from the St. Joseph Circuit Court The Honorable John E.
Broden, Judge The Honorable William L. Wilson, Magistrate
Trial Court Cause No. 71C01-1404-DR-224
ATTORNEY FOR APPELLANT James A. Masters Nemeth, Feeney,
Masters & Campiti, P.C. South Bend, Indiana
ATTORNEY FOR APPELLEE CINDY ANN KOBOLD Robert J. Palmer May
Oberfell Lorber Mishawaka, Indiana
ATTORNEYS FOR APPELLEE-INTERVENOR WELLS FARGO BANK, NATIONAL
ASSOCIATION Jared C. Helge Andrew L. Palmison Rothberg Logan
& Warsco LLP Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE-INTERVENOR RIETH-RILEY CONSTRUCTION
CO., INC., Robert G. Devetski Mark J. Adey Barnes &
Thornburg LLP South Bend, Indiana
To divide their marital assets, James Peter Kobold
("James") and Cindy Ann Kobold (Hiatt)
("Cindy") entered a property settlement agreement
("PSA"), agreeing that James would keep their
175-acre farm and that James would pay Cindy an equalization
payment of $319, 122.04 through installment payments that
would run through June of 2020. James signed a promissory
note in which he agreed that Cindy could sell marital assets
if he breached the PSA. After the dissolution was final,
James failed to make any installment payments, and Cindy
obtained the trial court's permission to sell the farm.
She subsequently sold the farm to Rieth-Riley Construction
Co., Inc. ("Rieth-Riley") for $1.63 million. James
filed a motion to correct error, which the trial court denied
in part by affirming its earlier decision to let Cindy sell
the farm and by denying James's request to rescind the
sale. The trial court granted James's motion in part by
ruling that Cindy could keep no more of the sale proceeds
than was necessary to pay the amount due to her under the
promissory note at the time the sale to Rieth-Riley had
On appeal, James raises the following issues:
I. Whether the trial court abused its discretion in denying
James's motion to correct error, in part, by:
A. finding that Cindy held a judgment lien against the farm
and thus it impermissibly modified the PSA; and
B. denying James's motion to rescind the sale to
II. Whether the trial court adequately adjudicated whether
Rieth-Riley had the right to possess the farm.
cross-appeal, Cindy raises the following issues:
I. Whether trial court erred in limiting Cindy's recovery
to only the amount James owed her under the promissory note
at the time the sale to Rieth-Riley had closed; and
II. Whether this court should remand the matter to the trial
court for an assessment of Cindy's trial and appellate
affirm in part, reverse in part, and remand.
and Procedural History
James and Cindy were married in 1996. Appellant's
App. Vol. 2 at 49. The marital property included several
parcels of farm land that totaled 175 acres. Id. at
32, 93. Wells Fargo Bank, National Association ("Wells
Fargo") held two mortgages on two parcels of the farm,
secured by one mortgage recorded on August 20, 2003, and
another mortgage recorded on May 15, 2013. Id. at
James and Cindy separated in August of 2014. Id. at
49. The PSA, filed in May of 2016, provided that James would
receive the 175-acre farm. Id. at 32, 93, 95. To
equalize the property division, James executed a
non-negotiable promissory note to pay Cindy $319, 122.04.
Id. at 52. The promissory note set out the following
a) $20, 000.00 upon the closing of the refinancing of
[James's] farming and transportation businesses, but in
no event later than 90 days
b) $40, 000 on or before January 15, 2017.
c) $40, 000 on or before May 1, 2017.
d) $2, 000 per month beginning June 1, 2017 through May 1,
e) The remaining principal balance and all accrued interest
by June 1, 2020.
Id. at 59. The PSA said that if James failed to
"abide by a term of repayment set forth in the
Promissory Note, then [Cindy] shall have the right to sell
assets to satisfy said repayment." Id. at 52.
However, the promissory note also said that James had the
right to dispose of marital assets: "Notwithstanding any
other provision in this Agreement to the contrary, [James]
shall be entitled to sell, convey or otherwise dispose of any
assets." Id. at 57. In the event of a default
by James, the promissory note stated that Cindy "shall
be entitled to recover reasonable attorneys' fees
incurred in collection." Id. at 60.
James and Cindy defaulted on the mortgage payments, and
pursuant to Wells Fargo's request, the trial court
foreclosed the mortgages on December 21, 2016. Appellee
Rieth-Riley App. Vol. 2 at 38-43; Wells Fargo
Br. at 5. Even so, Wells Fargo did not file a praecipe
for a sheriff's sale of the farm. Appellant's
App. Vol. 2 at 33.
James failed to make any installment payments to Cindy as
required under the promissory note. Id. at 19. On
November 1, 2016, nearly three months after James's first
payment on the promissory note was due, Cindy filed a motion
to sell marital assets, seeking permission from the trial
court to sell the farm to satisfy the equalization payment.
Id. at 64. Ten months later, the trial court heard
the motion and granted it. Id. at 18-22. Cindy sold
the farm to Rieth-Riley. At the time of the sale, the
farm's appraised value was $1.56 million, but Cindy sold
it for more, $1.63 million. Id. at 13, 104.
After Cindy sold the farm, she filed a motion for possession
of real estate. On December 6, 2017, the magistrate ordered
James to make the marital real estate "available to
Wells Fargo, Rieth Riley or to any parties designated by
those entities to review and inspect the premises. . .
." Appellant's App. Vol. 2 at 10. The order
also provided that James "acknowledges that the real
estate is subject to a Buy and Sell Agreement and that [he]
will cooperate ...