In the Matter of the Marriage of: Mark A. Del Priore, Appellant-Respondent,
Jill E. Del Priore, Appellee-Petitioner.
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
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,
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
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
V. Whether the trial court abused its discretion in its
valuation of an investment when the evidence did not support
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.
We affirm in part, reverse in part, and remand.
and Procedural History
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.
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
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.
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.
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.
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.
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,
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.
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.
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.
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
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 ...