Kolbet v. Kolbet

760 N.E.2d 1146, 2002 Ind. App. LEXIS 49, 2002 WL 49773
CourtIndiana Court of Appeals
DecidedJanuary 15, 2002
DocketNo. 71A03-0107-CV-219
StatusPublished
Cited by4 cases

This text of 760 N.E.2d 1146 (Kolbet v. Kolbet) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kolbet v. Kolbet, 760 N.E.2d 1146, 2002 Ind. App. LEXIS 49, 2002 WL 49773 (Ind. Ct. App. 2002).

Opinion

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Devorah Kolbet n/k/a Devorah Overbay ("Devorah") appeals the trial court's denial of her motion to set aside the court's previous orders, the trial court's assessment of [1148]*1148a fine against her, and the payment of attorney fees in favor of her former husband, Paul Kolbet ("Paul").

We affirm.

ISSUES

1. Whether the trial court lacked subject matter jurisdiction.

2. Whether the trial court erroneously denied Devorah's motion.

3. Whether the trial court erroneously assessed fines and awarded attorney's fees.

FACTS

Paul and Devorah were married on June 23, 1990, and produced one daughter, C.K., who was born in South Bend, Indiana. While living in South Bend, Paul was pursuing his doctorate in Theology at the University of Notre Dame; Devorah had a Master's Degree in Nursing. Paul and Devorah were separated in April 1999. On March 10, 2000, Devorah engaged counsel and filed her Verified Petition For Dissolution Of Marriage in the St. Joseph Circuit Court. In her verified petition Devorah alleged that immediately prior to the petition's filing, she had "resided in the State of Indiana for more than six (6) months and in St. Joseph County for more than three (8) months." (Devorah's App. 6).

On June 30, 2000, Devorah filed a petition seeking emergency temporary custody, support, and permission to take C.K. outside the jurisdiction of the St. Joseph Circuit Court. In her petition, Devorah alleged that in June 1999, Paul agreed to let her take C.K. to Chicago, where she resided and worked as a nurse. Devorah further alleged that Paul subsequently agreed to let her take C.K. with her to Portland, Oregon. Devorah also averred that when she brought C.K. back to Indiana for her baptism, Paul did not hon- or their agreement to return C.K. to Portland. As a result, she sought temporary eustody and support. In response, Paul filed a motion for custody. The trial court set a provisional hearing for July 24, 2000.

Both Paul and Devorah appeared with counsel at the provisional hearing. The trial court ordered them to meet with Dr. Timothy A. Onkka ("Dr.Onkka"), a licensed psychologist. Dr. Onkka was also ordered to "to submit an emergency custody observation to assist the Court in deciding temporary custody pending a full custody evaluation." (Devorah's App. 67). The trial court set a further hearing for July 27, 2000.

As a result of Paul and Devorah's meeting with Dr. Onkka, a mediation agreement was prepared discussing the custody and care of their now four-year-old, C.K. Paul and Devorah agreed to share joint physical and legal custody of C.K as follows: (1) whichever parent C.K. was living with at the time was to be responsible for providing primary care; (2) Paul and De-vorah were to split the costs of transferring C.K. between households and must provide 28 days notice in order to coordinate schedules; (8) C.K. was to spend the remainder of summer 2000 with Devorah in Portland; (4) Paul would spend Christmas, spring, and summer break with C.K.; and (5) when C.K. began kindergarten, she would spend the school year with Paul, subject to Devorah's visitation rights.

On July 27, 2000, Paul and Devorah executed a property settlement agreement that incorporated the mediation agreement. The property settlement agreement also divided the marital property and included provisions concerning the custody, visitation, and care of C.K. The settlement agreement included the following provisions: '

9. Voluntary Execution. The parties hereto acknowledge that each is making [1149]*1149this Property Settlement Agreement on his or her own free will and volition in an effort to compromise the disputed issues between the parties and further acknowledge that no coercion or undue influence has been used against either party in the making of this Property Settlement Agreement.
10. Emtire Agreement. Each party hereto acknowledges that no representations of any kind have been made to him or her as an inducement to enter into this Property Settlement Agreement, other than the representations set forth herein, and that this Agreement constitutes all of the terms of the contract between said parties, and acknowledges that each has been represented by counsel in the negotiation and making of this Agreement.
11. Modification and Waiver. A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. Failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature.
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14. Indemmification. Each party agrees to indemnify and waive and hold the other harmless from all damages, losses, expenses (including attorney fees), costs and other fees incurred by reason of the other party's violation or breach of any of the terms and conditions of this Agreement.
15. Representation by an Attorney. Each party understands and agrees that they have been relying upon the advice of their own counsel, and neither counsel has made any representation or done any act which would lead the other party to believe that the counsel has represented the interests of the other spouse in this action.

On the same day, the trial court held a final hearing. Paul and Devorah again appeared with counsel and presented their agreement. Devorah testified that she filed the petition for dissolution and that she had resided in Indiana for six months and St. Joseph County for three months immediately prior to filing her petition. Devorah also testified that she and Paul had entered into a property settlement agreement that divided the property in a fair and equitable manner. She also stated that she was satisfied and "fully intend[ed] to follow" the settlement agreement as it related to C.K. (Paul's App. 70). The trial court took the matter under advisement and reserved judgment pending the parties' "submission of [a] decree of dissolution, property settlement agreement, and Child Support Worksheets." (Devorah's App. 67).

On July 28, 2000, the trial court entered a final Decree Of Dissolution Of Marriage. The trial court found the property settlement agreement executed by Paul and De-vorah "to be fair and equitable to each of the parties and is, hereby, approved." (Paul's App. 46). Both the property settlement agreement and the mediation agreement were incorporated into the trial court's judgment.

After the hearing, C.K. returned to Portland with Devorah. On September 14, 2000, Paul sought to arrange for his visitation with C.K. and e-mailed Devorah the dates of his Christmas break. On October 31, 2000, he mailed a letter to Devorah "formally requesting that [they] purchase the plane tickets for the break under the terms of the mediation agreement." (Paul's App. 165). On November 22, 2000, Paul's attorney sent a letter to Devorah's attorney seeking written confirmation that [1150]*1150Devorah would honor the terms of the trial court's order.

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Bluebook (online)
760 N.E.2d 1146, 2002 Ind. App. LEXIS 49, 2002 WL 49773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kolbet-v-kolbet-indctapp-2002.