ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
DEBRA LYNCH DUBOVICH STEVEN L. LANGER
Levy & Dubovich Langer & Langer
Highland, Indiana Valparaiso, Indiana
FRED ADLER, ) ) Appellant-Respondent, ) ) vs. ) No. 37A04-9808-CV-401 ) SUZANNE R. ADLER, ) ) Appellee-Petitioner. )
APPEAL FROM THE JASPER CIRCUIT COURT
contempt of court for using trust funds to pay Selly's school expenses as opposed to paying
them himself; (2) as a sanction for contempt Father was ordered to pay another account all
monies withdrawn from the trust that Father used to pay Selly's educational expenses; (3)
Father was ordered to repay the trust $16,000.00 which, according to the court, represented
excess management fees; (4) Father was ordered to return to Adler Ventures any monies he
received representing his 20% interest; and (5) Father was ordered to divide equally with
Mother any future distributions he received from Adler Ventures, excluding management
fees. The Court also awarded Mother attorney fees. Father now appeals.
to hear and decide a particular class of cases. Putnam County Hosp. v. Sells, 619 N.E.2d
968, 970 (Ind. Ct. App. 1993). The issue of subject-matter jurisdiction is resolved by
determining whether the claim involved falls within the general scope of authority conferred
on a court by the Indiana Constitution or by statute. Id. In this case, to the extent Father is
arguing that the Jasper Circuit Court lacks subject-matter jurisdiction to resolve matters
concerning trusts and probate, his argument fails. Ind. Code § 33-4-4-3 provides "[t]he
circuit court has original jurisdiction in all civil cases and in all criminal cases, except where
exclusive jurisdiction is conferred by law upon other courts of the same territorial
jurisdiction." Consistent with Ind. Code § 33-4-4-3 we have held that circuit courts in
Indiana have exclusive jurisdiction over all probate matters except where otherwise provided
by statute. In re Plummer's Estate, 141 Ind. App. 142, 219 N.E.2d 917, 921 (1966). Matters
involving trust administration are civil in nature and generally heard by the probate court.
In the case before us there is no statute restricting the probate jurisdiction of the Jasper
Circuit Court. Thus, it is apparent that the court in this case has jurisdiction to hear and
resolve matters of trusts and probate. In any event Father's subject matter jurisdiction
argument fails also for another reason. As we show below, contrary to Father's contention,
the trial court was not exercising its probate jurisdiction in this instance. Rather, the court
was exercising jurisdiction as a dissolution court.
Father also contends the trial court lacked jurisdiction over this particular case. As Father correctly points out a court can have subject matter jurisdiction over a class of cases but not have jurisdiction over a particular case. "'Jurisdiction of the particular case refers to
the right, authority, and power to hear and determine a specific case within the class of cases
over which a court has subject matter jurisdiction.'" Harp v. Indiana Dept. of Highways, 585
N.E.2d 652, 659 (Ind. Ct. App. 1992) (quoting City of Marion v. Antrobus, 448 N.E.2d 325,
329 (Ind. Ct. App. 1983)) (emphasis in the original). Whether a court has jurisdiction to hear
a particular case depends upon the existence of the particular facts contained therein. Matter
of Adoption of H.S., 483 N.E.2d 777, 780 (Ind. Ct. App. 1985). According to Father the trial
court lacked jurisdiction over this particular case because: (1) the Adler Venture Trust,
although mentioned in the divorce decree, was not marital property and thus the trial court
had no authority to enforce its terms or interpret its provisions, (2) neither the beneficiaries
nor the trustee were given notice that the trial court would enter an order affecting Trust
assets, and (3) Mother lacked standing to raise any issue concerning the Trust in that she had
only a speculative contingent remainder interest.
Father's contention that the Trust was not marital property is inconsistent with the record. As a part of the dissolution decree the trial court approved the parties' "Marital Property Settlement, Custody, Visitation and Child Support Agreement." R. at 235. This elaborate and detailed twenty-two page document included a section entitled "Adler Ventures, LTD" that provided:
1. It is agreed and stipulated by the parties that Adler Ventures, Ltd., is a limited partnership in which the limited partner is First Bank of Whiting, as Trustee for Fred Adler's four (4) children, two (2) of whom are children from a prior marriage, namely, Vanessa Adler and Monica Adler. As Vanessa and Monica have already had the benefit of their share of the trust, the remaining assets are to be used exclusively for the benefit of Carl and Selly in accordance with the terms of the Agreement of Limited Partnership of Adler Ventures, Ltd., and the March 20, 1981 Trust Agreement. First Bank of Whiting, as
Trustee, is the limited partner owning an eighty percent (80%) interest.
Husband, who owns twenty percent (20%) of Adler Venture[s], Ltd., is the
2. It is further agreed and stipulated by the parties that Husband shall
continue to act as general partner of Adler Ventures, Ltd., and upon
termination of the trust in accordance with the terms and provisions of the trust
agreement, Husband's twenty percent (20%) interest shall be divided and
distributed equally between himself and Wife.
3. It is further agreed and stipulated by the parties that when Husband
withdraws any funds from Adler Ventures for any reason whatsoever, he shall
notify Wife in writing of the withdrawal and supply Wife with all
documentation relating to the withdrawal.
R. at 252-53. Although the Trust instrument itself was not presented to the dissolution court,
it is clear that the Trust was more than just "mentioned" in the divorce decree as Father
asserts. Rather, by agreement of the parties the Trust was made a marital asset and included
as a part of the parties' property settlement agreement. It follows that in this post-dissolution
action Mother has standing to challenges any conduct by Father that was not consistent with
the terms and conditions of the dissolution decree. Indeed it would be incongruous for the
dissolution decree to provide that Father give Mother written notice and documentation
regarding any funds he withdraws from the Trust and then leave the dissolution court
powerless to sanction Father should he fail to provide documentation, or if the documentation
that is provided demonstrates excessive or inappropriate withdrawals.
As for Father's contention that neither the beneficiaries nor the trustee was given notice of this action, we conclude that no such notice was necessary. If this were a case involving purely matters of trust administration, then Father's argument would be more
However this case was presented to the trial court for enforcement of its order
of dissolution. That it involved interpreting and enforcing certain trust provisions was made
necessary by the parties own property settlement agreement. By its express terms the
agreement provides that once the trust terminates Wife is entitled to one half of Father's
twenty percent (20%) interest. Here the trial court was convinced that by receiving
$3,362.00 as a 20% reimbursement and by receiving $26,000.00 as management fees
retroactive to 1981, Father was attempting to diminish the amount of trust assets that would
be available to Wife upon termination of the trust. Accordingly the trial court ordered Father
to repay the Trust $16,000.00 representing excess management fees and any monies Father
received representing his 20% interest. The trial court possessed jurisdiction over this
particular case to enter such an order. And we find that the order was not erroneous.
receive one-half of Father's 20% interest in Adler Ventures. Pointing to Father's receipt of
a 20% disbursement from Adler Ventures, Mother sought to modify the property settlement
agreement complaining alternatively that either the withdrawal violated the terms of the trust
or that the withdrawal of funds represented marital assets of which she was entitled to an
equitable share. In response to Mother's complaint the trial court declared "in the future and
to the extent that Husband receives any distributions from Adler Ventures, he shall pay Wife
one-half of any such distribution, excluding management fees." R. at 818. We fail to see
how Father waived raising this issue when Mother presented the matter to the trial court and
the trial court ruled on the issue. In any event the trial court's order modified the original
settlement agreement by awarding Mother half of any distribution Father received prior to
and regardless of the date the trust is terminated.
A property settlement which is incorporated into a final divorce decree is a binding contract, and the dissolution court may not modify that settlement absent fraud, duress, or undue influence. Johnson v. Johnson, 575 N.E.2d 1077, 1080 (Ind. Ct. App. 1991); see also I.C. § 31-15-2-17(c). In this case, Mother cited fraud as a basis for modification. However, Mother failed to demonstrate the existence of fraud. Further, the trial court itself did not make a finding of fraud. Rather, the court stated that "not only is this Court troubled by the fact that Husband retroactively and unilaterally increased his management fees, but the arbitrary and capricious manner in which Husband made the determination as to the amount of his fees is very troublesome and disturbing . . . ." R. at 816. These comments cannot be interpreted as a determination that Father engaged in fraud either before or after the parties
entered their settlement agreement. Because Mother failed to carry her burden of
demonstrating fraud, we conclude the trial court erred in modifying the parties' property
settlement agreement. On this issue the judgment of the trial court is reversed.
extraordinary educational related expenses including but not
limited to tutoring, school related travel, study abroad programs,
summer travel, and special housing shall be determined and
approved by and paid for by the Father.
R. at 502. This order is unambiguous. Whether Father ever attempted to hold Mother liable for the expenses is not at issue. The issue is whether Father evaded the court's order by not paying in full for Selly's educational expenses. It is clear that Father failed to do that which was ordered: pay the entire cost of Selly's schooling. Father also counters that he did not willfully fail to comply with the order because the trustee had sole discretion over the trust's funds, and Father never exerted control over the trustee. We disagree. Evidence introduced at the hearing revealed that upon Father's oral direction the trustee debited the trust for $16,810.00, issued a check to Father for reimbursement of Selly's school expenses in the amount of $2,295.00, issued a check to the Berkshire School in the amount of $14,265.00 for Selly's first term tuition, and issued a check in the amount of $250.00 for Selly's school health insurance. The evidence demonstrated that trust expenditures were not completely beyond Father's control, and that Father specifically directed the trustee to pay for his daughter's educational expenses. We conclude the trial court did not err in finding Father in contempt of court.
authority to compensate the aggrieved party for losses and damages resulting from another's
contemptuous actions." Crowl v. Berryhill, 678 N.E.2d 828, 832 (Ind. Ct. App. 1997). Here,
because Father was in contempt the trial court did not err in awarding Mother $2,000.00 in
As for Father's complaint that the trial court erred in failing to grant his own request for fees, we disagree. Apparently anticipating that he might prevail on some of the issues upon appeal, Father cites DeBoer v. DeBoer, 669 N.E.2d 415, 427 (Ind. Ct. App. 1996), trans. denied, for the proposition that "[i]f a party prevails, even only in part, upon appeal, the issue of the attorney fee award must be remanded with the other issues for reconsideration." Brief of the Appellant at 38. We disagree with Father's interpretation of DeBoer. In that case the trial court awarded attorney fees in Father's favor because Mother's "'legal and strategic positions'" caused Father to incur unnecessary expenses. DeBoer, 669 N.E.2d at 420. Upon appeal we determined among other things that Mother's legal positions were not completely without merit and that in fact she had prevailed on many of the issues on appeal. Id. at 427. We concluded therefore "the trial court improperly awarded fees on this basis. The issue of attorney's fees must be remanded for reconsideration." Id. Contrary to Father's argument DeBoer does not stand for the proposition that the trial court's award of attorney fees is later rendered erroneous when a party prevails on some issues upon appeal. Although the trial court may, it is not required to award attorney fees and expenses. Rather the trial court is afforded broad discretion in that regard. There is no abuse of discretion for the trial court not to do that which it is not required to do. Rump v. Rump, 526 N.E.2d 1045,
1047 (Ind. Ct. App. 1988), trans. denied. In this case the trial court declined to award Father
attorney fees. The trial court did not abuse its discretion in so doing.
In conclusion we reverse that portion of the trial court's order directing Father to divide equally with Mother any future distributions he may receive from Adler Ventures. In all other respects the judgment of the trial court is affirmed.
Judgment affirmed in part and reversed in part.
DARDEN, J., and SULLIVAN, J., concur.
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