source: Caselaw Access Project

license: Public Domain

text:
    Kevin Andrew SCHULER, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    Supreme Court Case No. 31S00-1703-LW-134
    Supreme Court of Indiana.
    Argued: September 13, 2018 FILED December 4, 2018
    ATTORNEYS FOR APPELLANT: Brent Westerfeld, Andrew J. Borland, Indianapolis, Indiana
    ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Andrew A. Kobe, Jesse R. Drum, Deputy Attorneys General, Indianapolis, Indiana, Joshua Otto Schalk, Harrison County Prosecuting Attorney, Corydon, Indiana
    David, Justice Defendant Kevin Andrew Schuler pled guilty to the murder of Asenath Arnold and to felony murder for the death of Gary Henderson at the hands of his accomplice Austin Scott. Schuler was sentenced to life without parole for the murder charge and received a consecutive sixty-five-year sentence for the felony murder. Schuler raises four issues in this appeal, arguing a violation of his Miranda rights, insufficient evidence to support his sentence, that his sentence was inappropriate, and failure of the trial court to meet certain requirements in its sentencing statement. We affirm the trial court on each of Schuler's first three claims but remand this matter for a new sentencing statement.
    Facts and Procedural History
    Asenath Arnold was found dead in her Harrison County farm home on the morning of August 3, 2013. Arnold, a mostly-bedridden fifty-seven-year-old woman, had been brutally beaten in her bedroom; her head was significantly disfigured, and blood was splattered on the walls and pooled underneath her bed. Gary Henderson, who slept in an upstairs bedroom in the same home, was also found dead with multiple stab wounds.
    Later that day in adjacent Floyd County, New Albany police officers responded to a call about gun shots fired in a residential neighborhood. Police located Austin Scott and Defendant Kevin Schuler shortly thereafter and placed them under arrest. After Miranda warnings were given to both individuals, Scott offered that he "killed a man last night" and that Schuler killed someone as well. (Tr. Vol. 3 at 238, Tr. Vol. 5 at 104, 107). Police confirmed that Harrison County was working a double homicide and took Schuler to the Floyd County Sherriff's Department for further questioning.
    At the police station, interrogators learned that Schuler and Scott were driving a four-wheeler early that morning and stopped at Arnold and Henderson's farmhouse to siphon gas from a tractor. Schuler knew the home because he had done work on the property a few years earlier. Schuler admitted to police that he followed Scott into the home where Scott pulled out a knife, went upstairs, and killed Henderson. The two took several items from the house including rifles and prescription medication but returned when Schuler realized he left his backpack at the scene. Schuler and Scott re-entered the home to see if they could find any more pills. At some point, Schuler found a singletree-a wooden bar normally used to hold horses together-on the property and carried it into the house.
    Once Schuler and Scott were back in the house, Arnold called out to the intruders and started to emerge from her bedroom on the first floor. Schuler punched Arnold and she stumbled back to her bed. Schuler then took the singletree and struck Arnold on top of her head. Arnold prayed and pleaded with Schuler for her life. According to Scott, Schuler swung the singletree with two hands "like a sledgehammer," striking Arnold at least twice and as many as four times. (St. Ex. 30-4 at 47:53-52:00). In addition to Schuler hitting Arnold with the singletree, Scott also stabbed her in the face. Although he couldn't be completely sure whether he or Scott killed Arnold, Schuler told police, "I'm almost positive I killed her." (Tr. Vol. 2 at 250). An autopsy determined Arnold died of multiple blunt force injuries and sharp force wounds to the head. Schuler and Scott took Arnold's rings and medication before leaving the home.
    Schuler was charged with three counts of murder, Class A felony robbery, Class A felony burglary, and Class D felony theft.
    The State subsequently filed a notice of intent to seek the death penalty, alleging that Schuler intentionally killed Arnold while committing the crime of robbery. Schuler ultimately pled guilty to Count 1, murder, and Count 2, felony murder, and in exchange, the State agreed to dismiss its request for the death penalty and instead requested a sentence of life imprisonment without parole under Indiana Code section 35-50-2-9. The parties agreed that the trial court alone would conduct the sentencing hearing to determine whether life without parole or a term of years would be imposed. At the sentencing hearing, the trial court verbally gave its reasons for the ultimate sentence, including a discussion of potential aggravating and mitigating factors. Schuler was sentenced to life without parole on Count 1 and sixty-five (65) years on Count 2 to be served consecutively.
   The present appeal ensued, which we accepted under mandatory review pursuant to Indiana Rule of Appellate Procedure 4(A)(1)(a). Additional facts will be presented below as necessary.

Discussion and Decision

Schuler raises four issues on appeal, which we restate as follows: (1) whether Schuler's Miranda rights were violated during a custodial interrogation; (2) whether there was sufficient evidence to prove beyond a reasonable doubt that Schuler intentionally killed Asenath Arnold; (3) whether Schuler's sentence was inappropriate; and (4) whether the trial court's sentencing statement complied with Harrison v. State and reflects appropriate sentencing considerations. We will analyze each issue in turn.

I. Schuler's Miranda rights were not violated.

Schuler first argues that his Miranda rights were violated when police failed to stop all questioning after he requested his attorney during a police interrogation. Schuler was interrogated on two separate occasions by Harrison County Detective Nick Smith: first after Schuler was stopped and arrested in New Albany and second when Schuler was taken to the Floyd County Police Department about an hour later. During the second interrogation, the following interaction took place:

---

DET. SMITH: All right. You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to consult with an attorney and have that attorney present during questioning. If you cannot afford an attorney, one will be provided for you before any questioning at - at no cost. If you choose to answer any questions we'd ask you now, you still have the right to stop answering questions at any time, that never changes. Do you understand that?

MR. SCHULER: Have my attorney now?

DET. SMITH: It's up to you. If you ask me for an attorney, I can't ask you no more questions.

MR. SCHULER: This isn't recorded or nothing.

DET. SMITH: Everything we do is recorded, buddy. I've got to tell your story and I've got to tell the truth. I don't want to hide nothing. If you want an attorney, tell me now, and then I will not ask you any questions.

MR. SCHULER: I - I want my attorney, but I'll answer, you can ask me questions however.

DET. SMITH: You got to be specific, buddy. I mean, if you're telling me you want an attorney, I cannot talk to you any more.

MR. SCHULER: You - you can go ahead and talk to me, that's fine.

DET. SMITH: Are you - I can't really even ask you. Are you saying you want to talk to an attorney before you talk to me?

MR. SCHULER: No, you can go ahead.

DET. SMITH: Are you positive?

MR. SCHULER: Yes.

DET. SMITH: Okay. So you want to talk to me?

MR. SCHULER: Yes, sir.

DET. SMITH: Okay. Did you mean a minute ago that you wanted an attorney first?

MR. SCHULER: Oh, no, I have an attorney. I don't know if I'm supposed to talk to him first or you. It doesn't matter, I'll go ahead and talk to you.

DET. SMITH: Only if you want to, buddy.

MR. SCHULER: Yeah.

---

(Tr. Vol. 2 at 156-57). In the course of the interrogation that followed this exchange, Schuler gave details about the two murders and admitted that he at least played a role in the death of Asenath Arnold-eventually stating, "I'm almost positive I killed her." (Tr. Vol. 2 at 244, 250).

Before entering his guilty plea, Schuler moved to suppress these statements, arguing that he unambiguously and unequivocally requested an attorney. Thus, the interview should have stopped, and any statements made after this invocation of his right to counsel should have been suppressed. The trial court, however, denied Schuler's motion and proceeded to accept his guilty plea.

Schuler asks our Court to find that his Fifth Amendment right to an attorney was violated and that his motion to suppress should have been granted. When a trial court denies a motion to suppress, we review this denial in a manner similar to other sufficiency issues. Hartman v. State , 988 N.E.2d 785, 788 (Ind. 2013). We do not reweigh evidence and there "must be substantial evidence of probative value in the record to support the trial court's decision." Id. Within this sufficiency review, we review all issues of law de novo . Id.

To the extent Schuler claims his request for an attorney was unambiguous and unequivocal, we disagree. When a person is questioned by law enforcement officers after being taken into custody, that person must first "be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Once the accused requests counsel, "the interrogation must cease until an attorney is present." Carr v. State , 934 N.E.2d 1096, 1102 (Ind. 2010) (citing Edwards v. Arizona , 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981) ). This request, however, must be "unambiguous and unequivocal." Carr , 934 N.E.2d at 1102 (citing Berghuis v. Thompkins , 560 U.S. 370, 379, 130 S.Ct. 2250, 2259, 176 L.Ed.2d 1098 (2010) ).

Police investigators are not required to stop questioning "if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel." Davis v. United States , 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994) (emphasis in original). If a defendant's statements are unclear, police may ask clarifying questions to determine whether the accused has actually requested counsel. See Bailey v. State , 763 N.E.2d 998, 1003 (Ind. 2002). However, as Schuler argues, "an accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself." Smith v. Illinois , 469 U.S. 91, 100, 105 S.Ct. 490, 495, 83 L.Ed.2d 488 (1984) (emphasis in original). See also Sleek v. State , 499 N.E.2d 751, 754 (Ind. 1986) ("Even if [an accused's] request was perceived to be inherently ambiguous, or equivocal in light of the preceding events, any further questioning should have been narrowly limited to clarifying whether [the accused] actually wished to have counsel present.").

At issue here is Schuler's statement, "I want my attorney, but I'll answer, you can ask me questions however." In examining courts' prior treatment of similar statements, we cannot agree that this statement is an outlier or even on the bleeding edge of Miranda 's jurisprudence. In Davis , for example, the Supreme Court of the United States found the defendant's statement, "[m]aybe I should talk to a lawyer," to be ambiguous and therefore not a request for counsel. 512 U.S. at 462, 114 S.Ct. at 2357. Similarly, in Bailey , 763 N.E.2d at 1003, our Court found the statement, "I may need a what do you call it ... a [sic ] appointed ... oh appointed attorney" to be an ambiguous request for counsel, and in Taylor v. State , 689 N.E.2d 699, 703 (Ind. 1997), the statement, "I guess I really want a lawyer, but, I mean, I've never done this before so I don't know" was also found to be an ambiguous request. Schuler's statement, in light of the circumstances, was arguably more ambiguous than the statements made in each of these cases.

Schuler argues, however, that Detective Smith failed to honor his plain request for an attorney. In support, Schuler points to Anderson v. State , 961 N.E.2d 19, 26 (Ind. Ct. App. 2012), trans. denied , a case in which our Court of Appeals found the defendant's statement, "I really would like to talk to an attorney or something," to be an unequivocal invocation of a right to counsel. The Court of Appeals reasoned that the addition of "or something" to the otherwise clear request for counsel did not make the statement equivocal. Id. at 27. Rather, the phrase "or something" appeared to be a habit of speech, and given the reality of an interrogation room, the court was satisfied that the entire statement was a clear request for an attorney. Id.

Schuler's statement, "I want my attorney, but I'll answer, you can ask me questions however" does not carry the same unambiguous tones of the Anderson statement. A reasonable officer in light of the circumstances would have found Schuler's statement to be ambiguous. The phrase "but I'll answer, you can ask me questions however" was not a habit of speech; it was permission to continue questioning. Even so, Detective Smith confronted the issue directly, asking, "Did you mean a minute ago that you wanted an attorney?" (Tr. Vol. 2 at 157). Schuler responded, "Oh, no, I have an attorney. I don't know if I'm supposed to talk to him first or to you. It doesn't matter, I'll go ahead and talk to you. " (Id. (emphasis added) ). Schuler's statements, at minimum, show that he was aware of his right to an attorney but chose to speak with the detective anyway. Furthermore, we do not think Detective Smith's clarifying questions injected any retrospective doubt into Schuler's ambiguous statement. The detective acted as any reasonable police officer would in this circumstance and even made sure Schuler understood that the interview would stop if he was truly requesting an attorney.

A defendant's statement is either "an assertion of the right to counsel or it is not." Davis , 512 U.S. at 459, 114 S.Ct. 2350 (citation omitted). Here, Schuler's statement was not an unambiguous request for counsel. We are satisfied Schuler's Miranda rights were honored during this custodial interrogation and affirm the trial court's denial of Schuler's motion to suppress.

II. There was sufficient evidence beyond a reasonable doubt that Schuler intentionally killed Arnold.

Schuler next argues that there was insufficient evidence to support the aggravating circumstance that made him eligible for a life without parole sentence. We review the sufficiency of the evidence to support a statutory aggravating circumstance in the same way we review the sufficiency of evidence to convict. Krempetz v. State , 872 N.E.2d 605, 609 (Ind. 2007). We examine only the probative evidence and reasonable inferences supporting the verdict and do not reweigh the evidence or assess witness credibility. Love v. State , 73 N.E.3d 693, 696 (Ind. 2017). We look to see if the evidence "constitutes substantial evidence of probative value from which a reasonable trier of fact could find the existence of the aggravator beyond a reasonable doubt." Krempetz , 872 N.E.2d at 609 (citing Fleenor v. State, 622 N.E.2d 140, 151 (Ind. 1993) ).

In general, when the State seeks to impose a sentence of life without parole for murder, it must allege at least one aggravating circumstance listed in the life without parole statute. Ind. Code § 35-50-2-9(a). In this case, the State alleged Schuler committed murder by intentionally killing Arnold while committing burglary. Ind. Code § 35-50-2-9(b)(1). A person engages in conduct "intentionally" if, "when he engages in the conduct, it is his conscious objective to do so." Ind. Code § 35-41-2-2(a). Intent to kill may be inferred from the intentional use of a deadly weapon in a manner likely to cause death or great bodily injury. Landress v. State , 600 N.E.2d 938, 941 (Ind. 1992). A deadly weapon includes "material that in the manner it ... is used ... is readily capable of causing serious bodily injury." Ind. Code § 35-31.5-2-86(a)(2).

In the present case, there was substantial evidence beyond a reasonable doubt that Schuler intentionally killed Arnold during the commission of a burglary. Although a singletree isn't generally used as a weapon, the manner in which Schuler used it was readily capable of causing serious bodily injury. Schuler admitted as much, noting that he used both hands to swing the singletree down on top of Arnold's head and was "almost positive" that he killed her. (Tr. Vol. 2 at 250). The inference of Schuler's intent to kill can be further bolstered by Scott's statements that he saw Schuler strike Arnold with the singletree "like a sledgehammer" at least twice (St. Ex. 30-4 at 48:13-48:23) and a forensic pathologist's report that the blunt force injuries directly contributed to Arnold's death.

We affirm the trial court court's finding of the aggravating circumstance beyond a reasonable doubt that Schuler intentionally killed Arnold during the burglary of Arnold's home.

III. Schuler's sentence of life without parole is appropriate.

Schuler argues that his sentence is inappropriate and urges us to exercise our constitutional power to review and revise his sentence. Ind. Const. Art. 7, § 4. Under our appellate rules, we will revise a sentence only if we find that it "is inappropriate in light of the nature of the offense and the character of the offender." Ind. Appellate Rule 7(B). Our goal in applying 7(B) review is not to achieve a perceived "correct" sentence, but rather to leaven the outliers. McCallister v. State , 91 N.E.3d 554, 566 (Ind. 2018). In conducting this review, we "defer to the trial court's sentence and impose on the defendant the burden of persuading us that a revised sentence is warranted." Id. (citing Rice v. State , 6 N.E.3d 940, 946 (Ind. 2014) ).

Schuler argues the trial court abused its discretion by considering the Indiana Risk Assessment System ("IRAS") as an aggravating circumstance or counterweight to a mitigating circumstance, not giving proper consideration to his age and brain development, and placing weight on the victims' innocence. We disagree and find no abuse of discretion.

First, courts may properly consider offender assessment instruments such as the IRAS as supplemental tools during the sentencing phase of a trial. Malenchik v. State , 928 N.E.2d 564, 575 (Ind. 2010). While the IRAS itself does not serve as an aggravating or mitigating circumstance, it nevertheless "may be considered by a trial judge in reaching an informed sentencing decision." Id. at 574. Although the trial court in this case did reference the IRAS during sentencing, it did not place any special weight on the IRAS findings. Instead, the court mentioned it briefly before moving on to a host of other factors it considered during sentencing.

Second, Indiana Code section 35-50-2-9(c)(7) allows a court to consider as a mitigating circumstance whether the defendant was less than eighteen at the time the murder was committed. Schuler points to Miller v. Alabama , 567 U.S. 460, 473, 132 S.Ct. 2455, 2465, 183 L.Ed.2d 407 (2012), arguing "youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole." While we agree with this general proposition, Miller dealt with two fourteen-year-old offenders that received a mandatory life without parole sentence. Id. at 465, 132 S.Ct. at 2460. Here, the trial court pointed out that Schuler was eighteen years old at the time he committed the murder, that the law treats eighteen-year-olds as adults, and that Schuler seemed to comprehend the consequences of murder when he asked the detective, "I'm going to spend the rest of my life in prison, aren't I?" (Tr. Vol. 7 at 155). It was within the court's discretion to not place great weight on Schuler's age.

Third, there is a presumption that a trial court that conducts a sentencing hearing "renders its decision solely on the basis of relevant and probative evidence." Veal v. State , 784 N.E.2d 490, 493 (Ind. 2003). There is no indication here that the trial court placed any significant weight on victim impact when it mentioned "two innocent victims who will never have Christmas with their families." (Tr. Vol. 7 at 156). Schuler fails to persuade us otherwise.

Schuler also argues that a term of years is a more appropriate sentence than life without parole. He argues that his age, troubled family history, and lack of substantial criminal history should weigh in favor of his character. While it is true that "a trial court should reserve maximum sentences for classes of offenses that constitute the worst of the worst," Hamilton v. State , 955 N.E.2d 723, 727 (Ind. 2011), Schuler did not receive the maximum sentence in this case. Instead of being sentenced to death or to consecutive life sentences for the murder and felony murder charges, Schuler received a life without parole sentence and a sixty-five-year consecutive sentence. We are also not persuaded that Schuler's sentence is an outlier. See, e.g., Helsley v. State , 43 N.E.3d 225, 229 (Ind. 2015) (defendant's sentence of life without parole was appropriate for the double murder of two coworkers despite alleging troubled childhood and lack of criminal history); Krempetz , 872 N.E.2d at 605, 615 (affirming consecutive life without parole, forty-five year term, and twenty-year term sentences when an 18-year-old defendant committed intentional murder during the robbery of a woman where the defendant had no criminal or juvenile history but admitted to drug use).

We therefore conclude that Schuler's sentence was appropriate in light of the nature of the offense and his character.

IV. The sentencing statement did not comply with the dictates of Harrison v. State .

Schuler's final argument is that the trial court failed to comply with the requirements set forth in Harrison v. State and impermissibly considered nonstatutory aggravators when it sentenced him to life imprisonment without parole. We review a trial court's sentencing order for an abuse of discretion. Rice , 6 N.E.3d at 943 (citing Anglemyer v. State , 868 N.E.2d 482, 490 (Ind. 2007) ). An abuse of discretion occurs if a trial court enters a sentencing statement explaining the reasons for imposing the given sentence, "but the record does not support the reasons or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law." Id.

When trial judges exercise discretion over the sentence imposed for the death penalty or life imprisonment without parole, the court must comply with the requirements outlined in Harrison v. State , 644 N.E.2d 1243, 1262 (Ind. 1995). See also Rice , 6 N.E.3d at 943 (affirming the use of Harrison factors when the judge alone makes the sentencing determination after the defendant enters a guilty plea). Under Harrison , we require that sentencing findings in capital cases:

(i) must identify each mitigating and aggravating circumstance found, (ii) must include the specific facts and reasons which lead the court to find the existence of each such circumstance, (iii) must articulate that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence, and (iv) must set forth the trial court's personal conclusion that the sentence is appropriate punishment for this offender and this crime.

Harrison , 644 N.E.2d at 1262 (internal citations omitted). These requirements are in place to "insure [sic ] the trial court consider[s] only proper matters when imposing [a] sentence...and to enable the appellate court to determine the reasonableness of the sentence imposed." Id.

The trial court in the present case verbally discussed its sentencing decision from the bench. Examining the trial court's statements at sentencing, we can only make out the rough silhouettes of each Harrison factor, none of which come into clear focus.

As to the first and second Harrison factors, the trial court clearly identified the aggravating circumstance of an intentional killing during the commission of a robbery, but also referenced "other aggravating circumstances," none of which are readily identifiable from the court's statements. (Tr. Vol. 7 at 156). While the life without parole sentencing statute requires only one aggravating circumstance, see Ind. Code § 35-50-2-9(a), we have consistently held that, in the context of life imprisonment without parole, courts must, "limit the aggravating circumstances eligible for consideration to those specified in the...statute." Clippinger v. State , 54 N.E.3d 986, 991-92 (Ind. 2016) (quoting Pope v. State , 737 N.E.2d 374, 383 (Ind. 2000) ). Without any clear indication of what "other aggravating circumstances" the court considered, we cannot ensure only proper matters were considered.

Similarly, it is not clear to us that the sentencing statement meets the third Harrison factor. Although the trial court found that the "aggravating circumstances outweigh any mitigating circumstances," (Tr. Vol. 7 at 156), it is hard to assess how the court balanced the factors without specific identification of any mitigating factors. While courts are not required to find mitigating circumstances, see Clippinger , 54 N.E.3d at 992, the court here at least hinted at several factors it considered in determining Schuler's sentence. Without specificity, it is difficult for us as an appellate court to review the imposition of the sentence.

As to the final Harrison factor, the court's statements imply that it came to the personal conclusion that the sentence was appropriate. At the beginning of its statement, the trial court noted, "nothing I do here today is probably going to allow you to see [Schuler] outside of prison walls...I have to decide whether life in prison or a term of years is appropriate." (Tr. Vol. 7 at 152). After discussing the various factors at issue in the case, the trial court concluded by "impos[ing] a sentence of life without the possibility of parole for the murder of Asenath Arnold." (Tr. Vol. 7 at 156). But without clear substance between these two statements, we cannot say with certainty that "[t]he court's balancing of the evidence emphatically displays its discrete, individualized sentencing." Azania v. State , 730 N.E.2d 646, 653 (Ind. 2000) (quoting Allen v. State , 686 N.E.2d 760, 790 (Ind. 1997) ).

For these reasons, we do not think the requirements of Harrison have been met. If a sentencing statement does not meet the requirements of the law, "we are unwilling to affirm [a] sentence of life without parole." Brown v. State , 783 N.E.2d 1121, 1129 (Ind. 2003). There are three options, then, that we must consider: "(1) remand the matter to the trial court for clarification or a new sentencing determination; (2) affirm the sentence if the error is harmless; or (3) independently reweigh the proper aggravating and mitigating circumstances." Id. As a practical matter, we have previously given trial courts the opportunity to revise a sentencing statement if it does not conform to the requirements of Harrison . See, e.g., Clippinger , 54 N.E.3d at 987, 991-92 (reweighing aggravating and mitigating circumstances after an initial remand for a clearer sentencing statement);

Brown , 783 N.E.2d at 1129 (electing to independently evaluate aggravating and mitigating circumstances after already remanding for a revised sentencing order). We elect to follow the same course here. As in Harrison , we must "stand firm and require a clear demonstration that the essential operations" of the life without parole sentencing process have taken place. 644 N.E.2d at 1264 (citation omitted).

We therefore remand this matter to the trial court for a clearer sentencing statement that complies with the dictates of Harrison .

Conclusion

For the foregoing reasons, we affirm that Schuler's Miranda rights were not violated, there was sufficient evidence beyond a reasonable doubt to prove the necessary aggravating factor of an intentional killing during the commission of a robbery, and that Schuler's sentence is appropriate. We remand this matter, however, for a more specific sentencing statement consistent with Harrison .

Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.

      Schuler does not contest that this criminal act took place during the commission of a burglary.

      Schuler argues that the trial court relied on conjecture that Schuler killed Arnold only because she recognized him. That argument, however, goes to Schuler's motive rather than intent. Even if we were to accept this argument as true, the trial court still could have found this aggravating circumstance beyond a reasonable doubt based on the way Schuler used the singletree as a deadly weapon.

      In Miller , the Supreme Court of the United States struck down Alabama's and Arkansas's mandatory life without parole statutes for offenders under the age of eighteen, citing the Eighth Amendment's ban on cruel and unusual punishment. 567 U.S. at 489, 132 S.Ct. at 2475.


author: Massa, Justice.

text:
    RICHARDSON'S RV, INC., Respondent (Petitioner below) v. INDIANA DEPARTMENT OF STATE REVENUE, Petitioner (Respondent below)
    Supreme Court Case No. 18S-TA-22
    Supreme Court of Indiana.
    Argued: March 9, 2018 FILED December 5, 2018
    ATTORNEYS FOR PETITIONER: Curtis T. Hill, Jr., Attorney General of Indiana, Winston Lin, David C. Dickmeyer, Evan W. Bartel, Deputy Attorneys General, George M. Plews, Brett E. Nelson, Joshua S. Tatum, Steven A. Baldwin, Plews Shadley Racher & Braun LLP, Indianapolis, Indiana
    ATTORNEYS FOR RESPONDENT: Randal J. Kaltenmark, Mark J. Crandley, Ziaaddin Mollabashy, Barnes & Thornburg LLP, Indianapolis, Indiana
    On Petition for Review from the Indiana Tax Court, No. 49T10-1504-TA-16
   Massa, Justice.

Richardson's RV thought it could avoid paying Indiana sales tax if it took RVs it sold to certain out-of-state customers into Michigan before handing over the keys. The Indiana Department of Revenue quarreled with this understanding, telling Richardson's that it owed tax for those sales. On review, the Tax Court determined Richardson's owed no sales tax because it did not complete these transactions in Indiana.

We disagree. Because Richardson's structured these Michigan deliveries solely to avoid taxes with no other legitimate business purpose, we reverse the Tax Court and enter summary judgment in favor of the Department. We remand, however, for a determination of the amount of tax Richardson's owes and for a determination of whether any independent, non-tax-related business purposes motivated four isolated deliveries to other locations in the United States and Canada.

Facts and Procedural History

Richardson's RV, Inc. is an Indiana corporation that owns and operates an RV dealership in Middlebury, Indiana. Although Richardson's sells some RVs onsite, many of its sales happen online. In typical online sales during the period at issue, once the parties agreed on a price, Richardson's sent a purchase order to the customers to sign and return with deposit payments. Richardson's then ordered the RVs from the manufacturers and inspected them for any defects. After curing any found deficiencies, Richardson's gassed up the RVs and contacted the customers to come to the dealership.

When the customers arrived at the dealership, they inspected the RVs for any flaws; if the customers found any, Richardson's typically fixed the problems onsite. Then Richardson's took the customers to its financing office, where the customers filled out and signed documents necessary to obtain title to and registration for the RVs. And, at least sometimes, Richardson's completed odometer readings at the dealership. Next, the customers paid Richardson's directly or completed any financing agreements. Finally, after completing insurance arrangements, Richardson's provided the customers with temporary Indiana license plates to place on the RVs.

But when it came time to physically transfer possession of the RVs, the protocol depended on a customer's state of residence. Customers from Indiana-or from one of the forty states with reciprocal tax exemption agreements under Indiana Code section 6-2.5-5-39(c) -drove their RVs directly off the dealership lot. Customers from the nine states without reciprocal tax exemption agreements, however, could choose to pay sales tax either at Indiana's rate or at their home state's rate, with customers ostensibly choosing the lesser of the two.

For the non-reciprocal-state customers choosing to pay their home state's rate, the delivery method Richardson's employed was unorthodox. With the customers following behind, Richardson's took the RVs to a Speedway gas station fewer than three miles north of the state border into the non-reciprocal state of Michigan. After arriving at this Speedway that functioned as the delivery location, only two simple tasks remained for the customers accepting these Michigan Deliveries: (1) sign confirmations of delivery and (2) receive the keys to their new RVs. These Michigan Deliveries were "just for tax purposes." Resp.'s App. Vol. VI, pp. 107-08. But in four Non-Michigan Deliveries, Richardson's deviated from this norm for non-reciprocal-state customers and delivered RVs to them in California, North Dakota, Nova Scotia, and Buchanan, Michigan.

Richardson's collected no Indiana sales tax on any of the Michigan or Non-Michigan Deliveries. After an audit, the Department issued proposed assessments to Richardson's for the years at issue, which totaled nearly $250,000 in unpaid taxes and interest on the Michigan and Non-Michigan Deliveries. Following an unsuccessful appeal to the Department, Richardson's petitioned the Tax Court for review. Richardson's RV Inc. v. Indiana Dep't of State Revenue , 80 N.E.3d 293 (Ind. Tax Ct. 2017), vacated .

Following briefing and a hearing, the Tax Court granted summary judgment for Richardson's, concluding that it owed no Indiana sales tax for any of these transactions because (1) an explicit agreement between non-reciprocal-state customers and Richardson's mandated delivery of the vehicles in Michigan, (2) Richardson's designed the trips to Michigan to further legitimate business purposes, and (3) Indiana's exemption statute did not apply to these transactions because "as a matter of law the sales transactions at issue were not made 'in Indiana.' " Id. at 296-99.

We granted the Department's petition for review. See Ind. Appellate Rule 63(A). And now we reverse.

Standard of Review

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.

Ind. Trial Rule 56(C). Tax Court Rule 10, which this Court concurrently adopted with the Tax Court commencing business in 1986, commands that we "shall not set aside the findings or judgment of the Tax Court unless clearly erroneous." Pub. L. No. 291-1985, § 1, 1985 Ind. Acts 2278, 2279 (codified at Ind. Code § 33-26-1-1 (2004) ) (establishing the Indiana Tax Court); July 18, 1986, Order Adopting Rules for the Indiana Tax Court (found in volume 494-496 of Ind. Cases ed. of N.E.2d at XXXIV) (adopting Rule 10's "clearly erroneous" standard). In other words, "[a]lthough this Court ordinarily reviews summary judgment orders de novo, we take a limited departure when reviewing summary judgments entered by the Tax Court," setting aside its decisions within its expertise when "we are definitely and firmly convinced that an error was made." Merch. Warehouse Co. v. Indiana Dep't of State Revenue , 87 N.E.3d 12, 16 (Ind. 2017) (internal quotation marks omitted).

Discussion and Decision

State gross retail tax, commonly known as the Indiana sales tax, generally applies to "retail transactions made in Indiana." Ind. Code § 6-2.5-2-1(a) (1980). But not every RV transaction "made in Indiana" is subject to our sales tax: reciprocity agreements exempt some out-of-state buyers from paying our sales tax if they can show Indiana purchasers receive similar exemptions for purchases in their states. I.C. § 6-2.5-5-39(c) (2007) ; Hamilton Cnty. Assessor v. SPD Realty, LLC , 9 N.E.3d 773, 776 (Ind. Tax. Ct. 2014) (noting that "the taxpayer bears the burden of proving that it is entitled to the exemption that it seeks").

If, however, those non-residents live in states without reciprocity agreements with Indiana, RV sales are not exempt from our sales tax. I.C. § 6-2.5-5-39(c). Instead, the only way for these non-reciprocal-state customers to avoid paying Indiana sales tax is to take physical delivery of their RVs outside Indiana because "[s]ales of tangible personal property which are delivered to the purchaser in a state other than Indiana for use in a state other than Indiana are not subject to gross retail tax or use tax." 45 Ind. Admin. Code § 2.2-5-54(b).

But "[a] transaction structured solely for the purpose of avoiding taxes with no other legitimate business purpose will be considered a sham for taxation purposes." Indiana Dep't of State Revenue v. Belterra Resort Indiana, LLC , 935 N.E.2d 174, 179 (Ind. 2010) (internal quotation marks omitted). Indeed, "the substance, rather than the form, of transactions determines their tax consequences." Id. ; see also Gregory v. Helvering , 293 U.S. 465, 469, 55 S.Ct. 266, 79 L.Ed. 596 (1935) (where the Supreme Court put aside "the question of motive in respect of taxation" and instead "fix[ed] the character of the proceeding by what actually occurred").

"To determine the substance of a transaction, the court must consider all of the surrounding facts and the legal effect of the transaction." Bethlehem Steel Corp. v. Indiana Dep't of State Revenue , 597 N.E.2d 1327, 1332 (Ind. Tax Ct. 1992).

I. The Michigan Deliveries are subject to sales tax.

When personal property is delivered to the purchaser in a state other than Indiana solely to avoid paying sales tax-with no other legitimate business purpose-we will not " 'exalt artifice above reality.' " Belterra , 935 N.E.2d at 180 (quoting Gregory , 293 U.S. at 470, 55 S.Ct. 266 ). Instead, we will consider these deliveries part of "retail transactions made in Indiana" subject to Indiana sales tax. I.C. § 6-2.5-2-1(a).

Richardson's argues that the Michigan Deliveries are non-taxable because three legitimate business purposes prompted them: (1) ensuring that customers paid taxes in the proper jurisdiction, (2) avoiding double taxation, and (3) maintaining competitive pricing. But with these arguments, Richardson's asks this Court to elevate the form of these deliveries over their substance. And, tellingly, all these purposes are tax-not business-based. We find no legitimate business purpose motivating the Michigan Deliveries and so we consider them a sham for taxation purposes. See Belterra , 935 N.E.2d at 179.

First, Richardson's maintains that it did not pay the Indiana sales tax for the Michigan Deliveries to ensure that the proper jurisdiction received the tax payments for the RVs. It argues that Indiana adheres to the destination principle, which instructs that tax is properly paid "where the property is delivered to the ultimate consumer." Resp.'s Br. at 32-33. But the General Assembly made clear that non-reciprocal-state customers buying RVs in Indiana must pay our sales tax: "A transaction involving a ... recreational vehicle [purchased from a non-reciprocal-state customer] is not exempt from the state gross retail tax." I.C. § 6-2.5-5-39(c). Indiana is the proper jurisdiction to receive sales tax on the Michigan Deliveries, and Richardson's has no power to abrogate that legislative policy decision by artificially shifting the point of physical delivery to a non-reciprocal state. See Murray v. Conseco, Inc. , 795 N.E.2d 454, 457 (Ind. 2003) ("[P]ublic policy is a matter for the General Assembly.").

Second, Richardson's asserts that it left unpaid the sales tax because it wanted to help customers avoid paying a double tax. But "[w]hen the purpose of a taxing act is plain, courts will not interfere. It is not permissible to ignore the words of the statute in order to avoid double taxation." State Bd. of Tax Comm'rs v. Jewell Grain Co. , 556 N.E.2d 920, 925 (Ind. 1990). Richardson's asks us to do just that: ignore the words of Indiana Code section 6-2.5-5-39(c) -that non-reciprocal-state customers must pay Indiana sales tax-to avoid double taxation.

Third, Richardson's claims that it failed to pay sales tax because doing so helped it maintain competitive pricing. Richardson's argues that choosing to not pay Indiana sales tax tracks "the Legislature's concern for the competitiveness of Indiana RV dealers." Resp.'s Br. at 38. But Indiana businesses cannot absorb-or completely ignore-sales tax to entice customers. See I.C. § 6-2.5-9-4 (establishing that sellers commit Class B infractions if they include sales tax in displayed prices or if they offer to assume, absorb, or refund tax). And this logic forecloses our form-over-substance jurisprudence in the tax realm because any tax-avoidance strategy could constitute a legitimate business purpose since taxes inherently increase prices for customers.

Because Richardson's executed the Michigan Deliveries solely to avoid paying Indiana sales tax with no other legitimate business purpose, we reverse the Tax Court and enter summary judgment for the Department.

Still, the Tax Court must determine how much tax Richardson's owes on these Michigan Deliveries. In its motion for summary judgment, Richardson's asserted that the Department mathematically erred in calculating the total tax it would owe under the proposed assessments. Because the Tax Court declined to address this argument when it held in favor of Richardson's, 80 N.E.3d at 299 n.7, we remand for it to determine the precise amount of tax Richardson's owes.

II. The Tax Court must determine if the Non-Michigan Deliveries are taxable.

The Department also charged Richardson's with owing Indiana sales tax for deliveries it made to non-reciprocal-state customers in California, North Dakota, Nova Scotia, and Buchanan, Michigan. The parties and the Tax Court treated these deliveries synonymously with the Michigan Deliveries.

But they significantly differed. First, Richardson's delivered an RV to a customer at a sister-dealership in Menifee, California, about seventy-five miles from where the customer lived in San Diego and more than 2,100 miles away from Richardson's. Second, the North Dakota delivery was to a Canadian customer near the U.S.-Canada border, about 1,100 miles away from the dealership. Third, the RV delivered to Nova Scotia traveled about 1,500 miles from Richardson's. And fourth, the Buchanan, Michigan delivery shipped directly to a customer's home about fifty miles from the dealership.

Even though these deliveries outwardly differ from the typical Michigan Deliveries, Richardson's designated no evidence showing any independent, non-tax-related business purpose that motivated them. So we remand to the Tax Court to determine that. If the Tax Court determines that any legitimate business purpose indeed prompted these Non-Michigan Deliveries, they are exempt from our sales tax under title 45, section 2.2-5-54(b) of the Indiana Administrative Code.

Conclusion

Because "we are definitely and firmly convinced that an error was made," we reverse the Tax Court's grant of summary judgment for Richardson's and order summary judgment for the Department for the Michigan Deliveries. We remand, however, for a determination of the amount of tax Richardson's owes and for a determination of whether any independent, non-tax-related business purposes motivated the four Non-Michigan Deliveries.

Rush, C.J., and Goff, J., concur.

David, J., dissents with separate opinion in which Slaughter, J., joins.

Slaughter, J., dissents with separate opinion in which David, J., joins.

I respectfully dissent from Justice Massa's thoughtful majority opinion because I believe that Richardson's followed the letter of the law. As the majority noted, "[s]ales of tangible personal property which are delivered to the purchaser in a state other than Indiana for use in a state other than Indiana are not subject to gross retail tax or use tax." 45 Ind. Admin. Code § 2.2-5-54(b). Here, there seems to be no dispute that the RVs at issue were delivered in Michigan. As such, under the plain language of our administrative code, they are not subject to retail or use tax. While the Department makes a policy argument that the spirit of the law was not complied with, Richardson's complied with the plain language of the regulation. Accordingly, I do not believe the remedy for the Department is a judicial one. Instead, the regulation needs to be revised.

I would affirm the Tax Court.

Slaughter, J., joins.

Like Justice David, whose opinion I join, I respectfully dissent from the Court's decision to impose excise-tax liability on Richardson's RV. The Court holds that Richardson's is liable for excise tax on sales of more than a hundred recreational vehicles physically delivered to buyers in Michigan. The excise tax at issue here is Indiana's gross retail tax, also known as the sales tax, which is imposed on retail transactions "made in Indiana." Ind. Code § 6-2.5-2-1(a). Transactions made elsewhere are not subject to this tax. According to the Department's own regulation, as long as the buyer does not intend to use the vehicle in Indiana, no tax is owed for vehicle deliveries made outside of Indiana. "Sales of tangible personal property which are delivered to the purchaser in a state other than Indiana for use in a state other than Indiana are not subject to gross retail tax or use tax, provided the property is not intended to be subsequently used in Indiana." 45 Ind. Admin. Code 2.2-5-54(b).

The Department does not claim that buyers of the disputed RVs intend to use their vehicles in Indiana. So the only issue is whether the RVs were delivered in a state "other than Indiana". The Court agrees that physical delivery of these vehicles occurred in Michigan but concludes that Richardson's had no legitimate business purpose for delivering them across the state line other than to avoid paying tax in Indiana. The Court thus calls these sales a "sham" and subjects them to Indiana's tax anyway. In my view, a taxpayer that structures its affairs to satisfy the law's strict letter should not be penalized for violating its spirit. I would hold that complying with the law is never a "sham", even if the result is to deprive the Department of tax dollars it would prefer to collect.

My vote to affirm the tax court's judgment has nothing to do with the applicable standard of review. As our Court recites, we have traditionally deferred to legal rulings by the tax court on matters of tax law because of that court's subject-matter expertise. I believe such deference is unwarranted within our hierarchical judiciary. It is one thing for a reviewing court to defer to a lower court's factual findings because of the judge's ability to assess witness credibility, to take just one example. But it is something else entirely to defer to a lower court's conclusions of law. Just as it is "emphatically the province and duty of the judicial department to say what the law is", Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177 (1803), the responsibility to serve as the final arbiter of Indiana law lies with us. That is what it means to be a "supreme" court.

In addition to the tax court, our state judiciary is replete with various specialized courts having responsibility over probate matters, commercial disputes, criminal cases, environmental issues, small-claims matters, traffic infractions, to name just a few. Do we likewise owe deference to the legal conclusions of these tribunals? Surely, the answer is no, and not because the judges who populate these courts lack subject-matter expertise, or because members of this Court necessarily have greater expertise in these areas. As Justice Jackson observed in Brown v. Allen , 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), "We are not final because we are infallible, but we are infallible only because we are final." Id. at 540, 73 S.Ct. 397 (Jackson, J., concurring in judgment). As Indiana's court of last resort, we should reaffirm our supremacy to "say what the law is", and that includes Indiana's tax law.

I respectfully dissent.

David, J., joins.

      Even though the Department did not move for summary judgment at the Tax Court, "[w]hen any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party." Ind. Trial Rule 56(B).

      Richardson's sells many types of recreational vehicles-camper trailers, travel trailers, fifth-wheels, toy haulers, and motor homes-which collectively we call RVs.

      If defects required extensive repairs, Richardson's would at times pay for the customers to stay in a Middlebury hotel overnight.

      During the years at issue, Arizona, California, Florida, Hawaii, Massachusetts, Michigan, Mississippi, North Carolina, and South Carolina did not have reciprocal agreements with Indiana. Foreign countries are non-reciprocal too.

      We do not consider the delivery to Buchanan, Michigan as part of the Michigan Deliveries for reasons discussed in Section II.

      The Department at first proposed assessments on 145 sales for the years at issue. But after further investigation, it conceded that six transactions were exempt from taxation, arriving at the 139 sales at issue.

      Richardson's made a few constitutional arguments in its summary judgment brief too. First, Richardson's argued that the proposed assessments violate the Commerce Clause of the United States Constitution. See U.S. Const. art. I, § 8, cl. 3. But because "[t]he Commerce Clause only requires that the states not discriminate against interstate commerce," Bulkmatic Transp. Co. v. Dep't of State Revenue , 715 N.E.2d 26, 34 (Ind. Tax Ct. 1999) -and these transactions occurred in Indiana-the Commerce Clause does not apply.
      Richardson's also argued that the Department violated its Equal Protection and Equal Privileges and Immunities rights by subjecting its out-of-state sales to inconsistent standards. See U.S. Const. amend. XIV, § 1 ; Ind. Const. art. 1, § 23. But because "individuals are afforded equal protection guarantees, not activities," RDI/Caesars Riverboat Casino, LLC v. Indiana Dep't of State Revenue , 854 N.E.2d 957, 962 n.4 (Ind. Tax Ct. 2006), this argument fails too.

      Richardson's argued that the assessment of "Transaction # 5 is overstated because the Department double-counted Transaction # 5 by applying the $26,330.00 purchase price for that transaction to Transaction # 2, which was $18,633.50." Resp.'s App. Vol. V, p.128.

      Although a common carrier delivered the RVs to North Dakota and Nova Scotia, "[d]elivery to common carrier in Indiana for shipment to another state by common carrier shall be deemed delivery to a purchaser in a state other than Indiana for purposes of applying the gross retail tax or use tax." 45 Ind. Admin. Code § 2.2-5-54(c)(1).

      See Resp.'s Br. at 9 n.1 ("All of the 155 RVs were physically delivered at White Pigeon, Michigan, except for 4 RVs which were delivered to other locations in California, Michigan, North Dakota, and Nova Scotia.... For ease of reference, this brief will refer to these delivery locations collectively as being in Michigan, as the Tax Court did.").

      We take judicial notice of the distances between Richardson's and these four delivery locations under our longstanding tradition of taking "notice of the geography of the country." Hays v. State , 8 Ind. 425, 426 (1856).


author: Baker, Judge.

text:
    GO PROPERTIES, LLC, and Maxim Alliance Group, LLC, Appellants-Plaintiffs, v. BER ENTERPRISES, LLC ; Mortgage Electronic Registration Systems, Inc., as Nominee for Franklin American Mortgage Company; New Field, LLC ; Elden Investments, LLC; and Shannon R. Fawcett and Roxanne G. Fawcett, Trustees of the Shannon R. and Roxanne G. Revocable Trust Agreement dated 05/18/2017, Appellees-Defendants
    Court of Appeals Case No. 18A-PL-176
    Court of Appeals of Indiana.
    Filed September 21, 2018 Rehearing denied November 13, 2018
    Attorneys for Appellant Go Properties LLC: Thomas M. Beeman, Alex Beeman, Beeman Law, Anderson, Indiana
    Attorneys for Appellees Ber Enterprises, LLC, And New Field, LLC: Christopher E. Clark, Abaigeal F. Musser, Goodin Abernathy, LLP, Indianapolis, Indiana
    Attorney for Appellee Mortgage Electronic Registration Systems, Inc., as Nominee for Franklin American Mortgage Company: Angela Field Trapp, Trapp Law, LLC, Indianapolis, Indiana
   Baker, Judge.

[1] GO Properties, LLC (GO Properties) had two members that were, themselves, limited liability companies (LLCs). Stacy Phillips, who was the sole member of one of those LLCs, went rogue. She falsely held herself out as having the authority to act on behalf of GO Properties in an endeavor to sell real estate that belonged to the LLC. The title insurance agent relied on Phillips's representations and permitted the transaction to occur. Because Phillips had no actual or apparent authority to act on behalf of GO Properties, the deed was void. The real estate has since been sold again, but because the original deed was void, all future deeds are likewise void.

[2] GO Properties appeals the trial court's order granting summary judgment in favor of BER Enterprises, LLC (BER Enterprises), and New Field, LLC (New Field) (collectively, the appellees), on GO Properties' quiet title action. Finding that the trial court should have entered summary judgment in favor of GO Properties, we reverse and remand with instructions.

Facts

[3] In February 2012, GO Properties was formed as an LLC in Indiana with two members: Olicorp Properties, LLC (Olicorp), and Gracie Properties, LLC (Gracie). Olicorp's sole member was Larry Oliver; Gracie's sole member was Phillips. Olicorp was the designated Member Manager of GO Properties and had the sole authority "to sign agreements and other instruments on behalf of Company without the signature and/or written consent of any other Member ...." Appellant's App. Vol. II p. 38-39. Neither Oliver nor Phillips was authorized, as an individual, to do any business on behalf of GO Properties.

[4] On February 24, 2012, GO Properties purchased four parcels of real estate (the Properties) in Indianapolis from Maxim Alliance Group. To purchase the Properties, GO Properties executed a real estate mortgage, which was recorded on March 15, 2012.

[5] On August 1, 2013, Phillips, without any authority under the GO Properties Operating Agreement and without notifying Oliver, filed a Notice of Change of Registered Officer or Registered Agent with the Indiana Secretary of State, which changed the registered agent from Olicorp to Gracie. She also filed a Notice of Change of Principal Office Address, which changed GO Properties' principal address from Olicorp's business address to Phillips's home address. Phillips handwrote her title as "Owner" of GO Properties on both documents. Appellant's App. Vol. III p. 95-96.

[6] Phillips then immediately began the process of selling the Properties to Elden Investments for $60,000. She hired Best Title Services (Best Title) to perform a title examination of the Properties. The title examination failed to reveal the existence of the real estate mortgage given to Maxim Alliance Group by GO Properties because the mortgage did not have a legal description for any of the Properties. Best Title relied on Phillips's representation that she was the owner of GO Properties as it conducted its examination and later acted as closing agent for the transaction. Specifically, Tim West, the owner of Best Title and the individual who conducted the examination and closing, attested as follows:

• "[I]t looked like to me that Stacy Phillips ..., when she changed the address for the LLC to [her own address], and she represented herself as the owner, and the new registered agent was Gracie Properties ...." Id. at 111.
• It was "[c]orrect" that "the only thing in [West's] file right now to indicate that Stacy Phillips had operating authority to sell this property [was] her Secretary of State change of office address and her changing the registered agent to herself," as well as "her just telling [the title company employee] basically that she had the right to do this." Id.
• West did not rely on the Secretary of State documents; instead, he "was relying on the representations of Stacy Phillips." Id. at 112.

[7] The sale of the Properties closed on August 13, 2013. At the closing, Phillips, purportedly acting on behalf of GO Properties, conveyed the Properties to Elden Investments by way of warranty deed, which was recorded on August 22, 2013. Elden Investments quickly sold the Properties after obtaining the warranty deed; all the appellees (other than Elden) derived their title claims from later deeds stemming from Elden's sales.

[8] On April 16, 2015, GO Properties filed a complaint against the appellees seeking, among other things, to quiet title to the Properties. On October 14, 2016, BER Enterprises and New Field, which had each purchased one of the Properties from Elden Investments, filed a motion for summary judgment. On November 7, 2016, GO Properties filed a cross-motion for summary judgment. Following briefing and a hearing, on November 20, 2017, the trial court granted summary judgment in favor of BER Enterprises and New Field. In pertinent part, the trial court found and concluded as follows:

Findings of Fact
* * *
4. On or about August 1, 2013, Gracie Properties was listed as the Registered Agent for GO Properties with the Indiana Secretary of State, with Phillips listed as Managing Member of GO Properties.
* * *
28. GO Properties alleged that the transfer from GO Properties to Elden Investments is void ab initio, alleging that Phillips did not have authority to execute a deed for GO Properties notwithstanding public documents to the contrary.
* * *
Conclusions of Law
* * *
1. An unauthorized deed, or a deed made without the proper authority, is distinguishable from an inauthentic deed, and therefore should be treated as voidable.
* * *
10. In this case, the problem with the transactions lay in Phillip's [sic] holding herself out as having the authority to sign the Deeds as a managing member of GO Properties. The falsity did not lie in the Deeds themselves. Publically [sic] available corporate documents served to support her misrepresentations. To all involved, Phillips appeared to have the authority to execute the instruments.
11. Unlike cases involving forgery, the Deeds at issue were not documents made by a minor nor were they signed with a forged signature. Rather, Phillips misrepresented her authority within GO Properties.... [T]he Phillips[ ] misrepresentations did not make the Deeds executed ... false, and thus the Deeds were not forgeries.
12. ... The desirability of stability and predictability in the field of property law must be considered by this Court.... Holding the Deeds here to be void would ultimately do more to undermine any dependability of the field of property law and harm buyers' trust in the recording system, than to resolve an unaddressed area of Indiana property law.
* * *
14. When a deed is procured by fraud, the grantee may still transfer good title to a bona fide purchaser for value.
* * *
27. ... BER Enterprises and New Field are bona fide purchasers for value.
* * *
29. A voidable deed may be enforced by a bona fide purchaser for value.
* * *
31. Accordingly, as bona fide purchasers of properties with unauthorized (voidable) deeds, title should be quieted in the name of BER Enterprises ... and New Field ....

Appealed Order p. 6-11 (some internal citations omitted). GO Properties now appeals.

Discussion and Decision

[9] GO Properties makes a number of arguments on appeal, one of which we find dispositive: the trial court erred by granting summary judgment in favor of BER Enterprises and New Field because the deeds are void.

[10] Our standard of review on summary judgment is well settled:

The party moving for summary judgment has the burden of making a prima facie showing that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Reed v. Reid , 980 N.E.2d 277, 285 (Ind. 2012). Once these two requirements are met by the moving party, the burden then shifts to the non-moving party to show the existence of a genuine issue by setting forth specifically designated facts. Id. Any doubt as to any facts or inferences to be drawn therefrom must be resolved in favor of the non-moving party. Id. Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows there is no genuine issue of material fact and that the moving party deserves judgment as a matter of law. Freidline v. Shelby Ins. Co. , 774 N.E.2d 37, 39 (Ind. 2002).

Goodwin v. Yeakle's Sports Bar and Grill, Inc. , 62 N.E.3d 384, 386 (Ind. 2016).

[11] The parties disagree as to whether Phillips had apparent authority to act on behalf of GO Properties. Apparent authority is the authority that a third person reasonably believes an agent to possess because of some manifestation from the agent's principal. E.g. , Rogers v. Sigma Chi Int'l Fraternity , 9 N.E.3d 755, 764 (Ind. Ct. App. 2014). To find that a person had apparent authority to act for the principal, it is essential that there be some form of communication, direct or indirect, by the principal, which instills a reasonable belief in the mind of the third party. Pepkowski v. Life of Ind. Ins. Co. , 535 N.E.2d 1164, 1166 (Ind. 1989). Statements or manifestations made by the agent are not sufficient to create an apparent agency relationship. Id.

[12] Here, GO Properties made absolutely no direct or indirect statements indicating that Phillips had authority to act on its behalf. The Operating Agreement plainly states that Olicorp was the sole Member Manager. Neither Oliver and Phillips as individuals nor Gracie Properties as an entity was authorized to act on behalf of GO Properties.

[13] Moreover, the documents filed by Phillips with the Secretary of State do not amount to statements made by GO Properties that create an apparent agency relationship. Neither the location of a business's address nor the identity of that business's registered agent suffices to create apparent authority. See, e.g. , Ind. Code § 23-0.5-1.5-36 (explaining that a registered agent is merely a person or entity that is authorized "to receive service of any process, notice, or demand required or permitted by law to be served" on the principal). Nor would it be reasonable to conclude that Phillips's own handwritten designation of herself as "Owner" of GO Properties (she did not even bother to designate herself Member Manager) on the two forms constitutes a statement made by the principal bestowing her with apparent authority to act on its behalf. Appellant's App. Vol. III p. 95-96, 112 (West attesting that he did not rely on the Secretary of State forms because anyone can file such documents-"I can go record a shoestring, too").

[14] In any event, West explicitly attested that he relied on Phillips's own representations in concluding that she had authority to act on behalf of GO Properties. Appellant's App. Vol. III p. 112. As noted above, to find apparent authority, there must be statements or manifestations made by the principal instilling a reasonable belief in the mind of the third party. E.g. , Gallant Ins. Co. v. Isaac , 751 N.E.2d 672, 677 (Ind. 2001). Here, there were no such statements and West explicitly testified that he relied only on Phillips herself. Under these circumstances, we can only conclude that Phillips did not have apparent authority to act on behalf of GO Properties.

[15] At the trial court's request, GO Properties provided examples of underwriting standards for title insurance. Among other things, to insure title from an LLC, it is necessary to obtain a copy of the LLC's operating agreement, any and all amendments thereto, and a certificate that the operating agreement is a true and correct copy of the agreement in effect at the time of the sale. Appellant's App. Vol. IV p. 71. This practice is wise because it protects both the other members of the LLC and all future purchasers of the property. Had this practice been observed in this case, neither the original nor subsequent transactions would have occurred.

[16] In sum, Phillips did not have actual or apparent authority to sell the Properties on behalf of GO Properties. As a result, the original sale of the Properties to Elden Investments was void. Because the deed that Phillips executed on behalf of GO Properties was void, all future conveyances of the Properties were likewise void. Therefore, the trial court erred by entering summary judgment in favor of BER Enterprises and New Field and by denying GO Properties' summary judgment motion.

[17] The judgment of the trial court is reversed and remanded with instructions to enter judgment in favor of GO Properties.

May, J., and Robb, J., concur.

      Mortgage Electronic Registration Systems, Inc., as Nominee for Franklin American Mortgage Company, has also filed an Appellee's Brief in this matter, explaining that while the summary judgment order did not directly affect it, its interests align with BER Enterprises and New Field.

      We held oral argument in this case in Indianapolis on August 31, 2018.

      It is undisputed that Phillips did not have actual authority to convey the Properties to Elden Investments.

      West attested that he believed that he reviewed GO Properties' Operating Agreement but did not retain a copy of the agreement in his file. Appellant's App. Vol. III p. 111. He also stated that he believed he would have seen an agreement or resolution bestowing Phillips with the authority to engage in the transaction on behalf of GO Properties, but no such document has been produced. Id. at 111-12. As Olicorp was the only other member of GO Properties and did not ever execute such a resolution, the only reasonable conclusion is that no such resolution existed.

      At oral argument, counsel for appellees argued that because more sales of the Properties have occurred, we should not find the transaction(s) void. But we decline to find that multiple transactions stemming from a void deed can cleanse that deed-or themselves-of the original voidness.


author: May, Judge.

text:
    Tamara Jean (Swindle) COPPLE, Appellant-Defendant, v. Huel Dwayne SWINDLE, Appellee-Plaintiff
    Court of Appeals Case No. 41A01-1710-DR-2471
    Court of Appeals of Indiana.
    FILED September 21, 2018
    Attorney for Appellant: John T. Young, Young and Young, Franklin, Indiana
   May, Judge.

[1] Tamara Jean (Swindle) Copple ("Mother") appeals the trial court's modification of the settlement agreement between her and her ex-husband, Huel Dwayne Swindle ("Father"). Mother argues the trial court lacked the authority to modify the terms of the settlement agreement. We reverse and remand.

Facts and Procedural History

[2] When Mother and Father divorced on September 5, 2008, Mother was granted custody of the two minor children born of their marriage. The decree of dissolution incorporated a settlement agreement in which the parties agreed:

7. That the husband shall be solely responsible for the payments on the parties marital residence including taxes and insurance until such time as the house is paid off. This payment, coupled with the obligation on the 2006 Impala shall be in lieu of child support and be part of the distribution of property. That this arrangement has been in effect for the past two years and has worked and these payments shall constitute and Domestic [Support Order for] purposes of the federal bankruptcy Act.

(App. Vol. 2 at 12) (errors in original).

[3] In early 2017, the younger child, then 22 years old, married, and Father stopped making the payments on the marital residence. On March 2, 2017, Mother filed a "Motion for Rule to Show Cause" alleging Father had failed to make the February mortgage payment. (Id. at 14.) The trial court scheduled the matter for hearing. On March 16, 2017, Father filed a petition for modification alleging the marital residence payments constituted child support and the minor children were both "emancipated as a matter of law." (Id. at 17.) Father argued his obligation should therefore be terminated.

[4] On June 5, 2017, the trial court held a hearing. On October 5, 2017, the trial court issued its order, noting the property settlement agreement did not "establish a child support amount[.]" (Id. at 9.) The trial court found this failure made the agreement ambiguous, and then the court found unenforceable the clause ordering Father to make the payments "until such time as the house is paid off." (Id. ) Therefore, the trial court terminated Father's obligation to make such payments as of the date of Father's petition for modification.

Discussion and Decision

Modification of Settlement Agreement

[5] Mother appeals the trial court's modification of Father's monthly payment. Typically, we review trial court decisions about child support modification for clear error. See Bogner v. Bogner , 29 N.E.3d 733, 738 n.2 (Ind. 2015) (clarifying the proper standard on review for support modifications is clear error). When the trial court sua sponte makes findings of fact and conclusions of law, we must determine whether the evidence supports the findings and whether the findings support the judgement. Speaker v. Speaker , 759 N.E.2d 1174, 1179 (Ind. Ct. App. 2001). The judgment will be reversed only when clearly erroneous. Id. A finding is clearly erroneous only if the record contains no facts to support it either directly or by inference, and a judgment is clearly erroneous if it applies the wrong legal standard to properly found facts.

Yanoff v. Muncy , 688 N.E.2d 1259, 1262 (Ind. 1997). However, in this case the court's decision was controlled by its interpretation of the settlement agreement reached by the parties.

[6] We interpret settlement agreements under a de novo standard. Shorter v. Shorter , 851 N.E.2d 378, 383 (Ind. Ct. App. 2006). Settlement agreements are contractual in nature and binding on the parties once "the dissolution court merges and incorporates that agreement into the divorce decree." Id. Therefore, the rules governing contracts are applicable when we interpret the terms of the agreement. Id. If the terms are clear and unambiguous, those terms "are deemed conclusive." Id.

[7] Here, the settlement agreement, which was incorporated into the divorce decree, states Father was "solely responsible for the payments on the parties [sic] marital residence including taxes and insurance until such time as the house is paid off." (App. Vol. 2 at 12.) The trial court's order misstated the decree when it found the decree made "no indication as to [Father's] child support obligation, only that his paying the debt on the marital residence and the 2006 Chevy Impala 'shall be in lieu of child support.' " (Id. at 9.) The decree actually indicated the residence payments and the payments on the vehicle were to "be in lieu of child support and be part of the distribution of property ." (Id. at 12) (emphasis added). Therefore, the trial court's finding that the debt obligation equated to child support was in error. That debt obligation was both child support and property distribution.

[8] Indiana courts have encouraged divorcing couples to resolve their disputes in their own fashion by entering into settlement agreements.

Dewbrew v. Dewbrew , 849 N.E.2d 636, 642 (Ind. Ct. App. 2006). As to property division, those agreements are not subject to court modification unless the agreement allows for modification, the parties agree to modification, or a court finds the agreement was procured using fraud, duress, or undue influence. See Ind. Code § 31-15-2-17 (parties may agree to property settlement but once that agreement is "incorporated and merged into the decree[, it] is not subject to subsequent modification by the court, except as the agreement prescribes or the parties subsequently consent"); see also Dillard v. Dillard , 889 N.E.2d 28, 33 (Ind. Ct. App. 2008) (an incorporated property settlement agreement may not be modified by the court unless the party requesting modification proves fraud, duress, or undue influence). However, the principles of freedom of contract that govern property settlements do not apply to child support and child custody because of the "overriding policy concern [to] protect[ ] the welfare and interests of children." Voigt v. Voigt , 670 N.E.2d 1271, 1278 n.10 (Ind. 1996).

[9] Thus, while Father's obligation to pay child support is modifiable by statute, any payment pursuant to property distribution is not. See In re Marriage of Kraft , 868 N.E.2d 1181, 1188 (Ind. App. 2007) (child support agreed to in a settlement agreement is modifiable by statute); see also I.C. § 31-15-2-17 (property divisions pursuant to a settlement agreement are only modifiable in certain circumstances). Therefore, in order to decide whether the trial court erred when it modified the payment terms, we must decide whether the payments constitute child support or property distribution.

[10] Because the decree conflated the payment of the mortgage as child support and as a property division, the categorization of the payment is ambiguous. When determining the correct interpretation of an ambiguous term in a settlement agreement, one of the factors we consider is whether the award was given as quid pro quo ; if so, it is more likely property division than child support. Thompson v. Thompson , 550 N.E.2d 1332, 1337 (Ind. Ct. App. 1990). Other factors include the title of the property in question and the parties' intent when they made the agreement. Id.

[11] In Thompson , the trial court's decree incorporated a settlement agreement wherein the control of the marital residence was given to the father because he had custody of the children. Id. at 1334. The decree specifically stated both parties would legally remain joint tenants with rights of survivorship. Id. In a later order, after custody had changed to the mother, the control and use of the marital residence was given to mother until "July 15 of the year in which the youngest child graduates from high school[.]" Id. at 1335. Once the youngest child graduated, the parties were ordered to sell the real estate and split the proceeds equally. Id.

[12] We held the decree's order regarding control of the marital residence represented child support with a later property division. Id. at 1337. The control of the residence was not, in itself, a division of property. Id. We also held that, although the decree was ambiguous because it could be interpreted multiple ways, the trial court's interpretation was supported by "several factors." Id. Namely, the title to the property was to remain in both parents' "names as joint tenants with rights of survivorship." Id. Additionally, "there was no quid pro quo exchanged for the award or control[.]" Id. Due to the ambiguity, we held the trial court had rightfully considered extrinsic evidence to determine the parties' intent when they made the original agreement. Id. In the original agreement, the mother had not received anything in return for ceding control of the marital residence to father and stated she had made the agreement because she had not wanted to disrupt the children's environment. Id. Therefore, the trial court's interpretation regarding control over the marital residence was not in error as such control was child support and modifiable. Id.

[13] In Voigt , our Indiana Supreme Court reviewed a modification of a settlement agreement. While recognizing a trial court is constrained on the awards it can order, the Court noted parties are not so limited. Voigt , 670 N.E.2d at 1277. The Court said a trial judge may never know the reasons behind the agreement. Id. at 1278. Such ignorance, though, does not mean the agreement is without consideration or that it was procured through falsity. Id. Therefore, our Indiana Supreme Court "think[s] it best that courts tread lightly when evaluating settlement agreements." Id.

[14] Although the nature of the payments Father was to make herein - child support or property distribution - is ambiguous, the duration of the payment was unequivocal. Father agreed to make the payments on the marital residence "until such time as the house is paid off." (App. Vol. 2 at 12.) The decree was entered on September 5, 2008. At that time, the children were 18 and 14 years old. The mortgage payoff on the house, at the time of the dissolution, was $146,000. (Tr. at 34.) As of March 16, 2017, the maturity date of the mortgage was July 1, 2036. (See Ex. Vol. Petitioner's Ex. 1 at 3) (mortgage statement listing monthly payment amount and maturity date of loan).

[15] Father testified he agreed to make the marital residence payments because he "didn't want [his] children having to pick up and be moved somewhere else." (Tr. at 7.) He stated he only made the agreement because he thought the decree "could be modified later on." (Id. at 9.) However, nothing in the agreement lends itself to this interpretation. Mother was given the marital residence. Father was ordered to quitclaim his interest in that property to Mother. Father was ordered to make the payments on the marital residence and on the 2006 Impala. Nowhere in the agreement is modification mentioned. Under no reasonable scenario, with regular monthly payments, would the marital residence have been paid off before the children were emancipated. Therefore, it is only reasonable to infer Father had an alternative motivation to agree to pay off the mortgage. It is unnecessary for us to know why he made the agreement. See Voigt , 670 N.E.2d at 1278 (our ignorance about why an agreement was entered does not mean the agreement was without consideration).

[16] We decline to disrupt the agreement made by the parties and ratified by the trial court that granted the divorce. The amount to be paid by Father for the marital residence was ascertainable at the time the agreement was made in 2008, i.e. , the full amount of the mortgage loan. An ascertainable amount is properly treated as property to be divided. Sedwick v. Sedwick , 446 N.E.2d 8, 10 (Ind. Ct. App. 1983). Therefore, payments Father was ordered to make on the marital residence are an agreement on property division and not child support and, thus, not modifiable without a showing of fraud, duress, or undue influence. Compare Dillard , 889 N.E.2d at 33 (an incorporated property settlement agreement may not be modified by the court unless the party requesting modification proves fraud, duress, or undue influence), and I.C. § 31-15-2-17 (property divisions pursuant to a settlement agreement are only modifiable in certain circumstances), with Kraft , 868 N.E.2d at 1188 (child support agreed to in a settlement agreement is modifiable by statute). Father did not allege, and no evidence was produced to prove, Mother had fraudulently procured the agreement, placed Father under duress, or used undue influence. Consequently, the trial court erred when it modified the decree and terminated Father's obligation to pay the marital residence debt.

Contempt

[17] Mother also requests we reverse the trial court's failure to find Father in contempt. Whether a party is in contempt of court is a matter within the trial court's discretion, and its decision will be reversed only for an abuse of that discretion. Norris v. Pethe, 833 N.E.2d 1024, 1029 (Ind. Ct. App. 2005). A court abuses its discretion when its decision is against the logic and effect of the facts and circumstances before the court or is contrary to law. Mitchell v. Mitchell, 871 N.E.2d 390, 394 (Ind. Ct. App. 2007). When reviewing a contempt determination, we will not reweigh evidence or judge witness credibility. Id. We will affirm unless, after a review of the entire record, we have a firm and definite belief the trial court made a mistake. Id.

[18] Mother alleged Father was in contempt for failing to make payments on the marital residence as ordered in the dissolution decree. Father admitted he quit making the payments. Indiana Code section 31-15-7-10 provides, in relevant part, "Notwithstanding any other law, all orders and awards contained in a dissolution of marriage decree ... may be enforced by [ ] contempt[.]" As Father failed to follow the order in the decree to make payments on the marital residence, the trial court had the authority to find Father in contempt. See Mitchell , 871 N.E.2d at 396 (finding of contempt is proper when a party fails to comply with the dissolution decree). Because we reverse herein the trial court's determination that those payments were child support and subject to modification, we invite the trial court to reconsider on remand its determination that Father was not in contempt by failing to make the payments required by his property settlement agreement.

Appellate Attorney Fees

[19] Mother requests we award appellate attorney fees. She argues we should award appellate attorney fees because of the disparity between her income and Father's income and because of Father's contempt.

[20] Indiana Appellate Rule 66(E) allows us to "assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith." Such an award may include appellate attorney fees but is left to our discretion. Id. However, we "use extreme restraint when exercising" that power due to "the potential chilling effect upon the exercise of the right to appeal." Trost-Steffen v. Steffen , 772 N.E.2d 500, 514 (Ind. Ct. App. 2002), reh'g denied, trans. denied. As Father took no action before us, we cannot hold he acted in such a manner as to justify payment of Mother's attorney fees under Appellate Rule 66.

[21] However, Indiana Code section 31-15-10-1(a) authorizes a trial court to award reasonable appellate attorney fees. See also Townsend v. Townsend , 20 N.E.3d 877, 881 (Ind. Ct. App. 2014) ( section 31-15-10-1(a) allows a trial court to award appellate attorney fees in dissolution proceedings), trans. denied . Jurisdiction over this award rests with the trial court. Goodman v. Goodman , 754 N.E.2d 595, 603 (Ind. Ct. App. 2001), reh'g denied . Therefore, we remand the matter of appellate attorney fees to the trial court.

Conclusion

[22] The trial court erred when it modified the settlement agreement because the record suggests the mortgage payment was more akin to property distribution and, thus, could not be modified without agreement of the parties or proof of fraud in the making of the agreement. We reverse and remand for the trial court to revise its order in accordance with this opinion, to reconsider Mother's motion for rule to show cause in light of our holding as to the settlement agreement, and to determine whether an award for appellate attorney fees is proper.

[23] Reversed and remanded.

Riley, J., and Mathias, J., concur.

      The trial court included this same paragraph as a finding, which is where we found the "Support Order for" language that we included here. (See App. Vol. 2 at 11.)

      Father did not file a brief. When an appellee does not submit a brief, we do not undertake the burden of developing arguments for that party. Thurman v. Thurman , 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Instead we apply a less stringent standard of review and may reverse if the appellant establishes prima facie error. Id. Prima facie error is "error at first sight, on first appearance, or on the face of it." Van Wieren v. Van Wieren , 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).

      Mother argues alternative theories as to how the trial court erred when it modified the property settlement agreement. Mother asserts either: 1) the order to pay the mortgage was not child support but rather an agreement as to property distribution and therefore not subject to modification without agreement of the parties or a showing of fraud, duress, or undue influence; 2) if the order to pay the mortgage was child support, the trial court was not required to conclude those payments stopped due to the emancipation of the children-just because the trial court would not have ordered such payments, the parties were free to make such an agreement; or 3) if the payments are not part of the property division or child support, they must be classified as disability maintenance and therefore, because Mother is still disabled, the trial court erred in modifying the agreement. Overall, however, Mother maintains the language as to the duration of the payments, regardless of the category in which the payments belong, is unequivocally "until said time as the house is paid off." (App. Vol. 2 at 12.)

      We note the order also indicated "these payments shall constitute [a] Domestic [ Support Order for] purposes of the federal bankruptcy Act." (App. Vol. 2 at 12.) Federal law provides:
      The term "domestic support obligation" means a debt that accrues before, on, or after the date of the order for relief in a case under this title ..., that is--
      (A) owed to or recoverable by--
      (i) a spouse, former spouse, or child of the debtor or such child's parent, legal guardian, or responsible relative; ...
      (B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child's parent, without regard to whether such debt is expressly so designated;
      (C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of--
      (i) a separation agreement, divorce decree, or property settlement agreement;
      (ii) an order of a court of record; or
      (iii) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and
      (D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child's parent, legal guardian, or responsible relative for the purpose of collecting the debt.
      11 U.S.C.A. § 101. Further, domestic support orders are excepted from discharge under Section 523(a)(5) of the Bankruptcy Code. However, none of these facts clarify the classification of this award as child support, property distribution, or spousal maintenance.

      While we are too far downstream from this order to undo what has been done, we note that trial courts ought not enter orders that conflate child support and property distribution because it creates confusion of exactly the type with which we are dealing herein. See Jenkins v. Jenkins , 567 N.E.2d 136, 140 (Ind. Ct. App. 1991) (conflating child support with other marital debits is confusing and "[h]olding child support distinct from other accounts protects the child's right to receive support").