Opinion
24A-DC-1725
12-26-2024
Lane B. Benziger, Appellant-Respondent v. Katherine Elizabeth Radabaugh, Appellee-Petitioner
APPELLANT PRO SE Lane B. Benziger Westfield, Indiana ATTORNEY FOR APPELLEE Brandi A. Gibson Coots, Henke &Wheeler, P.C. Carmel, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hamilton Superior Court The Honorable J. Richard Campbell, Judge Trial Court Cause No. 29D04-2206-DC-4715
APPELLANT PRO SE Lane B. Benziger Westfield, Indiana
ATTORNEY FOR APPELLEE Brandi A. Gibson Coots, Henke &Wheeler, P.C. Carmel, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶ 1] Pro-se appellant Lane Benziger ("Husband") appeals an order appointing a commissioner to sell real estate in compliance with the terms of a Partial Agreed Mediated Settlement ("Settlement") entered into between Husband and Katherine Elizabeth Radabaugh ("Wife"). Husband presents one issue, which we restate as the following: whether the trial court abused its discretion in enforcing the terms of the Settlement and rejecting Husband's orally proposed modifications. Wife raises on cross-appeal the issue of whether she is entitled to appellate attorney's fees. We affirm the trial court order and deny Wife's request for appellate attorney's fees.
At that time, both parties were represented by counsel. 2
In the Statement of Issues section of his brief, Husband purports to raise five issues. However, rather than identifying five legal issues for appellate review, Husband includes in this section five recitations of action or inaction on the part of the trial court. For example, Husband observes that the trial court did not order Wife to sign a Quit Claim deed.
Facts and Procedural History
[¶ 2] Husband and Wife were divorced on October 25, 2023. At that time, they owned ten acres of real estate in Sheridan upon which there was located a partially constructed residence encumbered by a mortgage.The dissolution court adopted the Settlement, which provided that Husband was to retain the real estate, subject to refinancing or otherwise ending Wife's liability for the mortgage within 180 days. If 180 days passed without Wife's release from liability, the real estate was to be sold.
In 2021, Premier Bank converted a construction loan into a mortgage loan, although construction of the house was not completed. With consent of both parties, additional construction funds could be dispersed.
[¶ 3] The 180 day deadline passed uneventfully, and Wife thereafter contacted Husband about hiring a real estate agent. Husband responded that Wife needed to "forego the charade" and sign a requisition form for additional monies to complete the house. (Tr. Vol. II, pg. 8.) Wife stopped providing her authorization for the withdrawal of construction funds and filed a motion to hold Husband in contempt of court.
[¶ 4] On June 25, 2024, the parties appeared for a hearing on the motion. Wife testified that Husband had not taken actions in accordance with the Settlement. Husband, appearing pro-se, testified that he was unable to refinance the property due to delinquent marital debt and the need for additional repairs. He orally requested that the court order Wife to consent to disbursement of funds to complete and repair the house and also requested dismissal of the contempt petition. Alternatively, he requested to be able to employ a realtor of his choice.
The house was not completed, but interim inspections had revealed significant deficiencies that needed correction. Husband had recovered some funds from litigation with a builder, and a law firm was holding remaining monies in escrow for future distribution to both Husband and Wife.
[¶ 5] At the close of the testimony, Wife asked that her petition be conformed to the evidence presented. She requested that the court, rather than find Husband in contempt, appoint a commissioner to sell the real estate. The trial court stated that Husband had failed to comply with the Settlement and announced its intent to appoint a commissioner to sell the real estate. The court subsequently issued a written order appointing a commissioner. According to a representation made by Husband in his Reply Brief, the real estate was sold to a cash buyer on November 18, 2024. Husband now appeals.
Discussion and Decision
Settlement Enforcement
[¶ 6] Initially, we address Wife's contention that Husband's appeal should be dismissed because he fails to provide cogent argument in accordance with Indiana Appellate Rule 46. When a party's failure to comply with the Appellate Rules is "sufficiently substantial to impede our consideration of the issue raised," we will not address the merits of that issue. Guardiola v. State, 375 N.E.2d 1105, 1107 (Ind. 1978).
[¶ 7] Here, we are able to discern Husband's contentions. At the contempt hearing, Husband claimed that his timely performance of his obligation was made impossible by Wife's conduct and circumstances beyond his control. On appeal, Husband asserts that the trial court acted unethically by refusing to seriously consider his explanations for non-performance and dismiss Wife's petition for enforcement accordingly. Husband also argued that Wife should have been ordered by the trial court and - failing that, by this Court - to execute a pre-sale Quit Claim deed. He initially asked this Court to grant him twelve months for completion of the construction project. However, Husband subsequently observed that the real estate has been sold. Thus, assuming that Husband's representation is true, Husband cannot be afforded the practical relief he initially sought. In replying to Wife's appellee's brief, Husband modified his prayer for relief and asked that this Court issue a warrant for Wife's arrest because of her alleged fraud and perjury. As more fully discussed below, some of Husband's contentions appear to be moot and some are not properly before this Court.
[¶ 8] Indiana Code Section 31-15-2-17(a)(2) provides:
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: ... the disposition of any property owned by either or both of the parties[.]
Subsection (c) provides: "The disposition of property settled by an agreement described in subsection (a) 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." As such, courts may resolve disputes about the interpretation of property settlement agreements; however, "the Indiana Code generally forbids courts from modifying those agreements unless: (1) an agreement authorizes the court to modify it; (2) the parties agree post-decree to modify their settlement agreement; or (3) the agreement is tainted by fraud." Wohlt v. Wohlt, 245 N.E.3d 611, 615 (Ind. 2024).
[¶ 9] Here, the Settlement unambiguously provides that Husband was to refinance the real estate, or otherwise secure Wife's removal as an obligor for the mortgage debt, within 180 days. If this was not accomplished within 180 days, the property was to be listed for sale. Husband did not argue that there existed a legal basis for setting aside or modifying the Settlement; indeed, he simply made requests contrary to the Settlement terms and argued that the Settlement itself absolved Wife of liability to a third-party creditor. The trial court did not honor Husband's requests for, among other things, a choice of realtor. Now, the property apparently having been sold, Husband cannot be afforded such relief. A case is moot when "the controversy at issue has been ended, settled, or otherwise disposed of so that the court can give the parties no effective relief." Civ. Commitment of E.F. v. St. Vincent Hosp. &Health Care Ctr., Inc., 188 N.E.3d 464, 466 (Ind. 2022) (per curiam).
For purposes of addressing Husband's argument, we rely upon his representation that a sale of the property was closed. We do not engage in fact-finding.
[¶ 10] Husband's sole reference to legal authority is to canons of the Indiana Code of Judicial Conduct. Husband presents the cursory argument that the court abused its discretion by "not apply[ing] objectivity, impartiality, and fairness" in considering Husband's position and rendering its decision. Appellant's Brief at 10. "The mere assertion that certain adverse rulings by a judge constitute bias and prejudice does not establish the requisite showing." Ware v. State, 567 N.E.2d 803, 806 (Ind.1991). And the sanctioning of a judicial officer for violation of an applicable canon of conduct is uniquely within the province of the Indiana Supreme Court, pursuant to Article 7, Section 4 of the Indiana Constitution and Indiana Admission and Discipline Rule 25. In re Hawkins, 902 N.E.2d 231, 233 (Ind. 2009). In short, Husband has presented no justiciable grounds for reversal of the order appointing a commissioner. He has shown no abuse of the trial court's discretion.
Appellate Attorney's Fees
[¶ 11] Wife contends that the instant appeal is frivolous; she therefore requests appellate attorney's fees, pursuant to Indiana Appellate Rule 66(E). "[A] discretionary award of damages has been recognized as proper when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay." Orr v. Turco Mfg. Co., 512 N.E.2d 151, 152 (Ind. 1987).
[¶ 12] Wife argues that Husband brought the instant appeal to delay the sale of the real estate. Husband responds that Wife knew, before filing her Appellee's Brief, that the property at issue had been sold to a cash buyer, yet she continued to litigate, and he should not be responsible for those fees. In considering a request for appellate attorney fees, we use extreme restraint because of the potential chilling effect upon the exercise of the right to appeal. Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.Ct.App. 2003). We deny the request for appellate attorney's fees.
Conclusion
[¶ 13] Husband has shown no abuse of the trial court's discretion. We decline to award appellate attorney's fees.
[¶ 14] Affirmed.
Bradford, J., and Foley, J., concur.