (“Wife”) and Clint Fussner (“Husband”) was
dissolved in Warrick Superior Court. Wife now appeals, arguing that the trial court erred
in denying her motion for clarification of the decree of dissolution and granting
Husband’s motion to dismiss.
We affirm.
Facts and Procedural History
Husband and Wife married on June 9, 1984, and separated on April 8, 2010. On
June 18, 2010, Husband and Wife, who were both self-represented at the time, submitted
to the trial court a decree of dissolution of marriage and settlement agreement. Husband
and Wife had completed the decree and agreement together using a form approved by the
Division of State Court Administration. The decree was signed by both parties in the
presence of a notary public. The decree provided, among other things, that “the parties
already have divided all items of property.” Appellant’s App. pp. 52-53. The trial court
approved the decree of dissolution and settlement agreement on the same day it was
submitted, June 18, 2010.
Husband retired sixteen months later, in October 2011, and began to draw his
pension. On December 20, 2011, a year and a half after the trial court approved the
decree of dissolution submitted by the parties, Wife filed an amended motion for
clarification of the decree. In her motion, Wife argued that “information related to
[Husband’s pension was] inadvertently left out of the Decree and the Decree should be
clarified and interpreted by this Court.” Appellant’s App. p. 13. With her motion, Wife
submitted two exhibits: a series of email communications between Husband and the
2 pension administrator for Husband’s employer regarding the divorce and calculation of
Husband’s pension, and a handwritten, two-page list of assets which Wife argued “shows
the [parties’] intent as to how their property and assets were to be divided.” Id. at 12.
The latter exhibit, according to Wife, was executed prior to the execution of the decree of
dissolution. The list placed in Wife’s column “1/2 retirement” and “1/2 s & p stocks”
and appeared to be signed by Husband. Id. at 23.
On February 10, 2012, Husband filed a motion to dismiss Wife’s motion for
clarification, arguing that “there is no issue before this court that there is any confusion”
and that “the Judgment of Dissolution of Marriage and the Qualified Domestic Relations
Order are clear on their face and there is no allegation of fraud, mistake, duress or any
other contention that would justify a Request for Clarification.” Id. at 26. Husband
further asserted, “essentially the respondent’s Motion for Clarification is in the form of
[an untimely] Request for Relief from a Judgment or Court Order.” Id.
On January 2, 2013, the trial court held a hearing on Wife’s motion for
clarification and Husband’s motion to dismiss. At the hearing, Husband denied signing
the two-page handwritten document submitted by Wife. He testified that the document
was not an agreement between himself and Wife, but, rather, it was “a wish list.” Tr. p.
89. He testified about the document, “[t]his is just what she wrote down and I didn’t
agree to any of it.” Id.
On May 13, 2013, the trial court issued an order denying Wife’s motion for
clarification and granting Husband’s motion to dismiss. In its order, the trial court stated,
in relevant part:
3 3. The court found no ambiguity in the parties’ Decree of Dissolution of Marriage and Settlement Agreement. It provided “The parties already have divided all items of property.” The parties waived final hearing and submitted the agreed Decree, which the Court approved. The agreed Decree neither referenced nor contained the Exhibit A[ 1 ] which is in controversy here. There was no evidentiary final hearing which would support a conclusion that the Court may have misunderstood or misinterpreted the parties’ intent or the evidence. The agreed Decree was presented to the Court by the parties and contained the language they chose. There was no expression therein of the parties’ intent, other than in the plain wording of the Decree. As a result, there is nothing for the Court to clarify in the Decree. The intention of the Court with respect to the Decree at the time it was approved was to approve the parties’ agreement, which it did, and without any evidence of the parties’ assets or debts, relying solely upon the statements in the agreed Decree.
4. There was also a dispute as to the purpose of Exhibit A, the former husband contending it was merely the wife’s wish list and the former wife contending it was the parties’ agreement. There was no evidence explaining why it was not attached to the agreed Decree if, in fact, it was a settlement agreement and was to be incorporated into the Decree.
5. The relief sought by the former wife, regardless of how framed, is to set aside or modify the Decree. Property settlements are not subject to modification. She seeks to make a substantial change thereto which would change the property division terms of the Decree.
Appellant’s App. p. 11. Wife now appeals.
Discussion and Decision
We begin by observing that parties who proceed pro se are held to the same
standards as are licensed legal counsel and, therefore, must be prepared to accept the
consequences of their actions. Ramsey v. Review Bd. of Indiana Dep’t of Workforce
Dev., 789 N.E.2d 486, 487 (Ind. Ct. App. 2003). One risk a litigant takes when he
proceeds pro se is that he will not know how to accomplish all the things an attorney
1 “Exhibit A” refers to the two page, handwritten document submitted by Wife with her motion for clarification. 4 would know how to accomplish. Foley v. Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App.
2006). Indeed, this case presents a meaningful reminder of the dangers of self-
representation.
Wife claims that the trial court erred in denying her motion to clarify and granting
Husband’s motion to dismiss. In dissolution proceedings, parties are free to enter into
settlement agreements and such agreements are contractual in nature and binding.
Niccum v. Niccum, 734 N.E.2d 637, 639 (Ind. Ct. App. 2000). Importantly for this case,
while a dissolution court may retain jurisdiction to reexamine a property settlement in
order to clarify its order, “strong policy favors the finality of marital property divisions,
whether the court approves the terms of a settlement agreement reached by the parties or
the court mandates the division of property among the parties.” Shepherd v. Tackett, 954
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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. Feb 18 2014, 9:22 am
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE: S. ADAM LONG GLENN A. GRAMPP LONG & MATHIES LAW FIRM Evansville, Indiana Boonville, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF:
EARIKA FUSSNER ) ) Appellant, ) ) vs. ) No. 87A01-1306-DR-261 ) CLINT FUSSNER, ) ) Appellee. )
APPEAL FROM THE WARRICK SUPERIOR COURT NO. 1 The Honorable Keith A. Meier, Judge Cause No. 87D01-1004-DR-169
February 18, 2014 MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge The marriage of Earika Fussner (“Wife”) and Clint Fussner (“Husband”) was
dissolved in Warrick Superior Court. Wife now appeals, arguing that the trial court erred
in denying her motion for clarification of the decree of dissolution and granting
Husband’s motion to dismiss.
We affirm.
Facts and Procedural History
Husband and Wife married on June 9, 1984, and separated on April 8, 2010. On
June 18, 2010, Husband and Wife, who were both self-represented at the time, submitted
to the trial court a decree of dissolution of marriage and settlement agreement. Husband
and Wife had completed the decree and agreement together using a form approved by the
Division of State Court Administration. The decree was signed by both parties in the
presence of a notary public. The decree provided, among other things, that “the parties
already have divided all items of property.” Appellant’s App. pp. 52-53. The trial court
approved the decree of dissolution and settlement agreement on the same day it was
submitted, June 18, 2010.
Husband retired sixteen months later, in October 2011, and began to draw his
pension. On December 20, 2011, a year and a half after the trial court approved the
decree of dissolution submitted by the parties, Wife filed an amended motion for
clarification of the decree. In her motion, Wife argued that “information related to
[Husband’s pension was] inadvertently left out of the Decree and the Decree should be
clarified and interpreted by this Court.” Appellant’s App. p. 13. With her motion, Wife
submitted two exhibits: a series of email communications between Husband and the
2 pension administrator for Husband’s employer regarding the divorce and calculation of
Husband’s pension, and a handwritten, two-page list of assets which Wife argued “shows
the [parties’] intent as to how their property and assets were to be divided.” Id. at 12.
The latter exhibit, according to Wife, was executed prior to the execution of the decree of
dissolution. The list placed in Wife’s column “1/2 retirement” and “1/2 s & p stocks”
and appeared to be signed by Husband. Id. at 23.
On February 10, 2012, Husband filed a motion to dismiss Wife’s motion for
clarification, arguing that “there is no issue before this court that there is any confusion”
and that “the Judgment of Dissolution of Marriage and the Qualified Domestic Relations
Order are clear on their face and there is no allegation of fraud, mistake, duress or any
other contention that would justify a Request for Clarification.” Id. at 26. Husband
further asserted, “essentially the respondent’s Motion for Clarification is in the form of
[an untimely] Request for Relief from a Judgment or Court Order.” Id.
On January 2, 2013, the trial court held a hearing on Wife’s motion for
clarification and Husband’s motion to dismiss. At the hearing, Husband denied signing
the two-page handwritten document submitted by Wife. He testified that the document
was not an agreement between himself and Wife, but, rather, it was “a wish list.” Tr. p.
89. He testified about the document, “[t]his is just what she wrote down and I didn’t
agree to any of it.” Id.
On May 13, 2013, the trial court issued an order denying Wife’s motion for
clarification and granting Husband’s motion to dismiss. In its order, the trial court stated,
in relevant part:
3 3. The court found no ambiguity in the parties’ Decree of Dissolution of Marriage and Settlement Agreement. It provided “The parties already have divided all items of property.” The parties waived final hearing and submitted the agreed Decree, which the Court approved. The agreed Decree neither referenced nor contained the Exhibit A[ 1 ] which is in controversy here. There was no evidentiary final hearing which would support a conclusion that the Court may have misunderstood or misinterpreted the parties’ intent or the evidence. The agreed Decree was presented to the Court by the parties and contained the language they chose. There was no expression therein of the parties’ intent, other than in the plain wording of the Decree. As a result, there is nothing for the Court to clarify in the Decree. The intention of the Court with respect to the Decree at the time it was approved was to approve the parties’ agreement, which it did, and without any evidence of the parties’ assets or debts, relying solely upon the statements in the agreed Decree.
4. There was also a dispute as to the purpose of Exhibit A, the former husband contending it was merely the wife’s wish list and the former wife contending it was the parties’ agreement. There was no evidence explaining why it was not attached to the agreed Decree if, in fact, it was a settlement agreement and was to be incorporated into the Decree.
5. The relief sought by the former wife, regardless of how framed, is to set aside or modify the Decree. Property settlements are not subject to modification. She seeks to make a substantial change thereto which would change the property division terms of the Decree.
Appellant’s App. p. 11. Wife now appeals.
Discussion and Decision
We begin by observing that parties who proceed pro se are held to the same
standards as are licensed legal counsel and, therefore, must be prepared to accept the
consequences of their actions. Ramsey v. Review Bd. of Indiana Dep’t of Workforce
Dev., 789 N.E.2d 486, 487 (Ind. Ct. App. 2003). One risk a litigant takes when he
proceeds pro se is that he will not know how to accomplish all the things an attorney
1 “Exhibit A” refers to the two page, handwritten document submitted by Wife with her motion for clarification. 4 would know how to accomplish. Foley v. Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App.
2006). Indeed, this case presents a meaningful reminder of the dangers of self-
representation.
Wife claims that the trial court erred in denying her motion to clarify and granting
Husband’s motion to dismiss. In dissolution proceedings, parties are free to enter into
settlement agreements and such agreements are contractual in nature and binding.
Niccum v. Niccum, 734 N.E.2d 637, 639 (Ind. Ct. App. 2000). Importantly for this case,
while a dissolution court may retain jurisdiction to reexamine a property settlement in
order to clarify its order, “strong policy favors the finality of marital property divisions,
whether the court approves the terms of a settlement agreement reached by the parties or
the court mandates the division of property among the parties.” Shepherd v. Tackett, 954
N.E.2d 477, 480 (Ind. Ct. App. 2011); see also Fackler v. Powell, 839 N.E.2d 165, 167
(Ind. 2005); Ind. Code § 31-15-2-17 (“The disposition of property settled by an
agreement [between the parties] and incorporated and merged into the decree is not
subject to subsequent modification by the court, except as the agreement prescribes or the
parties subsequently consent.”); Ind. Code § 31-15-7-9.1 (“The orders concerning
property disposition entered under this chapter (or IC 31-1-11.5-9 before its repeal) may
not be revoked or modified, except in case of fraud.”). Thus, while a trial court may
correct its own judgment to reflect the court’s true intention at the time the judgment was
entered, “an order is not merely a clarification where it makes substantial changes in the
original decree.” Shepherd, 954 N.E.2d at 482.
5 Wife argues that her motion for clarification was not a request for relief from the
decree, as Husband argues and the trial court concluded, but, instead, merely presented
the following question: “is her former husband’s pension an asset of the marriage to be
divided equally between the parties as they agreed and as both parties testified?”
Appellant’s Br. at 16. She asserts that the decree “does not contain a complete or
accurate statement with regard to the division of marital property” and that the terms of
the decree “are not only ambiguous, they are entirely missing from the document.” Id. at
8-9. She further argues that “the intent of the parties should be determined by parole
and/o [sic] extrinsic evidence.” Id.
We disagree. Contrary to Wife’s claim, here, the terms of the decree were
unambiguous. See Overholtzer v. Overholtzer, 884 N.E.2d 358, 361 (Ind. Ct. App. 2008)
(“The terms of a contract are not ambiguous merely because controversy exists between
the parties concerning the proper interpretation of terms. Where the terms of a contract
are clear and unambiguous, the terms are conclusive and we will not construe the contract
or look at extrinsic evidence, but will merely apply the contractual provisions.”).
The decree itself provided that “[t]he parties already have divided their debts” and,
very importantly, makes no mention of Husband’s pension, the two-page handwritten
document Wife submitted with her motion for clarification or any other exhibit that
would have aided the court and the parties by more particularly describing the property
division agreed upon by the parties. Appellant’s App. p. 52. In addition, the parties did
not present to the trial court any testimony or evidence of their intent other than the plain
6 language contained in the decree. Therefore, there was no ambiguity for the trial court to
clarify.
Wife’s motion, while framed as a request for clarification, was actually a request
to modify the terms of the decree. Absent a showing of fraud, the trial court did not err
when it denied Wife’s motion for clarification and granted Husband’s motion to dismiss.
See Joachim v. Joachim, 450 N.E.2d 121, 122 (Ind. Ct. App. 1983) (holding that the trial
court’s “clarification” order which effectively shifted liability for tax, insurance, and
mortgage payments from Husband to Wife, was an impermissible alteration of an
unambiguous provision of the original decree.); Evans v. Evans, 946 N.E.2d 1200 (Ind.
Ct. App. 2011) (concluding that the trial court’s order implementing an alternate property
distribution plan was a clarification, not an alteration, where original plan was legally
impossible to implement).
Conclusion
For all of these reasons, we conclude that the trial court did not abuse its discretion
when it denied Wife’s motion for clarification and granted Husband’s motion to dismiss.
Affirmed.
BRADFORD, J., and PYLE, J., concur.