These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE OWEN CIRCUIT COURT. The Honorable Lori Thatcher Quillen, Judge. Cause No. 60C01-1102-DR-24.
ATTORNEY FOR APPELLANT: JEFFREY A. BOGGESS, Jeffrey A. Boggess, P.C., Greencastle, Indiana.
ATTORNEY FOR APPELLEE: LAKSHMI REDDY, Reddy Law Firm, Terre Haute, Indiana.
ROBB, Judge. BARNES, J., and BROWN, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
Case Summary and Issues
David Buchanan ("Husband") appeals the trial court's Decree of Dissolution dissolving his marriage to Carol Buchanan ("Wife"). Husband raises three issues for our review which we consolidate and restate as two: 1) whether the trial court abused its discretion in its property division; and 2) whether the trial court abused its discretion in valuing certain property. Concluding the trial court did not abuse its discretion in either respect, we affirm.
Facts and Procedural History
Husband and Wife were married on May 30, 1991. In June 2003, they separated, and Wife moved to Kentucky, where she has resided since. At the time of separation, Wife was receiving unemployment and Husband was working as a construction supervisor. They each had a retirement account, and Wife had some stock in UPS, her former employer. The parties owned two parcels of real estate: the marital residence in Owen County and a rental property in Marion County. They also owned several vehicles including a boat. Wife took two of the vehicles, $5,000 from a joint savings account, and various items of personal property with her to Kentucky. Husband remained in the marital residence and paid the debt obligations on the real estate and the vehicles. Husband filed a Petition for Dissolution on February 10, 2011.
Following a hearing, the trial court issued the following Decree of Dissolution:
FINDINGS OF FACT
3. Husband and Wife have been physically separated since June of 2003, but the Petition for Dissolution of Marriage was not filed by Husband until February 10, 2011.
6. The parties have previously divided some of the household goods and items of personal property.
7. The parties have separated their bank accounts as of 2003.
9. The assets to be included in the marital pot are as follows:
i. Real Estate: [marital residence]; [rental property];
ii. Vehicles: 1996 Dodge pickup; 2001 Hyunda [sic] Tiburon, 2001 Dodge pickup, and 1989 Lund Boat;
iii. Personal Property: Household goods and furnishings and cemetary
iv. Pension/Retirement: Husband's 401(K) and Wife's 401(K);[sic] plot;
v. Bank Accounts: National City Bank
10. The debts to be included in the marital pot are as follows:
i. Mortgages on Real Estate listed in paragraph 9(i);
11. The assets and debts should be divided equally between Husband and Wife.
12. All of the assets and debts shall be valued either on the date of
separation which was June 2003 or on the date of the filing of the Petition for
Dissolution on February 10, 2011.
* * *
CONCLUSIONS OF LAW
* * *
5. Although the parties physically separated in June of 2003, and that date
shall be used for determining what assets and debts are included within the
marital pot, the date of valuation of all property, except Husband's 401(k),
shall be February 10, 2011, the date of filing of the Petition for Dissolution
of Marriage. . . .
6. Wife shall receive, as her sole and separate property, the UPS stock,
Hyundai Tiburon, the $5000 she took with her to Kentucky, her 401(k), the 1996
Dodge Truck, [and] the personal property in her possession . . . .
7. Husband shall receive, as his sole and separate property, the [marital
residence], [his] 401(k), the Lund boat, the burial plot at New Maysville and
the personal property currently in his possession . . . .
8. Husband shall keep the former marital residence . . . and it is assigned a
fair market value of $63,000 and a debt of $34,645. Wife's equitable share in
the marital residence is $14,177.50. Husband shall be responsible for any other
debt remaining on the home. While Husband continued to make payments on the
marital residence . . ., he also continued to live in the home and enjoyed the
value of the property and there is no basis for him to receive any credit for
* * *
11. The [rental property] shall be sold by a realtor agreed upon by the
parties for a price above the debt obligations. It appears that as of February
10, 2011, the debt was $34,556. Husband shall be responsible for continuing to
make the mortgage payments and the parties shall equally split the net proceeds.
Husband shall be entitled to any credit for mortgage payments made since
February 10, 2011 and until the real estate is sold and shall maintain and
preserve the property.
12. Wife shall keep the 1996 Dodge pickup truck and Husband shall keep the
2001 Dodge pickup truck and they shall be considered an even exchange with equal
values based upon the testimony provided.
13. Wife shall keep the 2001 Hyundai Tiburon and Husband shall keep the 1989
Lund Boat and they shall each be given a value of $2500 for an even exchange
based upon the testimony provided, blue book values, and loan balances. The
Husband is not entitled to any credit for the $14,000 he paid towards the
outstanding debt on the Tiburon prior to the Husband filing for dissolution.
14. The parties each have or had their own 401(k) plans during the marriage.
Wife expended her 401(k) of $19,249.00 and her stock of $1495.00 to support
herself as she had no other source of income and there were no funds remaining
at the time the Petition for Dissolution was filed. The Husband still has his .
. . 401(k) and it is unclear of the value of Husband's 401(k) on the date of
filing the Petition for Dissolution. The Wife request [sic] based upon Husband's
provided discovery that the Court place a value of $87,299.41 on [H]usband's
401(k). The Husband requests the court use a value of $28,130 the amount shown
as of June 2003. The Court concludes that valuing the pension at the higher
amount as suggested by Wife would result in an unfair windfall to the Wife. The
Court in making its determination of value considered all of the following:
i. The parties initially separated all of their bank accounts and cash in
2003. The pension of each party were [sic] substantially similar in value in
2003. . . .
ii. The Court, also in its attempt to reach a fair and equitable division,
has determined that since the Wife cashed out her pension valuing $19,249 and
stock at $1495 in 2003, those assets no longer existed in February 2011 and
therefore would not count as assets in determining equity calculations against
the Wife. Wife shall be entitled to receive an amount from Husband's 401(k) to
provide her an equitable share in the marital pot after factoring in the $5000
that Wife kept from the National City Bank account.
15. A judgment shall be entered for Wife and against Husband in the amount of
$25,867.50 to equalize the equities. The net value of the property Husband took
$59,235. The net value of the property Wife took $7500. The difference between
these two figures is $51,735. One half of $51,735 equals the payment of
$25,867.50. . . .
* * *
17. The marriage of the parties is hereby now dissolved.
Appendix of Appellant at 5-9. Husband now appeals.
Discussion and Decision
I. Standard of Review
The trial court issued findings of fact and
conclusions thereon pursuant to Indiana Trial Rule 52(A). Our standard of review
is well-settled: we will not set aside the findings or judgment unless they are
clearly erroneous. T.R. 52(A). Findings are clearly erroneous when the record
contains no facts to support them either directly or by inference. Johnson v.
Wysocki,990 N.E.2d 456, 460 (Ind. 2013). We neither reweigh the evidence
nor judge the credibility of the witnesses, but view the evidence most favorably
to the judgment. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). A
judgment is clearly erroneous if it applies the wrong legal standard to properly
found facts. Johnson, 990 N.E.2d at 460. To make a determination that a finding
or conclusion is clearly erroneous, our review must leave us with the firm
conviction that a mistake has been made. Id.
II. Property Division
Indiana Code sections 31-15-7-4 and 31-15-7-5 govern
disposition of marital assets in a dissolution proceeding. Indiana Code section
31-15-7-4(a) provides that the trial court shall divide the parties' property
whether owned by each of them prior to the marriage, acquired by either of them
after the marriage but before their final separation, or acquired by their joint
efforts. "Final separation" is defined as the date the petition for dissolution
is filed. Ind. Code § 31-9-2-46. It is presumed an equal division of marital
property is just and reasonable, but that presumption may be rebutted by
evidence of several statutory factors such as contribution to the acquisition of
property, the earning ability and economic circumstances of the parties, and the
conduct of the parties during the marriage with respect to the disposition or
dissipation of property. Ind. Code § 31-15-7-5.
The party challenging a property division must
overcome a strong presumption that the court complied with the statute and
considered the evidence on each of the statutory factors. Luttrell v.
Luttrell, 994 N.E.2d 298, 301 (Ind. Ct. App. 2013). Assuming the trial
court's findings are not erroneous, when reviewing a claim of improper division
of marital property, the issue is not whether the trial court may have
reasonably divided property in another way, but whether the division the trial
court made constitutes an abuse of discretion. Grimes v. Grimes, 722
N.E.2d 374, 376-77 (Ind. Ct. App. 2000), trans. denied. We will reverse a
property distribution only if there is no rational basis for the award--that is,
if the result reached is clearly against the logic and effect of the facts and
circumstances before the court, including the reasonable inferences to be drawn
therefrom. Luttrell, 994 N.E.2d at 301. We will also reverse where the
trial court has misinterpreted the law or has disregarded evidence of statutory
Husband contends that in equally dividing the marital
property, the trial court erred in failing to consider that for several years in
advance of filing for dissolution, the parties were living apart and conducting
their affairs separately. Specifically, he contends the trial court erred in
failing to give him any credit for solely paying the joint debt the parties had
when they physically separated, including mortgages on the parties' real
property and loans on various vehicles, and in failing to consider Wife's
"dissipation" of certain marital assets she took with her. "The date the parties
no longer resided together is a fact which the court can, in its discretion,
consider in its just and reasonable division of property." Hunter v. Hunter,
498 N.E.2d 1278, 1295 (Ind. Ct. App. 1986).
We disagree with Husband's assertion that the trial
court "fail[ed] to account for the parties['] 8 year separation in its property
distribution." Brief of Appellant at 5. Although it was not required to do so,
the trial court determined the date of the parties' physical separation was the
appropriate date for closing the marital pot given that after that date, the
parties no longer resided together or conducted their affairs as husband and
wife. See Ind. Code § 31-15-7-4(a)(2) (defining marital property to include
property "acquired by either spouse in his or her own right . . . after the
marriage; and . . . before final separation of the parties . . . .") (emphasis
added). Therefore the trial court did account for the lengthy separation in
crafting the property division. It was not an abuse of discretion for the trial
court to determine that Husband's payment of debts was a voluntary undertaking
because he never asked Wife to contribute toward those debts and did not file
for dissolution in the intervening years.
The assets Husband contends Wife dissipated include
$5,000 in cash, her 401(k), and UPS stock. Dissipation of assets is one of the
statutory factors that may be used to rebut the presumption of an equal division
of property being just and reasonable. In re Marriage of Coyle, 671
N.E.2d 938, 942 (Ind. Ct. App. 1996). "Waste and misuse are the hallmarks of
dissipation. Our legislature intended that the term carry its common meaning
denoting 'foolish' or 'aimless' spending. Dissipation has also been described as
the frivolous, unjustified spending of marital assets . . . ." Troyer v.
Troyer, 987 N.E.2d 1130, 1140 (Ind. Ct. App. 2013) (quoting In re
Marriage of Coyle, 671 N.E.2d at 943), trans. denied. Dissipation does not
include the use of marital property to meet routine financial obligations.
Hardebeck v. Hardebeck, 917 N.E.2d 694, 700 (Ind. Ct. App. 2009). Wife
testified that she was unemployed when she moved to Kentucky and that she cashed
out her 401(k) -- with Husband's consent -- to support herself until she found a
job. There is no evidence that Wife frivolously spent those funds, and the trial
court did not abuse its discretion in refusing to find Wife's use of that money
was dissipation when dividing the property. In short, Husband has not met his
burden of showing the trial court's division of marital property as between
parties who had long ago separated their property and their lives without the
benefit of formal legal proceedings was anything other than just and reasonable.
III. Valuation of Property
The trial court has broad discretion in determining the value of property in a dissolution action, and its valuation will not be disturbed absent an abuse of discretion.
Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). The trial court may choose to value the marital assets as of any date between the date of filing the dissolution petition and the date of the final hearing, and it does not have to value every asset as of the same date.
McGrath v. McGrath, 948 N.E.2d 1185, 1187 (Ind.Ct.App. 2011). In accordance with this rule, the trial court appropriately determined that the ...