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Cohen v. Cohen

Court of Appeals of Indiana

March 18, 2019

Dina Hasten Cohen, Appellant-Respondent,
v.
Itamar Cohen, Appellee-Petitioner.

          Appeal from the Marion Superior Court The Honorable Timothy W. Oakes, Judge Trial Court Cause No. 49D02-1612-DR-44346

          ATTORNEYS FOR APPELLANT Marvin Mitchell Richard J. Dick Mitchell Dick McNelis, LLC Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Brian K. Zoeller Julie Andrews Casandra L. Ringlespaugh Nicole Makris Cohen & Malad, LLP Indianapolis, Indiana

          MATHIAS, JUDGE.

         [¶1] Dina Hasten Cohen ("Wife") appeals the order of the Marion Superior Court dissolving her marriage to Itamar Cohen ("Husband") and distributing the assets of the marital estate between them. The trial court ordered Husband to pay Wife an equalization payment of $922, 275.10, to be paid at the rate of $6, 000 per month for seventy-two months, with an additional balloon payment of $490, 250.10 within six years. The trial court further ordered that no interest be paid so long as Husband made timely payments, but that interest would accrue if Husband missed any payments. Wife appeals and argues that the trial court legally erred by failing to include a provision for the payment of interest in its decree.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] As Wife has failed to provide us with a transcript of the proceedings below, we derive our statement of the facts from the trial court's dissolution decree. Husband and Wife were married in March 1999. The marriage produced four children, who at the time of the dissolution decree were aged eighteen, thirteen, ten, and three.

         [¶4] On December 19, 2016, Husband filed a petition for dissolution of his marriage to Wife. Fortunately, all issues relating to the children were resolved by the parties' Settlement Agreement as to Custody, Parenting Time, Child Support, and Child Related Matters, which the trial court approved on December 6, 2017. The parties disagreed, however, on how to distribute the assets of the marital estate. Accordingly, on March 7 and 8, 2018, the trial court held an evidentiary hearing on this issue. On August 8, 2018, the trial court entered its dissolution decree, awarding to Husband several income-producing commercial properties and awarding the marital residence to Wife. The income-producing properties represented a substantial portion of the marital estate. Therefore, the trial court ordered Husband to pay to Wife an equalization payment as follows:

The balance of the above leaves the Husband with a net of $2, 070, 180.40 and Wife $225, 630.21, for difference of $1, 844, 550.20. Therefore, the Court seeing no reason to deviate from the statutory presumptive of a 50/50 asset split DECREES the Wife shall be awarded a judgment against Husband in the amount of $922, 275.10 to be repaid at a rate of $6, 000 per month for seventy-two (72) months, along with a balloon payment of $490, 275.10 []on or before the end of the six (6) years. So long as all payments are made by the 1st of each month no interest shall accrue on those payments, but if any payments are missed the judgment begins accruing statutory interest.

Appellant's App. p. 22. Wife now appeals.

         Standard of Review

         [¶5] A trial court must divide the property of the parties to a marital dissolution in a just and reasonable manner. Webb v. Schleutker, 891 N.E.2d 1144, 1153 (Ind.Ct.App. 2008) (citing Ind. Code § 31-15-7-4(a)). An equal division of marital property is presumed to be just and reasonable. Id. (citing Ind. Code § 31-15-7-5). Decisions concerning the division and distribution of marital assets lie within the sound discretion of the trial court. Fischer v. Fischer, 68 N.E.3d 603, 608 (Ind.Ct.App. 2017), trans. denied (citing Keown v. Keown, 883 N.E.2d 865, 868 (Ind.Ct.App. 2008)). On appeal, we review the trial court's decision only for an abuse of that discretion. Id. A trial court abuses its discretion only when its decision is clearly against the logic and effect of the facts and circumstances before the court. Id. When we review a challenge to the trial court's division of marital assets, we consider only the evidence most favorable to the trial court's disposition, and we will neither reweigh the evidence nor assess the credibility of witnesses. Id.

         Discussion and Decision

         [¶6] Wife argues on appeal that the trial court erred by ordering Husband to pay her an equalization payment over a period of six year without including an award of interest unless Husband fails to timely make a payment. Wife argues that by failing to include a provision for interest, the trial court's order fails to take into consideration the time value of money, the risk of non-payment, and inflation. Wife contends that, when taking ...


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