MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 29 2018, 7:05 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Dylan A. Vigh Alexandra M. Curlin Law Offices of Dylan A. Vigh, LLC Curlin & Clay Law Association of Indianapolis, Indiana Attorneys Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Allen Turner, November 29, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-DR-796 v. Appeal from the Marion Superior Court Darla Jo Turner, The Honorable Kimberly D. Appellee-Petitioner. Mattingly, Judge Pro Tempore Trial Court Cause No. 49D07-1605-DR-15637
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018 Page 1 of 7 Case Summary [1] After dissolving the marriage between David Allen Turner (“Husband”) and
Darla Jo Turner (“Wife”), the trial court entered a decree in which it purported
to equally divide the marital estate. Husband now appeals, arguing that the
court abused its discretion by ordering an equal division of the marital estate.
[2] We affirm.
Facts and Procedural History [3] Husband and Wife began cohabitating in 2004 and married seven years later in
July 2011. They lived in a home Husband purchased in 1999. During the
relationship, both Husband and Wife worked. Although Husband initially
earned more, their earnings were comparable after Wife incurred student loans,
furthered her education, and obtained a higher-paying job in 2009. Husband
and Wife maintained separate bank accounts and credit cards. They each took
on different expenses, with Husband paying for the mortgage and Wife paying
for utilities and groceries. Husband and Wife never had children together.
[4] In late April 2016—unbeknownst to Husband—Wife traded in a vehicle and
obtained a loan for a new vehicle. Approximately one week later, Wife
petitioned to dissolve the marriage. The trial court held a hearing on November
30, 2017, after which it entered a dissolution decree, ordering that “[t]he assets
and debts of this marriage shall be divided 50/50 and in accordance” with a list
the court had prepared. App. Vol. 2 at 14. Among the listed assets were
Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018 Page 2 of 7 retirement accounts, including an account Husband acquired through a former
employer that Husband had worked for during part of the marriage. Although
the trial court stated that it was equally dividing the marital estate, the court
ordered that Wife was “solely responsible for the entirety of her student
loans/debt,” id. at 14, amounting to approximately $51,042. Not taking those
loans into account, the trial court determined that the marital estate was valued
at $108,746, and then awarded 50% of that value to Husband and 50% to Wife.
[5] Husband now appeals.
Discussion and Decision [6] We will not disturb a decision dividing marital property unless the trial court
has abused its discretion. Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002).
The trial court abuses its discretion when its decision is clearly against the logic
and effect of the facts and circumstances before it, including the reasonable
inferences to be drawn therefrom. Taylor v. Taylor, 436 N.E.2d 56, 58 (Ind.
1982). Moreover, where—as here—a party has made a timely written request
for special findings, the court “shall find the facts specially and state its
conclusions thereon.” Ind. Trial Rule 52(A). We conduct a two-tiered review
of those findings, first determining “whether the evidence supports the findings
and then whether [the] findings support the judgment.” K.I. ex rel. J.I. v. J.H.,
903 N.E.2d 453, 457 (Ind. 2009). In conducting our review, we do not reweigh
the evidence, Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002), and must give
“due regard . . . to the opportunity of the trial court to judge the credibility of
Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018 Page 3 of 7 the witnesses,” T.R. 52(A). We “shall not set aside the findings or judgment
unless clearly erroneous.” Id. Findings are clearly erroneous when the record
contains no facts to support them, either directly or by inference. Fischer v.
Heymann, 12 N.E.3d 867, 870 (Ind. 2014). “A judgment is clearly erroneous
when there is no evidence supporting the findings or the findings fail to support
the judgment.” J.H., 903 N.E.2d at 457. A judgment is also clearly erroneous
when the court “applies the wrong legal standard to properly found facts.” Id.
[7] In entering a dissolution decree, the trial court “shall divide the property of the
parties . . . in a just and reasonable manner.” Ind. Code § 31-15-7-4. Under
Indiana’s “one pot” approach to the division of marital property, all property
owned by the spouses is put into the “marital pot,” where the property is subject
to division. See I.C. § 31-9-2-98(b) (defining property as “all the assets of either
party or both parties”); see also Barton v. Barton, 47 N.E.3d 368, 378-79 (Ind. Ct.
App. 2015), trans. denied. Thus, whether the property was “owned by either
spouse before the marriage,” individually “acquired by either spouse” before
the parties finally separated, or acquired through the spouses’ “joint efforts,”
I.C. § 31-15-7-4, in a dissolution action, there is a single “marital pot” and
everything the spouses own is potentially divisible, see id.; I.C. § 31-9-2-98(b); see
also Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind. Ct. App. 2014).
[8] Once the trial court has identified property to be included in the “marital pot,”
the trial court must evaluate how to “divide the property in a just and
reasonable manner.” I.C. § 31-15-7-4(b). The trial court begins with the
“presum[ption] that an equal division of the marital property . . . is just and
Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018 Page 4 of 7 reasonable.” I.C. § 31-15-7-5. Nevertheless, the court is not obligated to
equally divide the marital property. See id. Rather, a party may rebut the
presumption by “present[ing] relevant evidence . . . that an equal division
would not be just and reasonable.” Id. Our legislature has articulated a non-
exhaustive list of factors that bear on the reasonableness of an equal division:
(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 29 2018, 7:05 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Dylan A. Vigh Alexandra M. Curlin Law Offices of Dylan A. Vigh, LLC Curlin & Clay Law Association of Indianapolis, Indiana Attorneys Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Allen Turner, November 29, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-DR-796 v. Appeal from the Marion Superior Court Darla Jo Turner, The Honorable Kimberly D. Appellee-Petitioner. Mattingly, Judge Pro Tempore Trial Court Cause No. 49D07-1605-DR-15637
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018 Page 1 of 7 Case Summary [1] After dissolving the marriage between David Allen Turner (“Husband”) and
Darla Jo Turner (“Wife”), the trial court entered a decree in which it purported
to equally divide the marital estate. Husband now appeals, arguing that the
court abused its discretion by ordering an equal division of the marital estate.
[2] We affirm.
Facts and Procedural History [3] Husband and Wife began cohabitating in 2004 and married seven years later in
July 2011. They lived in a home Husband purchased in 1999. During the
relationship, both Husband and Wife worked. Although Husband initially
earned more, their earnings were comparable after Wife incurred student loans,
furthered her education, and obtained a higher-paying job in 2009. Husband
and Wife maintained separate bank accounts and credit cards. They each took
on different expenses, with Husband paying for the mortgage and Wife paying
for utilities and groceries. Husband and Wife never had children together.
[4] In late April 2016—unbeknownst to Husband—Wife traded in a vehicle and
obtained a loan for a new vehicle. Approximately one week later, Wife
petitioned to dissolve the marriage. The trial court held a hearing on November
30, 2017, after which it entered a dissolution decree, ordering that “[t]he assets
and debts of this marriage shall be divided 50/50 and in accordance” with a list
the court had prepared. App. Vol. 2 at 14. Among the listed assets were
Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018 Page 2 of 7 retirement accounts, including an account Husband acquired through a former
employer that Husband had worked for during part of the marriage. Although
the trial court stated that it was equally dividing the marital estate, the court
ordered that Wife was “solely responsible for the entirety of her student
loans/debt,” id. at 14, amounting to approximately $51,042. Not taking those
loans into account, the trial court determined that the marital estate was valued
at $108,746, and then awarded 50% of that value to Husband and 50% to Wife.
[5] Husband now appeals.
Discussion and Decision [6] We will not disturb a decision dividing marital property unless the trial court
has abused its discretion. Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002).
The trial court abuses its discretion when its decision is clearly against the logic
and effect of the facts and circumstances before it, including the reasonable
inferences to be drawn therefrom. Taylor v. Taylor, 436 N.E.2d 56, 58 (Ind.
1982). Moreover, where—as here—a party has made a timely written request
for special findings, the court “shall find the facts specially and state its
conclusions thereon.” Ind. Trial Rule 52(A). We conduct a two-tiered review
of those findings, first determining “whether the evidence supports the findings
and then whether [the] findings support the judgment.” K.I. ex rel. J.I. v. J.H.,
903 N.E.2d 453, 457 (Ind. 2009). In conducting our review, we do not reweigh
the evidence, Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002), and must give
“due regard . . . to the opportunity of the trial court to judge the credibility of
Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018 Page 3 of 7 the witnesses,” T.R. 52(A). We “shall not set aside the findings or judgment
unless clearly erroneous.” Id. Findings are clearly erroneous when the record
contains no facts to support them, either directly or by inference. Fischer v.
Heymann, 12 N.E.3d 867, 870 (Ind. 2014). “A judgment is clearly erroneous
when there is no evidence supporting the findings or the findings fail to support
the judgment.” J.H., 903 N.E.2d at 457. A judgment is also clearly erroneous
when the court “applies the wrong legal standard to properly found facts.” Id.
[7] In entering a dissolution decree, the trial court “shall divide the property of the
parties . . . in a just and reasonable manner.” Ind. Code § 31-15-7-4. Under
Indiana’s “one pot” approach to the division of marital property, all property
owned by the spouses is put into the “marital pot,” where the property is subject
to division. See I.C. § 31-9-2-98(b) (defining property as “all the assets of either
party or both parties”); see also Barton v. Barton, 47 N.E.3d 368, 378-79 (Ind. Ct.
App. 2015), trans. denied. Thus, whether the property was “owned by either
spouse before the marriage,” individually “acquired by either spouse” before
the parties finally separated, or acquired through the spouses’ “joint efforts,”
I.C. § 31-15-7-4, in a dissolution action, there is a single “marital pot” and
everything the spouses own is potentially divisible, see id.; I.C. § 31-9-2-98(b); see
also Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind. Ct. App. 2014).
[8] Once the trial court has identified property to be included in the “marital pot,”
the trial court must evaluate how to “divide the property in a just and
reasonable manner.” I.C. § 31-15-7-4(b). The trial court begins with the
“presum[ption] that an equal division of the marital property . . . is just and
Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018 Page 4 of 7 reasonable.” I.C. § 31-15-7-5. Nevertheless, the court is not obligated to
equally divide the marital property. See id. Rather, a party may rebut the
presumption by “present[ing] relevant evidence . . . that an equal division
would not be just and reasonable.” Id. Our legislature has articulated a non-
exhaustive list of factors that bear on the reasonableness of an equal division:
(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective . . . .
(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the parties.
Id. Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018 Page 5 of 7 [9] Husband contends that he rebutted the statutory presumption, and that the trial
court abused its discretion by equally dividing the marital property. He argues
that the court “ignor[ed] evidence” that Husband “had acquired the marital
residence, certain vehicles, and the majority of his Union 401(k) prior to the
marriage,” and that he “was the primary contributor to the acquisition of this
property.” Appellant’s Br. at 8. Husband also asserts that “he and Wife shared
similar economic circumstances at the time of the disposition; Wife dissipated
certain marital assets immediately before filing for dissolution; and, he and
Wife had nearly identical earning capacities at the time of dissolution.” Id.
[10] Yet, the trial court valued the marital estate at $108,746—and that calculation
did not account for $51,042 in student loans that the court wholly allocated to
Wife. The trial court stated that it was allocating this debt to Wife “[i]n
accordance with case law on the subject” of student loans. App. Vol. 2 at 14.
However, under the statutory framework, all marital property is subject to
division, see I.C. 31-15-7-4, and “[m]arital property includes both assets and
liabilities.” Birkhimer v. Birkhimer, 981 N.E.2d 111, 120 (Ind. Ct. App. 2012).
Thus, student loans—just like other debts incurred before the marital pot
closes—are marital property subject to division. See I.C. 31-15-7-4; see also
Roberts v. Roberts, 670 N.E.2d 72, 77-78 (Ind. Ct. App. 1996) (observing that
whereas “Indiana does not permit a degree to be included as marital property,”
student loans are “properly considered as part of the marital estate”).
[11] Ultimately, after the court equally distributed the $108,746 in value, Husband
netted $54,373 and Wife—having been allocated $51,042 in student loans—
Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018 Page 6 of 7 effectively netted only $3,331. Husband now argues that he should have
received more of the marital estate. Yet, the court’s decision already reflects a
substantial deviation in his favor: more than 90% of the adjusted net value to
Husband. We are unpersuaded by Husband’s contention that the court abused
its broad discretion by failing to award him even more of the marital estate.
[12] Affirmed.
Mathias, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018 Page 7 of 7