author: SULLIVAN, Justice.

text:
    Sean Thomas RYAN, Appellant (Petitioner below), v. Dee Anna RYAN, Appellee (Respondent below).
    No. 71S03-1111-DR-644.
    Supreme Court of Indiana.
    July 31, 2012.

      Matthew A. Yeakey, Elkhart, IN, Attorney for Appellant.
    Robert J. Palmer, Mishawaka, IN, Attorney for Appellee.
   SULLIVAN, Justice.

When Sean and Dee Anna Ryan divorced, they agreed to sell two properties they owned and divide the proceeds, subject to a proviso that neither party was required to accept a sale yielding net proceeds below specified mínimums. When the properties could not be sold at or above the specified mínimums, Dee Anna refused to waive the proviso. She was entitled by law to do so.

Background

When Sean Ryan filed for divorce on March 5, 2008, he and Dee Anna owned a residence in Granger, Indiana, and a lake house in Union, Michigan. Both properties had mortgages on them. The parties entered into a “Property Settlement Agreement” in which they agreed to sell the properties and pay off the mortgages. (This agreement also covered child-related matters, the disposition of personal property, and other matters customary in agreements of this kind.) Until the properties sold, Sean and Dee Anna agreed that they would pay 75% and 25%, respectively, of the applicable mortgage/loan payments, taxes, and insurance. Concurrently with the settlement agreement, the parties executed a “Private Agreement,” which provided that Sean and Dee Anna could “bind” each other to accept a purchase of the properties so long as the “resulting net proceeds” equaled at least $1,100,000 in the case of the Granger residence and at least $300,000 in the case of the lake house. (“Net proceeds” was defined to mean the amount realized after payment of broker commission and closing costs.) This agreement also specified how the proceeds would be distributed once the properties were sold.

The settlement agreement was incorporated into a divorce decree issued by the trial court on September 19, 2008. Following the decree, the properties were listed for sale at $1,349,000 for the Granger residence and $349,000 for the lake house, that is, well above the minimum sales prices specified in the parties’ agreement. As of May 14, 2010, neither of the properties had sold so Sean filed a Motion for Relief from Judgment pursuant to Indiana Trial Rule 60(B)(8), seeking a court order that the properties be sold at “prevailing fair market value and the Private Agreement be declared of no further force and effect.” Appellant’s App. 33.

The trial court denied Sean’s request, but the Court of Appeals reversed and remanded for the trial court to hold an evidentiary hearing on Sean’s motion, Ryan v. Ryan, 946 N.E.2d 1191 (Ind.Ct.App.2011), reh’g denied. We granted transfer, Ryan v. Ryan, 962 N.E.2d 651 (Ind.2011) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).

Discussion

One’s view of this case is largely affected by the narrative that situates it. Sean’s narrative is grounded in the proposition that he and Dee Anna agreed to sell the two properties at issue for their market value, divide the proceeds in an agreed manner, and get on with their separate lives. They specified in their agreement what they both in good faith thought was a minimum sales price well below the market value of the properties; when the recession of 2008 materialized, that good-faith estimate proved incorrect; and when Dee Anna refused to reduce it, it was entirely appropriate for the dissolution court to order her to do so.

Dee Anna’s narrative is grounded in the proposition that she and Sean agreed to walk away from their marriage with net assets predicated on the two properties being worth at least as much as the specific minimum amounts set forth in their agreement and that they would continue to share the costs of ownership until the properties could be liquidated at those prices. The fact that the recession hit shortly after the divorce was final is of little consequence; the housing market in Michiana had been soft for several years prior to 2008, and the parties could easily have written a market contingency into their agreement if that had been their intent; and Sean has simply changed his mind and the law does not allow him to do so without Dee Anna’s consent.

Both stories have resonance, but our task, as the trial court recognized, is not to choose between the two so much as it is to determine the law that applies for resolving postdissolution disputes.

I

This law starts with direction given to us by the Legislature:

The disposition of property settled by an agreement [in writing between the parties to a marriage dissolution providing for the disposition of any property owned by either or both of them] 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.

Ind.Code § 31-15-2-17(c) (2008).

In fact, the Legislature has prohibited the revocation or modification of all court orders concerning property disposition, not only those (like the one at issue in this case) entered by agreement of the parties:

The orders concerning property disposition entered under this chapter [of the Indiana Code governing the disposition of property and maintenance] (or IC 31-1-11.5-9 before its repeal) may not be revoked or modified, except in case of fraud.

I.C. § 31-15-7-9.1(a).

Our decisions have made clear that the statutory proscription on revocation and modification of property-distribution agreements is “unambiguous.” Voigt v. Voigt, 670 N.E.2d 1271, 1278 (Ind.1996).

Our most recent opinion enunciating this principle was Johnson v. Johnson, where Chief Justice Shepard, writing for a unanimous court, flatly stated that the statutes set forth above require that “property distribution settlements approved as part of a dissolution may be modified only where both parties consent or where there is fraud, undue influence, or duress.” 920 N.E.2d 253, 258 (Ind.2010) (citations omitted).

Another unanimous opinion written by Chief Justice Shepard emphasized that the statutory no-modification rule is grounded in contract law:

An agreement for division of property is economic in nature — an ordinary contract. See Bowman v. Bowman, 567 N.E.2d 828 (Ind.Ct.App.1991).... As with other contracts, a division of property may only be modified according to the terms of the agreement, if the parties’ [sic] consent, or if fraud or duress occurs. [I.C.] §§ 31-15-2-17(c), -7-9.1.

Snow v. England, 862 N.E.2d 664, 668 (Ind.2007).

Also providing guidance is a third unanimous Shepard opinion — Voigt, cited above for describing the proscription on modifying property-distribution agreements as “unambiguous.” 670 N.E.2d at 1278. Voigt is relevant here for more than just that statement. In Voigt, the former husband had sought modification of an order of maintenance (as opposed to property disposition as in the case before us). The statutory scheme governing maintenance (as opposed to property disposition) allows a court to modify an order of maintenance following dissolution “upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.” I.C. § 31-15-7-3(1); see also Voigt, 670 N.E.2d at 1278. Notwithstanding this language, this Court concluded that the trial court could not unilaterally upset the parties’ contract. Voigt, 670 N.E.2d at 1280. We acknowledged that the statutory authority to modify based on changed circumstances “refers to the modification of only court-imposed maintenance, not of approved maintenance agreements,” id. at 1279 (emphasis in original), and held that it could not be extended to maintenance agreements, id. at 1280.

Voigt’s relevance here: if a court does not have authority to modify a maintenance agreement notwithstanding statutory language allowing modification in the face of changed circumstances, it surely does not have authority to modify a property-distribution agreement where the statute flatly prohibits modification.

These authorities make clear that to the extent that Sean seeks to have his and Dee Anna’s agreement modified without her consent, the trial court was entirely correct to rule that it had no authority to do so. Their agreement disposed of property owned by them by an agreement in writing between them; was incorporated and merged into the divorce decree; and did not provide for, nor did the parties subsequently consent to, modification. As such, it was “not subject to subsequent modification by the court.” I.C. § 31 — 15—2—17(c). The Court of Appeals was wrong to hold that the trial court enjoyed ‘“equitable jurisdiction ... to modify a division of property.’ ” Ryan, 946 N.E.2d at 1196 (quoting Dusenberry v. Dusenberry, 625 N.E.2d 458, 461 (Ind.Ct.App.1993)).

II

That a court has no authority to modify a property-settlement agreement, I.C. § Sl-15-2-17(c) (or, for that matter, a property-division order, I.C. § 31-15-7-9.1(a)), does not mean that a court has no authority to resolve a dispute over the interpretation of a settlement agreement or property-division order.

This is a significant gloss to the analysis set forth in Part I, swpra, for one party’s assertion that the other is seeking an impermissible modification is frequently met with the contention that only clarification of an agreement or order is sought. See Brownsing v. Brownsing, 512 N.E.2d 878, 881 (Ind.Ct.App.1987) (Garrard, P.J., concurring) (deeming the difference between “modification” and “clarification” in this context to be merely “semantic”), trans. denied. In Poppe v. Jabaay, for example, a third-party purchaser of the marital residence asserted that the former wife sought an impermissible modification of a property-division order; the wife contended that she merely sought to have the court clarify whether the property-division order should be interpreted to permit the sale of the marital residence to her. 804 N.E.2d 789, 793-94 (Ind.Ct.App.2004), trans. denied. Another such example is Johnson, where the former wife asserted that her former husband sought an impermissible modification of their settlement agreement; the husband contended that he merely sought to have the court clarify whether the settlement agreement required her to subordinate her lien on his family business to the interest of the business’s lender. 920 N.E.2d at 255-57.

In a similar vein, while Dee Anna asserts that Sean seeks an impermissible modification of their agreement, Sean argues that he “is not seeking a modification” of the agreement but only “to execute the parties’ stated intention” to dispose of the two properties, Appellant’s Br. 10.

When a party asks a court to clarify a settlement agreement, the court’s task is one of contract interpretation. This is because settlement agreements are contractual in nature and binding if approved by the trial court. Myers v. Myers, 560 N.E.2d 39, 42, 44 (Ind.1990); accord Snow, 862 N.E.2d at 668; Voigt, 670 N.E.2d at 1278. As such, a settlement agreement is “interpreted according to the general rules for contract construction.” Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind.2008) (citations omitted).

In addition to our Myers and Bailey opinions, there is a plethora of Court of Appeals authority providing that general rules applicable to construction of contracts govern construction of marriage-settlement agreements. This principle was enunciated by our colleagues as early as Higgins v. St. Joseph Loan & Trust Co. of South Bend, 98 Ind.App. 674, 677, 186 N.E. 910, 912 (1938) (en banc), trans. denied, and has been regularly deployed in recent years. One frequently quoted passage provides:

When interpreting these agreements, we apply the general rules applicable to the construction of contracts. That is, unless the terms of the contract are ambiguous, they will be given their plain and ordinary meaning. Clear and unambiguous terms in the contract are deemed conclusive, and when they are present we will not construe the contract or look to extrinsic evidence, but will merely apply the contractual provisions.

Shorter v. Shorter, 851 N.E.2d 378, 383 (Ind.Ct.App.2006) (internal citations omitted).

With these rules in mind, we are called upon to decide whether the provisions governing the parties’ agreement as to the disposition of their properties are ambiguous. These provisions read as follows:

The Husband and Wife agree that either party can bind the other party to accept an offer to purchase [the Granger house] so long as the resulting net proceeds equal the sum of at least One Million One Hundred Thousand Dollars ($1,100,000.00), with “Net Proceeds” meaning the amount realized after the payment of the broker commission and closing costs.
The Husband and Wife agree that either party can bind the other party to accept an offer for the purchase of the said Lake house so long as the resulting net proceeds equal the sum of at least Three Hundred Thousand Dollars ($300,000.00), constituting the net proceeds realized from the sale of the house after the payment of the real estate broker commission and closing costs.

Appellant’s App. 35-36.

Sean maintains that the parties’ agreement to sell the two properties has been frustrated by Dee Anna’s unwillingness to recognize that market conditions have made it impossible to sell the properties for the minimum amounts specified in their agreement and that she should be required to agree to sell them for less. He at least suggests that the parties’ agreement is ambiguous in its requirements in this regard. See Appellant’s Br. 10 (suggesting that the trial court failed in its “duty to clarify ambiguities”). We find no ambiguity in the language of the parties’ agreement that would permit us to conclude as a matter of contract law that Dee Anna is bound to agree to sales prices for the properties that would produce net proceeds less than those stated in the agreement.

First, the language itself admits of no ambiguity: both clauses provide that “either party can bind the other ... so long as the resulting net proceeds equal the sum of’ specific dollar amounts. The term “net proceeds” is defined. No exceptions are provided or implied.

Second, the agreement demonstrates that both parties understood that they faced market risk in placing the properties up for sale. Dee Anna says at one point in her papers that “[t]he downturn in the real estate market did not begin immediately subsequent to September 19, 2008 [the date of the parties’ agreement], but rather began toward[ ] the end of 2005 and the beginning of 2006.” Appellee’s Br. 4 (citation omitted). Perhaps this is self-serving revisionism on her part, but we do know that the parties listed the properties for substantially more than the minimum amounts specified in their agreement. As such, the parties realized that they might not get what they hoped from the properties and made a decision at that point to specify how much market risk they were willing to take. We simply cannot rewrite their agreement on that point.

Third, although Sean presses us that having the parties “share in the risks and awards associated with the asset[s]” would “effectuate the intention of the parties, which is to sell the properties,” Appellant’s Br. 16, the contract simply does not reflect an intention on the part of the parties to sell the properties at whatever price the market will bring. Sean is simply wrong when he says that the parties’ agreement is “silent as to any procedure to adjust the listing price or to otherwise sell the ... properties in conformance with current market conditions.” Id. Rather, the minimum-price provisions reflect the parties’ willingness to sell the properties for less than what they estimated market conditions would bring at the time of their agreement, but not without any price floor whatsoever. Why not? Dee Anna does not say but she is not required to do so. As Chief Justice Shepard wrote in a similar context, “the actual purpose lying behind any particular provision of a settlement agreement may remain forever hidden from the trial judge.” Voigt, 670 N.E.2d at 1278.

Fourth, parties can always agree in their settlement agreements to revisit their terms should the circumstances require. Sometimes this is done through an arbitration clause. Sometimes contingencies are provided for unforeseen market risk or impossibility of performance. But here the parties affirmatively considered the possibility that their agreement might have to be modified and agreed as to how that would occur: by written agreement of both parties, duly filed with and approved by the dissolution court. Asking us to require Dee Anna to accept less than the minimum prices set forth in the parties’ agreement would violate this provision of their agreement as well.

General rules applicable to contract construction — the rules that determine the outcome of disputes over the interpretation of a settlement agreement or property-division order — dictate that Dee Anna is not required to agree to sell the properties for net proceeds less than the amounts set forth in the parties’ agreement.

Ill

In Part II, supra, we seized on a statement in Sean’s brief, that he was “not seeking a modification” of the parties’ agreement, in order to analyze whether general rules applicable to construction of contracts permit this dispute to be resolved in his favor. But in point of fact, Sean does seek modification.

Sean filed this lawsuit pursuant to Indiana Trial Rule 60(B)(8) under which a “court may relieve a party ... from a judgment.” His argument has two components. First, he contends that no final division of the marital assets has occurred because the two properties have not been sold. Second, he maintains that no final division of marital property can occur “unless relief from the judgment is granted.” Appellant’s Br. 18. He argues that under these circumstances, Trial Rule 60(B)(8) “provides the trial court with broad power to grant relief to a party on equitable grounds where under all of the circumstances a need is clearly demonstrated.” Id. (citations omitted). And he asks that the court exercise that “broad power” to order the properties sold at their “prevailing fair market value.” Id. at 23.

For the reasons set forth in Part II, supra, we are of the view that such relief would constitute a modification of the parties’ agreement. But what of Sean’s claim that Trial Rule 60(B)(8) provides a trial court with authority to effect a modification notwithstanding the statutory prohibition on modification? Sean quotes a number of decisions of the Court of Appeals that he says stands for this proposition. We set forth the two that we believe most strongly support his position.

The first is Judge Garrard’s concurring opinion in Brownsing, 512 N.E.2d at 881, a case in which parties who had divorced three years before returned to court in a dispute grounded in the fact that the marital residence had been unable to be sold. In brief, the court held that while “a divorce decree cannot be modified or revoked unless the decree so provides, the parties agree, or fraud is shown, ... a court may reopen dissolution proceedings to clarify and enforce a decree.” Id. at 881 (majority opinion). Judge Garrard saw no basis to distinguish between “modification” and “clarification.”

It is one thing to say that once finalized by the trial process an order disposing of the property of the parties may not be revoked or modified (except for fraud or upon agreement) in the sense that property given to one spouse may not be given to the other; that what has been done should not be undone. It is quite a different thing to say that some aspect of the division which was not covered may not be considered by the court and provided for. I believe IC 31-1-11.5-17 is concerned with the former, and the inherent power of the court with the latter.
I realize this view should no doubt require fact determinative hearings in some cases to establish whether the alleged omission was indeed such, or whether the occurrence was covered by the agreement/decree, and it was merely the party’s failure to perceive the consequences of the agreement that was the problem. Such matters are, however, capable of proof and our trial courts are fully up to the task.

Id. at 882 (Garrard, P.J., concurring).

The second is from Dusenberry v. Dusenberry, a dispute over the postdissolution disbursement of the proceeds of a personal-injury-damages award. 625 N.E.2d 458, 461 (Ind.Ct.App.1993).

While the [Dissolution of Marriage] Act generally prohibits modification of a property settlement agreement, it does not preclude relief from judgment as provided under Trial Rule 60(B). See Ind.Code § 31-l-11.5-17(a). Upon motion by a party, and after a hearing, the trial court retains equitable jurisdiction under Rule 60(B) to modify a division of property. Joachim [v. Joachim.], 450 N.E.2d [121,] 122 [ (Ind.Ct.App.1983) ]; see Lankenau [v. Lankenau ], 174 Ind.App. [45,] 48, 365 N.E.2d [1241,] 1243 (1977) (dissolution statute does not prevent trial court from correcting judgment to conform to the intent of the court in entering judgment in the first instance). Thus, notwithstanding statutory limitations on the modification of property settlement agreements, we must consider whether the trial court’s order may be sustained under the equitable relief provisions of Trial Rule 60(B).

Dusenberry, 625 N.E.2d at 461.

We do not think that either of these opinions provide a basis for the relief Sean seeks in this case; they do not, in other words, allow the court here to order the properties to be sold at “prevailing fair market value” when the parties’ agreement expressly provided that neither party was required to accept a sale yielding net proceeds below specified mínimums.

Judge Garrard’s concurrence is the more far-reaching statement, but “the inherent power of the court” with which he finds the court possessed is limited to providing for “some aspect of the division [of marital property] which was not covered” by the parties’ agreement or property division order. Brownsing, 512 N.E.2d at 882. Sean’s request is for the court to give him relief from something that the parties’ agreement did cover: the right to reject a sale yielding net proceeds below specified mínimums. We think that such relief is prohibited by statute and that Judge Gar-rard’s formulation does not produce a different result.

Dusenberry is also not helpful to Sean. The decree there had provided that each party would receive 50% of any proceeds from a pending personal-injury claim. 625 N.E.2d at 460. After the dissolution, the condition of one of the parties worsened and required a substantial amount of additional medical care and expense. The trial court utilized Trial Rule 60(B) to provide 80% of the proceeds to the party with the additional medical care and expense. Id.

The Court of Appeals reversed and reinstated the 50-50 division of the proceeds established in the decree. The trial court had granted relief on the theory that there had been a mutual mistake in the parties’ understanding of the seriousness of the injuries suffered. Id. at 462. Trial Rule 60(B)(1) allows relief from a judgment by reason of “mistake, surprise, or excusable neglect.” The Court of Appeals held that relief under Rule 60(B)(1) was not available because Rule 60(B)(1) is only available within one year of judgment and more than one year had passed. Id.

Returning to the quote supra from Du-senberry upon which Sean relies, we note that the court refers only to “Trial Rule 60(B)” and not to the subparagraphs within it. Neither of the two cases cited— Joachim or Lankenau — are claims arising under Trial Rule 60(B)(8); they discuss claims arising under Trial Rule 60(B)(1) and potentially under 60(B)(3). The suggestion is that Trial Rule 60(B)(1) or Trial Rule 60(B)(3) might well be available to provide relief so long as the request is filed -within the one-year time limit.

Neither Trial Rule 60(B)(1) nor Trial Rule 60(B)(3) is available to Sean; he seeks relief under Trial Rule 60(B)(8). Dusenberry denied relief under Trial Rule 60(B)(8) on the basis that mutual mistake was grounds for relief under Trial Rule 60(B)(1) and therefore not available under Trial Rule 60(B)(8) by (B)(8)’s very terms. 625 N.E.2d at 462. But then Dusenberry turns to the settlement agreement at issue in that ease and takes a very hard line as to the availability of relief:

A property settlement agreement incorporated into a decree of marriage dissolution is a binding contract, and the trial court may not modify or revoke the settlement absent fraud, duress or undue influence. Our statute gives the parties “freedom to make continuing financial arrangements in a spirit of amicability and conciliation,” and such agreements are binding upon the parties if approved by the trial court.
The asset to be divided was clearly identified, and the agreement of the parties to divide “any proceeds” was definite and unambiguous. As in most personal injury actions, the ultimate value of the suit was uncertain. Nevertheless, the intent of the parties to a property settlement agreement should be determined by the language employed in the document, and it is only where the terms are ambiguous that other evidence of intent should be considered. The term “any proceeds” was bargained for and decided upon. By agreement of the parties, the cause of action was in the marital pot, and the provisions in the Decree which divided the personal injury claim were enforceable.

Id. at 463 (internal citations omitted). We see no daylight whatsoever between Du-senberry and the way in which we analyzed Sean’s claim in Part II, supra. Using Dusenberry’s language as a template: The Granger and Lake properties were “clearly identified,” and the agreement of the parties as to the minimum prices that either could bind the other “was definite and unambiguous.” As in the sale of most real estate, the ultimate amount of net proceeds “was uncertain.” “Nevertheless, the intent of the parties to a property settlement agreement should be determined by the language employed in the document, and it is only where the terms are ambiguous that other evidence of intent should be considered.” The minimum prices that either party could bind the other to “was bargained for and decided upon.” By agreement of the parties, the minimum prices on which either party could bind the other were established, and the provisions in the Decree with respect thereto “were enforceable.”

Sean does call our attention to several cases in which Trial Rule 60(B) has been deployed to reallocate the distribution of investment accounts from that specified in the property-division order. We summarize these cases as follows:

Niccum v. Niccum: The parties’ settlement agreement divided an investment plan equally between them as of the plan’s value on the date the dissolution petition was filed. 734 N.E.2d 637, 639 (Ind.Ct.App.2000). The agreement was incorporated in the decree which was entered ten months later. Id. at 638-39. Following entry of the decree, a dispute arose as to the allocation of growth and losses during the interim period between the valuation date and the dissolution of the marriage. Id. at 639. The Court of Appeals affirmed the trial court’s ruling that held that the parties were to share equally in the growth and losses attributed to assets in the plan as of the valuation date because they had agreed that each would be entitled to half of the benefit plan as of the valuation date. Id. at 640-41.
Case v. Case: The trial court had awarded one party $50,000 and the other party $40,000 of a 401 (k) plan valued at $90,000 as of about 60 days prior to the decree. Within 45 days of the decree, the total value had dropped to $67,000. 794 N.E.2d 514, 516 (Ind.Ct.App.2003). The Court of Appeals affirmed the trial court’s ruling under Trial Rule 60(B)(8) that awarded one party 55% and the other party 45% (rather than specific dollar amounts) of the 401(k) plan. Id. at 516-19.
Beike v. Beike: The parties’ settlement agreement divided an employee-pension plan such that the nonemployee spouse was to receive 36% of the value of the plan as of the date of separation, which was calculated to be $353 per month. 805 N.E.2d 1265, 1266 (Ind.Ct.App.2004). Following the employer’s bankruptcy eight years after the divorce, the employee’s benefits were reduced by 38%. Id. The Court of Appeals affirmed the trial court’s ruling that reduced the nonemployee spouse’s share by 38% to $219 per month. Id. at 1269.

Each of these cases grounds its decision in the principle that because investment and retirement plans inherently include both the rewards of growth and the risk of losses, absent express language stating otherwise, a settlement agreement implicitly contemplates both parties sharing all of the rewards and risks associated with such plans. Niccum, 734 N.E.2d at 640; Case, 794 N.E.2d at 519; Beike, 805 N.E.2d at 1269. Sean urges that this principle be applied in this case so that he and “Dee Anna ... share in the risks and awards associated with real estate assets, which, through no fault of their own, have diminished in value because of the nationwide recession and the particular deleterious affect [sic] on real estate values in the Michiana area.” Appellant’s Br. 9.

We decline to extend the rewards-and-risks principle of Niccum, Case, and Beike to Sean’s situation. First, this principle has only been deployed with respect to investment and retirement plans; it has not been applied to real estate. See Brownsing, 512 N.E.2d at 881 (majority opinion) (“No provision exists [in the settlement agreement] for subsequent judicial determination of the interests [in the parties’ real estate] based upon market value calculations.”); Covalt v. Covalt, 171 Ind.App. 37, 45-46, 354 N.E.2d 766, 771 (1976) (rejecting a party’s request, after parties’ real estate sold for more than anticipated, for a payment not included in the settlement agreement); see also Joachim v. Joachim, 450 N.E.2d 121, 122 (Ind.Ct.App.1983) (rejecting a party’s request, after parties’ real estate remained unsold, for relief from payments required by the parties’ settlement agreement).

Second, the risks-and-rewards principle has an explicit contingency — “absent express language stating otherwise” — that precludes its availability in this case because, as we have now repeated many times, there is express language in Sean and Dee Anna’s agreement setting the minimum prices to which either party would be bound.

Third, and maybe most fundamentally, each of these cases addresses a situation in which what was really at stake was the proper allocation of financial assets. In Case and Beike, the question was whether the actual payment amount should be adjusted in accordance with the original understanding of the parties’ relative percentage shares when the aggregate base amount declined. Case, 794 N.E.2d at 515; Beike, 805 N.E.2d at 1266. In Niccum, the question was whether the same relative percentage shares for which the parties agreed to apply to the aggregate base amount also applied to any growth or losses in that amount. 734 N.E.2d at 639. Sean and Dee Anna’s dispute has nothing to do with their relative percentage shares; it is over whether Dee Anna should be required to agree to a selling price below the minimum specified in the parties’ agreement. This is not the situation that Niccum, Case, or Beike address.

Sean is not entitled to relief under Trial Rule 60(B).

IV

We think the legal culture in Indiana is past the point where we could realistically say that Trial Rule 60(B) is not available when a dispute arises over a settlement agreement or property-division order. But we do offer several concluding observations in this regard.

Like all of our Trial Rules, Trial Rule 60(B) is a rule of procedure; it does not confer any substantive right on a party that invokes it. While courts sometimes say that Trial Rule 60(B) “gives courts equitable power,” that is not strictly true. Rather, Trial Rule 60(B) gives the court a procedural mechanism to exercise power that it derives from substantive law: from equity, or from common law, or from a statute, or from a constitution. This is important because it means that a court’s exercise of power under Trial Rule 60(B) is subject to the limitations of the substantive law itself.

We think it unlikely that a court can invoke equity to overcome the mandate of a statute including, in particular, the statutory prohibitions on courts modifying settlement agreements and property-division orders that we have been discussing in this opinion. But this does not always oust the court from modifying a settlement agreement or property-division order; it only prevents the court from doing so in the exercise of equity. We think that the purpose of the statutory prohibitions on modification — and we think the case law strongly reinforces this — requires a court to approach any dispute over a settlement agreement or property-division order as a contract dispute, subject to the rules of contract law. If there is an ambiguity in a contract, contract law provides the rules for resolving it. See, e.g., Whitaker v. Brunner, 814 N.E.2d 288, 298-94 (Ind.Ct.App.2004), trans. denied; 2 E. Allan Farnsworth, Farnsworth on Contracts § 7.8 (3d ed. 2004 & Supp. 2012). If there is a mutual mistake, contract law provides the rules for resolving it. See, e.g., Am. United Life Ins. Co. v. Rest. Hospitality Ass’n of Ind., 898 N.E.2d 419, 425-426 (Ind.Ct.App.2008), trans. denied; 2 Farnsworth, supra, § 9.3. If the contract becomes impossible to perform, contract law provides rules for handling the situation. See, e.g., Marcovich Land Corp. v. J.J. Newberry Co., 413 N.E.2d 935, 942 (Ind.Ct.App.1980), trans. denied; 2 Farnsworth, supra, § 9.5.

We conclude by saying that, in writing this opinion, we have been struck by the recurrence of several fact patterns that have been avoidably problematic — the use of specific dollar amounts rather than percentages, the failure of a QDRO’s terms to conform to ERISA requirements, the failure to provide a contingency if the marital residence cannot be sold — and trust that practitioners and judges alike will contemplate them in their work as well.

Conclusion

We affirm the judgment of the trial court.

DICKSON, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.

      . No fraud, undue influence, or duress is alleged in this case, and we shall refrain from repeated statement of these exceptions to the general rule in the interests of brevity and readability.

      . In the interest of completeness, we note that our holding in Voigt was limited to a maintenance obligation that arises under a "previously approved settlement agreement if the court alone could not initially have imposed an identical obligation had the parties never voluntarily agreed to it.” 670 N.E.2d at 1280 (emphasis in original). "We reserve[d] the question whether a court may modify a maintenance obligation that originated in a settlement agreement but that rested on a ground — incapacity, caregiving, or rehabilitation — on which the court could have ordered the same maintenance in the absence of agreement.” Id. at 1280 n. 13 (citation omitted). We later concluded in dicta in Haville v. Haville that a court could modify a maintenance obligation in such circumstances. 825 N.E.2d 375, 378 n. 2 (Ind.2005).

      . Horner v. Carter, 969 N.E.2d 111, 116 (Ind.Ct.App.2012), trans. pending; Bernel v. Bernel, 930 N.E.2d 673, 681-82 (Ind.Ct.App.2010). trans. denied; Shorter v. Shorter, 851 N.E.2d 378, 383 (Ind.Ct.App.2006); White v. White, 819 N.E.2d 68, 70 (Ind.Ct.App.2004); Ogle v. Ogle, 769 N.E.2d 644, 647 (Ind.Ct.App.2002), trans. denied; Niccum v. Niccum, 734 N.E.2d 637, 639 (Ind.Ct.App.2000); Kiltz v. Kiltz, 708 N.E.2d 600, 602 (Ind.Ct.App.1999). trans. denied.

      4. Now codified at Indiana Code section 31-15-7-9.1(a).

      5. Now codified at Indiana Code section 31-15-7-9.1(a).

      . Trial Rule 60(B)(3) allows relief from a judgment by reason of “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” The one-year time limit applicable to Trial Rule 60(B)(1) also applies to Trial Rule 60(B)(3); it does not apply to Trial Rule 60(B)(8). For a comprehensive discussion of the use of Trial Rule 60(B) to set aside judgments on grounds of fraud on the court, see Stonger v. Sorrell, 776 N.E.2d 353 (Ind.2002).

      . Trial Rule 60(B)(8) allows relief from a judgment for "any reason justifying relief ... other than those reasons set forth in [Trial Rule 60(B)(1), (B)(2) (any ground for a motion to correct error including newly discovered evidence), (B)(3), and (B)(4) (entry of a default judgment) ]."

      . Dee Anna argued in the Court of Appeals that Sean is precluded from using Trial Rule 60(B)(8) because the relief he seeks properly falls under Trial Rule 60(B)(1) — a "mistake, surprise, or excusable neglect with respect to what the real estate would ultimately sell for” — and the request was untimely. Appel-lee’s Br. 11. The Court of Appeals rejected this contention, Ryan, 946 N.E.2d at 1195-96, but we think it is at least colorable. In addition, Sean argues that he is entitled to relief because the parties' agreement is "silent as to a procedure or mechanism to reduce or otherwise adjust the listing prices for the Gran-ger and Lake houses.” Appellant’s Br. 9. We think this is also arguably tantamount to saying that there was a mistake or excusable neglect in the drafting of the parties’ agreement.

      . "In ordinary language, ‘equity’ means natural justice.... Originally, indeed, this system was inspired by ideas of natural justice, and that is why it acquired its name; but nowadays equity is no more (and no less) natural justice than the common law, and it is in fact nothing else than a particular branch of the law...." Black’s Law Dictionary 619 (9th ed. 2009) (quoting Glanville Williams, Learning the Law 25-26 (11th ed. 1982)) (internal quotation marks omitted).

      . Parham v. Parham, 855 N.E.2d 722 (Ind.Ct.App.2006), trans. denied, a case that Sean discusses, may also be a good example. In Parham, the dissolution decree provided for a QDRO under terms that did not comply with either ERISA or the underlying pension plan. Id. at 730.


source: Caselaw Access Project

author: ROBB, Chief Judge.

license: Public Domain

text:
    Daniel SANDLIN, Appellant-Respondent, v. Tamara SANDLIN, Appellee-Petitioner.
    No. 29A02-1110-DR-969.
    Court of Appeals of Indiana.
    Aug. 9, 2012.

      Jerry E. Smith, Martinsville, IN, Attorney for Appellant.
    Lanae Harden, Laura M. Taylor, Harden Jackson, LLC, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

Several months after the dissolution of the marriage of Daniel Sandlin (“Father”) and Tamara Sandlin (“Mother”), Father filed a verified motion for emergency hearing and modification of custody, and Mother filed a verified petition to modify child support. Following a hearing, the trial court entered an order which Father now appeals and Mother cross appeals.

Father does not challenge the trial court’s order to modify child support, but raises two challenges to the trial court’s calculations in doing so. We expand and restate Father’s challenges as four issues: 1) whether the trial court improperly failed to conclude Mother voluntarily left her former job and thus failed to impute income to Mother; 2) whether the trial court miscalculated Mother’s current income; 3) whether the trial court improperly failed to explicitly order that Father cease paying to Mother an annual clothing allowance for the children; and 4) whether the trial court incorrectly determined the number of overnights for which Father should receive parenting time credit toward his child support obligations. On cross appeal, Mother agrees with Father’s assessment of and challenge to the trial court’s determination of Father’s parenting time credit and requests we make this correction without resorting to remand.

We conclude the trial court correctly did not impute income to Mother, but improperly failed to calculate Mother’s current income based on the evidence, and improperly failed to explicitly order that Father cease paying to Mother a clothing allowance. We also conclude that, based on the parties’ apparent appellate agreement, Father’s parenting time credit should be substantially reduced. Therefore, we reverse and remand with instructions for the trial court to review the evidence presented without the need to hold an additional hearing, and amend its order modifying child support as directed.

Facts and Procedural History

Father and Mother married in 1997, had three children during the marriage, and separated in 2009. In mid-2009, the trial court entered an order finalizing the parties’ settlement agreement and dissolving their marriage. The 2009 order resolved division of property issues, ordered that the parties alternate available tax credits for the children, and resolved issues concerning the care and custody of the children. Specifically as to the care and custody of the children, the order granted joint legal custody, sole physical custody to Mother, and Father’s visitation according to the Indiana Parenting Time Guidelines with several agreed upon exceptions. Father was ordered to pay $278 per week for child support, consistent with the child support obligation worksheet attached to the mid-2009 order. The order also detailed who shall pay what percentage or amount for the children’s medical, dental, and optical insurance; uninsured medical expenses; uninsured orthodontic expenses; expenses for weddings; vehicles upon each turning the age of sixteen; summer camps during school breaks; and extra-curricular activities.

In August 2010, the trial court entered an order finalizing a mediated agreement between the parties which modified the allocation of parenting time; modified the parties’ proportional payment for the children’s health and dental insurance, extracurricular activities, summer camps, and daycare; and stated that “Father will pay to Mother a clothing allowance of $100 for each child twice a year for a total of $600 a year.” Appellant’s Appendix at 29.

In February 2011, following a confrontation between Father’s wife and Mother, Father filed a verified motion for emergency hearing and modification of custody. Mother responded with a verified petition to modify child support. Following a hearing on these motions, the trial court entered an order in September 2011. This order denied modification of custody, but modified Father’s weekday parenting time, described the parties’ financial circumstances, and modified child support. Portions of the order relevant to the issues on appeal follow.

17. Mother’s income has been reduced which is a substantial changes [sic] in circumstance warranting a child support modification. One year has elapsed since the child support order, and Father’s current order of child support differs by more than 20% from the amount he should be paying under the Child Support Guidelines.
18. Mother was not able to keep her current position, which was taken by her assistant at a much reduced salary. Mother had the possibility of remaining with the company but only if she relocated to Kansas City and accepted a different position which required significant travel.
20. Mother currently receives business income of $ 1,067.32 per week and has business expenses which are attributable to the production of that income. However, for purposes of calculating her income for child support purposes, Mother did not reduce her business income by her business expenses even though she would be entitled to do so under the Child Support Guidelines.
21. Father is also self-employed. When calculating his income, Father reduced his income by his business expenses.
22. To calculate child support Father’s income was set at $2,258.00 per week.
23. The Court finds Mother’s income to be $1,067.32 per week and Father’s income to be $2,258.00 per week and hereby orders Father to pay child support in the amount of $374.00 taking into consideration Mother’s payment of the child-care costs for the children and the premiums for health insurance coverage for the children.
24. Uninsured medical, dental, orthodontic, and prescription expenses of the children shall be paid by the 6% Rule with Mother annually paying $1,838.00 of such expenses with the remainder split 67.9% to Father and 32.1% to Mother.
25. The children’s extracurricular expenses shall be paid 67.9% by Father and 32.1% by Mother.
26. The parents shall continue to share the tax exemptions for the children as previously ordered.
27. Given the disparity in income between the parties, Father is ordered to pay a portion of Mother’s attorney’s fees in the sum of $3,750.00.

Id. at 9-10.

Father now appeals' and Mother cross appeals.

Discussion and Decision

I. Standard of Review

Child support calculations are made utilizing the income shares model set forth in the Indiana Child Support Guidelines. See McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind.Ct.App.2004). The Guidelines apportion the cost of supporting children between the , parents according to their means, on the premise that children should receive the same portion of parental income after a dissolution that they would have received if the family had remained intact. See id. The trial court is vested with broad discretion in making child support determinations. Carter v. Dayhuff, 829 N.E.2d 560, 569 (Ind.Ct.App.2005). A calculation of child support under the Guidelines is presumed to be valid. McGill, 801 N.E.2d at 1251.

We will reverse a trial court’s grant or denial of a request for modification of child support only where the court has abused its discretion. Carter, 829 N.E.2d at 569-70. An abuse of discretion occurs when the trial court misinterprets the law or the decision is clearly against the logic and effect of the facts and circumstances before the court. Id. We do not reweigh the evidence or judge the credibility of the witnesses upon review; rather, we consider only the evidence most favorable to the judgment and the reasonable inferences to be drawn therefrom. Id. at 570.

II. Child Support

Child support orders may be modified “upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable,” or upon a showing that “(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines,” and “(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.” Ind. Code § 31-16 — 8—1(b).

A. Imputation of Income to Mother

Trial courts may impute income to a parent for purposes of calculating child support upon determining that he or she is voluntarily unemployed or underemployed. Matter of Paternity of Buckler, 576 N.E.2d 1354, 1355-56 (Ind.Ct.App.1991). The Child Support Guidelines permit imputation to discourage parents— both the payor-non-custodial parent and the recipient-custodial parent — from avoiding significant child support obligations by becoming unemployed or taking a lower paying job. See id. But the Guidelines do not require or encourage parents to make career decisions based strictly upon the size of potential paychecks, nor do the Guidelines require that parents work to their full economic potential. Id. “It is not our function ... to approve or disapprove of the lifestyle of [parents] or their career choices and the means by which they choose to discharge their obligations in general.” Id. “To determine whether potential income should be imputed, the trial court should review the obligor’s work history, occupational qualifications, prevailing job opportunities, and earning levels in the community.” Homsher v. Homsher, 678 N.E.2d 1159, 1164 (Ind.Ct.App.1997).

The record reveals sufficient basis for the trial court to not impute income to Mother. Mother earned slightly less than $80,000 in 2009, and was on pace to make more than that in 2010 when she left her position as branch director of Favorite Healthcare Staffing to start her own company, Aramat Consulting. At Favorite Healthcare, Mother was a branch director and director of operations responsible for management, recruitment, hiring, retention, and sales in Indiana. Her work at Aramat is substantially similar.

Mother testified regarding Favorite Healthcare’s reorganization of some of its staff and responsibilities prior to Mother leaving. This includes her testimony that her direct supervisor was demoted and that another supervisor, who was a regional director, was repositioned to become a branch director in Portland with a salary reduced by more than two-thirds. Mother also testified that upon leaving Favorite Healthcare, her assistant took over her position for an annual salary of $32,000, which Mother “was told was more comparable for the position.” Tr. at 104. Mother stated that there might have been an opportunity for her to remain at Favorite Healthcare and be paid the same salary, but she would be reassigned to a position managing vendors, which Mother noted she had “already done”; the position would be in Kansas City, so it would require her relocation; and the position would involve her traveling seventy-five percent of the time. This description of the potential Kansas City opportunity suggests Mother was focused on advancing her career by taking on new responsibilities in a position which did not require relocation or extensive travel. See id. at 94 (Mother stating that while running Ar-amat she can vary her hours according to the children’s activities and needs).

Mother testified that she began to consider other employment options in June 2010. She explored returning to a career in nursing, but concluded her potential income as a nurse would be too low for her to support her family. She began to explore working at a company similar to Favorite Healthcare, but due to a one-year non-compete clause in her Favorite Healthcare contract, she stopped exploring this and other similar companies and decided to start Aramat. She also noted that she did not consider seeking unemployment benefits to be a viable option because she felt a need to personally provide for her children. Id. at 119-20.

Father argues Mother “rush[ed]” to quit and should have stayed at her former position until she was terminated or “received some unsatisfactory change to her former job.” Brief of Appellant at 11. But the law does not require her to have waited. Whether Mother chose to leave her job or was fired is only one part of the trial court’s broader determination of whether Mother’s employment and income circumstances changed due to a desire to avoid significant child support obligations by becoming unemployed or taking a lower paying job. Mother’s testimony explaining the circumstances which led to her leaving Favorite Healthcare and starting Aramat supports the trial court’s apparent conclusion that Mother did not so intend, and that income should not be imputed to Mother.

B. Calculation of Mother’s Income from Aramat

Father next argues the trial court miscalculated Mother’s income from Ara-mat. In support, he refers us to portions of the transcript of Mother’s testimony and Aramat invoices which Mother submitted to the trial court. He also points out the fluctuation of Mother’s income and argues Mother’s reports are suspicious and somewhat fraudulent because her fiance’s business is one of Aramat’s two clients. While we agree that the patronage of Ara-mat by Mother’s fiance makes the amount of her income somewhat suspicious, especially as one of two clients, we decline to reweigh the evidence and conclude that the trial court’s decision is clearly against the logic and effect of the facts and circumstances in this regard.

We acknowledge that there is some inconsistency in the evidence regarding Mother’s current income. Mother s testimony suggests a weekly income of about $1,154 per week, Aramat invoices in total suggest a weekly income of about $1,286 per week, and Aramat invoices based on the last three months (February, March, and April) suggest a weekly income of about $ 1,154 per week. We refer to the last three months because those could be the most relevant and Mother received the same amount for each of the last three months after several months of fluctuating payment from one of her clients, so it appears to be a new, regular rate. We refrain from finding or concluding that the trial court must use the number for the last three months, and we note that one of Mother’s clients paid her two February payments and no March payment, which suggests some error because this client paid $2,000 each of the four previous months (October through January) and again for the following month, April. We refrain from finding or concluding that this was an error, but point this out for the trial court’s benefit.

In any event, there is no evidence in the record which suggests Mother’s income is about $1,067 per week, as the trial court found and used to calculate the parties’ child support obligations. The only portion of the record where this number appears is Mother’s child support obligation worksheet. Therefore, we remand with instructions for the trial court to evaluate the evidence heretofore presented and determine Mother’s current income.

C. Clothing Allowance

Father argues the trial court erred in not explicitly eliminating Father’s obligation to pay to Mother an allowance for the children’s clothing of $600 per year. Mother agrees and notes that she does not read the trial court order to require Father’s continued payment of the clothing allowance. Brief of Appellee and Cross-Appellant at 9-10 n.2. We also agree, and remand with instructions for the trial court to explicitly order that Father is no longer required to pay to Mother a clothing allowance.

D. Father’s Parenting Time Credit

Under Child Support Guideline 6, a noncustodial parent is afforded “credit” to his or her child support obligation for hosting his or her children overnight. The credit is based upon the number of overnights a child or children spends with the noncustodial parent. Grant v. Hager, 868 N.E.2d 801, 802 (Ind.2007). “If the court determines it is necessary to deviate from the parenting time credit, it shall state its reasons in the order.” Ind. Child Support Guideline 6 (cmt.).

On appeal Father and Mother agree that the trial court erred in calculating the number of overnights for which Father should receive credit, 181, and also agree that the correct number for which Father should receive credit is 113. We therefore remand to the trial court with instructions to adjust Father’s parenting time credit to 113 days without holding a hearing.

Conclusion

The trial court did not abuse its discretion by declining to impute income to Mother. We reverse and remand, however, with instructions for the trial court to evaluate the evidence presented and calculate Mother’s current income, and to reduce Father’s parenting time credit to 113 overnights. Upon doing so, we order the trial court to recalculate the parties’ child support obligations without the necessity of holding another hearing, and explicitly order that Father cease paying to Mother a clothing allowance.

Reversed and remanded.

BAILEY, J., and MATHIAS, J., concur.

      . The record does not indicate if this refers to Portland, Indiana, or another Portland in the United States.

      . The potential lack of reliability of the hearsay statement regarding the appropriate value of Mother’s position is irrelevant for our analysis. We will consider this evidence as if it were not hearsay because a challenge was not preserved with a contemporaneous objection, and we do not discount its reliability for lack of further detail because we do not weigh the evidence or judge the credibility of witnesses.


author: DARDEN, Senior Judge.

text:
    Guydell WATSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 48A04-1107-CR-443.
    Court of Appeals of Indiana.
    Aug. 9, 2012.

      Evan B. Broderick, Anderson, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

Guydell Watson appeals his conviction for operating a vehicle with a blood-alcohol content (“BAC”) of at least .08 percent but less than .15 percent, a class C misdemeanor.

We affirm.

ISSUES

1. Whether the trial court abused its discretion in instructing the jury.

2. Whether the trial court abused its discretion in refusing to appoint an expert at public expense.

3. Whether the trial court improperly granted the State’s motion in limine.

FACTS

At approximately 4:40 p.m. on September 18, 2010, Officer Eric Holtzleiter of the Anderson Police Department was parked in his marked police vehicle when he observed Watson driving his vehicle west on East 32nd Street, which had a posted speed limit of thirty-five miles per hour. Using his radar gun, Officer Holtzleiter clocked Watson’s speed at fifty-one miles per hour. Once Watson passed, Officer Holtzleiter activated his emergency lights and sirens and initiated a traffic stop.

As Officer Holtzleiter approached the driver’s side window, he “immediately noticed a clear bottle in between [WatsonJ’s legs.” (Tr. 122). The bottle was “[w]ell less than half’ full and labeled “Demitri Premium London Gin.” (Tr. 125). Officer Holtzleiter ordered Watson to give him the bottle and the car keys. As Watson did so, Officer Holtzleiter observed that Watson’s movements were “a little slow and a little unsteady.” (Tr. 127). Officer Holt-zleiter also “detected a strong odor of an alcoholic-type beverage coming from his person.” (Tr. 127).

Officer Holtzleiter ordered Watson to exit the vehicle. Watson complied but had “difficulty getting the handle [and] opening the door[.]” (Tr. 128). As he exited the vehicle, Watson “was kind of unsteady” and had to lean against the vehicle “for balance.” (Tr. 128). Officer Holtzleiter then administered several field sobriety tests, which Watson failed.

Officer Holtzleiter placed Watson under arrest and transported him to the Anderson Police Department, where Officer Holtzleiter administered a breath test with a B.A.C. Datamaster (“Datamaster”). The breath test revealed a blood-alcohol content of .15 percent.

On or about September 20, 2010, the State charged Watson with Count 1, operating a vehicle with a BAC of at least .15 percent, a class A misdemeanor; and Count 2, operating a vehicle with a BAC of at least .15 percent with a previous conviction for operating while intoxicated, a class D felony. A jury trial, commenced on March 23, 2011, resulted in a hung jury. Subsequently, the State again charged Watson with Count 1, operating a vehicle with a BAC of at least .15 percent, a class A misdemeanor; and Count 2, operating a vehicle with a BAC of at least .15 percent with a previous conviction for operating while intoxicated, a class D felony.

On April 8, 2011, Watson filed a motion for public funds with which to hire an expert witness and requested an ex parte hearing. The trial court held an open hearing on the motion on April 12, 2011. Finding “no factual basis” for, and “no real clarification made as to the request,” the trial court denied the motion. (Hr’g Tr. 9).

The trial court commenced a second jury trial on June 8, 2011. During the trial, Robert Nolley, an inspector with the Indiana State Department of Toxicology, testified that one of his duties is to “inspect and repair breath test instrumentation” such as Datamasters. (Tr. 75-76). Nolley testified that Datamasters are inspected and calibrated every three months. He further testified that the Datamasters are calibrated to “read out less” than the actual BAC to “give the benefit of the doubt to [a] defendant.” (Tr. 87). Nolley testified that as a result, a test “using a .15 solution,” (tr. 87), from a known sample would give a result “somewhere no lower than .14 nor higher than .149” percent BAC. (Tr. 88). Thus, if someone has an actual BAC of .15 percent, “they should test somewhere between .140 and .149” percent. (Tr. 88). On cross-examination, Nolley agreed that if a Datamaster is “out of calibration,” a person with an actual BAC of. 149 could test at .15 percent. (Tr. 100).

Over Watson’s objection, the trial court also instructed the jury on operating a vehicle with a BAC of at least .08 percent but less than .15 percent as a lesser-included offense of operating a vehicle with a BAC of at least .15 percent. Specifically, the trial court instructed as follows:

Operating a Vehicle with an Alcohol Concentration Equivalent of .08, a Class C Misdemeanor, is included in Count I, Operating a Vehicle With an Alcohol Concentration Equivalent of .15 or More, Class A Misdemeanor. If the State proves the defendant guilty of Operating a Vehicle With an Alcohol Concentration Equivalent of .15 or More, Class A Misdemeanor, you need not consider the included crime. However, if the State fails to prove the defendant committed Operating a Vehicle With an Alcohol Concentration Equivalent of .15 or More, Class A Misdemeanor, you may consider whether the defendant committed Operating a Vehicle with an Alcohol Concentration Equivalent of .08, Class C Misdemeanor, which the Court will define for you.... The crime Operating a Vehicle with an Alcohol Concentration Equivalent of .08, a Class C Misdemean- or, is included in the charged crime of Operating a Vehicle with an Alcohol Concentration Equivalent of .15 or More, Class A misdemeanor. A person who operates a vehicle with an alcohol concentration equivalent to at least eight hundredths gram of alcohol, but less than fifteen hundredths gram of alcohol per two hundred and ten liters of the persons [sic] breath commits a Class C Misdemeanor. Before you may convict the defendant of Operating a Vehicle with an Alcohol Concentration Equivalent of .08, a Class C Misdemeanor, the State must have proved each of the following beyond a reasonable doubt. One, the defendant, two, operated a vehicle, three, with an alcohol concentration équivalent to at least eight hundredths gram of alcohol per two hundred and ten liters of his breath. If the State fails to prove each of these elements beyond a reasonable doubt, you must find the defendant not guilty of Operating a Vehicle with an Alcohol Concentration Equivalent of .08, Class C Misdemeanor.

(Tr. 292-94).

As to Count 1, the jury found Watson guilty of operating a vehicle with a BAC of at least .08 percent but less than .15 percent, a class C misdemeanor, as a lesser-included offense. The State then made a motion to amend the charging information for Count 2 to operating a vehicle with a BAC of at least .08 percent with a previous conviction for operating while intoxicated, a class D felony. The trial court granted the motion, and Watson pleaded guilty to Count 2.

The trial court held a sentencing hearing on June 30, 2011. For purposes of sentencing, the trial court merged Count 1 with Count 2 and sentenced Watson to 1095 days in the Department of Correction, with 715 days to be executed.

Additional facts will be provided as necessary.

DECISION

1. Jury Instructions

Watson asserts that the trial court abused its discretion in instructing the jury.

“The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.” “Instruction of the jury is generally within the discretion of the trial court and is reviewed only for an abuse of that discretion.” “In reviewing a trial court’s decision to give or refuse tendered jury instructions,” this Court “considers: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given.”

Gravens v. State, 836 N.E.2d 490, 493 (Ind.Ct.App.2005) (internal citations omitted), trans. denied.

Here, Watson argues that the trial court improperly granted the State’s request for an instruction on operating a vehicle with a BAC of at least .08 percent but less than .15 percent as a lesser-included offense of operating a vehicle with a BAC of at least .15 percent.

When a party asks a trial court to instruct the jury on an alleged lesser-included offense of the crime charged, the court must conduct a three-part analysis to determine whether the instruction is appropriate. In the first step, the court must compare the statute defining the crime charged and the statute defining the alleged lesser-included offense. If the alleged lesser-included offense may be established by proof of all of the same or proof of less than all of the same material elements to the crime, or if the only difference between the two statutes is that the alleged lesser-included offense requires proof of a lesser culpability, then the alleged lesser-included offense is inherently included in the crime charged.
In the second step, if the trial court determines that the alleged lesser-included offense is not inherently included in the charged crime, it must compare the statute defining the alleged lesser-included offense with the charging instrument in the case. If all of the elements of the alleged lesser-included offense are covered by the allegations in the charging instrument, then the alleged lesser-included offense is factually included in the charged crime.
If the trial court has determined that the alleged lesser-included offense is either inherently or factually included in the charged crime, then it must proceed to the third step. In the third step, the trial court must examine the evidence presented by each party and determine whether there is a serious evidentiary dispute over the element or elements that distinguish the crime charged and the lesser-included offense. If it would be possible for a jury to find that the lesser, but not the greater, offense had been committed, then the trial court must instruct the jury on both offenses.

Watts v. State, 885 N.E.2d 1228, 1231-32 (Ind.2008) (internal citations omitted).

Indiana Code section 9-30-5-1 provides, in relevant part, as follows;

(a) A person who operates a vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15) gram of alcohol per:
(1) one hundred (100) milliliters of the person’s blood; or
(2) two hundred ten (210) liters of the person’s breath; commits a Class C misdemeanor.
(b) A person who operates a vehicle with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per:
(1) one hundred (100) milliliters of the person’s blood; or
(2) two hundred ten (210) liters of the person’s breath; commits a Class A misdemeanor.

The State originally charged that Watson, on or about September 18, 2010, “did knowingly operate a vehicle with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per 210 liters of said defendant’s breath,, to-wit: fifteen hundredths (0.15) gram of alcohol per two hundred ten (210) liters of the person’s breath.” (App. 1).

In Sering v. State, 488 N.E.2d 369 (Ind.Ct.App.1986), Sering appealed his convictions for operating a vehicle with a BAC of .10 percent and operating a vehicle while intoxicated. At that time, the former offense was a class C misdemeanor and the latter offense was a class A misdemeanor.

In determining whether the former was a lesser-included offense of the latter, the Sering court reiterated that an offense is a lesser included offense “if it differs from another ‘only in the respect that a less serious ... risk of harm ... to the public interest ... is required to establish its commission.’ ” Sering, 488 N.E.2d at 375 (quoting Indiana Code section 35-41-1-16(3)). There, the court determined that the risk of harm, namely, “the cost in lives and property occasioned by the intoxicated driver,” to the public interest in the operation of a vehicle while intoxicated is the “same risk implicit in the BAC of .10% offense.” Id. The Sering court’s analysis continued:

Having found identity of harm or risk of harm in the two subject alcohol related driving offenses, we must determine whether one risk is greater than the other. We conclude the legislature has determined the risk occasioned by the intoxicated operator is greater than the risk occasioned by the BAC of .10% operator. This legislative intent is evidenced by the disparate classification of the two offenses; operating while intoxicated is a class A misdemeanor while operating with a BAC of .10% is a class C misdemeanor. ...
We conclude, therefore, that operating a vehicle with BAC of .10% is a lesser included offense of operating a vehicle while intoxicated because the former offense differs from the latter offense in that a less serious risk of harm to the public interest is required to establish its commission.

Id. at 376 (original footnotes omitted) (emphasis added).

The harm or risk of harm is the same threat to the public whether occasioned by a driver operating a vehicle with a BAC of at least .08 percent but less than .15 percent or a driver operating a vehicle with a BAC of at least .15 percent. Operating a vehicle with a BAC of at least .08 percent but less than .15 percent, however, is a class C misdemeanor while operating a vehicle with a BAC of at least .15 percent is a class A misdemeanor. Given the disparate classification of the two alcohol-related offenses, it is evident that the legislature intended the former to be a lesser-included offense of the latter. See id.

Accordingly, we find that operating a vehicle with a BAC of at least .08 percent but less than .15 percent is an inherently lesser-included offense of operating a vehicle with a BAC of at least .15 percent. We therefore find no abuse of discretion in instructing the jury on operating a vehicle while intoxicated as a class C misdemean- or.

2. Appointment of Expert

Watson next asserts that the trial court improperly denied his request for expert witness funds, where he sought to hire an expert to decipher the results of tests performed on the Datamaster used by Officer Holtzleiter.

Decisions regarding experts for indigent defendants are committed to the trial court’s sound discretion, and such decisions will not be overturned absent an abuse of that discretion. The trial court is not required to appoint any expert that the defendant believes may be helpful, and the defendant bears the burden of demonstrating the need for the appointment, specifying precisely how he or she would benefit from the requested services.
While there is no exhaustive and precise list of considerations, the trial court’s central inquiry addresses whether the services are necessary to assure an adequate defense and whether the defendant specifies precisely how he would benefit from the requested expert services. Factors include: (1) whether the services would bear on an issue generally regarded to be within the common experience of the average person, or on one for which an expert opinion would be necessary; (2) whether the requested expert services could nonetheless be performed by counsel; (3) whether the proposed expert could demonstrate that which the defendant desires from the expert; (4) whether the purpose for the expert appears to be only exploratory; (5) whether the expert services will go toward answering a substantial question in the case or simply an ancillary one; (6) the seriousness of the charge; (7) whether the State is relying upon an expert and expending substantial resources on the case; (8) whether a defendant with monetary resources would choose to hire such an expert; (9) the costs of the expert services; (10) the timeliness of the request for the expert and whether it was made in good faith; and (11) whether there is cumulative evidence of the defendant’s guilt. Even where there are factors present militating toward appointment of an expert,, such as the services would have borne upon an issue outside the common experience of the average person, and analysis is outside the scope of the typical attorney’s services, the factors may be insufficient to require the trial court to approve the hiring of an expert at public expense.

Kocielko v. State, 938 N.E.2d 243, 254-55 (Ind.Ct.App.2010) (internal citations omitted), on reh’g, 943 N.E.2d 1282 (Ind.Ct.App.2011), trans. denied.

On April 12, 2011, the trial court held a hearing on Watson’s motion for public funds with which to hire an expert witness. During the hearing, Watson’s counsel asserted that he sought funds for an expert witness “to find out if the maintenance reports” on the Datamaster used on September 18, 2010, “are correct.” (Hr’g Tr. 8). He also sought “other general information about the accuracy of the” Datamaster. (Hr’g Tr. 8). Finding “no factual basis demonstrated for the necessity for expert witness funds ..., and no real clarification made as to the request itself as to what’s being sought and why the expert is needed,” the trial court denied Watson’s motion. (Hr’g Tr. 9).

Here, Watson failed to show that the proposed unnamed expert could demonstrate that which he desired from the expert, and in fact, failed to set forth that which he desired with any specificity, only arguing that he sought “general” information. (Hr’g Tr. 8). Thus, it appeared that the purpose for the expert was only exploratory. Watson also failed to set forth the costs of an expert and whether the State would be expending substantial resources on the case. Moreover, Watson does not demonstrate that he faced particularly serious charges. Finally, Watson had the opportunity to, and in fact did, extensively cross-examine Nolley regarding the functioning, testing, and calibrating of the Datamaster.

Watson failed to meet his burden of demonstrating a need for the appointment of an expert. We therefore find no abuse of discretion in denying Watson public funds with which to hire an expert witness.

3. Motion in Limine

Watson asserts that the trial court improperly granted the State’s motion in limine, which sought to exclude any evidence regarding the Datamaster’s repair history. Watson argues that “[a]s far as evidence of guilt, ... there were the error reports of the Datamaster that seemed ripe for review by an independent expert witness.” Watson’s Br. at 20.

A motion in limine is not a final ruling on the admissibility of evidence, and a ruling on the motion does not preserve the error for appeal. Our supreme court has held that an objection must be specific in order for the issue to be preserved for appellate review.

Simmons v. State, 760 N.E.2d 1154, 1158 (Ind.Ct.App.2002) (internal citations omitted); Hollowell v. State, 753 N.E.2d 612, 615 (Ind.2001) (“In order to preserve an error for appellate review, a party must do more than challenge the ruling on a motion in limine”). “It is well settled that an offer of proof is required to preserve an error in the exclusion of a witness’ testimony.” Barnett v. State, 916 N.E.2d 280, 287 (Ind.Ct.App.2009), forms, denied.

In this case, Watson fails to argue, or cite to that portion of the transcript reflecting such an argument, if any, that he requested relief during the trial from the trial court’s prior ruling on the motion in limine or otherwise sought to present any evidence regarding the Datamaster’s repair or test records. Watson therefore has waived his arguments regarding the trial court’s granting of the State’s motion in limine and exclusion of evidence. See Lyles v. State, 834 N.E.2d 1035, 1050 (Ind.Ct.App.2005) (“A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”), trans. denied. See also Hollowell, 753 N.E.2d at 615-16 (recognizing that “[a]b-sent ... a ruling excluding evidence accompanied by a proper offer of proof, there is no basis for a claim of error”).

Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.

      . Ind.Code § 9-30-5-1.

      . Watson argues that the “trial court erred by allowing the [S]tate to add a lesser-included offense.” Watson’s Br. at 7. Given Watson’s argument and citation to authority, his argument is better presented as whether the trial court abused its discretion in instructing the jury. We note, however, that Watson has failed to include in his brief and Appendix the jury instruction at issue. "When error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto.” Ind. Appellate Rule 46(A)(8)(e). An appellant waives the issue by failing to comply with this appellate rule. Davis v. State, 892 N.E.2d 156, 163 (Ind.Ct.App.2008). Waiver notwithstanding, we shall address this issue.

      . Watson does not argue that the trial court abused its discretion in determining that there is a serious evidentiary dispute over the element or elements that distinguish the crime charged and the lesser-included offense. We therefore shall not address the third step of the inquiry necessary when determining whether a trial court has properly instructed the jury on lesser-included offenses.

      . In his brief, Watson asserts that the maintenance reports in question were
      admitted in the court's record of exhibits in a hearing on the State’s Motion in Limine and for the limited purpose thereof ... on June 8, 2010. Realizing that they did not have the requisite expertise to decipher these test results, trial counsel requested funds from the court to hire an expert witness to examine the disputed test results and report those findings to counsel and if needed to testify at trial.
      Watson's Br. at 14 (emphasis added). The trial court held the hearing on the State’s motion in limine on June 8, 2011. subsequent to Watson's request for state funds with which to hire an expert witness and the trial court's hearing thereon. It was during the June 8, 2011 hearing that the trial court, for the limited purpose of the hearing on the State’s motion in limine, admitted the three maintenance reports into evidence.


author: MAY, Judge.

text:
    Dennis FEYKA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1108-CR-703.
    Court of Appeals of Indiana.
    Aug. 13, 2012.

      Mark Small, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Dennis Feyka appeals his conviction of Class A felony child molesting. He argues the prosecutor’s comments during closing argument were fundamental error and the evidence was insufficient to convict him because the victim’s testimony was incredibly dubious. We affirm.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the judgment are that during spring break of 2010, Feyka’s daughter hosted a sleepover for a number of girls at Feyka’s house. T.B., then nine years old, attended the sleepover. The other girls in attendance were older than T.B., and they spent the evening in a locked bedroom while T.B. remained in the living room. T.B. slept on one part of an L-shaped couch, and Feyka slept on the other part. On three occasions during the night, Feyka placed his mouth on T.B.’s vagina. When school resumed after spring break, T.B. attended a “good touch/bad touch” program and then reported the incident. The State charged Feyka with three counts of Class A felony child molesting, and a jury found him guilty of all three counts. The trial court merged Counts Two and Three into Count One, then entered a judgment of conviction on that count.

DISCUSSION

1. Prosecutorial Misconduct

Feyka claims the prosecutor committed misconduct during closing argument by referring to the fact that Feyka did not testify. In reviewing a claim of prosecutorial misconduct, we must determine whether the prosecutor engaged in misconduct, and if so, whether the misconduct had a probable persuasive effect on the jury. Ritchie v. State, 809 N.E.2d 258, 268 (Ind.2004), reh’g denied, cert, denied. A claim of improper argument to the jury is measured by the probable persuasive effect of any misconduct on the jury’s decision and whether there were repeated occurrences of misconduct, which would evidence a deliberate attempt to improperly prejudice the defendant. Id. at 269.

Feyka did not object to the statements he now alleges were error. Failure to object to alleged misconduct precludes appellate review of the claim, Booher v. State, 773 N.E.2d 814, 817 (Ind.2002), unless the alleged misconduct amounts to fundamental error. Id. To demonstrate fundamental error, the defendant must establish not only prosecutorial misconduct but also the additional grounds for fundamental error. Id. at 818. To be fundamental error, the misconduct must have made a fair trial impossible or been a clearly blatant violation of basic and elementary principles of due process that presents an undeniable and substantial potential for harm. Id. at 817.

The Fifth Amendment to the United States Constitution prohibits the State from commenting on a defendant’s failure to testify in his own defense. Owens v. State, 937 N.E.2d 880, 893 (Ind.Ct.App.2010), reh’g denied, trans. denied. Such a comment violates a defendant’s privilege against compulsory self-incrimination if a jury could reasonably interpret the comment as an invitation to draw an adverse inference from a defendant’s silence. Boatright v. State, 759 N.E.2d 1038, 1043 (Ind.2001). But if the prosecutor’s comment in its totality addresses other evidence, and not the defendant’s failure to testify, it is not grounds for reversal. Owens, 937 N.E.2d at 893. The prosecutor may, for example, comment that the State’s evidence is uncontradicted without violating the defendant’s Fifth Amendment rights. Id.

Feyka points to three parts of the State’s closing argument during which he claims the prosecutor impermissibly referred to Feyka’s choice not to testify in his own defense. None of those references amounted to fundamental error.

First, at the beginning of closing argument, the prosecutor said, “During voir dire, we talked about we’re only going to present to you — there are two people that know what happened. And [T.B.] told you what happened.” (Tr. at 271.)

Second, in Feyka’s closing argument, counsel argued Feyka’s innocence based on the State’s inability to present a witness to corroborate T.B.’s testimony. During rebuttal of that argument, the prosecutor said, “Of course we’re not going to have anybody to corroborate [T.B.j’s testimony that [Feyka] licked her vagina; that the hair was pinching and it hurt her. No, because no one was there for that. He’s not going to do that.” (Id. at 294-95.)

Finally, the prosecutor stated at the end of her rebuttal argument:

Remember the rules I set down for her? If you don’t know, say so. If you don’t remember, say so. And she followed those rules. She told you the absolute truth. And the very, very, very important thing is there is no one contesting her testimony. Her testimony is uncontested. You can take it to the bank.

{Id. at 296) (footnote added).

Feyka likens his circumstances to those in Owens, where the prosecutor said during closing argument: “Ultimately, you can rely on [C.R.’s] testimony. And in all honesty, in large part, if not exclusively, that’s what you have to rely on. Because the reality is, other than Mr. Owens, she is the only one who knows what happened to her that night.” Owens, 937 N.E.2d at 894. We held:

The prosecutor highlighted the fact that C.R.’s testimony was the only evidence before the jury and then explicitly referred to Owens by name and directly compared his knowledge to C.R.’s. We conclude that the jury reasonably could have interpreted the prosecutor’s comment as an invitation to draw an adverse inference from Owens’s failure to testify.

Id.

In Davis v. State, 685 N.E.2d 1095 (Ind.Ct.App.1997), reh’g denied, cert, denied, Davis fled after he crashed a car into a tree. When police asked him why he fled, Davis said, “I took it.” Id. at 1097. At trial, the police officer testified as to what Davis said, and Davis did not testify. During closing argument, the prosecutor said, “Davis said he took the car. There is nothing to controvert that. There is no evidence saying that isn’t so. There’s not even an argument that he didn’t say that.” Id. at 1098 (brackets omitted). That statement was improper:

By calling attention to the defendant’s alleged admission and pointing out that there was no claim to the contrary, the prosecutor indirectly brings to the jury’s attention the fact that Davis did not deny this allegation. Davis was the only one who could have denied that this statement was made since only he and Officer Kaszas were present at the time. Thus, a reasonable jury could have taken that comment as an invitation to consider Davis’ failure to testify as an inference of guilt. We conclude that the prosecutor’s comments were improper.

Id. at 1098.

In Owens, 937 N.E.2d at 894, we contrasted statements that were found to be comments on the evidence, not on a defendant’s failure to testify, e.g., Hopkins v. State, 582 N.E.2d 345, 347-48 (Ind.1991) (prosecutor’s statement that “it is certainly worthy of comment that you never heard any testimony during this trial that the defendant was anywhere else” was a comment on evidence from five different witnesses to whom defendant made admissions concerning the crime and not on the absence of testimony from the defendant), reh’g denied; Channell v. State, 658 N.E.2d 925, 931-32 (Ind.Ct.App.1995) (prosecutor did not impermissibly refer to defendant’s failure to testify where prosecutor stated, “What testimony did you hear from that witness stand that this Defendant consumed any alcohol or had any drug on that day? Absolutely none. There’s no testimony he had any alcohol or any drug or was talking under the influence of alcohol or drugs.”) (brackets omitted), reh’g denied, trans. denied.

The statement in Owens was improper, but it was not fundamental error because it did not make a fair trial impossible, amount to a blatant violation of basic and elementary principles of due process, or create an undeniable and substantial potential for harm. Owens, 937 N.E.2d at 894. We noted “the narrow applicability of the fundamental error doctrine,” id., that the prosecutor’s comment was “an isolated statement,” id., and as to the evidence of Owens’s guilt, the victim testified and was vigorously cross-examined and recross-examined. Id. The prosecutor’s improper comment therefore was not fundamental error. Id.

The prosecutor’s comments about Feyka were not fundamental error for the same reasons. As did defense counsel in Owens, Feyka vigorously cross-examined the witnesses, including the victim. The jury could have considered the prosecutor’s comments as commentary on the nature of the evidence presented, which is permitted. See Martinez v. State, 549 N.E.2d 1026, 1028 (Ind.1990) (State permitted to comment on the uncontradicted nature of the evidence without violating defendant’s Firth Amendment rights). We cannot say the references to Feyka’s failure to testify were fundamental error.

2. Sufficiency of the Evidence

When reviewing sufficiency of evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). It is the fact-finder’s role, and not ours, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. To preserve this structure, when we are confronted with conflicting evidence, we consider it most favorably to the trial court’s ruling. Id. We affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be drawn from it to support the trial court’s decision. Id. at 147.

Feyka argues the State did not present sufficient evidence to convict him of Class A felony child molesting because his conviction “was based solely on the uncorroborated and inherently dubious testimony of the child in question and was contradicted in material ways by others present in the house.” (Br. of Appellant at 11.) Under the “incredible dubiosity” rule, we may “impinge on the jury’s responsibility to judge the credibility of the witness only when it has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity.” Rodgers v. State, 422 N.E.2d 1211, 1213 (Ind.1981). We will reverse a conviction if the sole witness presents inherently improbable testimony and there is no circumstantial evidence of the defendant’s guilt. White v. State, 706 N.E.2d 1078, 1079-80 (Ind.1999). Application of the incredible dubiosity rule “is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.” Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind.2007).

Those cases where we have found testimony inherently improbable or of incredible dubiosity have involved either situations where the facts as alleged “could not have happened as described by the victim and be consistent with the laws of nature or human experience,” Watkins v. State, 571 N.E.2d 1262, 1265 (Ind.Ct.App.1991), aff'd in part and vacated in part, 575 N.E.2d 624 (Ind.1991), or the witness was so equivocal about the act charged that his uncorroborated and coerced testimony “was riddled with doubt about its trustworthiness.” Id. The case before us does not fall within either category.

To support his argument T.B.’s testimony was incredibly dubious, Feyka first notes the State conceded in closing argument that her testimony was not corroborated: “we’re not going to have anybody to corroborate [T.B.’s] testimony ... no one was there for that.” (Tr. at 295.) He next notes much of T.B.’s testimony was inconsistent with that given by another witness. T.B. testified she was molested during the nighttime, but a guest at the sleepover, thirteen-year-old L.G., testified everyone stayed up until 7:00 a.m., and during that time she did not see Feyka do anything to the victim. T.B. testified L.G. and the other girls at the sleepover stayed in a locked bedroom all night, while she and Feyka were in the living room. Feyka offers no explanation why conflicting testimony by another witness necessarily renders T.B.’s own testimony incredibly dubious, and we decline to so hold.

Feyka also notes T.B. testified she acted like she was asleep when Feyka molested her, and that she is “a really good faker.” {Id. at 98.) In a pretrial interview, T.B. told an investigator she did not know whether the incident was real or a dream. T.B. testified at trial she knew the molestation was real and not a dream because she can control what happens in her dreams, but she could not control what happened with Feyka. At various times, T.B. testified each instance of molestation lasted “about like a minute,” {id. at 122), and “like five, maybe less.” {Id.) But in a prior statement she had said one instance lasted fifteen minutes and another lasted eighteen. Finally, Feyka notes T.B. was initially unable to identify him in court. When asked, “Do you see [Feyka] in the court room today,” she replied “Uh. I don’t know.” {Id. at 100.) After she was prompted to “look around and take your time,” (id.), she pointed to Feyka.

T.B.’sí testimony provided ample evidence to support Feyka’s conviction. The uncorroborated testimony of the victim, even if the victim is a minor, is sufficient to sustain a conviction of child molesting, Morrison v. State, 462 N.E.2d 78, 79 (Ind.1984), and it is within the province of the trier of fact to reject evidence to the contrary. See, e.g., Bennett v. State, 409 N.E.2d 1189, 1191 (Ind.Ct.App.1980) (conflict between the State’s case and a defendant’s alibi is a matter to be resolved by the jury, whose decision will not be overturned on appeal if there is substantial evidence of probative value in the record to support it).

This is true even if there are inconsistencies in the child victim’s own testimony. See, e.g., Surber v. State, 884 N.E.2d 856, 869 (Ind.Ct.App.2008) (testimony of six-year-old victim was not so incredibly dubious or inherently improbable that no reasonable person could believe it; “[w]hile there are inconsistencies between some of [the child’s] statements, the inconsistencies ‘are appropriate to the circumstances presented, the age of the witness, and the passage of time between the incident and the time of her statements and testimony.’ ” (quoting Fajardo v. State, 859 N.E.2d 1201, 1209 (Ind.2007))).

We acknowledge the conflicting testimony and some inconsistencies in T.B.’s own statements. However, we cannot find equivocal, coerced, or inherently contradictory T.B.’s statements establishing the elements of the crime and why she knew Feyka was the person who molested her. That T.B. did not immediately identify Feyka at trial is insignificant; she testified she had known Feyka for seven or eight years and he was a friend of her parents. As for T.B.’s pretrial statement she did not know whether the incident was a dream, the State notes the prosecutor questioned T.B. at length and T.B. testified she was positive it was real.

The jury, having heard T.B.’s testimony and having had the opportunity to determine the credibility of the witnesses, found Feyka guilty of molesting T.B. We must decline Feyka’s invitation to invade the province of the jury by reweighing the evidence and reassessing witness credibility-

CONCLUSION

As alleged prosecutorial misconduct was not fundamental error and there was sufficient evidence to support Feyka’s conviction, we affirm.

Affirmed.

FRIEDLANDER, J., and BARNES, J., concur.

      . Ind.Code § 35-42-4-3.

      . We heard oral argument July 11, 2012, at the Statehouse. We commend counsel on the quality of their advocacy.

      . Feyka urges us to analyze the prosecutor’s statements using the five factor test set forth in Bieghler v. State, 481 N.E.2d 78, 92 (Ind.1985). Because the State did not address those factors, Feyka asserts in his Reply Brief, the State has waived its argument and Feyka need show only prima facie error to gain reversal. See Nat'l Oil & Gas, Inc. v. Gingrich, 716 N.E.2d 491, 496 (Ind.Ct.App.1999) (failure to respond to an issue raised by an appellant is akin to the failure to file a brief, and under such circumstances we may reverse the unaddressed issue on a showing of prima facie error). As Bieghler involved an analysis of harmless error rather than fundamental error, and post-arrest silence rather than a comment on failure to testify, we cannot find the State waived its argument regarding prosecutorial misconduct by declining to address Bieghler.

      . The State asserts the prosecutor’s statement "He’s not going to do that” was not a reference to Feyka’s failure to testify, but meant Feyka would not have molested T.B. in front of witnesses. The State offers no explanation or citation to the record to support that apparent speculation about what the prosecutor meant.

      . Feyka asserts in his reply brief that the "you can take it to the bank” statement was "vouchsafing the credibility of the State’s only witness to the alleged incident, a witness who admitted to being told by her mother, in part, what to say.” (Appellant's Reply Br. at 3.)
      When it is alleged the prosecutor made an improper statement in closing argument, the correct procedure is to ask the trial court to admonish the jury. Dumas v. State, 803 N.E.2d 1113, 1117 (Ind.2004). If the party is not satisfied with the admonition, he should move for mistrial. Id. Failure to request an admonition or to move for mistrial results in waiver. Id. Feyka did neither, and offers no argument or explanation on appeal why “take it to the bank” amounted to vouchsafing.
      It is inappropriate for a prosecutor to make an argument that takes the form of personally vouching for a witness. Lainhart v. State, 916 N.E.2d 924, 938 (Ind.Ct.App.2009). Indiana Professional Conduct Rule 3.4(e) provides a lawyer "shall not ... in trial ... state a personal opinion as to the ... credibility of a witness.” Id. A prosecutor may comment on the credibility of the witnesses only if the assertions are based on reasons that arise from the evidence. Id.

      As noted above, this allegation of error is waived for appeal, and as explained below, the prosecutor's statements did not amount to fundamental error.

        As for Feyka’s allegation T.B. was "a witness who admitted to being told by her mother, in part, what to say,” (Appellant’s Reply Br. at 3), Feyka notes T.B. was asked at trial “so [your mother] helped you go over what you should say and things like that?” and she replied, "[a] little bit.” (Tr. at 137.)

      . The State recounts at length T.B.'s trial testimony, and asserts the alleged facts to which she testified are sufficient to support the convictions. But Feyka does not argue otherwise; instead, he argues T.B.'s testimony was incredibly dubious.