MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 21 2018, 8:41 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Sean C. Lemieux Rebecca Eimerman Lemieux Law Sarah Trostle Indianapolis, Indiana Eimerman Law Zionsville, Indiana Vanessa Lopez Aguilera Lopez Law Office, PC Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Cory D. Crumpton, August 21, 2018 Appellant-Respondent, Court of Appeals Case No. 17A-DR-3032 v. Appeal from the Hendricks Superior Court Fallon (Crumpton) Fernandes, The Honorable Karen M. Love, Appellee-Petitioner Judge Trial Court Cause No. 32D03-1302-DR-106
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018 Page 1 of 6 Case Summary [1] Cory Crumpton (“Husband”) appeals the trial court’s order requiring him to
pay $11,250 to his ex-wife, Fallon Fernandes (“Wife”), in relation to a daycare
that they operated when they were married and that was to be sold after their
divorce. Husband contends that the trial court’s decision is not supported by
the evidence presented. We agree and reverse.
Facts and Procedural History [2] Husband and Wife married each other in 2010 and divorced in March 2014.
One of their marital assets was a business they operated together, Kiddieville
Day Care, and the divorce decree provided that the daycare “shall be sold and
all debts paid” and that “each party shall receive half of the net proceeds.”
Appellant’s App. Vol. II p. 42. Husband was given the responsibility to operate
the daycare until the sale. A few months after the divorce, however, the State
of Indiana shut down the daycare for violations relating to cribs and unsanitary
conditions. Several months after that, Jacqueline Murray, who had been the
director of Kiddieville, opened her own daycare (called Miracles and Blessings)
in the building formerly occupied by Kiddieville.
[3] In July 2016, Wife filed a petition claiming that the divorce decree required
Husband to sell the daycare, that he had failed to do so, and that he should
therefore be found in contempt. (Husband doesn’t dispute Mother’s claim that
the divorce decree placed on him the burden of selling the daycare, even though
Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018 Page 2 of 6 the decree said only that the daycare “shall be sold.”) At the hearing on the
petition, Husband testified that he had been negotiating a sale of the daycare to
Murray when the State shut down the business. Husband anticipated that he
would be paid by receiving “[f]ive percent of enrollment” for six to twelve
months. Tr. Vol. III pp. 89-90. However, both Husband and Murray testified
that the sale was never finalized because of the shutdown by the State. Both
further testified that Murray’s opening of a daycare business several months
later was an arrangement between Murray and the owner/landlord of the
building, not the result of a sale by Husband to Murray.
[4] Wife presented evidence that Husband made over $30,000 in deposits to his
personal bank accounts between September 2014 and December 2016.
Husband was unable to identify the source of $19,899.84 in deposits. Husband
acknowledged selling a van that belonged to the daycare for $3500, but he said
that amount was exceeded by the remaining debt on the van ($5000), which he
said he paid.
[5] In a written order issued after the hearing, the trial court did not find Husband
in contempt for failing to sell the daycare but nonetheless ordered him to pay
$11,250 to Wife:
15. [Husband] is not credible when money is an issue. [Husband] is not credible concerning the cash he received and pocketed from Kiddieville Day Care after the divorce. [Husband] could not account for $19,899.84 of cash deposits to his checking account. Court finds that $16,000.00 of that was from Kiddieville Day Care and [Husband] owes [Wife] $8,000.00 of that amount. Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018 Page 3 of 6 * * * *
19. On the issue of Kiddieville Day Care, the Court does not have sufficient evidence to assign a value for the Kiddieville Day Care. The State of Indiana shut the daycare down on 07/05/2014. [Husband] did sell a van belonging to the daycare for which he received $6,500. The Court awards [Wife] a judgment for $11,250.00 ([$3,250.00] and $8,000.00 cash proceeds) against [Husband] . . . .
Appellant’s App. Vol. II pp. 31-32, 34.
[6] Husband now appeals.
Discussion and Decision [7] Husband contends that the two findings of fact underlying the trial court’s
award of $11,250 to Wife—the finding that Husband received $16,000 from the
daycare after the divorce and the finding that he sold a van belonging to the
daycare for $6500—are incorrect. We will set aside a trial court’s finding of fact
only if it is clearly erroneous, i.e., when the record lacks any evidence or
reasonable inferences from the evidence to support it. Steele-Giri v. Steele, 51
N.E.3d 119, 125 (Ind. 2016). In making this determination, we consider only
the evidence most favorable to the trial court’s decision and the reasonable
inferences therefrom, and we will not reweigh the evidence or assess the
credibility of witnesses. Breeden v. Breeden, 678 N.E.2d 423, 425 (Ind. Ct. App.
1997).
Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018 Page 4 of 6 [8] The trial court based its finding that Husband received $16,000 from the
daycare after the divorce on the fact that he “could not account for $19,899.84
of cash deposits to his checking account.” Husband acknowledges that he did
not identify “the source of all deposits to his bank account” but contends that
the record is “devoid of evidence” that any of that money, let alone $16,000,
was received in connection with the daycare. Appellant’s Br. p. 12. While we
can understand why the trial court doubted Husband’s credibility when it
comes to money, we are compelled to agree with Husband’s argument on this
point. Wife’s position on appeal is that the trial court was free to disbelieve
Husband’s testimony that he couldn’t recall the source of some of the deposits
into his bank accounts and “free to infer” that $16,000 worth of deposits “were
made from monies he received from the Kiddieville Day [C]are.” Appellee’s
Br. p. 10. We agree with the first proposition—Husband’s claim that he doesn’t
remember the origin of nearly $20,000 in deposits is certainly dubious. But the
second proposition doesn’t follow from the first. That is, the fact that the trial
court disbelieved Husband’s testimony that the deposits didn’t come from a
sale of the daycare does not by itself support a finding that the deposits did
come from a sale of the daycare. As the United States Supreme Court has
noted, “discredited testimony is not normally considered a sufficient basis for
drawing a contrary conclusion.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256-57 (1986). Wife does not direct us to any affirmative evidence that the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 21 2018, 8:41 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Sean C. Lemieux Rebecca Eimerman Lemieux Law Sarah Trostle Indianapolis, Indiana Eimerman Law Zionsville, Indiana Vanessa Lopez Aguilera Lopez Law Office, PC Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Cory D. Crumpton, August 21, 2018 Appellant-Respondent, Court of Appeals Case No. 17A-DR-3032 v. Appeal from the Hendricks Superior Court Fallon (Crumpton) Fernandes, The Honorable Karen M. Love, Appellee-Petitioner Judge Trial Court Cause No. 32D03-1302-DR-106
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018 Page 1 of 6 Case Summary [1] Cory Crumpton (“Husband”) appeals the trial court’s order requiring him to
pay $11,250 to his ex-wife, Fallon Fernandes (“Wife”), in relation to a daycare
that they operated when they were married and that was to be sold after their
divorce. Husband contends that the trial court’s decision is not supported by
the evidence presented. We agree and reverse.
Facts and Procedural History [2] Husband and Wife married each other in 2010 and divorced in March 2014.
One of their marital assets was a business they operated together, Kiddieville
Day Care, and the divorce decree provided that the daycare “shall be sold and
all debts paid” and that “each party shall receive half of the net proceeds.”
Appellant’s App. Vol. II p. 42. Husband was given the responsibility to operate
the daycare until the sale. A few months after the divorce, however, the State
of Indiana shut down the daycare for violations relating to cribs and unsanitary
conditions. Several months after that, Jacqueline Murray, who had been the
director of Kiddieville, opened her own daycare (called Miracles and Blessings)
in the building formerly occupied by Kiddieville.
[3] In July 2016, Wife filed a petition claiming that the divorce decree required
Husband to sell the daycare, that he had failed to do so, and that he should
therefore be found in contempt. (Husband doesn’t dispute Mother’s claim that
the divorce decree placed on him the burden of selling the daycare, even though
Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018 Page 2 of 6 the decree said only that the daycare “shall be sold.”) At the hearing on the
petition, Husband testified that he had been negotiating a sale of the daycare to
Murray when the State shut down the business. Husband anticipated that he
would be paid by receiving “[f]ive percent of enrollment” for six to twelve
months. Tr. Vol. III pp. 89-90. However, both Husband and Murray testified
that the sale was never finalized because of the shutdown by the State. Both
further testified that Murray’s opening of a daycare business several months
later was an arrangement between Murray and the owner/landlord of the
building, not the result of a sale by Husband to Murray.
[4] Wife presented evidence that Husband made over $30,000 in deposits to his
personal bank accounts between September 2014 and December 2016.
Husband was unable to identify the source of $19,899.84 in deposits. Husband
acknowledged selling a van that belonged to the daycare for $3500, but he said
that amount was exceeded by the remaining debt on the van ($5000), which he
said he paid.
[5] In a written order issued after the hearing, the trial court did not find Husband
in contempt for failing to sell the daycare but nonetheless ordered him to pay
$11,250 to Wife:
15. [Husband] is not credible when money is an issue. [Husband] is not credible concerning the cash he received and pocketed from Kiddieville Day Care after the divorce. [Husband] could not account for $19,899.84 of cash deposits to his checking account. Court finds that $16,000.00 of that was from Kiddieville Day Care and [Husband] owes [Wife] $8,000.00 of that amount. Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018 Page 3 of 6 * * * *
19. On the issue of Kiddieville Day Care, the Court does not have sufficient evidence to assign a value for the Kiddieville Day Care. The State of Indiana shut the daycare down on 07/05/2014. [Husband] did sell a van belonging to the daycare for which he received $6,500. The Court awards [Wife] a judgment for $11,250.00 ([$3,250.00] and $8,000.00 cash proceeds) against [Husband] . . . .
Appellant’s App. Vol. II pp. 31-32, 34.
[6] Husband now appeals.
Discussion and Decision [7] Husband contends that the two findings of fact underlying the trial court’s
award of $11,250 to Wife—the finding that Husband received $16,000 from the
daycare after the divorce and the finding that he sold a van belonging to the
daycare for $6500—are incorrect. We will set aside a trial court’s finding of fact
only if it is clearly erroneous, i.e., when the record lacks any evidence or
reasonable inferences from the evidence to support it. Steele-Giri v. Steele, 51
N.E.3d 119, 125 (Ind. 2016). In making this determination, we consider only
the evidence most favorable to the trial court’s decision and the reasonable
inferences therefrom, and we will not reweigh the evidence or assess the
credibility of witnesses. Breeden v. Breeden, 678 N.E.2d 423, 425 (Ind. Ct. App.
1997).
Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018 Page 4 of 6 [8] The trial court based its finding that Husband received $16,000 from the
daycare after the divorce on the fact that he “could not account for $19,899.84
of cash deposits to his checking account.” Husband acknowledges that he did
not identify “the source of all deposits to his bank account” but contends that
the record is “devoid of evidence” that any of that money, let alone $16,000,
was received in connection with the daycare. Appellant’s Br. p. 12. While we
can understand why the trial court doubted Husband’s credibility when it
comes to money, we are compelled to agree with Husband’s argument on this
point. Wife’s position on appeal is that the trial court was free to disbelieve
Husband’s testimony that he couldn’t recall the source of some of the deposits
into his bank accounts and “free to infer” that $16,000 worth of deposits “were
made from monies he received from the Kiddieville Day [C]are.” Appellee’s
Br. p. 10. We agree with the first proposition—Husband’s claim that he doesn’t
remember the origin of nearly $20,000 in deposits is certainly dubious. But the
second proposition doesn’t follow from the first. That is, the fact that the trial
court disbelieved Husband’s testimony that the deposits didn’t come from a
sale of the daycare does not by itself support a finding that the deposits did
come from a sale of the daycare. As the United States Supreme Court has
noted, “discredited testimony is not normally considered a sufficient basis for
drawing a contrary conclusion.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256-57 (1986). Wife does not direct us to any affirmative evidence that the
Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018 Page 5 of 6 daycare was sold for, or that it was worth, $16,000. Therefore, we must
conclude that the trial court’s finding in this regard is clearly erroneous.1
[9] The same is true of the trial court’s finding that Husband sold a daycare van for
$6500. To be sure, there is evidence that the daycare owned as many as three
vans at the time of the divorce. However, Mother does not direct us to any
evidence that any of those vans was sold for (or worth) $6500. The only
evidence of a van being sold came from Husband himself, who testified that he
sold a van for $3500 but that he also paid off $5000 in associated debt.
[10] While we appreciate the trial court’s desire and efforts to bring some clarity to a
murky situation, the evidence simply does not support the factual findings
underlying its award of $11,250 to Wife. As such, that award must be set aside.
[11] Reversed.
Pyle, J., and Barnes, Sr. J., concur.
1 In the facts section of her brief, Wife discusses testimony by Murray that Husband had access to the daycare even after it was shut down and that “all of the original furnishings and equipment were gone” when she went to re-open the daycare. Appellee’s Br. p. 6. However, Wife makes no mention of the value of those items and does not otherwise assert that Murray’s testimony on this point supports the trial court’s monetary award. She focuses solely on her belief that Husband sold the business to Murray.
Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018 Page 6 of 6