In Re the Marriage of: Jeffrey E. Nelson v. Julie A. Nelson (mem. dec.) ( 2018 )

MEMORANDUM DECISION FILED
Aug 09 2018, 8:49 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Angela L. Freel Kelly A. Lonnberg
Jackson Kelly, PLLC Stoll Keenon Ogden, PLLC
Evansville, Indiana Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Marriage of: August 9, 2018
Court of Appeals Cause No.
Jeffrey E. Nelson, 18A-DR-794
Appellant-Respondent, Appeal from the Vanderburgh
Superior Court
v.
The Honorable Leslie C. Shively,
Judge
Julie A. Nelson, Trial Court Cause No. 82D01-1601-
Appellee-Petitioner. DR-32
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant- Respondent, Jeffrey Nelson (Husband), appeals the provisional
order requiring the sale of the matrimonial home he jointly owns with Appellee-
Petitioner, Julie Nelson (Wife).
[2] We reverse.
ISSUE
[3] Husband presents a single issue on appeal, which we restate as: Whether the
trial court erred by ordering the sale of the parties’ matrimonial home through a
provisional order.
FACTS AND PROCEDURAL HISTORY
[4] On April 28, 2012, the parties married in Illinois. A day before their wedding,
the parties executed a prenuptial agreement (Agreement). The parties
respectively attached to the Agreement, Schedule A and Schedule B outlining
Husband’s and Wife’s premarital assets and debts. In addition, the Agreement
contained clauses stipulating that it is to be construed under Illinois law.
[5] On January 8, 2016, Wife filed a Verified Petition for Dissolution of Marriage
and a Verified Motion for Provisional Order, seeking spousal support and the
preliminary award of attorney fees. On May 2, 2016, the trial court issued a
Provisional Order maintaining the status quo, and that meant that parties were
not allowed to sell jointly held property. The order required Husband to pay
Wife’s rent; however, Wife was responsible for her utilities. Also, Husband was
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ordered to pay monthly support of $2,500 to Wife, as well as $2,000 to Wife’s
attorney. Husband was granted temporary possession of the marital home
located at 1000 Oak Trace Road, Evansville, Indiana, however, Husband was
required to maintain the home and pay for all of its debts and expenses.
[6] On October 3, 2017, Wife filed an Information for Contempt and Petition for
Expert and Attorney Fees. Wife alleged that Husband should be found in
contempt since he had “abandoned the home, left it in disrepair, damaged some
of the personal property[,] and not maintained the home in selling condition.”
(Appellant’s App. Vol. II, p. 66). Wife claimed that the Provisional Order
required Husband to “permit a personal property appraisal,” but, “Husband
[had] refused to allow certain items of personal property to be appraised.”
(Appellant’s App. Vol. II, p. 67). Also, Wife argued that Husband had not paid
the bi-annual property taxes and annual home insurance. Wife additionally
alleged that Husband was “not residing primarily in the marital residence” and
that the “residence should be listed for sale.” (Appellant’s App. Vol. II, p. 67).
Finally, Wife requested the award of additional attorney fees and expert witness
fees.
[7] On January 2, 2018, the trial court conducted a hearing on Wife’s contempt
petition. On January 29, 2018, the trial court issued a Supplemental
Provisional Order directing Husband to pay all pending debts and taxes relating
to the parties’ home no later than January 31, 2018. Also, Husband was
ordered to pay additional attorney and expert witness fees, and the trial court
noted that Husband was free to claim a partial set-off at the final hearing. The
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trial court denied Wife’s request to possess the marital residence. However, the
trial court allowed Wife or her counsel to access the “house and take pictures”
of personal property for appraisal purposes. (Appellant’s App. Vol. II, p. 79).
Husband appealed that order, mainly challenging the award of attorney and
expert fees in favor of Wife. In addition to filing his notice of appeal, Husband
filed a motion to stay the Supplemental Provisional order due to his Notice of
Appeal.
[8] On February 26, 2018, the trial court conducted a hearing on Husband’s
motion to stay the Supplemental Provisional Order pending his appeal. On
March 26, 2018, the trial court granted stay on the payment of attorney and
expert fees pending the resolution of Husband’s appeal on that issue. The trial
court then ordered as follows:
2. The parties are ordered to list the jointly owned real estate for sale
with Carol McClintock of Tucker Realty or Janice Miller of ERA
Realty effective immediately over . . . Husband’s objection.
3. Any offers should be made to the realtor and then discussed
between the parties, whether offers come from a party or third parties.
4. Should the parties not agree to accept any offer received or agree on
a counteroffer, the [trial court] will retain jurisdiction and hearing will
be scheduled.
5. Parties are ordered not to distribute any net sale proceeds and said
monies shall be held in the trust account of Husband’s counsel.
6. Final hearing set for April 4, 2018, is vacated and reset to August
13, 2018, at 9:00 a.m., reserving two days.
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(Appellant’s App. Vol. II, p. 15).
[9] Husband now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] A question which we must decide, and which has received considerable
attention by both parties, concerns the law which should govern this dispute.
Wife has taken the position that the substantive law of Illinois should apply,
while Husband favors the application of Indiana procedural law.
[11] The parties’ prenuptial agreement defined and delineated the parties premarital
property and debts; determined how marital property is to be divided upon
divorce; and stipulated the application of Illinois law on substantive issues.
With that said, the following provisions are pertinent to this appeal:
3. Assets and Liabilities as Separate Property. Each of the parties
agree that all property, whether real or personal, belonging to the other
party at the commencement of their marriage, and as outlined in
Schedules A and B attached hereto, including, if applicable, any assets
acquired by each of them in their separate names while living together
outside the marital relationship or attributable to any appreciation in
value of such property, whether such enhancement is due to market
conditions or to the services, skills or efforts of either of the parties and
all property hereafter acquired by the other party by either bequest,
devise, gift or inheritance, and all property acquired in exchange for
separate property, shall remain the separate property of the other party
during their lifetime and after their death and in the event of a divorce,
annulment, separation or dissolution subject to agreements herein
contained, excluding any property acquired by either bequest, devise,
gift or inheritance or otherwise addressed hereto.
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Excluding any property, real or personal, acquired by either bequest,
devise, gift or inheritance or otherwise addressed heretofore, the
parties further agree that any property, assets, proceeds, jointly held
accounts, furniture, furnishings shall be considered to be marital
property. Marital property shall also include any property acquired
before the marriage which is given to the spouse by retitling in the
other spouse’s name or in the joint name of the parties with the right of
survivorship during the period of marriage. Upon the divorce,
annulment, separation or dissolution, then the property obtained
during the course of marriage shall be divided equally between the
parties, even in the event the property, proceeds, or assets acquired
after the date of marriage are titled in only one parties’ name so long as
the above described marital funds, assets, proceeds or income are
utilized for the acquisition of the property.
***
11. Construction. The terms and provisions of this Agreement shall
be construed and interpreted in accordance with the law of the
jurisdiction of the State of Illinois in such case made and provided,
whether or not the parties continue to reside in the State of Illinois
subsequent to their marriage.
***
25. Illinois Law To Be Applied. In the event that at any time during
the existence of the marital relation between the parties, they should be
or become residents of a state under the laws of which Husband and
Wife acquire property interests commonly known as community
property or any other property and interests different from the property
interests of Husband and Wife under the laws of the State of Illinois,
their property interests shall nevertheless remain the same as they
would have been under the terms of the of this Agreement construed in
accordance with the laws of the State of Illinois . . . .
(Appellant’s App. Vol. II, pp, 56,58). In light of the above provisions, Husband
subsequently argues that
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[T]he fact the parties entered into a [p]renuptial Agreement with an
Illinois choice of law provision does not impact or alter the fact the
procedural law of Indiana controls in this case. Per statute, the parties
may request and potentially receive, if appropriate, orders for
temporary maintenance or support, temporary restraining orders,
custody orders, and orders for the possession of property. The
statutory provisions do not, however, provide for the sale of real estate
during the provisional period. For that reason alone, the trial court’s
order should be reversed.
(Appellant’s Br. p. 8). In turn, Wife contends that the parties’ prenuptial
agreement calls for the application of Illinois law on the disposition of marital
assets. Wife then directs us to Section 501 (a)(3) of the Illinois Marriage and
Dissolution of Marriage Act, which provides that temporary orders during
divorce proceedings may include the “sale of assets.” Wife, therefore sustains
that “Illinois substantive law allows for an order to sell real estate during the
pendency of a divorce action,” and the trial court’s order requiring the parties to
list their marital home for sale is not erroneous. (Appellees’ Br. p. 6).
[12] Generally, Indiana courts will give effect to the parties’ agreement as to
controlling law. JKL Components Corp. v. Insul-Reps, Inc., 596 N.E.2d 945, 950
(Ind. Ct. App. 1992). A contract provision that an agreement is to be governed
by the law of another state operates only as to the substantive law of that state,
and the procedural law of the forum state applies to procedural issues. Simon
Prop. Grp., L.P. v. Acton Enterprises, Inc., 827 N.E.2d 1235, 1237 (Ind. Ct. App.
2005). Laws which fix duties, establish rights and responsibilities among and
for persons, natural or otherwise, are substantive in character, while those
which merely prescribe the manner in which such rights and responsibilities
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may be exercised and enforced in a court are procedural. JKL Components Corp.,
596 N.E.2d at 950.
[13] Husband argues that
First, in reviewing the [Indiana] statutory provisions, one will note
provisional orders are initiated by motion of the parties accompanied
by a separate affidavit. A hearing is then required with an order to
follow. Per the statute, the parties may not request the sale of real
estate and/or obtain an order for the sale of real estate. They may
merely request the possession of property. Moreover, the trial court
may enter an order for the possession of property, but not an order for
the sale of said property. All of which is consistent with the temporary
nature of the orders, and the goal of maintaining the status quo while
the dissolution of marriage action is pending.
Herein, there was no motion for provisional relief pending before the
trial court. The motion before the court was a request to stay
enforcement of the Supplemental Provisional Order while [his] appeal
was pending. The last motion filed by either party regarding the real
estate was [Wife’s] . . . Information for Contempt. A hearing was
conducted on the same, and no finding of contempt was issued.
[Wife’s] . . . request for immediate possession of the marital residence
was denied, and there was no order issued for the sale of any real
estate. For whatever reason, at the hearing on [Husband’s] motion to
stay, the trial court on its own motion, and over the objection of
[Husband], ordered the parties’ jointly owned real estate be
immediately listed for sale. The trial court’s order was clearly outside
the statutory authority, and the trial court should be reversed.
(Appellant’s Br. pp. 11-12).
[14] To the extent that Husband refers to the arguments proffered at the hearing on
his motion to stay the Supplemental Provisional Order, we observe that
Husband failed to provide that transcript. Although a failure to include a
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transcript is “not fatal to the appeal, failure to include a transcript works a
waiver of any specifications of error which depend upon the evidence.” Lifeline
Youth & Family Servs., Inc., v. Installed Bldg. Products, Inc., 996 N.E.2d 808, 814
(Ind. Ct. App. 2013) (quoting In re Walker, 665 N.E.2d 586, 588 (Ind. 1996)).
Husband has chosen to rest his appeal on the “appendices and supplement
appendix filed by the parties along with the legal arguments raised” in his
appellate brief. (Appellant’s Reply Br. p. 5). Husband’s arguments on appeal
are centered on the interpretation and scope of Indiana Code section 31-15-4-8
governing provisional orders during dissolution proceedings.
[15] We review the construction of statutes de novo, giving no deference to the trial
court’s interpretation because the interpretation of a statute is a question of law.
Kaser v. Barker, 811 N.E.2d 930, 932 (Ind. Ct. App. 2004), trans. denied.
Appellate courts independently review the statute’s meaning and apply it to the
facts of the case under review. Id. We may not construe a statute in a manner
that would impair the function the legislature intended it to possess. Id. Our
goal is to ascertain the intent of the legislature by giving effect to the language
that was used. Id. If the language of a statute is clear and unambiguous, it is
not subject to judicial interpretation. Id. We must not interpret one provision
of a statute so as to render other provisions of the same meaningless. Id.
[16] In our view, Indiana Code section 31-15-4-8, is a procedural statute, therefore,
we conclude that this controversy must be governed by the law of the forum
state, i.e.,. Indiana. See Homer v. Guzulaitis, 567 N.E.2d 153, 156 (Ind. Ct. App.
1991). Because this controversy may be resolved by procedural law without
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resort to substantive law, the contractual provision regarding Illinois choice of
law does not govern this dispute, and we apply Indiana law. See Ashley v. State,
757 N.E.2d 1037, 1040 (Ind. Ct. App. 2001) (noting that procedural and
remedial matters are governed by law of forum state).
[17] Applying Indiana law in this appeal, we first note Indiana Code section 31-15-
4-1(a) provides that either party to a dissolution action or legal separation
action may file a motion for temporary relief. Such motions must be
accompanied by an affidavit setting forth the facts supporting the motion. I.C.
§ 31-15-4-2. A trial court is required to set such motions for hearing, and must
hold the hearing and rule on the petition within twenty-one days after the
petition is filed. I.C. § 31-15-4-4; -6. “The determination of temporary orders
in a dissolution proceeding is committed to the sound discretion of the trial
court, and it may issue orders for temporary maintenance or support, temporary
restraining orders, custody orders, [or] orders for possession of property to the
extent it deems just and proper.” Id. (citing I.C. § 31-15-4-8). The provisional
order “is designed to maintain the status quo of the parties.” Mosley v. Mosley,
906 N.E.2d 928, 929 (Ind. Ct. App. 2009) (quoting Bertholet v. Bertholet, 725
N.E.2d 487, 498 (Ind. Ct. App. 2000)). “A provisional order is temporary in
nature and terminates when the final dissolution decree is entered or the
petition for dissolution is dismissed.” Id. at 930 (citing Ind. Code § 31-15-4-14).
[18] We agree with Husband that there was no motion for provisional relief pending
before the trial court. The motion before the trial court was a request to stay
enforcement of the Supplemental Provisional Order pending Husband’s appeal.
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Moreover, Indiana Code section 31-15-4-8 provides the scope of a provisional
orders—i.e., temporary maintenance or support, temporary restraining orders,
custody orders, or orders for possession of property. There is no provision
under Indiana Code section 31-15-4-8 authorizing the sale of martial assets
while divorce proceedings are ongoing. Based on our interpretation of the
relevant statutory provisions, we conclude that the trial court’s order instructing
the parties to list their matrimonial home for sale during divorce proceedings is
erroneous, therefore, we reverse that order.
CONCLUSION
[19] In light of the foregoing, we conclude that the trial court erred by ordering the
sale of the matrimonial home while the parties’ divorce is pending.
[20] Reversed.
[21] May, J. and Mathias, J. concur
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