Paula R. (Brenay), now Hicks v. David C. Brenay (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jan 19 2016, 8:48 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Adam C. Squiller Tracy D. Knox
Squiller & Harley Georgina D. Jenkins
Auburn, Indiana Barnes & Thornburg LLP
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paula R. (Brenay), now Hicks, January 19, 2016
Appellant-Respondent, Court of Appeals Case No.
44A03-1501-DR-37
and Appeal from the LaGrange
Superior Court
David C. Brenay, The Honorable George E. Brown,
Appellee-Petitioner. Judge
Trial Court Cause No.
44D01-1107-DR-77
May, Judge.
[1] Paula R. Hicks appeals the trial court’s enforcement of the maintenance
provision of the premarital agreement she entered into before she married
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David C. Brenay. As the only issue she raises on appeal is res judicata, we
affirm the trial court’s order.
Facts and Procedural History
[2] On December 9, 2013, the trial court entered a Decree of Dissolution that
provided:
1. That the parties’ marriage is dissolved.
2. That further hearing will be scheduled regarding property
division if an agreement is not reached.
3. That the Respondent’s former name of Hicks is restored to
her.
4. That the parties’ prenuptial agreement is enforceable.
5. That this shall be a final appealable order as to the matters
determined herein.
(App. at 27-28.) The trial court declined to resolve property settlement issues
because Hicks was going to challenge on appeal the enforceability of the
prenuptial agreement, the validity of which would impact property rights.
[3] On December 19, 2013, Hicks filed a Notice of Appeal from that divorce
decree. The trial court clerk did not file a Notice of Completion of Transcript
and Hicks did not compel such, so we dismissed the appeal with prejudice on
May 8, 2014.
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[4] On November 5, 2014, the trial court held a hearing regarding the property
settlement. On December 13, 2014, the trial court entered Findings and
Judgment of Property Distribution affirming the property distribution and
spousal maintenance would occur pursuant to the pre-nuptial agreement. As
such, each party received certain items as their sole and separate property which
were held by each individually, and Hicks was “entitled to spousal payment of
$60,000 . . . over a five year period[.]” (Id. at 21-22.)
Discussion and Decision
[5] The only issue Hicks raises on appeal is whether the maintenance provision of
the premarital agreement is enforceable. That issue, however, is precluded by
our dismissal of Hicks’ appeal of the court’s prior order.
[6] A dismissal with prejudice is to be interpreted as a decision on the merits.
MBNA Am. Bank, N.A. v. Kay, 888 N.E.2d 288, 292 (Ind. Ct. App. 2008). “As
such it is conclusive of the rights of the parties and res judicata as to the
questions which might have been litigated.” Id.[7] Hicks filed an appeal from the trial court’s 2013 dissolution order that the
prenuptial agreement was enforceable and we dismissed it with prejudice.
Thus, any questions as to the enforcement of the prenuptial agreement are
foreclosed from further review. See In re Guardianship of Stalker, 953 N.E.2d
1094, 1102 (Ind. Ct. App. 2011) (holding a dismissal with prejudice was a
dismissal on the merits and any further appeals as to the real estate could not be
reviewed). As the sole issue Hicks raises is res judicata, we decline to review it.
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Conclusion
[8] As Hicks raises no other challenges to the trial court’s order, we affirm its
judgment.
[9] Affirmed.
Najam, J., and Riley, J., concur.
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