*1 ATKINS, Petitioner-Appellant Sally B. ATKINS, J.
William
Respondent-Appellee.
No. 29A02-8708-CV-308. Indiana, Appeals
Third District.
March Miroff, Monty Woolsey, K.
Franklin I. Frank, P.C., Ancel, Indianapolis, Miroff & petitioner-appellant. Schiff, Gary Landau, D. R. John India- n respondent-appellee. napolis, for GARRARD, Presiding Judge. appeal from the trial court’s arises refusal to set aside its division marriage dissolution. The property settlement was based agreement executed married in were wife sued for dissolution on October self-employed photog- 1985. She was a employed by rapher. Her husband was Barney, Inc. as stockbroker. When the dissolution submitted the with counsel and hus- attorney. present without band was *2 presented cash, which, to the court and memo, according to the acceptance. its testified for “a little more than company’s twice the (Husband book value.” learned the actual to the Pursuant the wife re- per unspecified share value on an date a subject ceived the marital residence to the later.) days few it, mortgage upon property, and a following maintenance award for the four At that the property settlement years. Net value of the residence was was still unexecuted. Husband ($50,- fifty estimated at thousand dollars attorneys notified his proposed 000). variety The husband received a of merger urged speedy completion together with three thousand six the proceedings. apparently Husband (3,650) fifty signed hundred shares of Bar- Smith on the 27th and the ney common of which signed 28th, five hundred wife May day it on (500) purchased shares had been while the final Neither the husband nor his pending. dissolution was The wife had the attorneys attorneys notified wife or her Barney appraised by Smith stock an ac- the announcement. countant, twenty-five who had valued it at May On 28th the Indianapolis re- Star ($25) per dollars share. She testified that ported proposal in its business purchase had a money husband loan on section. Later day parties ap- acknowledged capital stock and peared in court and finalized the dissolu- gains taxes would if be owed it were sold. tion. She considered the home and the stock The husband testified at the final hear- trade off. ing. He expressly questioned was not about the value of the stock and was not granted fact, the dissolution. In the Smith specifically asked any whether there were Barney $184,940 stock was worth rather developments or unusual affecting $87,500 placed upon than the the status of the The following the wife. during did occur his examination: The record discloses that the wife con- Q. your To the knowledge best of discovery concerning ducted the stock and ability, assets, your are all of as well accountant; secured an evaluation from an your as all of liabilities covered in this placed specific value on it agreement? during negotiations. their The stock was A. Yes. publicly, not traded only be held Q. you Are anything aware of that is Barney employees, Smith and its sale was not covered? restricted Barney to resale to Smith at No, A. sir. book value. The stock was valued at twen- Q. you Do understand that once the ($25) ty-five per dollars share and it is approves this that all undisputed that this its book value concerning the issues prop- division of spring of 1987. erty, personal, both real and as well as 27th, day debt, allocation of will be a final deci- hearing, Barney final announced sion? merger agreement that it had executed a A. Correct. Corporation with Primerica subject Q. It would be difficult to proval by its shareholders and decision very unless there’s merger, authorities. Pursuant to the involved, strange circumstances value of a Smith share increased to as fraud. fifty-two eighty-four dollars and cents Right. A. ($52.84). Notice of the was carried Q. you anything say Do Broadtape on the on the 27th. Husband Judge Nash? morning received advising a memo that No, A. sir. indicating acquisition
price fifty of seven hundred million dollars dates, Atkins, past present, you do as of diverse Mr.
BY THE COURT: true, anything that should have been accurate there’s interest, direct, just deci- in order to indirect benefi- presented cial, this matter that has may sion in that either have. presented? Voluntary Execution. Section 7.11. No, ATKINS: sir. MR. provisions you. You BY THE COURT: Thank fully ex- effect have been *3 step down. parties, and plained and to acknowledges Agree- that hearing At the conclusion of equitable after full and ment is fair and adopted the accepted and court of all of complete disclosure days later granted the dissolution. Six and respective parties, as liabilities set moved to aside the the wife Agreement, and after of the date of newly evi- discovered fraud negotiations considerable between concerning the increased value of the dence party hereby acknowl- parties. Each expressly edges being en- Agreement to that this her motion as a motion elected to treat voluntarily is not denied relief. This into and that it correct errors and tered or undue influ- peal the result of duress followed. ence. appellee’s the hus In his brief summarily af asserts that we band public policy of this state favors the wife failed file motion firm because agree the amicable settlement written to correct errors addressed to court’s rights of those citi ment of ruling judg her set aside the on motion to having marriages are zens who the motion did not ade ment and because Morgan v. solved. ex rel. Roberts State grounds support quately state facts and (1968), 649, 249 Ind. 232 N.E.2d Cir. Ct. reject argu contentions. We her 871, grounds, on 873 overruled pointed The motion out that ments. Superior rel. v. Marion State ex Schutz arising upon fraud from error relied was 53, (1974), Ind. 307 N.E.2d 261 of her husband’s tripling near 55; (1982), Ind.App., Stockton Stockton and failed stock that he had known about Thus, IC 31-1-11.5- 435 N.E.2d adequately apprised disclose to her. encourages agreements expressly 10 grounds upon facts and
the court of the provides that relied, In she was sufficient. except not modified court expressly to treat the court elected addition agreement, itself, may prescribe or 59 This it was the motion as TR motion. may subsequently consent. See, e.g., do. rel. entitled to State ex Realty v. Howard Cir. Indiana Fla. Trust clear, however, The cases make that 264 315. 256 Ind. N.E.2d Ct. a trial court has discretion to determine issue, accept or not to that whether Turning to the central we find agree the first instance. We with the court express provisions parties’ own Stockton, court should clearly supra, that the part do so unless it determines dispositive. pertinent In nevertheless product provided: unfairness, man unreasonableness or Disclosure. Section 7.10. Full inequity in its that it was ifest terms or predi- has been Settlement fraud, misrepresentation, procured through upon of a full and com- cated assurances coercion, of full disclosure. duress lack of all financial plete disclosure investing the By at 589. court and other information about reject agreements where with discretion repre- Husband and Wife warrant appears such circum to the court that sent that the financial information exist, public policy further the and the Wife stances we statements of Husband by encouraging agreements premised supplied to Husband’s and Wife’s counsel intelligent public Accordingly, choice con- voluntary, of the dissolution process. judgment determining fidence in the the division of mari- (including tal assets the award of mainte- argues The husband that he com nance) is reversed and remanded for a new points mitted no fraud. He out that he trial. merger was never asked for the informa REVERSED AND REMANDED. tion, the wife relied her own professionals retained to value the STATON, J., concurs and files and that information was a separate opinion. public prior matter of record to the hear HOFFMAN, J., dissents and files ing. points He also out that the separate opinion. incomplete in the sense that approvals and shareholder still had to STATON, Judge, concurring. (Subsequently, they obtained. were and concur. I hasten to out effected.) that not every change in the valuation of *4 property which are of a settle- length transaction, Were this an arm’s ment should setting necessitate the aside might arguments telling. these Under judgment. Only of the substantial the circumstances of this case experienced such as the one in this case superfluous. agreement required that require setting negotiated the set- party make full and disclo change tlement aside. If a substantial in sure of all financial and other place the value of an asset takes after the parties information about the as of the date settlement has been to but not 28, 1987, agreement, of the which was Court, proved by the parties a have provi the date of the final Such duty clear to advise the Court in order to sions do not call for a minute examination inequities. avoid unintentional It may ap- syntax. They require of the disclosure pear litigants to some that once the settle- party one to the other of all matters which signed by parties, ment is substan- good ought conscience to be disclosed. tial increase or decrease in the valuation of Moreover, the failure to disclose when merely assets is “luck of the draw” or duty a exists constitutes constructive fraud beyond a matter the control of the Court. (Brown v. Indiana Nat. Bank Ind. be, This should never since the Court has 888, 891) App., 476 ground and is responsibility the ultimate to see that a fair setting property aside an order of equitable place distribution has taken position. IC 31-1-11.5-17. between the significance We hold no doubt as to the of the news on May learned HOFFMAN, Judge, dissenting. might 27th. That the case dis- respectfully First, dissent. I do not date, posed long or even that judg- motion to set aside the largely responsible the wife was for the fraud and the existence of delay, are of no moment. At that newly discovered evidence should have point unsigned and the been treated as a motion to correct errors case required untried. The full under these circumstances. and fair disclosure. The information with- Second, potentially impact majority held had a broadly substantial too inter- prets pertinent portions agree- the value marital estate and the of the positions sections, parties. By failing together, relative of the ment. The when taken require parties fully disclosure the husband breached disclose the perpe- fully the condition of the existence of assets. The husband had entitling complied by disclosing ownership trated a constructive fraud judg- to have At no time did the husband value ment, adopted it as a valid the stock. His failure to disclose that parties, possible merger ment of the set aside. alter the wife’s valu- could parties” or that con- aration of the amount to the stock cannot ation of legislature duty acquired by joint existed. efforts. structive fraud because give and divi- arguably determined that no disclosure if the has Even present parties acquire case duty, required facts in the is rise to a sion finding. The husband of final such a after the date preclude additional on the date separation could not be held accountable before the dissolution be- but possible increase agreement for intention of final. the obvious comes upon an event of the stock based legislature the value some date certain serve termination, to occur the future. not certain which all after estranged party to the oth- claims one concurring opin- Third, majority and extinguished. The er’s assets are it is impression one ions leave with point, had reached that in the case for a dissolu- manifestly unfair through agreement. even fail to disclose substantial tion to in tem- of assets which occurs in valuation foregoing I would vote For the reasons the execution of the poral proximity to trial court’s decision. to affirm the mea- agreement. Fairness should require subjective terms which sured in with the terms of the compliance
more than
agreement.
By way analogy, IND.CODE requires only that courts 31-1-11.5-11 § sep- to final property acquired “prior
divide