MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 09 2019, 8:43 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 Mark A. Bates Shana D. Levinson Schererville, Indiana Levinson & Levinson Merrillville, Indiana
IN THE COURT OF APPEALS OF INDIANA
Francisco J. Jimenez, January 9, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-DR-1734 v. Appeal from the Lake Circuit Court Blanca E. Jimenez, The Honorable Marissa J. Appellee-Respondent. McDermott, Judge The Honorable Alice A. Kuzemka, Referee Trial Court Cause No. 45C01-1607-DR-557
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019 Page 1 of 6 Statement of the Case [1] Francisco J. Jimenez (“Husband”) appeals the trial court’s decree of dissolution
of his marriage to Blanca E. Jimenez (“Wife”). Husband raises a single issue
for our review, which we restate as whether the trial court clearly erred when it
found that $39,000 spent by Wife and retained by Wife in her account prior to
the dissolution of the marriage was for marital purposes and was not dissipated.
We affirm.
Facts and Procedural History [2] Husband and Wife married in 1990. In 2014, they borrowed $39,000 against
their home in Hammond. They had “discussed moving to Texas,” and Wife
was “supposed to . . . go to Texas[ and] set up house so when [Husband] retired
he’d be able to just move . . . there.” Tr. at 74. Accordingly, on May 31, 2014,
they deposited an initial $20,000 of that money into an account held by Wife.
But Wife did not relocate to Texas immediately and instead continued to reside
with Husband in Hammond. As she had not yet relocated, instead of using the
funds on relocation costs she instead used them to pay down credit cards, a
loan for a vehicle that was in Husband’s name, and other debt. She also used
some of the money to “help[ their] children out.” Id. at 89.
[3] On June 13, 2015, they deposited the remaining $19,000 into Wife’s account.
Wife moved to Texas about two months later. She rented an apartment and
purchased furniture pursuant to their intent to relocate there. Husband visited
her a couple of times, and on at least one occasion they looked at houses
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019 Page 2 of 6 together. Wife believed Husband was going to retire soon and join her in
Texas.
[4] However, Husband decided not to move to Texas and instead filed his petition
for dissolution of the marriage. At an ensuing fact-finding hearing on the
petition, Husband testified that the $39,000 had been borrowed against the
Hammond home and given to Wife “with the intention that [it] was going to be
part of our agreement” on dissolution, that is, her part of the equity in the
Hammond home. Id. at 19. In support of that assertion, Husband presented a
letter that had been notarized after the filing of the petition for dissolution and
bore his signature but not Wife’s. In the alternative, Husband argued that Wife
dissipated the $39,000.
[5] The trial court found that the $39,000 was part of the marital estate and that
Wife did not dissipate it. In particular, the court found in relevant part as
follows:
20. [Husband’s] written documents offered to prove his contention that the transfers were intended to buy out [Wife’s] share of the marital residence were unconvincing, as they appeared to have been prepared at least a year after the first transfer, were notarized after the date of filing the petition for dissolution[,] and [were] not signed at all by [Wife].
21. Of the differing accounts of the reason for the transfer of the $39,000, the Court finds [Wife’s] version more convincing and more in line with the parties’ actions as shown by the testimony.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019 Page 3 of 6 22. The Court finds that the portion of the $39,000 that was spent was used for family and marital purposes and therefore will not be counted against [Wife’s] share of the marital estate. The portion that was not spent remains part of the marital estate.
Appellant’s App. Vol. II at 13. This appeal ensued.
Discussion and Decision [6] Husband appeals the trial court’s finding that the $39,000 was not dissipated by
Wife. The trial court’s judgment included findings of fact and conclusions
thereon following an evidentiary hearing. As our Supreme Court has stated:
pursuant to Trial Rule 52(A), we “shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Factual findings are only clearly erroneous where there is no support for them in the record, either directly or by inference; a judgment is only clearly erroneous when it applies an improper legal standard to proper facts. Johnson v. Wysocki, 990 N.E.2d 456, 460 (Ind. 2013). “In either case, we must be left ‘with the firm conviction that a mistake has been made.’” Id. (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)).
Johnson v. Johnson, 999 N.E.2d 56, 59 (Ind. 2013).
[7] In distributing the marital estate, the trial court “shall presume that an equal
division of the marital property is just and reasonable.” Ind. Code § 31-15-7-5
(2018). However, a court may deviate from that presumption if “[t]he conduct
of the parties during the marriage” demonstrates “dissipation of their property.”
Id. As we have explained:
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019 Page 4 of 6 The dissipation of marital assets involves frivolous, unjustified spending of marital assets. The test for dissipation of marital assets is whether the assets were actually wasted or misused. To determine whether dissipation has occurred, we consider the following factors:
1. Whether the expenditure benefited the marriage or was made for a purpose entirely unrelated to the marriage;
2. The timing of the transaction;
3. Whether the expenditure was excessive or de minimis; and
4. Whether the dissipating party intended to hide, deplete, or divert the marital asset.
Kondamuri v. Kondamuri, 852 N.E.2d 939, 951-52 (Ind. Ct. App. 2006)
(citations, quotation marks, and footnote omitted); see also Coyle v. Coyle (In re
Marriage of Coyle), 671 N.E.2d 938, 943-44 (Ind. Ct. App. 1996).
[8] On appeal, Husband argues that the trial court erred because, according to
Husband, “[t]he evidence clearly shows that Wife used the money for her own
benefit, thereby dissipating a portion of the marital estate to the detriment of
Husband.” Appellant’s Br. at 10. Husband argues only that the first factor of
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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 Jan 09 2019, 8:43 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 Mark A. Bates Shana D. Levinson Schererville, Indiana Levinson & Levinson Merrillville, Indiana
IN THE COURT OF APPEALS OF INDIANA
Francisco J. Jimenez, January 9, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-DR-1734 v. Appeal from the Lake Circuit Court Blanca E. Jimenez, The Honorable Marissa J. Appellee-Respondent. McDermott, Judge The Honorable Alice A. Kuzemka, Referee Trial Court Cause No. 45C01-1607-DR-557
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019 Page 1 of 6 Statement of the Case [1] Francisco J. Jimenez (“Husband”) appeals the trial court’s decree of dissolution
of his marriage to Blanca E. Jimenez (“Wife”). Husband raises a single issue
for our review, which we restate as whether the trial court clearly erred when it
found that $39,000 spent by Wife and retained by Wife in her account prior to
the dissolution of the marriage was for marital purposes and was not dissipated.
We affirm.
Facts and Procedural History [2] Husband and Wife married in 1990. In 2014, they borrowed $39,000 against
their home in Hammond. They had “discussed moving to Texas,” and Wife
was “supposed to . . . go to Texas[ and] set up house so when [Husband] retired
he’d be able to just move . . . there.” Tr. at 74. Accordingly, on May 31, 2014,
they deposited an initial $20,000 of that money into an account held by Wife.
But Wife did not relocate to Texas immediately and instead continued to reside
with Husband in Hammond. As she had not yet relocated, instead of using the
funds on relocation costs she instead used them to pay down credit cards, a
loan for a vehicle that was in Husband’s name, and other debt. She also used
some of the money to “help[ their] children out.” Id. at 89.
[3] On June 13, 2015, they deposited the remaining $19,000 into Wife’s account.
Wife moved to Texas about two months later. She rented an apartment and
purchased furniture pursuant to their intent to relocate there. Husband visited
her a couple of times, and on at least one occasion they looked at houses
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019 Page 2 of 6 together. Wife believed Husband was going to retire soon and join her in
Texas.
[4] However, Husband decided not to move to Texas and instead filed his petition
for dissolution of the marriage. At an ensuing fact-finding hearing on the
petition, Husband testified that the $39,000 had been borrowed against the
Hammond home and given to Wife “with the intention that [it] was going to be
part of our agreement” on dissolution, that is, her part of the equity in the
Hammond home. Id. at 19. In support of that assertion, Husband presented a
letter that had been notarized after the filing of the petition for dissolution and
bore his signature but not Wife’s. In the alternative, Husband argued that Wife
dissipated the $39,000.
[5] The trial court found that the $39,000 was part of the marital estate and that
Wife did not dissipate it. In particular, the court found in relevant part as
follows:
20. [Husband’s] written documents offered to prove his contention that the transfers were intended to buy out [Wife’s] share of the marital residence were unconvincing, as they appeared to have been prepared at least a year after the first transfer, were notarized after the date of filing the petition for dissolution[,] and [were] not signed at all by [Wife].
21. Of the differing accounts of the reason for the transfer of the $39,000, the Court finds [Wife’s] version more convincing and more in line with the parties’ actions as shown by the testimony.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019 Page 3 of 6 22. The Court finds that the portion of the $39,000 that was spent was used for family and marital purposes and therefore will not be counted against [Wife’s] share of the marital estate. The portion that was not spent remains part of the marital estate.
Appellant’s App. Vol. II at 13. This appeal ensued.
Discussion and Decision [6] Husband appeals the trial court’s finding that the $39,000 was not dissipated by
Wife. The trial court’s judgment included findings of fact and conclusions
thereon following an evidentiary hearing. As our Supreme Court has stated:
pursuant to Trial Rule 52(A), we “shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Factual findings are only clearly erroneous where there is no support for them in the record, either directly or by inference; a judgment is only clearly erroneous when it applies an improper legal standard to proper facts. Johnson v. Wysocki, 990 N.E.2d 456, 460 (Ind. 2013). “In either case, we must be left ‘with the firm conviction that a mistake has been made.’” Id. (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)).
Johnson v. Johnson, 999 N.E.2d 56, 59 (Ind. 2013).
[7] In distributing the marital estate, the trial court “shall presume that an equal
division of the marital property is just and reasonable.” Ind. Code § 31-15-7-5
(2018). However, a court may deviate from that presumption if “[t]he conduct
of the parties during the marriage” demonstrates “dissipation of their property.”
Id. As we have explained:
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019 Page 4 of 6 The dissipation of marital assets involves frivolous, unjustified spending of marital assets. The test for dissipation of marital assets is whether the assets were actually wasted or misused. To determine whether dissipation has occurred, we consider the following factors:
1. Whether the expenditure benefited the marriage or was made for a purpose entirely unrelated to the marriage;
2. The timing of the transaction;
3. Whether the expenditure was excessive or de minimis; and
4. Whether the dissipating party intended to hide, deplete, or divert the marital asset.
Kondamuri v. Kondamuri, 852 N.E.2d 939, 951-52 (Ind. Ct. App. 2006)
(citations, quotation marks, and footnote omitted); see also Coyle v. Coyle (In re
Marriage of Coyle), 671 N.E.2d 938, 943-44 (Ind. Ct. App. 1996).
[8] On appeal, Husband argues that the trial court erred because, according to
Husband, “[t]he evidence clearly shows that Wife used the money for her own
benefit, thereby dissipating a portion of the marital estate to the detriment of
Husband.” Appellant’s Br. at 10. Husband argues only that the first factor of
the above four is relevant here, and he does not discuss the other three. In
particular, he asserts that “Wife admitted that she did not spend the money as
the parties originally intended. Thus . . . it is clear that Wife dissipated and
disposed of the money to benefit herself . . . .” Id. at 13. Husband then argues
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019 Page 5 of 6 that the trial court erred when it did not “apply the $39,000 as a credit against
Wife’s share of the marital estate.” Id.
[9] The trial court did not clearly err when it found that Wife did not dissipate the
$39,000. Wife testified that she used some of the money to pay down credit
card debt, a loan for a car that was in Husband’s name, and other debt. Wife
also testified that she used some of the money on expenses relating to their
children. And she used some of the money on relocation costs to Texas in the
belief, prior to Husband’s petition for dissolution, that both parties would be
relocating there. The evidence supports the trial court’s finding that Wife did
not engage in “frivolous, unjustified spending” of that money or otherwise use
the money for a “purpose entirely unrelated to the marriage.” Kondamuri, 852
N.E.2d at 951-52.
[10] Husband’s argument on appeal is merely a request for this Court to reweigh the
evidence, which we cannot do. Further, insofar as Husband asserts that some
portion of the credit card or other debt was in Wife’s name, Husband has not
shown that that debt was outside the marital pot. Accordingly, we cannot say
that the trial court’s judgment is clearly erroneous, and we affirm its judgment.
[11] Affirmed.
Pyle, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019 Page 6 of 6