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

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

Court of Appeals of Indiana | Memorandum Decision 44A03-1501-DR-37 | January 19, 2016 Page 1 of 4  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.

Court of Appeals of Indiana | Memorandum Decision 44A03-1501-DR-37 | January 19, 2016 Page 2 of 4 ^[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.

Court of Appeals of Indiana | Memorandum Decision 44A03-1501-DR-37 | January 19, 2016 Page 3 of 4  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.

Court of Appeals of Indiana | Memorandum Decision 44A03-1501-DR-37 | January 19, 2016 Page 4 of 4