COA: Ex-husband rightfully granted motion to enforce settlement, owed appellate attorney fees

A woman who didn’t comply with the settlement agreement in her dissolution of marriage decree has failed to convince the Court of Appeals of Indiana that a trial court erred in granting a motion to enforce settlement.

Further, the woman will have to pay her ex-husband’s appellate attorney fees after the COA determined she was attempting to delay the sale of the martial residence.

Daniel Bunting and Ruth Anne Herber were married in August 2000. There are two mortgages on their marital residence, which they both signed.

Bunting petitioned to dissolve their marriage in October 2016 and almost three years later, the Marion Superior Court entered a dissolution decree, which incorporated their settlement agreement.

The settlement agreement provided the marital residence would be Herber’s “sole and separate property” subject to these conditions:

“[Ruth Anne] shall assume and be solely responsible for any and all liens on said property. Until resolution of the second lien on the marital residence, [Ruth Anne] shall have 6 months to refinance the marital residence, [but if she does not] . . . , [Dan] may petition the court to force sale of the marital residence.”

Starting in early 2020, Herber made no payments on the first mortgage for about 16 months.

In May 2021, nearly two years after the decree and settlement agreement were entered, Bunting moved to enforce the agreement and compel the sale of the marital residence, alleging Herber had failed to refinance the residence, which he said was damaging his credit and limiting his ability to borrow money.

After a hearing, the trial court found Herber had breached the settlement agreement by failing to refinance the marital residence. The court ordered her to refinance it, and if she did not, the marital residence would be sold.

The trial court issued a written order in October 2021 on Bunting’s motion to enforce, which affirmed the finding and conclusions of its ruling from the bench.

Additionally, the order provided that if the marital residence was sold, Bunting would choose the real estate broker to list the marital residence. It also stated that the broker would set the listing price and must accept any offer on the marital residence within 5% of the listing price, unless certain exceptions applied, and  directed Herber to maintain the marital residence and make timely payments on the mortgages.

Finally, it provided details about how the sale proceeds would be distributed.

Herber then filed a motion to correct error, alleging, in part, that the settlement agreement did not give Bunting authority to choose the listing agent for the sale of the marital residence.

The trial court granted the motion in part by ruling that Herber would select the listing agent, but if none were selected, the trial court would appoint a commissioner to make the sale proceed. It also ruled that all other provisions in its order granting Bunting’s motion to enforce remained in effect.

On appeal, Herber challenged the order granting Bunting motion to enforce the settlement agreement and the partial denial of her motion to correct error. In response, Bunting requested appellate attorney fees.

Herber wasn’t able to sway the COA.

“We disagree that the trial court’s order of enforcement was an impermissible modification of the settlement agreement,” Judge Elaine Brown wrote. “In ordering the sale of the marital residence, the trial court did not modify the agreement but enforced an express provision of the agreement.”

While the COA acknowledged that some terms of the enforcement order are not expressly stated in the settlement agreement, and were not addressed in testimony at the hearing, the terms were not a modification.

“Ruth Anne asks us to remand this matter to let the parties negotiate additional terms about the steps to sell the marital residence,” Brown wrote. “She correctly observes that at the end of the hearing, the trial court suggested that the parties’ attorneys negotiate those details. This was within the trial court’s discretion. But when the trial court issued its written order to force the sale, over a month had passed since the hearing, and Ruth Anne had been under order for about twenty-seven months to refinance the marital residence, yet she had failed to do so.”

Regarding appellate fees, the COA concluded Herber was attempting to delay the sale of the martial residence.

“Under the settlement agreement, the marital residence should have been sold in early 2020,” it wrote. “Allowing further negotiations could substantially delay the sale of the marital residence and keep the two mortgages on Dan’s credit report. Ruth Anne’s other request for relief, allowing the trial court to establish the terms of sale, which it has done once, would also delay resolution of this case, especially if another appeal came before this Court.”

Thus, the COA remanded Ruth Anne Herber v. Daniel Bunting, 21A-DR-2707, to the trial court to determine reasonable attorney fees.