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Bock v. Bock

Court of Appeals of Indiana

December 20, 2018

Celene I. Bock, Appellant-Petitioner,
Dale F. Bock, Appellee-Respondent

          Appeal from the Lake Superior Court Trial Court Cause No. 45D03-1512-DR-849 The Honorable Elizabeth F. Tavitas, Judge, The Honorable Thomas P. Hallett, Magistrate judge

          Attorneys for Appellant George S. Brasovan Law Office of George S. Brasovan, P.C. Merrillville, Indiana Renee M. Ortega ROK Legal Group, LLC Crown Point, Indiana

          Attorney for Appellee George R. Livarchik Livarchik & Farahmand Chesterton, Indiana

          Crone, Judge.

         Case Summary

         Celene I. Bock ("Wife") appeals the trial court's division of property in proceedings dissolving her marriage to Dale F. Bock ("Husband"). She alleges that the trial court erred in including as a marital asset her survivor benefit from Husband's pension. She also challenges the valuation of the survivor benefit as well as the trial court's equal division of the marital estate. Finding that Wife's survivor benefit was properly included and valued and that the trial court acted within its discretion in equally dividing the marital estate, we affirm.

         Facts and Procedural History [1]

         [¶1] Husband and Wife married in August 1985 and separated in December 2015. Before the marriage and until his 2005 retirement, Husband was employed at the Lake County Sheriff's Department. He had accrued ten years of service on his Sheriff's Department pension prior to the marriage and began taking disbursements in 2005. He made an election for Wife to receive a survivor benefit ("SBP") under the pension plan, and the election was irrevocable once he began taking disbursements. The SBP election resulted in a lower monthly disbursement under the plan.

         [¶2] In December 2015, Wife filed a verified petition for marital dissolution. The trial court conducted hearings on three different dates, the last of which was March 1, 2017, and the parties waived the time limit for issuance of the dissolution decree. Three weeks later, Wife filed a motion to re-open her case in chief, and following a hearing, the trial court granted Wife's motion and permitted her to submit additional evidence concerning the value of Husband's pension.

         [¶3] In April 2017, Wife sought and was granted permission to file a pension evaluation and analysis. Both parties filed proposed dissolution decrees, with Wife seeking to exclude her SBP from the marital estate and requesting fifty-eight percent of the marital estate and Husband seeking the pre-coverture portion of his property. Wife filed a motion to strike Husband's amended proposed decree, which the trial court denied. On July 20, 2017, the trial court issued its dissolution decree with findings of fact and conclusions thereon. The court valued Husband's pension at $460, 211.60, to be divided equally pursuant to its finding that the parties had failed to prove any grounds for deviating from the statutory fifty/fifty presumptive split. The court included as marital property Wife's SBP, valued at $83, 401, and awarded it to her as part of the property division.

         [¶4] Both parties filed motions to correct error, and Husband sought clarification and correction of a clerical error in the trial court's decree and a stay of execution. The court corrected a clerical error in paragraph 15[2] of its order and otherwise denied Husband's motions. Wife withdrew her assertion of error related to paragraph 15, and the court denied the balance of her motion to correct error. Wife now appeals. Additional facts will be provided as necessary.

         Discussion and Decision Section

         1 - The trial court did not err in including Wife's SBP interest in the marital estate.

         [¶5] Wife contends that the trial court erred in including the SBP in the marital estate. Where, as here, the trial court enters findings of fact and conclusions sua sponte, the specific findings control only with respect to the issues they cover, and we apply a general judgment standard to all issues on which there are no findings. In re Marriage of Sutton, 16 N.E.3d 481, 484-85 (Ind.Ct.App. 2014). The findings or judgment will be set aside only if they are clearly erroneous, meaning that there are no facts or inferences drawn therefrom to support them. Id. at 485.

         [¶6] Wife admits that, "[u]pon analysis, the [SBP] is vested and is a marital asset." Appellant's Br. at 15. Notwithstanding, she claims that it should have been excluded from the marital pot.

It is well settled that in a dissolution action, all marital property goes into the marital pot for division, whether it was owned by either spouse before the marriage, acquired by either spouse after the marriage and before final separation of the parties, or acquired by their joint efforts. Ind. Code § 31-15-7-4(a). For purposes of dissolution, property means "all the assets of either party or both parties." Ind. Code § 31-9-2-98 (emphasis added). The requirement that all marital assets be placed in the marital pot is meant to insure that the trial court first determines that value before endeavoring to divide property. Indiana's "one pot" theory prohibits the exclusion of any asset in which a party has a vested interest from the scope of the trial court's power to divide and award. While the trial court may decide to award a particular asset solely to one spouse as part of its just and reasonable property division, it must first include the asset in its consideration of the marital estate to be divided.

Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind.Ct.App. 2014) (citations and quotation ...

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