APPEAL FROM THE OWEN CIRCUIT COURT, The Honorable Frank Nardi, Judge, Cause No. C84-9-105
Ratliff, C.j., Neal, J., concurs. Garrard, P.j., concurs with separate opinion.
Charles R. Brownsing appeals from the Owen Circuit Court the dismissal of his complaint against Nora Brownsing. We affirm.
On August 21, 1981, the marriage of Charles and Nora Brownsing was dissolved pursuant to the decree and order of the Owen Circuit Court. The decree and order incorporated a property settlement agreement entered into by the parties. The agreement provided, in pertinent part, as follows:
"(b) Husband and wife jointly and by the entireties own real property situated at R. R. # 2, Box 229, Worthington, Owen County, Indiana. Said real property was acquired by the parties during their marriage. The husband shall continue to make the mortgage payments respecting said real property until said real property can be sold, at which time husband and wife shall equally divide the equity realized from the proceeds of said sale, with the husband first being reimbursed from said proceeds those funds constituting mortgage payments made by him following the dissolution herein before said equal division of equity by the parties takes place."
Record at 85. In late August of 1981, the Brownsings entered into a listing agreement with Mark III Realty, Inc. (Mark III) to sell the Worthington real estate. Although Mark III produced a prospective buyer, the sale failed, and the listing agreement expired. Subsequently, Mercer Realty Company contracted with the Brownsings to sell the property. Unfortunately, the Brownsings have been unable to sell the property.
On September 5, 1984, Charles brought an action against Mark III, and William Hogan as an agent of Mark III alleging breach of duty under the listing agreement and sought damages. Charles also named Nora as a defendant so that she could assert her interest in the law suit. Charles entered into a stipulation dismissing Mark III and Hogan and amended his complaint to seek a declaratory judgment or partition against Nora. Nora filed a separate petition for an order of modification and enforcement of the original decree. On October 1, 1986, Nora moved to dismiss the amended complaint. A hearing was held, and on December 9, 1986, the court dismissed the amended complaint. Charles appeals this dismissal.
Although Brownsing raises three (3) issues on appeal, the following rephrased issues are dispositive:
1. Whether the trial court erred in dismissing Charles Brownsing's declaratory judgment and partition complaint.
2. Whether the Owen Circuit Court has jurisdiction to hear Nora Brownsing's petition for modification and enforcement ...