MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Mar 28 2018, 7:13 am Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE David R. Phillips Debra Lynch Dubovich Shaw Law Office Levy & Dubovich Valparaiso, Indiana Merrillville, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Marriage of March 28, 2018
Paul A. Magura, Court of Appeals Case No. 64A04-1708-DR-1852 Appellant-Respondent, Appeal from the Porter Superior v. Court The Honorable William E. Alexa, Lisa L. Magura, Judge The Honorable Katherine R. Appellee-Petitioner. Forbes, Magistrate Trial Court Cause No. 64D02-0407-DR-5961
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018 Page 1 of 13 [1] Paul A. Magura (“Husband”) appeals the trial court’s order finding that his
former spouse, Lisa A. Magura (“Wife”), has paid him in accordance with the
parties’ marital settlement agreement and ordering him to pay attorney fees.
We affirm.
Facts and Procedural History
[2] On November 23, 2004, the trial court entered a dissolution decree which
incorporated by reference a marital settlement agreement entered into by the
parties. The marital settlement agreement provided in part that the parties
owned two parcels of real estate, the “marital residence” and the “ranch
house,” in Porter, Indiana. Appellant’s Appendix Volume 2 at 13. The
agreement provided that the marital residence would be sold and set forth how
the sale proceeds would be distributed.
[3] With respect to the ranch house, the agreement provided:
Ranch House: The parties further agree and stipulate that Wife shall be awarded all right, title and interest to the “ranch house” . . . , and that she shall buyout [sic] Husband’s interest in same by transferring to him the lump sum of Thirty-Thousand Dollars ($30,000.00), in consideration of any and all interest he may have had in said real estate. The parties’ [sic] further agree that Wife shall be entitled to refinance the ranch house in order to obtain the necessary buy-out funds, and that Husband shall execute a Quit Claim Deed as part of the refinancing process or buy-out process. Wife shall remit the lump sum to Husband upon the closing of the refinancing concerning said property, or within one year from entry of the parties’ Dissolution Decree, whichever shall first occur.
Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018 Page 2 of 13 The parties further agree that Husband shall be entitled to reside in the “ranch house” for a period not to exceed one (1) year from the sale of the “marital residence” . . . , provided he assume full responsibility for timely payment of the real estate taxes, insurance, utilities and other expenses associated with the “ranch house” during said period of possession, and that he indemnify and hold Wife harmless therefrom. At the end of Husband’s one year term of possession (or sooner, if he should fail to maintain timely payment of the obligations outlined herein), he shall peacefully surrender said property to Wife in a neat and orderly condition, ordinary wear and tear excepted. Husband shall assume financial responsibility for any damages caused to the property known as the “ranch house” during his period of possession, and shall indemnify and hold Wife harmless therefrom. Moreover, Husband shall not engage in, nor allow others to engage in, illegal activities on or about said property, and Wife shall be entitled to inspect said property from time to time upon reasonable notice to Husband.
Id. at 13-14. The settlement agreement also provided that any modification or
waiver of any of the provisions of the agreement must be made in writing.
[4] Sometime in 2006, Wife moved into the ranch house with her daughter, her
granddaughter, Husband, and their son. Husband moved out of the house in
September of 2015. On October 14, 2015, Husband filed a petition for a
temporary restraining order and a post-trial order.1 The parties met for
mediation in December 2015 and, after four hours of mediation, Husband left
the building without notifying the mediator or the attorneys and did not return.
1 This petition is not included in the appellant’s appendix.
Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018 Page 3 of 13 On June 26, 2017, the court held a hearing at which it admitted evidence
regarding Wife’s expenditures related to a vehicle, automobile insurance, and a
cell phone for Husband and to real estate taxes, insurance premiums, and utility
service for the ranch house and photographic evidence of the condition of the
ranch house in 2015. Wife’s counsel also requested time to submit an attorney
fee affidavit, and the court stated the parties had forty-eight hours to file their
affidavits. Wife filed an affidavit in support of attorney fees on June 28, 2017.2
[5] On July 17, 2017, the court entered an order which provided:
1. The Court finds that Wife owed to Husband the sum of $30,000.00 pursuant to the Parties’ Marital Settlement Agreement.
2. This Court is not modifying this obligation. However, the Court finds that Wife has paid to Husband well over the $30,000.00 amount. After the parties’ divorced, the Wife purchased a vehicle for Husband, paid for the insurance on the vehicle for a number of years and paid for the Husband’s cell phone for a number of years. The Court does not even have to consider all the expenses that Wife paid that Husband was Ordered to pay under the Agreement to reach the $30,000.00 amount owed.
3. To Order Wife to now pay another $30,000.00 would unjustly enrich the Husband and would not be fair and equitable.
2 The record does not include a copy of the submitted affidavit.
Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018 Page 4 of 13 4. Husband shall be responsible for contribution to Wife’s Attorney fees in the sum of $2,800.00. Said sum is reduced to judgment . . . .
Id. at 23-24.
Discussion
[6] Husband claims that the trial court erred in not ordering Wife to pay him
$30,000 and in ordering him to pay attorney fees. He asserts that his
cohabitation with Wife did not terminate or alter Wife’s monetary obligation
under the settlement agreement, that Wife did not keep a contemporaneous
accounting of the payments she made toward the vehicle, housing, and cell
phone service, and that the court erred in concluding that Wife’s contributions
to the household during their cohabitation offset her obligation under the
settlement agreement.
[7] Wife maintains that the court did not err in determining that she had already
paid Husband well over $30,000, that the debt was paid in full and Husband is
not entitled to another $30,000, and that the record is replete with evidence
supporting the court’s ruling. She also maintains that, contrary to Husband’s
argument, the settlement agreement was not terminated or modified.
[8] Where a trial court enters findings of fact and conclusions of law, first we
determine whether the evidence supports the findings, and second we determine
whether the findings support the judgment. Lechien v. Wren, 950 N.E.2d 838,
841 (Ind. Ct. App. 2011). We will set aside the trial court’s specific findings
only if they are clearly erroneous, that is, when there are no facts or inferences Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018 Page 5 of 13 drawn therefrom to support them. Id. A judgment is clearly erroneous when a
review of the record leaves us with a firm conviction that a mistake has been
made. Id. We neither reweigh the evidence nor assess the credibility of
witnesses, but consider only the evidence most favorable to the judgment. Id.
The findings control only as to the issues they cover, and a general judgment
standard applies to issues upon which the trial court made no findings. Id.
Further, because Husband appeals a negative judgment, he must show that the
evidence points unerringly to a conclusion different from that reached by the
trier of fact. See Wilder-Newland v. Kessinger, 967 N.E.2d 558, 560 (Ind. Ct. App.
2012), trans. denied.
[9] This Court has stated that, “[t]o prevail on a claim for unjust enrichment, a
plaintiff must establish that a measurable benefit has been conferred on the
defendant under such circumstances that the defendant’s retention of the benefit
without payment would be unjust” and that “[p]rinciples of equity prohibit
unjust enrichment of a party who accepts the unrequested benefits another
provides despite having the opportunity to decline those benefits.” McMahel v.
Deaton, 61 N.E.3d 336, 345 (Ind. Ct. App. 2016) (citing Bright v. Kuehl, 650
N.E.2d 311, 316 (Ind. Ct. App. 1995), reh’g denied), trans. denied.
[10] We review a trial court’s award of attorney fees in connection with a
dissolution decree for an abuse of discretion. Hartley v. Hartley, 862 N.E.2d 274,
286 (Ind. Ct. App. 2007). The trial court abuses its discretion if its decision is
clearly against the logic and effect of the facts and circumstances before it. Id.
Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018 Page 6 of 13 [11] At the June 26, 2017 hearing, Wife testified that the ranch house was still titled
in her and Husband’s names and that she had not paid Husband in a lump sum.
She indicated that she was not trying to modify her obligation under the
settlement agreement to pay Husband $30,000 but that she, in fact, had paid
Husband the money in the form of purchasing him a truck, paying his vehicle
insurance, and paying a cell phone on his behalf. Wife testified that Husband
had indicated that he could not do much with $30,000 because he did not have
a vehicle or a cell phone and, once he purchased those items, there would not
be enough money on which he could live, and she testified that Husband was
also afraid of relapsing to heroin and cocaine use.
[12] Wife testified that she spent $17,243.35 to purchase a GMC Sonoma for
Husband, that Husband did not contribute in any way to the acquisition of the
vehicle, and that her understanding when she purchased the vehicle was that
the purchase constituted partial payment of the $30,000 that she owed him.
Wife indicated that she agreed to provide Husband with insurance on his
vehicle until he was able to find a job and insure the vehicle on his own, that
Husband did not make any contributions toward the vehicle insurance costs
until the date he moved out of the house in September of 2015, and that she
spent approximately $6,945.97 in insurance payments for the vehicle. She
further indicated that Husband requested that, in lieu of paying him the
$30,000, she pay for his cell phone bill and that she spent $6,048.85 in cell
phone service costs on Husband’s behalf from the date of the dissolution decree
Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018 Page 7 of 13 through the date he vacated the ranch house in September of 2015. Wife
indicated that she expended a total of $30,238.17.
[13] Wife further testified that, pursuant to the settlement agreement, Husband was
required to pay, during his possession of the ranch house, the real estate taxes,
homeowners insurance, the utilities, and the maintenance expenses and that he
was supposed to leave the property in good order and condition. She testified
that, during Husband’s occupancy from August of 2006 through September of
2015, he never contributed toward the real estate taxes and that she paid
$27,760.52 in real estate taxes during the period of time he occupied the
residence. When asked “[y]ou weren’t gifting him a place to stay because the
two of you were in love or trying to make this marriage work,” Wife answered
“[c]orrect.” Transcript Volume II at 19. Wife indicated that it was fair to say
that she and Husband lived together at the residence during that period of time,
that she dated other people during that time, and she and Husband never
reconciled during that period of time. Wife indicated that Husband never
contributed toward the homeowners insurance and that she paid $12,133 in
home insurance expenses on his behalf. She further indicated that Husband
never paid NIPSCO or the water and sewer expenses and that, according to her
records, she paid $14,282.66 in NIPSCO expenses and $6,277 through the
Town of Porter and Waste Management during the period Husband occupied
the ranch house.
[14] Wife also testified that Husband did not leave the property peacefully and that
she had him evicted. She indicated that she and Husband lived in the ranch
Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018 Page 8 of 13 house together with Wife’s son and at times her granddaughter, of whom Wife
had guardianship, from 2006 to about 2014 and that she vacated the property
with the understanding that Husband “had one year to fix the property up that
had gone into disrepair and not to use illegal drugs while he was there while
[she] and [her granddaughter] moved to a property in Knox where [she] kind of
kept her safe from what was happening in this home.” Id. at 24. Wife testified
that, when she returned in September of 2015, she took photographs of the
condition of the property, there was a significant amount of hoarding, there
were syringes and socks placed in random areas, it took almost a month to
clean area by area, there was rotting wood and all sorts of debris, there had
been a leak in the living room, the electrical box was rigged with extension
cords, and insulation was falling down. She testified that the vast part of these
problems occurred during the last year of Husband’s occupancy from 2014 to
2015. The court admitted photographs of the housing depicting its condition.
When asked if she had any idea what it would cost her to repair the home, Wife
replied that she had been obtaining estimates and that “[i]t’s well into the
thousands.” Id. at 27.
[15] Wife also testified that her older son had passed away in the military in 2003,
she had guardianship of her granddaughter, she had multiple discussions with
Husband about him moving out, that it usually started drama or chaos, that she
“would get the drug thing thrown in [her] face,” and that it was easier to just
keep the peace. Id. at 29. She testified that she moved in the ranch house in
2006 because she had been paying a lot on rentals and yet was still responsible
Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018 Page 9 of 13 for the bills on the ranch house. She indicated that, when she bought the truck,
it was under both her name and Husband’s name and that she did not place it
in his name only because she had to insure it. Wife indicated that she did not
have Husband sign a receipt or make a ledger to keep track of all of the
payments toward her obligation. She testified that, on numerous occasions
between 2010 and 2014 or 2015, she told Husband that her obligations were
complete and that he needed to move out.
[16] Husband testified that he moved back into the ranch house around 2006 and
that his understanding was that he and Wife were going to attempt to reconcile,
and that it felt to him like the divorce never happened. He testified that Wife
had a good career, she was making most of the money, he worked on the side
doing remodeling when he could, a lot and some of his work was for cash, he
used salvaged materials to fix the house, when he did have some money he
would use it for the family, and that he would cook and do some cleaning. He
testified that the truck was used for camping trips and was not used just for his
personal use, that Wife had access to it anytime, and that he was on the title for
Wife’s vehicle as well. He indicated there was never any discussion that Wife’s
expenditures to purchase the vehicle, the insurance, or the cell phone were
going toward her obligation under the settlement agreement. The court
admitted exhibits related to the vehicle and homeowners insurance bills, the cell
phone bills, the utility bills, and the property taxes.
[17] To the extent Husband suggests that the trial court found that the parties’
cohabitation terminated or modified Wife’s obligation under the settlement
Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018 Page 10 of 13 agreement, we observe that the court’s order specifically states “[t]his Court is
not modifying this obligation” and found that Wife made the required payment
to Husband. Appellant’s Appendix Volume 2 at 23. The court thus determined
that Wife performed her payment obligation under the settlement agreement.
The trial court found that Wife has paid Husband “well over the $30,000.00
amount” she owed him under the settlement agreement. Id. The court entered
specific findings that Wife purchased a vehicle for Husband and paid for the
insurance on the vehicle and Husband’s cell phone for a number of years.
[18] The evidence presented at the June 26, 2017 hearing supports the trial court’s
findings. Wife presented evidence that she paid a total of over $30,000 for a
GMC Sonoma, the insurance premiums for the vehicle, and a cell phone for
Husband. She also presented evidence that she paid over $60,000 in real estate
taxes, homeowners insurance, and utilities for the ranch house during the time
Husband occupied the property. Wife testified that Husband did not contribute
to these vehicle or housing expenses, and Husband indicated that Wife had a
good career and made most of the money.
[19] As for the suggestion that Wife’s expenditures on behalf of Husband were gifts
due to cohabitation, reconciliation, or otherwise, the trial court was able to
assess the credibility of the witnesses and their respective testimony, including
the conflicting testimony. Husband effectively lived expense-free for numerous
years after the entry of the dissolution decree because Wife made all payments
associated with his housing, transportation, and cell phone. Further, while
Wife may have benefited from the nonmonetary and relatively small monetary
Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018 Page 11 of 13 contributions of Husband to some extent during the parties’ cohabitation, the
record establishes that Husband benefited substantially from the monetary
resources and contributions provided by Wife during that time. Based upon the
record, we cannot conclude that the trial court’s findings that Wife paid
Husband the amount owed under the settlement agreement and that to order
Wife to pay another $30,000 would unjustly enrich Husband are clearly
erroneous or that the court erred in finding that Husband is not entitled to
further payment under the settlement agreement. Husband has not shown that
the evidence points unerringly to a conclusion different from that reached by
the trier of fact.
[20] With respect to the court’s attorney fee award of $2,800, the record reveals that
Husband lived in the ranch house for numerous years after the dissolution
decree during which time he essentially lived expense-free as Wife made all
payments associated with his transportation, housing, and cell phone, that
Husband did not leave the property peacefully and had to be evicted in
September of 2015, and that he walked out of mediation without informing the
mediator or the attorneys. We cannot say, based upon the record and under the
circumstances, that the trial court abused its discretion in entering an attorney
fee award in favor of Wife.
Conclusion
[21] For the foregoing reasons, we affirm the order of the trial court.
Affirmed.
Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018 Page 12 of 13 Bailey, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 64A04-1708-DR-1852 | March 28, 2018 Page 13 of 13