MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Apr 19 2017, 8:45 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Gregory K. Blanford George T. Catanzarite The Blanford Law Office Stipp Law, LLC South Bend, Indiana South Bend, Indiana
IN THE COURT OF APPEALS OF INDIANA
Debra L. Myer, April 19, 2017 Appellant-Petitioner, Court of Appeals Case No. 71A04-1604-DR-719 v. Appeal from the St. Joseph Circuit Court Michael A. Myer, The Honorable Andre B. Appellee-Respondent. Gammage, Magistrate The Honorable Michael G. Gotsch, Judge Trial Court Cause No. 71C01-1306-DR-312
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017 Page 1 of 12 [1] Debra L. Myer appeals from the trial court’s division of marital property in the
dissolution of her marriage to Michael A. Myer. Debra raises several issues
which we consolidate and restate as whether the court abused its discretion in
its division of the marital property. We affirm.
Facts and Procedural History
[2] Debra and Michael were married in March 1990. Debra had one child prior to
the marriage, and Debra and Michael had two children together. Debra filed a
petition for legal separation on June 21, 2013, and Michael filed a petition for
dissolution of marriage on July 1, 2013. The court held an evidentiary hearing
on July 22 and September 4, 2015, at which the parties presented evidence
regarding their incomes, real properties and mortgages, bank accounts, credit
cards, retirement accounts, and other marital assets and liabilities. Debra
requested findings of fact and conclusions thereon and that Michael contribute
to the payment of her attorney fees. The parties submitted proposed findings
and conclusions.
[3] On March 4, 2016, the court entered a decree of dissolution and found that the
children are over the age of majority and are emancipated by operation of law.
In dividing the marital estate, the court awarded real property on Tyler Road in
Walkerton, Indiana, to Michael, and real property on Quinn Road in North
Liberty, Indiana, to Debra. Under a heading for homestead exemption, it
found that Debra caused a homestead exemption to be removed from the Tyler
Road property, thereby increasing the tax obligation on that property by $1,756,
and that Michael “shall be credited $1,756 as reimbursement for said tax Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017 Page 2 of 12 increase.” Appellant’s Appendix II at 41. Under a heading for retirement
accounts, it found that a portion of Debra’s individual retirement account (IRA)
was received by Debra from a previous divorce, that the portion was acquired
by Debra without contribution in any form by Michael, and that an equal
distribution of the full value of the IRA would not be just and reasonable. The
court also found Debra is vested in a retirement plan which is payable
beginning in August 2021 with a value of $100 per month as a life annuity.
[4] The court further found, under a heading for student loans, that Debra included
in her contentions a student loan debt which constituted a support obligation
from a previous marriage, that the debt is related to post-secondary education
for a child not born of this marriage, and that the amount would be excluded in
the computation of marital debt. The decree states “[t]he Court favors an equal
distribution of the marital estate between the parties,” identified and assigned
values to the marital assets and liabilities, did not include the pre-marital value
of Debra’s IRA or her debt related to the support obligation from a previous
marriage in the marital property to be divided, and divided the remaining
marital property equally. Id. at 44. The court entered a judgment of $25,480 in
favor of Debra and against Michael to effectuate its division of the marital
property and ordered the parties’ attorneys to prepare a qualified domestic
relations order for Michael’s 401(k) account to satisfy the judgment. The court
also determined the parties would be responsible for their own attorney fees.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017 Page 3 of 12 Discussion
[5] The issue is whether the trial court abused its discretion in its division of the
marital property. When a trial court has made findings of fact, we apply the
following two-step standard of review: whether the evidence supports the
findings of fact, and whether the findings of fact 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. Id. Findings are clearly erroneous only
when the record contains no facts to support them either directly or by
inference. Id. To determine that a finding or conclusion is clearly erroneous,
our review of the evidence must leave us with the firm conviction that a mistake
has been made. Id.
[6] Debra claims the trial court failed to enter specific findings and conclusions and
applied an incorrect legal standard in stating that it favors an equal distribution
of the marital estate. She further claims the court erred in awarding Michael a
credit related to the loss of the homestead exemption on the Tyler Road
property, in declining to award her a greater share of the marital estate, and in
denying her request for attorney fees. Michael responds that the court’s
inclusion of a tax credit related to the loss of the homestead exemption on the
Tyler Road property as a marital asset was advantageous to Debra, that Debra
ultimately received fifty-four percent of the marital estate in addition to her
monthly pension, and the court did not abuse its discretion in denying her
request for attorney fees.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017 Page 4 of 12 [7] The division of marital property is within the sound discretion of the trial court,
and we will reverse only for an abuse of discretion. Love v. Love, 10 N.E.3d
1005, 1012 (Ind. Ct. App. 2014) (citing Hartley v. Hartley, 862 N.E.2d 274, 285
(Ind. Ct. App. 2007)). When we review a claim that the trial court improperly
divided marital property, we must consider only the evidence most favorable to
the trial court’s disposition of the property. Id. (citation omitted). 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.
[8] Ind. Code § 31-15-7-4 provides that the court in a dissolution action shall divide
the property in a just and reasonable manner. The court shall presume that an
equal division of marital property between the parties is just and reasonable.
Ind. Code § 31-15-7-5. However, this presumption may be rebutted by a party
who presents relevant evidence that an equal division would not be just and
reasonable. Id. Relevant evidence includes evidence concerning the
contribution of each spouse to the acquisition of the property, the extent to
which the property was acquired by each spouse before the marriage or through
inheritance or gift, the economic circumstances of each spouse at the time the
disposition of the property is to become effective, the conduct of the parties
during the marriage as related to the disposition or dissipation of their property,
and the earnings or earning ability of the parties. Id. The court is not required
to explicitly address each factor, and a court on review must be able to infer
from the court’s findings that the statutory factors were considered. Love, 10
N.E.3d at 1012.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017 Page 5 of 12 [9] The trial court’s division of marital property is “highly fact sensitive . . . .” Id.
(citing Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002)). A trial court’s
discretion in dividing marital property is to be reviewed by considering the
division as a whole, not item by item. Id. We will not weigh evidence, but will
consider the evidence in a light most favorable to the judgment. Id. A party
who challenges the trial court’s division of marital property must overcome a
strong presumption that the court considered and complied with the applicable
statute, and thus we will reverse a property distribution only if there is no
rational basis for the award. Id. at 1012-1013 (citation omitted). It is well-
established that 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. Id. at 1013 (citing Ind. Code § 31-15-7-4(a); Beard v. Beard,
758 N.E.2d 1019, 1025 (Ind. Ct. App. 2001), trans. denied). This one-pot theory
ensures that no asset is excluded from the trial court’s power to divide and
award. Id. (citation omitted). Further, the trial court’s valuation of marital
assets will be disturbed only for an abuse of discretion. Morey v. Morey, 49
N.E.3d 1065, 1069 (Ind. Ct. App. 2016). As long as the evidence is sufficient
and reasonable inferences support the valuation, an abuse of discretion does not
occur. Id.
[10] With respect to the adequacy of the trial court’s findings, we observe that the
court’s decree sets forth findings regarding the parties’ real properties and
mortgages, whether there had been a dissipation of assets by Debra, the parties’
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017 Page 6 of 12 retirement accounts and the value of Debra’s IRA received from a previous
divorce, Debra’s debt related to a support obligation from a previous marriage,
and the value of their personal property. The court set forth its reasons for not
dividing certain assets and liabilities and then divided the remaining property
equally. We cannot say that the court did not enter additional, particular, or
more specific findings or conclusions warrants reversal or remand. In addition,
as to Debra’s assertion the court applied an incorrect legal standard, we note
that, although the decree stated “[t]he Court favors an equal distribution of the
marital estate,” Appellant’s Appendix II at 44, the court also cited Ind. Code §
31-15-7-5, providing the court shall presume an equal division of marital
property is just and reasonable and may deviate from an equal division when
the presumption is rebutted, and then set aside certain property to Debra upon
entering findings as to the reasons it did so and divided the remaining marital
property equally. We cannot conclude, given the court’s findings and the
strong presumption the court considered and complied with the applicable
statute, see Love, 10 N.E.3d at 1012-1013, that the court applied an incorrect
standard based on its statement that the court favors an equal distribution of the
marital estate.
[11] As to the homestead exemption, Michael indicated that, at the time the petition
for dissolution was filed, there was a homestead exemption attached to the
Tyler Road property. He presented evidence that his real estate taxes on that
property were $1,858.90 for the year 2014 and $3,614.44 for the year 2015 and
that the homestead exemption had been removed for 2015. He testified he did
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017 Page 7 of 12 not change the homestead exemption and was requesting a judgment against
Debra for the difference of $1,755.54. When asked to explain about the
homestead exemption, Debra testified that she “had been paying approximately
$900 a year extra in real estate tax because I could not have a homestead
exemption” and that she and Michael had executed quitclaim deeds on their
properties so that the Tyler Road property was in Michael’s name and the
Quinn Road property was in her name “thinking that we could go down to the
assessor’s office and have each of us file the homestead exemption.” Transcript
at 192. Debra testified “I filed for my homestead exemption so that I could
claim it for year 2014, payable ‘15,” “I did absolutely nothing to take away his
homestead exemption,” “I filed for mine thinking we were both eligible to get
the homestead exemption,” and that she later learned that “if there is not a
divorce decree entered, you cannot have both properties with the homestead
exemption.” Id. at 193. When asked “[d]id that result in losses someplace,”
Debra replied affirmatively, and when asked if “that can be recouped,” she
again responded affirmatively. Id. at 193-194. When asked “How,” Debra
testified “[t]he assessor’s office will make a retroactive adjustment to the 2014
taxes, payable 2015 if we can agree on who gets the exemption.” Id. at 194.
When asked if she had “a suggestion as to how to do that,” Debra testified “I
paid approximately $1,200 extra in real estate taxes because I could not claim
the homestead exemption,” “I would be more than willing to sign whatever
documents need to be signed for Mike to get the homestead exemption,” and “I
think it would be fair that he share in half of the overpayment I had to make for
not having the homestead exemption on Quinn Road.” Id. Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017 Page 8 of 12 [12] The court found that Debra “caused the homestead exemption to be removed
from the Tyler Road property, thereby increasing the tax obligation on that
property by $1,756,” and that Michael “shall be credited $1,756 as
reimbursement for said increase.” Appellant’s Appendix II at 41. The court
included an amount of $1,756 for “Husband’s reimbursement credit for
homestead taxes” in its list of the marital assets and assigned the asset to
Michael in its division of the marital estate. Id. at 45. The court characterized
the amount of $1,756, which Debra testified could be recouped, as a credit and
listed it as a marital asset to be assigned to Michael and divided the value of the
asset equally, resulting in Debra receiving an equalization payment $878 higher
than the payment she would have received if the court had not included an
amount of $1,756 in the marital assets. We cannot say that the court abused its
discretion in its treatment of the real estate tax increase resulting from the loss
of the homestead exemption on the Tyler Road property.
[13] Turning to the division of the marital estate, the parties presented evidence
regarding their real property, bank and retirement accounts, earnings,
employment, debt, and economic circumstances. Michael indicated that he
worked for his current employer Aero Metals for almost sixteen years, that he
was an hourly employee and received overtime and profit sharing which varied,
and that in 2014 he grossed “74, 75” “someplace in there” and he believed
Debra grossed “25.” Transcript at 46. Debra testified regarding her health
conditions, including a recent heart attack and surgery to fuse vertebrae, her
income in 2014 of around $24,000 to $25,000 and that she works from home,
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017 Page 9 of 12 her retirement, that she had been principally responsible for caring for her
children, and that Michael worked about fifty hours a week. The parties
presented evidence of the value of the marital assets and liabilities.
[14] The court’s decree identified and assigned values to the marital assets and
liabilities. The marital assets included the real properties on Tyler Road and
Quinn Road,1 the parties’ bank accounts and life insurance policy values,
Debra’s IRA and pension and the parties’ 401(k) accounts, Michael’s tools, and
the parties’ personal property. The marital liabilities included mortgages on the
real property, credit card balances, and loans including a loan from Michael’s
401(k). With respect to one of the credit card balances, Debra presented
evidence that Michael had incurred a charge of $2,000 on the parties’ joint
credit card to pay his attorney prior to the filing of the petition for dissolution
and testified that she had used the same credit card to pay her attorney $500
prior to separation. The court entered specific findings regarding Debra’s IRA,
indicating that the pre-marital value of the IRA would be set over to Debra, and
that Debra’s debt related to a previous support obligation and gave reasons it
did not divide the debt between the parties. See Ind. Code § 31-15-7-5
(providing the court may consider evidence concerning the extent to which the
property was acquired before the marriage). With respect to the parties’ joint
bank account, the decree states that Michael contended Debra withdrew funds
from their joint bank account and that the court does not find a dissipation of
1 The Quinn Road property had been a rental property before it became Debra’s residence.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017 Page 10 of 12 marital assets in anticipation of the dissolution. The court also entered findings
regarding the valuation of the real properties and mortgage balances, Michael’s
tools, and the personal property. Debra does not challenge the court’s
valuations. We also note that Debra received a slightly higher percentage of the
marital property due to the fact the court did not divide the pre-marital value of
her IRA between the parties.
[15] The trial court’s division of marital property is highly fact sensitive, and we
review the court’s discretion in dividing marital property considering the
division as a whole and not item by item. See Love, 10 N.E.3d at 1012. The
trial court considered the relevant statutory factors, determined that a just and
reasonable division was to set certain property and debt over to Debra and
equally divide the remaining property, and ordered that Michael make a
payment to Debra of $25,480, resulting in a net distribution to Debra of slightly
more than half of the marital estate. Based upon our review of the record and
the court’s findings and conclusions, we cannot say that Debra has overcome
the strong presumption that the trial court considered and complied with the
applicable statute. See Love, 10 N.E.3d at 1013-1015 (observing the trial court
considered the relevant statutory factors, found a just and reasonable division
was to shift certain debt to the former wife, and achieved its net distribution by
ordering the former husband to make an equalization payment to the former
wife, and concluding that the former wife did not overcome the strong
presumption the court considered and complied with the applicable statute).
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017 Page 11 of 12 We do not disturb the division of the marital property set forth in the trial
court’s decree of dissolution.
[16] The court may order a party to pay a reasonable amount for attorney fees,
including for legal services incurred before the commencement of the
proceedings or after entry of judgment. Ind. Code § 31-15-10-1. The trial court
has broad discretion in awarding attorney fees. Barton v. Barton, 47 N.E.3d 368,
377 (Ind. Ct. App. 2015), trans. denied. The court must consider the parties’
resources, economic conditions, abilities to earn adequate income, and other
factors that bear on the reasonableness of the award. Hartley, 862 N.E.2d at
286. Although Michael’s earnings are greater than Debra’s earnings, we note
that Debra received slightly more than half of the marital property. Our review
of the record, including the parties’ resources and employment, does not
demonstrate that the trial court abused its discretion in determining that the
parties will be responsible for the payment of their own attorney fees.
Conclusion
[17] For the foregoing reasons, we affirm the trial court’s decree of dissolution and
division of the marital estate.
[18] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017 Page 12 of 12