MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 19 2019, 9:48 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
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Brian M. Pierce Julie-Marie Brown Muncie, Indiana Miller, Burry & Brown, P.C. Decatur, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Brown, December 19, 2019 Appellant, Court of Appeals Case No. 19A-DN-1494 v. Appeal from the Jay Superior Court Kimberly Brown, The Honorable Kimberly S. Appellee. Dowling, Special Judge Trial Court Cause No. 38D01-1712-DN-96
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019 Page 1 of 9 [1] David Brown (“Husband”) appeals the trial court’s distribution of the marital
estate and attorney fee award. Kimberly Brown (“Wife”) requests appellate
attorney fees. We affirm the order of the trial court and deny Wife’s request for
appellate attorney fees.
Facts and Procedural History
[2] Husband and Wife became romantically involved in December 2006 and began
living together in August 2007 at Husband’s house on 2nd Street in Portland,
Indiana. 1 Wife bought a house and moved out in 2012. The parties purchased
a residence on 450 South in November 2015. Husband began living with Wife
at her house in January 2016. Husband and Wife were married in February
2016, and they moved into the house on 450 South in the summer of 2016.
According to Wife, she and Husband had “an on and off relationship” since
2006 and the relationship spanned twelve years. Transcript Volume 2 at 8.
[3] In December 2017, Wife filed for divorce. The chronological case summary
shows that Wife filed a motion for authorization to have real estate appraised
and that she later filed a motion to compel compliance which the court granted.
The court heard evidence in November 2018 and April 2019. Wife presented,
as Petitioner’s Exhibit No. 7, a summary of the marital assets and debts
including the parties’ bank accounts, retirement accounts, real property,
vehicles, personal property, and debts. In addition to appraisals of the real
1 At that point, the house on 2nd Street was titled in the name of Husband’s father, but it was later conveyed to Husband.
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019 Page 2 of 9 properties, Wife presented exhibits itemizing the parties’ personal property
including their firearms, tools, furniture, appliances, vehicles, motorcycles,
lawnmower, and golf carts. She testified that most of the marital property was
acquired by the parties since 2006, she contributed to mortgage payments for
the house on 450 South which consisted of forty acres, the house was titled in
both parties’ names, and they made improvements including remodeling a
bathroom and installing new flooring, siding, roofing, windows, faucets, and
appliances. She testified that she contributed financially to the house on 2nd
Street including a back-tax payment, the house was now a rental, and Husband
received the rental income.
[4] Wife testified in detail regarding the personal property and vehicles in her
possession and Husband’s possession. She indicated a 1973 Corvette was in
Husband’s possession, it was not appraised at the time of the appraisals because
it was not at the house, and Husband was having it restored in Marion. She
believed the Corvette was worth $5,000 because Husband “said that a year ago
it was probably worth Thirty-Five Thousand. He said it might be worth
Twenty Thousand now,” and testified “[s]o I just said . . . ($5,000) just to,
because I didn’t know for sure, but just Five Thousand.” Id. at 25-26. She
believed Husband had retirement accounts which he did not disclose to her.
She testified regarding her motion to compel and that Husband provided very
little information, did not answer all the discovery questions, and did not
provide requested documentation. She testified that she earned about $400 a
week, that Husband did not provide information regarding his earnings, and
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019 Page 3 of 9 that, at his last employment before the parties separated, his checks were
usually around $1,000 to $1,200 a week. She indicated that, although Husband
had higher earnings, she contributed to the household expenses both before and
after they were married. She testified that Husband broke her cell phone and
the cost to replace it, and that Husband never returned equipment related to
television service.
[5] On May 30, 2019, the court issued an Order of Property Distribution which
included findings regarding the parties’ real property, vehicles, personal
property, retirement accounts, and debts. The court awarded the real properties
to Husband and distributed the personal property, found that its division was an
equal division and that the parties lived together on and off for several years
before marrying, and ordered that Husband pay Wife $66,098, that the parties
equally split the costs of the appraisals, and that Husband pay Wife $910.59 for
destroying her cell phone and not returning equipment. The court also ordered
Husband to pay $8,000 toward Wife’s attorney fees.
Discussion
I.
[6] Husband claims the trial court erred in valuing and distributing the marital
property. In particular, he argues “the numbers don’t ‘add up’ to an equal
distribution of assets or debts,” the values of the Corvette and gun collection are
unresolved, and the court should have considered the short duration of the
marriage. Appellant’s Brief at 11. Wife maintains the exhibits and testimony
support the court’s valuations and distribution. Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019 Page 4 of 9 [7] The Indiana Supreme Court has expressed a “preference for granting latitude
and deference to our trial judges in family law matters.” In re Marriage of
Richardson, 622 N.E.2d 178, 178 (Ind. 1993). When a trial court has made
findings of fact, we determine whether the evidence supports the findings and
whether the findings support the conclusions thereon. Yanoff v. Muncy, 688
N.E.2d 1259, 1262 (Ind. 1997). Findings will be set aside if they are clearly
erroneous, which occurs when the record contains no facts to support them
directly or by inference. Id.
[8] The division of marital property is within the sound discretion of the trial court.
Love v. Love, 10 N.E.3d 1005, 1012 (Ind. Ct. App. 2014). We consider only the
evidence most favorable to the court’s disposition. Id. Although the facts and
reasonable inferences might allow for a different conclusion, we will not
substitute our judgment for that of the trial court. Id. The court must divide the
marital estate in a just and reasonable manner, and an equal division is
presumed just and reasonable. McGrath v. McGrath, 948 N.E.2d 1185, 1187-
1188 (Ind. Ct. App. 2011) (citing Ind.
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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 Dec 19 2019, 9:48 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
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Brian M. Pierce Julie-Marie Brown Muncie, Indiana Miller, Burry & Brown, P.C. Decatur, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Brown, December 19, 2019 Appellant, Court of Appeals Case No. 19A-DN-1494 v. Appeal from the Jay Superior Court Kimberly Brown, The Honorable Kimberly S. Appellee. Dowling, Special Judge Trial Court Cause No. 38D01-1712-DN-96
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019 Page 1 of 9 [1] David Brown (“Husband”) appeals the trial court’s distribution of the marital
estate and attorney fee award. Kimberly Brown (“Wife”) requests appellate
attorney fees. We affirm the order of the trial court and deny Wife’s request for
appellate attorney fees.
Facts and Procedural History
[2] Husband and Wife became romantically involved in December 2006 and began
living together in August 2007 at Husband’s house on 2nd Street in Portland,
Indiana. 1 Wife bought a house and moved out in 2012. The parties purchased
a residence on 450 South in November 2015. Husband began living with Wife
at her house in January 2016. Husband and Wife were married in February
2016, and they moved into the house on 450 South in the summer of 2016.
According to Wife, she and Husband had “an on and off relationship” since
2006 and the relationship spanned twelve years. Transcript Volume 2 at 8.
[3] In December 2017, Wife filed for divorce. The chronological case summary
shows that Wife filed a motion for authorization to have real estate appraised
and that she later filed a motion to compel compliance which the court granted.
The court heard evidence in November 2018 and April 2019. Wife presented,
as Petitioner’s Exhibit No. 7, a summary of the marital assets and debts
including the parties’ bank accounts, retirement accounts, real property,
vehicles, personal property, and debts. In addition to appraisals of the real
1 At that point, the house on 2nd Street was titled in the name of Husband’s father, but it was later conveyed to Husband.
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019 Page 2 of 9 properties, Wife presented exhibits itemizing the parties’ personal property
including their firearms, tools, furniture, appliances, vehicles, motorcycles,
lawnmower, and golf carts. She testified that most of the marital property was
acquired by the parties since 2006, she contributed to mortgage payments for
the house on 450 South which consisted of forty acres, the house was titled in
both parties’ names, and they made improvements including remodeling a
bathroom and installing new flooring, siding, roofing, windows, faucets, and
appliances. She testified that she contributed financially to the house on 2nd
Street including a back-tax payment, the house was now a rental, and Husband
received the rental income.
[4] Wife testified in detail regarding the personal property and vehicles in her
possession and Husband’s possession. She indicated a 1973 Corvette was in
Husband’s possession, it was not appraised at the time of the appraisals because
it was not at the house, and Husband was having it restored in Marion. She
believed the Corvette was worth $5,000 because Husband “said that a year ago
it was probably worth Thirty-Five Thousand. He said it might be worth
Twenty Thousand now,” and testified “[s]o I just said . . . ($5,000) just to,
because I didn’t know for sure, but just Five Thousand.” Id. at 25-26. She
believed Husband had retirement accounts which he did not disclose to her.
She testified regarding her motion to compel and that Husband provided very
little information, did not answer all the discovery questions, and did not
provide requested documentation. She testified that she earned about $400 a
week, that Husband did not provide information regarding his earnings, and
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019 Page 3 of 9 that, at his last employment before the parties separated, his checks were
usually around $1,000 to $1,200 a week. She indicated that, although Husband
had higher earnings, she contributed to the household expenses both before and
after they were married. She testified that Husband broke her cell phone and
the cost to replace it, and that Husband never returned equipment related to
television service.
[5] On May 30, 2019, the court issued an Order of Property Distribution which
included findings regarding the parties’ real property, vehicles, personal
property, retirement accounts, and debts. The court awarded the real properties
to Husband and distributed the personal property, found that its division was an
equal division and that the parties lived together on and off for several years
before marrying, and ordered that Husband pay Wife $66,098, that the parties
equally split the costs of the appraisals, and that Husband pay Wife $910.59 for
destroying her cell phone and not returning equipment. The court also ordered
Husband to pay $8,000 toward Wife’s attorney fees.
Discussion
I.
[6] Husband claims the trial court erred in valuing and distributing the marital
property. In particular, he argues “the numbers don’t ‘add up’ to an equal
distribution of assets or debts,” the values of the Corvette and gun collection are
unresolved, and the court should have considered the short duration of the
marriage. Appellant’s Brief at 11. Wife maintains the exhibits and testimony
support the court’s valuations and distribution. Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019 Page 4 of 9 [7] The Indiana Supreme Court has expressed a “preference for granting latitude
and deference to our trial judges in family law matters.” In re Marriage of
Richardson, 622 N.E.2d 178, 178 (Ind. 1993). When a trial court has made
findings of fact, we determine whether the evidence supports the findings and
whether the findings support the conclusions thereon. Yanoff v. Muncy, 688
N.E.2d 1259, 1262 (Ind. 1997). Findings will be set aside if they are clearly
erroneous, which occurs when the record contains no facts to support them
directly or by inference. Id.
[8] The division of marital property is within the sound discretion of the trial court.
Love v. Love, 10 N.E.3d 1005, 1012 (Ind. Ct. App. 2014). We consider only the
evidence most favorable to the court’s disposition. Id. Although the facts and
reasonable inferences might allow for a different conclusion, we will not
substitute our judgment for that of the trial court. Id. The court must divide the
marital estate in a just and reasonable manner, and an equal division is
presumed just and reasonable. McGrath v. McGrath, 948 N.E.2d 1185, 1187-
1188 (Ind. Ct. App. 2011) (citing Ind. Code § 31-15-7-5). The presumption may
be rebutted by evidence of certain factors including the contribution of each
spouse to the acquisition; the extent to which the property was acquired before
the marriage or through inheritance or gift; the economic circumstances of each
spouse at the time of the disposition; the conduct of the parties during the
marriage; and the earnings or earning ability of the parties. Ind. Code § 31-15-
7-5. The party challenging the court’s division must overcome a strong
presumption that it considered and complied with the applicable statute.
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019 Page 5 of 9 McGrath, 948 N.E.2d at 1188. Marital property includes property owned by
either spouse prior to the marriage, acquired after the marriage and prior to
final separation, or acquired by their joint efforts. Id. The court’s disposition of
the marital estate is to be considered as a whole, not item by item. Id.
[9] The trial court heard testimony regarding the length of the parties’ relationship,
the two parcels of real estate, when the properties were acquired, the various
improvements made to the properties, the parties’ contributions to the
household expenses, and the value of the marital assets and debts including the
real properties, vehicles, bank and retirement accounts, tools, furniture,
firearms, other personal property, and debts. Petitioner’s Exhibit No. 7
included a summary of the marital assets and debts with assigned values for
each item which stated the parties’ total assets were $475,962.87, their total
debts were $299,959.55, and the net marital estate was $176,003.32, and which,
after assigning the real properties to Husband and dividing the other property,
recommended that Husband make an equalization to Wife of $65,351.27. The
court distributed the real properties to Husband and divided the vehicles and
personal property between the parties. The court’s order provided that it
utilized the values listed on Petitioner’s Exhibit No. 7, found the values used
were reasonable, and ordered Husband to pay Wife $66,098. As for the 1973
Corvette, Wife indicated that it was not appraised at the time of the appraisals
because it was not at the house, that Husband was having it restored, and that
Husband had stated it might be worth $20,000. The court’s order specifically
found that the value assigned to the Corvette of $5,000 was reasonable. As for
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019 Page 6 of 9 the gun collection, Petitioner’s Exhibit No. 7 assigned the firearms, valued at
$5,930, to Husband. Wife also submitted Petitioner’s Exhibit No. 3 which
listed eight firearms with estimated values for each firearm, listed a Ruger
revolver with an estimated value of $500 to $600, and provided a total
approximate value for the firearms of $5,540 to $6,320. While Petitioner’s
Exhibit No. 7 assigned all of the firearms to Husband, Wife testified that the
Ruger firearm was her father’s and that she desired to keep it. The court
ordered that Wife have the items in her possession including the Ruger firearm.
The valuations utilized by the court were within the range of values presented
by the evidence. Based upon the record, we cannot say that the trial court
abused its discretion in distributing the marital property.
II.
[10] Husband further argues the trial court should not have ordered him to pay
attorney fees and states that “it is true that [he] was untimely and difficult in his
discovery responses” but that “based on the results achieved, [Wife] wasn’t
prejudiced at all.” Appellant’s Brief at 15. Wife maintains that Husband’s
conduct throughout the proceedings, including forcing her to obtain an order to
comply with discovery requests, supports the attorney fee award. She also
requests appellate attorney fees.
[11] In dissolution proceedings, the trial court may order a party to pay a reasonable
amount for the other’s attorney fees. Luttrell v. Luttrell, 994 N.E.2d 298, 305
(Ind. Ct. App. 2013) (citing Ind. Code § 31-15-10-1), trans. denied. The trial
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019 Page 7 of 9 court has broad discretion in awarding attorney fees. Id. The court may
consider the resources of the parties, their relative earning abilities, and other
factors which bear on the reasonableness of the award. Id. The court may also
consider any misconduct that causes a party to incur additional fees. See Bessolo
v. Rosario, 966 N.E.2d 725, 733 (Ind. Ct. App. 2012), trans. denied.
[12] The trial court ordered Husband to pay $8,000 toward Wife’s attorney fees. It
found that Husband created issues with discovery by providing answers late, by
not providing detailed information on bank accounts or retirement funds, and
by continuing hearings, and that his behavior caused Wife to incur additional
attorney fees. It found that Wife’s attorney filed an appropriate fee affidavit
with itemized billing, Wife provided her income, and Wife requested
Husband’s income in discovery but he refused to provide it. We cannot say the
trial court abused its discretion in awarding attorney fees.
[13] As for appellate attorney fees, this Court is authorized to assess damages if an
appeal “is frivolous or in bad faith,” and such damages “shall be in the Court’s
discretion and may include attorneys’ fees.” Ind. Appellate Rule 66(E). A
strong showing is required to justify an award of appellate damages, and the
sanction is not imposed to punish mere lack of merit, but something more
egregious. Bessolo, 966 N.E.2d at 734. To prevail on her request, Wife must
show that Husband’s arguments on appeal are “utterly devoid of all
plausibility.” See id. While we conclude that the trial court did not abuse its
discretion distributing the marital estate or awarding attorney fees, we cannot
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019 Page 8 of 9 say that Husband’s arguments on appeal are “utterly devoid of all plausibility”
or that an award of appellate attorney fees is appropriate.
[14] We affirm the judgment of the trial court and deny Wife’s request for appellate
attorney fees.
[15] Affirmed.
[16] Baker, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019 Page 9 of 9