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In re Marriage of Del Priore

Court of Appeals of Indiana

December 14, 2016

In the Matter of the Marriage of: Mark A. Del Priore, Appellant-Respondent,
v.
Jill E. Del Priore, Appellee-Petitioner.

         Appeal from the Allen Superior Court The Honorable Charles F. Pratt, Judge The Honorable Lori Morgan, Judge Pro Tempore The Honorable Sherry A. Hartzler, Magistrate Trial Court Cause No. 02D07-1307-DR-976

          ATTORNEYS FOR APPELLANT Michael H. Michmerhuizen Barrett McNagny LLP Fort Wayne, Indiana Cornelius (Neil) B. Hayes Hayes & Hayes Fort Wayne, Indiana.

          ATTORNEYS FOR APPELLEE Nicholas J. Hursh Edward E. Beck Shambaugh, Kast, Beck & Williams, LLP Fort Wayne, Indiana.

          KIRSCH, JUDGE.

         [¶1] Mark A. Del Priore ("Husband") appeals the trial court's decree of dissolution ("the Decree") of his marriage to Jill E. Del Priore ("Wife") and its distribution of the marital estate. Husband raises several issues on appeal, which we restate as:

I. Whether the trial court abused its discretion in its valuation of the TD Ameritrade account because the trial court's findings were not supported by the evidence;
II. Whether the trial court abused its discretion in not excluding certain payments from the marital estate that were made by Husband for the benefit of the parties and their children;
III. Whether the trial court abused its discretion in ordering the payment of graduate school expenses;
IV. Whether the trial court abused its discretion in ordering Husband to pay 65% of the educational expenses of the children;
V. Whether the trial court abused its discretion in its valuation of an investment when the evidence did not support the valuation;
VI. Whether the trial court abused its discretion in making its property distribution because it failed to consider the tax consequences of the property division;
VII. Whether the trial court abused its discretion when it awarded Wife 55% of the marital estate; and
VIII. Whether the trial court abused its discretion when it ordered Husband to pay a portion of Wife's attorney fees.

         [¶2] We affirm in part, reverse in part, and remand.

         Facts and Procedural History

         [¶3] Husband and Wife were married on June 18, 1988, and three children were born of the marriage, Austin, Tyler, and Alyssa. At the time of the final hearing in this case, Austin was twenty-two years old, Tyler was twenty years old, and Alyssa was eighteen years old.

         [¶4] Husband graduated with a bachelor's degree from Indiana University-Bloomington and then attended the University of Iowa, where he received his MBA. Wife also graduated with a bachelor's degree from Indiana University-Bloomington; she then attended Indiana Purdue University Fort Wayne ("IPFW") for her master's degree. After the parties got married, Wife moved to Iowa and worked full-time as a teacher while Husband finished his MBA. When Husband completed his MBA, the parties returned to Fort Wayne, Indiana. Wife worked in a teaching position with Fort Wayne Community Schools, and about six months after moving to Fort Wayne, Husband became employed with Lincoln Life Insurance Company.

         [¶5] In 1994, the parties' second child was born, and Wife stayed home full-time for approximately ten years. Husband later began employment with Insurance and Risk Management and eventually became a part owner. Wife went back to teaching part-time and, in approximately 2006, returned to working full-time as a teacher. At the time of the final hearing, Wife was employed as a special education teacher at Carroll Middle School, and her income, according to the Child Support Obligation Worksheet, was $1, 090 per week.

         [¶6] In 2002 or 2003, Insurance and Risk Management was sold to Old National Bank ("ONB"), and Husband received approximately one million dollars in exchange for his partnership interest. After the sale of the business, Husband became employed by ONB, where he is involved in insurance sales. Husband's income fluctuates from year to year based upon his performance, and at the time of the final hearing, his income for child support purposes was $2, 053 per week. Husband earned significantly more in income than Wife during the marriage, with his pay generally being more than twice what Wife made. In 2003 or 2004, Husband opened a TD Ameritrade account ("TD account"), which included a stock account and money market accounts. During the marriage, Husband secured and was the beneficiary of a life insurance policy insuring one of his partners, which resulted in $500, 000 in insurance benefits being deposited into the parties' TD account.

         [¶7] At the beginning of the marriage, Wife took care of the finances for a short period of time, but Husband later began taking care of the parties' finances and continued for the length of the marriage. Wife had her paycheck direct deposited into the parties' joint checking account and continued to do so until October 2014. At that time, Wife withdrew $15, 000 and opened a new account. Husband continued to deposit his paycheck into the joint account after this withdrawal by Wife.

         [¶8] Wife filed a petition for dissolution of marriage on July 16, 2013. The trial court entered an order enjoining the parties from transferring, encumbering, concealing, selling, or otherwise disposing of any joint property of the parties or asset of the marriage except in the usual course of business or for the necessities of life, without the written agreement of both parties or the permission of the trial court. Appellant's App. at 3.

         [¶9] No funds were disbursed from the TD account in 2013. During 2014, Husband withdrew funds totaling $470, 000 from the TD account and placed the funds in the parties' joint checking account. Prior to discovery in the dissolution action, Wife was not aware of these withdrawals. Husband paid many extraordinary expenses with the funds withdrawn from the TC account, including paying taxes for 2013 and 2014, college payments for the children, and credit card bills. However, approximately $93, 344 of the funds withdrawn from the TD account was not accounted for, although Husband claimed that the entire $470, 000 was exhausted by marital expenses. Before the final hearing, Husband and Wife agreed to divide the remaining funds in the money market portion of the TD account. Husband received $621, 000, and Wife received $601, 000.

         [¶10] Husband was the sole investor for the parties during their marriage and did not routinely discuss investments with Wife. One of Husband's investments was in a startup orthopedic company, Biopoly. After discussing it with Wife, Husband invested $50, 000 in Biopoly. Prior to the Decree, the parties equally split the units in Biopoly. Sometime in 2011, Husband loaned $292, 000 of the parties' joint funds to RAINS Investments, LLC ("RAINS") without discussing with Wife. RAINS is a record label that has one musical artist. Husband owns fifty units of RAINS and is a 50% owner. Although Husband referred to the loan as a unit acquisition, it was listed as a loan for tax purposes by the IRS, and RAINS, itself, showed that the $292, 000 was a shareholder loan payable to Husband. At the time of the final hearing, RAINS had not paid back the loan. Husband estimated the value of RAINS to be approximately $40, 000 based on anticipated royalty income for the twelve months following the final hearing. Tr. at 147. At the final hearing, Husband offered to give Wife the units in RAINS for a credit of $40, 000 or to split the units fifty-fifty.

         [¶11] At the time of the final hearing, the parties' oldest child, Austin, had graduated from Butler University ("Butler"), their middle child, Tyler, was attending IPFW, and their youngest child, Alyssa, had graduated from high school and planned to attend Butler. Husband testified that if the parties had remained married, they would have agreed to pay Alyssa's tuition in an equivalent amount to that of an in-state public school. Id. at 166. The parties had paid for Austin's college expenses at Butler, less scholarships received, which made the cost of Butler close to what it would cost to attend Indiana University. Alyssa was admitted to the physician's assistant program at Butler, which is an auto advance program that takes six years to complete and results in a bachelor's and a graduate degree. Her college expenses to attend Butler were expected to be approximately $52, 616 per year, less grants in the amount of $13, 400, for a net cost of $39, 216 per year. Pet'r's Ex. 2.

         [¶12] At the final hearing, Wife testified that she believed a 55/45 division of the marital estate was fair and equitable because, historically, Husband had a higher earning potential throughout the marriage. Tr. at 65-66. Husband earned $173, 323 in 2011 and $148, 656 in 2012. In 2014, Husband earned $97, 111, and Wife earned $50, 937 according to their tax return. On November 30, 2015, the trial court issued the Decree, dividing the marital estate 55/45 in favor of Wife. Husband filed a motion to correct error, which was denied by the trial court, with the exception of a typographical error. Husband now appeals.

         Discussion and Decision

         [¶13] Husband challenges the trial court's division of the marital property. Technically, however, he appeals from the denial of his motion to correct error. This court reviews a trial court's ruling on a motion to correct error under an abuse of discretion standard. Wortkoetter v. Wortkoetter, 971 N.E.2d 685, 687 (Ind.Ct.App. 2012). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court, including any reasonable inferences therefrom. Id.

         [¶14] The motion to correct error addressed the trial court's division of marital property, which is a matter committed to the sound discretion of the trial court. Wanner v. Hutchcroft,888 N.E.2d 260, 263 (Ind.Ct.App. 2008). A party challenging the trial court's division of marital property must overcome a strong presumption that the court considered and complied with the applicable statute. Id. Even if the facts and reasonable inferences permit a conclusion different from that reached by the trial court, we will not substitute our judgment for that of the trial court unless its decision is clearly against the logic and effect of the facts and circumstances before it. Perkins v. Harding,836 N.E.2d 295, 299 (Ind.Ct.App. 2005). We consider only the evidence favorable to the judgment and ...


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