Marriage of Akers v. Akers

849 N.E.2d 773, 2006 Ind. App. LEXIS 1216, 2006 WL 1737833
CourtIndiana Court of Appeals
DecidedJune 27, 2006
DocketNo. 46A05-0601-CV-29
StatusPublished
Cited by2 cases

This text of 849 N.E.2d 773 (Marriage of Akers v. Akers) 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
Marriage of Akers v. Akers, 849 N.E.2d 773, 2006 Ind. App. LEXIS 1216, 2006 WL 1737833 (Ind. Ct. App. 2006).

Opinion

OPINION

VAIDIK, Judge.

Case Summary

Dawn Akers (“Wife”) appeals the trial court’s order modifying the custody, child [774]*774support, and parenting time arrangements between her and Okey Akers, III (“Husband”). We find that the trial court erred in adopting an alleged settlement agreement between the parties because Wife repudiated the agreement before it was presented to the trial court in writing or recited on the trial court record, as required by Indiana Code § 31-15-2-17. We therefore reverse the judgment of the trial court and remand this cause for an evidentiary hearing on Husband’s petition to modify.

Facts and Procedural History

Wife and Husband divorced on May 24, 2000. On November 12, 2004, Husband filed a petition to modify child custody, child support, and parenting time. Over the next year, the parties conducted discovery and apparently worked toward settling the dispute. Then, on November 29, 2005, Wife and Husband appeared in court, represented by counsel, having reached an agreement. Instead of going into the courtroom, the parties, the attorneys, and the judge went to the judge’s chambers to discuss settlement. Though the parties never put anything on record that day, the trial court made the following entry in the Chronological Case Summary: “Cause submitted on [Husband’s] Petition to Modify. Court issues Provisional Orders. Order Per Form. [Husband’s attorney] to prepare Form of Order. Court will review the affect [sic] of the Provisional Order at the end of the present school year.” Appellant’s App. p. 4.. There is no indication in the record before us that the court actually issued any written order at that time.

Just a few days later, on December 5, 2005, Wife, apparently upset with events that transpired after the November 29, 2005, discussion in the judge’s chambers, filed a motion in which she asked the trial court to “disallow,” “rescind,” and “reject” the agreement and to “schedule a hearing on the merits to resolve the change of custody issue.” Id. at 18-19. The trial court set a hearing for January 13, 2006. One week before the scheduled hearing, on January 6, 2006, Wife filed another motion, captioned “Wife’s Verified Notice of Agreement Repudiation,” again informing the trial court that she wished to repudiate the agreement. Husband then submitted a proposed order, to which Wife objected. The parties appeared in court as scheduled on January 13, 2006, and went on the record. The trial judge asked Wife if she had any objection to the court signing Husband’s proposed order, and Wife’s attorney responded that she had repudiated the agreement after the meeting in the judge’s chambers. The trial judge signed the order over Wife’s objection and entered it as the order of the court. Wife now appeals.

Discussion and Decision

On appeal, Wife argues that the trial court erred in approving the alleged settlement agreement between the parties because Wife had already repudiated it. In response, Husband contends that the trial judge’s signature of the proposed order on January 13, 2006, was merely a formality because the judge had already approved it during the meeting in his chambers on November 29, 2005. For the reasons detailed below, we agree with Wife that the trial court’s order must be reversed.

Although neither party cited it, we are guided by Indiana Code § 31-15-2-17, which provides, in pertinent part:

(a) To promote the amicable settlements of disputes that have arisen or may arise between the parties to a marriage attendant upon the dissolution of their marriage, the parties may agree in writing to provisions for:
[775]*775(1) the maintenance of either of the parties;
(2) the disposition of any property owned by either or both of the parties; and
(3) the custody and support of the children of the parties.
(b) In an action for dissolution of marriage:
(1) the terms of the agreement, if approved by the court, shall be incorporated and merged into the decree and the parties shall be ordered to perform the terms; or
(2) the court may make provisions for:
(A) the disposition of property;
(B) child support;
(C) maintenance; and
(D) custody;
as provided by this title.

(Emphases added). The policy behind this statute, i.e., promoting amicable settlements of disputes that arise in divorce proceedings, applies equally to dissolutions in the first instance and later petitions for modification. See Mundon v. Mundon, 703 N.E.2d 1130, 1134 (Ind.Ct.App.1999) (citing statute in child custody modification context).

This Court has concluded that the statute envisions a “simple two-step process necessary to bring a valid ... settlement agreement into existence[.]” McClure v. McClure, 459 N.E.2d 398, 401 (Ind.Ct.App.1984) (addressing Indiana Code § 31-1-11.5-10 (repealed by P.L. 1-1997, § 157), the predecessor to Indiana Code-§ 31-15-2-17, in context of property settlement agreement). First, the plain language of the statute requires a written agreement. Id. at 400. Second, “once there is such an agreement between the parties, it is not effective until approved by the court[.]” Id.

Addressing the importance of the writing requirement under the predecessor to Indiana Code § 31-15-2-17, this Court has stated:

By requiring that [] agreements be in writing the trial court will have some assurance that the parties seeking to have their marriage dissolved have carefully considered the fairness of the provisions contained therein if it should elect to adopt the agreement and order it incorporated into the decree of dissolution as authorized by [the statute].

Waitt v. Waitt, 172 Ind.App. 357, 362, 360 N.E.2d 268, 272 (1977) (discussing I.C. § 31-1-11.5-10 (repealed 1997) in the context of a property settlement agreement). There are other strong policy reasons supporting the requirement that agreements be in writing, including: (1) ensuring the enforceability of agreements; (2) facilitating agreements that result from mutual assent; (3) achieving complete resolution of disputes; and (4) producing clear understandings that the parties are less likely to dispute or challenge. Vernon v. Acton, 732 N.E.2d 805, 810 (Ind.2000) (discussing value of written agreements in context of Indiana Alternative Dispute Resolution Rules). This Court has held that until an alleged agreement exists in the written form contemplated by now-Indiana Code § 31-15-2-17, the agreement is not eligible to be approved and incorporated into the trial court’s dissolution decree. Eddings v. Eddings, 437 N.E.2d 493, 494 (Ind.Ct.App.1982). We must first determine, then, whether Wife and Husband ever entered into a written agreement.

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Bluebook (online)
849 N.E.2d 773, 2006 Ind. App. LEXIS 1216, 2006 WL 1737833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-akers-v-akers-indctapp-2006.