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Carmer v. Carmer

Court of Appeals of Indiana

October 30, 2015

Tina Carmer, Appellant-Respondent,
Scott Carmer, Appellee-Petitioner

          Appeal from the Marion Superior Court. The Honorable Patrick L. McCarty, Judge. Trial Court Case No. 49D03-1401-DR-619.

         ATTORNEY FOR APPELLANT: Donna Jameson, Greenwood, Indiana.

         ATTORNEY FOR APPELLEE: Stephen R. Lewis, Indianapolis, Indiana.

         Mathias, Judge. May, J., concurs. Robb, J., concurs in result in part with opinion.


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          Mathias, Judge.

         [¶1] Tina and Scott Carmer's marriage was dissolved in the Marion Superior Court. Tina appeals the dissolution decree raising five issues, which we consolidate and restate as:

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I. Whether the trial court abused its discretion when it failed to include Scott's annuity income in the child support calculation;
II. Whether the trial court erred in interpreting the parties' prenuptial agreement and deviating from that agreement; and
III. Whether the trial court abused its discretion in its division of the marital liabilities.

         [¶2] We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

         Facts and Procedural History

         [¶3] Tina and Scott were married in 1994, and three children were born to the marriage. The parties' oldest child is emancipated.

         [¶4] Prior to the marriage, in 1988, Scott, who was a teenager at the time, was severely injured in an automobile accident. He suffered a brain injury, walks with a limp, and cannot use one of his arms. Monthly annuity payments from a structured settlement agreement are his main source of income. Scott also works as a greeter at Walmart and earns approximately $450 per week.

         [¶5] Tina was not employed during the marriage but stayed home to raise the parties' children. Tina and Scott were also raising two foster children in their home and planned to adopt the children. After filing a petition to dissolve the marriage, Scott stated that he no longer wanted to adopt the children. Tina would like to adopt the children, but they were removed from her care after Child Protective Services (" CPS" ) was contacted regarding the condition of her home. Specifically, Tina allowed the family's pets to urinate and defecate in the house and did not clean up after the animals. Tina participated in services offered by CPS and is still attempting to adopt the children.

         [¶6] The parties entered into a prenuptial agreement on the day they were married. The agreement provides in pertinent part:

In the event of a dissolution of the marriage or of a divorce, Wife agrees to accept in full and final settlement and satisfaction of all rights claims and interest that she may have whether by way of a division of the property of one or both of the parties (or alimony or a property settlement as it is sometimes referred to), and in every other way to the fullest extent permitted by law, of alimony, maintenance, rehabilitative maintenance, support or financial benefit of every kind.
(a) Wife's separate property, and
(b) One half (1/2) of all jointly held property, subject to one half (1/2) of all indebtedness thereon, including without limitation, mortgages and taxes; and
(c) The following sums dependent upon the time of the commencement of the action: . . . If the date of the commencement of the action is: . . . more than 14 years [of the date of the marriage] Wife shall receive the total sum of: $70,000.

Ex. Vol., Petitioner's Ex. 2.

         [¶7] The parties own two homes, the marital residence and a rental property (the former marital residence), and several vehicles. They also have significant credit card debt, a loan on one of the vehicles, and mortgages on the real estate. During the marriage, the residences were refinanced on multiple occasions to assist in paying the parties' debts.

         [¶8] Throughout the marriage, Tina was in charge of the parties' finances. The parties incurred a significant amount of debt, and Tina admitted the family lived beyond their means. Scott periodically received

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lump sum payments from his structured settlement agreement totaling $350,000 in addition to the monthly annuity payments. Nearly all of those funds were spent during the marriage. In 2013, Scott received a $150,000 lump sum payment. When the parties' separated, only $80,000 remained in the parties' bank account.

         [¶9] Scott filed the petition for dissolution of marriage on January 10, 2014. He also filed a petition to enforce the parties' prenuptial agreement. The dissolution hearing was held on October 10, 2014, and the dissolution decree was issued on November 6, 2014. The decree provides in pertinent part:

5. The Petitioner shall pay Respondent the sum of One Hundred Fifty-One Dollars ($151.00) per week as child support for the parties' two minor children.
6. The aforementioned child support order is based on Petitioner's income from Walmart and the imputation of minimum wage to the Respondent. Given the fact that the Petitioner is presently not exercising overnights with the children he is given no overnight credit.
7. The child support order does not include any sums received by the Petitioner from his structured settlement by virtue of the Structured Settlement Protection Act and Section 104(a)(2) of the Internal Revenue Code which states: " gross income does not include . . . the amount of any damage received (whether by suit or agreement and whether as lump sums or as periodic payments on account of personal injuries or sickness.)"
13. The Respondent managed the parties' monies during their marriage.
14. The Respondent testified that all lump sum payments made to the Petitioner during the marriage from his annuities in the total sum of Three Hundred Fifty Thousand Dollars ($350,000) have been spent.
15. The Respondent shall receive all right, title and interest in the following vehicles: the Dodge, the Legacy and the Econoline van which were titled in Petitioner's name and purchased with proceeds from his structured settlement. The vehicles are valued at Nine Thousand Three Hundred One Dollars ($9301.00), One Thousand Nine Hundred Thirty-Four Dollars ($1934.00) and One Thousand Two Hundred Twenty-Five Dollars ($1,225.00) respectively. The Petitioner shall receive credit ...

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