from the Marion Superior Court. The Honorable Patrick L.
McCarty, Judge. Trial Court Case No. 49D03-1401-DR-619.
FOR APPELLANT: Donna Jameson, Greenwood, Indiana.
FOR APPELLEE: Stephen R. Lewis, Indianapolis, Indiana.
Judge. May, J., concurs. Robb, J., concurs in result in part
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:
I. Whether the trial court abused its discretion when it
failed to include Scott's annuity income in the child
II. Whether the trial court erred in interpreting the
parties' prenuptial agreement and deviating from that
III. Whether the trial court abused its discretion in its
division of the marital liabilities.
We affirm in part, reverse in part, and remand for
proceedings consistent with this opinion.
and Procedural History
Tina and Scott were married in 1994, and three children were
born to the marriage. The parties' oldest child is
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.
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.
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
(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
Ex. Vol., Petitioner's Ex. 2.
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'
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
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.
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
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
13. The Respondent managed the parties' monies during
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 ...