MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 18 2020, 9:06 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT APPELLEE PRO SE Brian A. Karle Fran Cohen Ball Eggleston, PC Lafayette, Indiana Lafayette, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Marriage: November 18, 2020
Menashi Cohen, Court of Appeals Case No. 19A-DR-2192 Appellant-Respondent, Appeal from the v. Clinton Circuit Court The Honorable Fran Cohen, Bradley K. Mohler, Judge Trial Court Cause No. Appellee-Petitioner. 12C01-1407-DR-577
Kirsch, Judge.
[1] Menashi Cohen (“Husband”) appeals the trial court’s dissolution decree
dissolving his marriage to Fran Cohen (“Wife”). He raises two issues on
appeal:
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 1 of 20 I. Whether the trial court erred by concluding Wife is entitled to a $1,000,000.00 reimbursement; and
II. Whether the trial court erred by valuing the parties’ business known as Deal Zone LLC (“Deal Zone”) at $1,000.00 when Wife testified that Deal Zone had an annual income of more than $700,000.00.
[2] On cross appeal, Wife raises two issues, which we consolidate and restate as
whether the court erred by having Husband’s attorney fees paid from marital
assets.
[3] We affirm in part, vacate in part, and remand.
Facts and Procedural History [4] Husband and Wife were married on September 2, 1984. Tr. Vol. 2 at 16. At
that time, Husband was a professor at Purdue University in West Lafayette,
Indiana. Tr. Vol. 3 at 29. In 1992, Husband and Wife created CD Land, Inc.
(“CD Land”), a successful retailer of CDs, video games, electronics, guitars, t-
shirts, posters, and other related items. Tr. Vol. 2 at 84-85, 157. During the
1990s, CD Land generated income of more than $500,000.00 per year. Id. at
157.
[5] In September 2002, Husband and Wife bought a home in Beverly Hills,
California for approximately $3,100,000.00 (“the California residence”). Id. at
17-18. The California residence was used as the marital residence until
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 2 of 20 September 2013 when Wife moved back to Indiana. Id. at 72-73. Husband
moved back to Indiana shortly thereafter. Id. at 227.
[6] In 2013, Husband and Wife established Deal Zone which sold merchandise
similar to the merchandise sold by CD Land. Appellant’s App. Vol. 2 at 19; Tr.
Vol. 2 at 84, 89. After both parties moved to Indiana in 2013, Wife took over
operations for Deal Zone, and Husband handled operations for CD Land. Id.
at 84-86, 89-94. Wife did not share any income from Deal Zone with Husband
after she took over operation of that business. Id. at 94. In 2017, Deal Zone
reported income of more than $700,000.00. Id. at 153.
[7] In January 2016, the parties began using the California residence as a rental
property. Id. at 236-37. The property generated rental income in the amount of
$16,800.00 per month between February 2016 and August 2017, and a security
deposit in the amount of $33,000.00 Id. at 156; Conf. Ex. Vol. 8 at 147. On May
30, 2018, the parties obtained a new tenant and rented the Beverly Hills
property for $14,700.00 per month. Conf. Ex. Vol. 7 at 118. Wife kept all rental
income generated from the California residence. Appellant’s App. Vol. 2 at 16.
[8] Wife filed a petition for dissolution of marriage on July 16, 2014. Appellant’s
App. Vol. 2 at 2. During discovery in the dissolution matter, Wife did not
disclose Deal Zone’s assets and income, and Husband was unaware of the 2017
income of $700,000.00 until Wife testified at the final hearing. Tr. Vol. 3 at 9;
Appellant’s App. Vol. 2 at 24 n.2.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 3 of 20 [9] During the pendency of the dissolution proceedings after the parties’ separation,
Wife paid a majority of the expenses related to the California residence,
including the mortgage and utilities. Tr. Vol. 2 at 27-28; Tr. Vol. 3 at 41-42.
Wife testified that besides rental income from the California residence, her
”only source of income” was Deal Zone. Tr. Vol. 2 at 96.
[10] A three-day fact-finding hearing was held on February 16, 2018, May 11, 2018,
and July 17, 2018. Id. at 7-8. Wife testified that from July 16, 2014, the date
she filed her petition for dissolution, to the date of the final hearing, she had
spent approximately $1,500,000.00 for expenses related to the California
residence: a first mortgage, a second mortgage, monthly expenses, and repairs.
Id. at 34, 60, 154.
[11] Wife explained at trial that she presented no evidence of the value of Deal Zone
because it had no market value. Id. at 6-7. Wife said Deal Zone had no
inventory, stating, “The inventory doesn’t work much. The same inventory
[Husband] has with CD Land.” Id. at 161. On cross examination, Husband’s
attorney asked Wife about a $90,000.00 account receivable allegedly owed to
Deal Zone at the end of 2016, but Wife said she did not know anything about
that account receivable. Id. at 180. Wife testified that any goodwill in Deal
Zone was personal goodwill, not enterprise good will. Id. at 6.
[12] During his testimony, Husband explained that he did not present a valuation of
Deal Zone because during discovery Wife did not provide information that
would have helped him present a proposed valuation of Deal Zone to the trial
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 4 of 20 court. Tr. Vol. 3 at 9-10, 49. The trial court acknowledged that Wife failed to
provide Husband this information. Appellant's App. Vol. 2 at 24 n.2.
[13] On April 16, 2019, the trial court issued the decree of dissolution of marriage.
Appellant’s App. Vol. 2 at 11. Among other things, the trial court found as
follows:
Findings of Fact
....
6. [T]hat an equal division of property and debts is appropriate. . ..
8. That the parties’ primary asset . . . is [the] California residence. The California residence was purchased in September 2002 for $3,100,000.
10. That the California residence has been in and out of foreclosure and/or mortgage default.
15. That at the time of the divorce, the California residence had a first mortgage and note owed to Ocwen in the amount of $2,002,046 and a second mortgage and note owed to Levy Affiliated in the amount of $900,000.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 5 of 20 16. That during the divorce case, the parties paid mortgage payments, expenses, and repairs for the California residence. [Wife] paid the majority of such payments and expenses.
18. That the parties rented the California residence from February 2016 through August 2017, receiving rent of $288,000. [Wife] kept the rental income.
29. That in May 2017, [Husband] received $307,500 for his 20% interest in A+ Storage. . . . [Husband] distributed $65,000 from such proceeds to his family. . . . The remaining $242,500 was placed in [Husband’s] counsel’s trust account.
35. That the parties own CD Land, Inc., an Indiana corporation established in 1992. . . . CD Land is a retail music and electronics store. No value of the business or its inventory was provided. CD Land reported a net loss of $40,916 for 2014. . . . CD Land reported income of $1,298 for 2015. . . . CD Land reported income of $1,199 for 2016. . . . [Husband] received the income from CD Land during the divorce.
36. That the parties own Deal Zone, LLC, an Indiana limited liability company established in 2013. . . . No value of the business or its inventory was provided. Deal Zone reported income of $102,852 in 2015. . . . Deal Zone reported income of $162,976 in 2016. . . . [Wife] testified that Deal Zone earned income of approximately $700,000 in 2017. [Wife] received the income from Deal Zone during the divorce.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 6 of 20 48. That [Wife] owes her attorney, Gregg S. Theobald, attorney fees in the amount of $9,026. 49. That [Husband] owes his attorney, Brian W. Walker, attorney fees in the amount of $32,222.
Conclusions of Law
7. That [Husband] shall retain CD Land, Inc., including all assets and inventory.
8. That [Wife] shall retain Deal Zone, LLC, including all assets and inventory.
l7. That the proceeds from the sale of personal property outlined . . . above and the remaining funds ($32,500) held in Husband's counsel’s trust account shall be used to pay attorney fees for Gregg Theobald, Brian Walker, and Ball Eggleston as outlined . . . above. . . .
18. That the California residence shall be sold at the earliest possible date. Pending the sale, the Wife shall receive all rental proceeds from the California residence and shall apply to them the first mortgage, second mortgage, real estate taxes, and necessary maintenance and repairs. . . . [F]rom the sale proceeds, [Wife] shall receive the sum of $1,000,000 to reimburse her payment of mortgage payments and expenses for the California
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 7 of 20 residence while the case was pending. 1 . . . . Finally, the remaining sale proceeds shall be equally divided by the parties.
In the event that the sale proceeds are insufficient to pay [Wife] the reimbursements outlined above, [Wife] shall be entitled to a judgment in her favor and against the Husband for such delinquency amount.
21. That the parties shall equally divide the proceeds of any pending lawsuits . . . .
22. That the parties shall equally be responsible for judgments entered against them in any pending lawsuits.
Appellant’s App. Vol. 2 at 13-16, 18-20, 22-25.
[14] Husband timely filed a motion to correct error, which the trial court denied on
August 20, 2019. Id. at 34. Husband now appeals. We will provide additional
facts as necessary.
1 . . . The parties do not dispute that [Wife] made payments to keep the California residence from foreclosure. Funds for the payments came from the rent [Wife] received, from Deal Zone, and from the funds in Husband’s counsel's trust fund. . . . [Wife] failed to provide the Court, or Husband’s counsel, with any records to verify Deal Zone’s earning or value. . . . After considering all such factors, the Court believes a reasonable reimbursement to the wife is warranted, albeit less than the $2,000,000+ to which she believes she is entitled.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 8 of 20 Discussion and Decision
Husband’s Appeal
I. $1M Reimbursement to Wife [15] Husband contends the trial court abused its discretion in awarding a
reimbursement of $1,000,000.00 to Wife for money she spent on the California
residence to pay for mortgages, repairs, and expenses. Husband contends that
these expenditures came from marital assets – rental income from the California
residence and from Deal Zone “profits.” Appellant’s Br. at 9, 11, 13. Therefore,
Husband argues Wife was not entitled to any reimbursement whatsoever, let
alone a reimbursement of $1,000,000.00.2 Wife responds, in part, that she was
entitled to a reimbursement because, even though Deal Zone was a marital
asset, the earnings she made from Deal Zone after she filed her petition for
dissolution were not marital assets, and, thus, she is entitled to reimbursement
for expenditures she made on the California residence from the time she filed
her petition for dissolution up until the date of the final hearing. 3 In Wife’s
2 Husband’s imprecise citations to the record, specifically his citations to the exhibits, has made our review of this appeal more difficult. Husband’s brief cites exhibits eight times with citations such as “Exhibit B,” and “Exhibit 16.” Appellant’s Br. at 6, 7. Husband does not identify the specific exhibit volume which contains the exhibit he cites, and he also does not cite the appropriate page numbers within the appropriate exhibit volume. Considering that there are ten exhibit volumes, these insufficiently specific citations have made the task of confirming Husband’s factual assertions especially onerous. Also, his citations to exhibits often span dozens of pages. For instance, Husband’s citation to “Exhibit 32-37,” see Appellant’s Br. at 37, encompasses 108 pages in Confidential Exhibit Volume 9, hardly the degree of specificity that would facilitate more efficient review of Husband’s claims. 3 Wife raises this argument within her cross-appeal, but we find it appropriate to address it within the context of Husband’s argument regarding the reimbursement ordered by the trial court.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 9 of 20 words, “the trial court erred by considering Wife’s post-filing earnings as a
marital asset.” Appellee’s Br. at 24.4
[16] A trial court has broad discretion in dividing the marital estate, and we will
reverse such a division only for an abuse of discretion. Goodman v. Goodman, 94
N.E.3d 733, 742 (Ind. Ct. App. 2018), trans. denied. The party challenging the
division of marital property must overcome a strong presumption that the trial
court complied with the applicable law. Id.
[17] Division of marital property is a two-step process Id. First, the trial court must
determine what property belongs in the marital estate, and, second, it must
divide the property in a just and reasonable manner. Id. 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 the
parties’ final separation, or acquired by their joint efforts. Trabucco v. Trabucco,
944 N.E.2d 544, 553 (Ind. Ct. App. 2011), trans. denied. This “one-pot” theory
ensures that all property is considered and divided according to Indiana law.
Id.
4 Wife’s brief violates our appellate rules, particularly Indiana Appellate Rule 46(A)(8)(a), which requires a party to support arguments by citations to the legal authorities and the record. Wife’s brief contains at least seventy factual assertions that are not supported with citation to the record. While some of her citations to exhibits are helpful, others are so imprecise to be of almost no assistance, such as the following citations: “Vol. 6 . . . at 55-232” and “Vol. 9 at 3-169.” Appellee’s Br. at 8, 12. She also cites almost no legal authority. These deficiencies have made it nearly impossible to confirm many of her factual allegations and to consider whether her arguments are on solid legal footing. And even though she is not represented by counsel, she is still required to follow the appellate rules of procedure. “It is well settled that pro se litigants are held to the same legal standards as licensed attorneys.” Picket Fence Prop. Co. v. Davis, 109 N.E.3d 1021, 1029 (Ind. Ct. App. 2018), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 10 of 20 [18] The determination of which property belongs in the marital estate is based on
the date of the parties’ final separation. Webb v. Schleutker, 891 N.E.2d 1144,
1149 (Ind. Ct. App. 2008). Only property that is acquired before the date of
final separation is subject to division by the trial court as part of the marital pot.
Crider v. Crider, 26 N.E.3d 1045, 1048-49 (Ind. Ct. App. 2015). The date of final
separation refers to the date that the petition for dissolution is filed. Id. at 49; see
also Ind. Code § 31-9-2-46.
[19] We agree with Husband that the California residence and Deal Zone are
marital assets. The California residence was purchased during their marriage,
and Deal Zone was established during their marriage. See Tr. Vol. 2 at 17-18,
84-89; Appellant’s App. Vol. 2 at 19; see Trabucco, 944 N.E.2d at 553 (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 the parties’ final separation, or acquired by their joint efforts). We also
agree with Husband that the rental income collected by Wife from the
California residence during the pendency of the dissolution was also a marital
asset. See Smith v. Smith, 854 N.E.2d 1, 6-7 (Ind. Ct. App. 2006) (“Because
Shirley and Greg owned the rental properties together, the income the
properties earned after the petition for dissolution was filed and before the
court’s valuation date was properly considered a marital asset . . . .”).
[20] We disagree with Husband, however, that it is clear that funds from Deal Zone
that Wife used to pay expenses for the California residence during the pendency
of the dissolution were marital assets. Husband argues, “When a marital asset
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 11 of 20 generates income, that resulting income is likewise a marital asset.” Appellant’s
Br. at 12. In support, he cites Webb, 891 N.E.2d at 1148-53 for the proposition
that “the value of expected profit from growing crops on marital property was a
marital asset.” Appellant’s Br. at 12. Thus, Husband likens funds Wife received
from Deal Zone during the pendency of the dissolution to profits a married
couple receives from selling crops or to the income generated by rental
property, such as rental income from the marital residence.
[21] We are not convinced by Husband’s analysis. First, the funds Wife received
from Deal Zone during the pendency of the divorce arguably are not marital
property because those funds did not exist at the time of the filing of petition for
dissolution. Only property that is acquired before the date of final separation is
subject to division by the trial court as part of the marital pot. Crider, 26 N.E.3d
at 1048-49. The date of final separation refers to the date that the petition for
dissolution is filed. Id. at 49.
[22] Second, as to Husband’s argument that funds Wife received from Deal Zone
were akin to rental income or profits from the sale of crops, the record before us
leads us to entertain the possibility that the funds Wife received from Deal Zone
during the pendency of dissolution more closely resembled wages or salaries.
Salary or wages Wife received from Deal Zone during the pendency of the
dissolution proceedings were not “property . . . (1) owned by either spouse
before the marriage; (2) acquired by either spouse in his or her own right: (A)
after the marriage; and (B) before final separation of the parties; or (3) acquired
by their joint efforts.” See Ind. Code § 31-15-7-4 (a).
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 12 of 20 [23] Therefore, we remand this case to the trial court and direct it to determine to
what degree, if any, that payments Wife made for the California residence
during the pendency of the dissolution came from funds from Deal Zone and to
the extent, if any, those funds were not marital assets. We direct Wife to
provide relevant information regarding Deal Zone to Husband and the trial
court forthwith. To the degree the trial court determines that non-marital assets
from Deal Zone funded the payments related to the California residence during
the pendency of the dissolution, the trial court shall order a reimbursement to
Wife in that amount in an amended decree.
II. Valuation of Deal Zone [24] Husband contends the trial court erred in “placing an arbitrary $1,000.00 value
on a business, [Deal Zone], with an annual income of $700,000.” Appellant’s Br.
at 14. Because Deal Zone earned that amount in 2017 (the final year before the
dissolution), that value “had no connection to the evidence connected at the
fact-finding hearing.” Id. A trial court has broad discretion in ascertaining
the value of property in a dissolution action. O'Connell v. O'Connell, 889 N.E.2d
1, 13 (Ind. Ct. App. 2008).
[25] As the trial court correctly found, the parties did not present evidence regarding
the value of Deal Zone. Appellant's App. Vol. 2 at 19. Wife said she presented
no such evidence because Deal Zone had no market value. Tr. Vol. 2 at 6-7.
She also testified that Deal Zone had no inventory. Id. at 161. On cross
examination, Husband’s attorney asked Wife about a $90,000.00 account
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 13 of 20 receivable allegedly owed to Deal Zone at the end of 2016, but Wife said she
knew nothing about that account receivable. Id. at 180. Finally, Wife testified
that any goodwill in Deal Zone is personal goodwill, not enterprise good will.
Id. at 6. Husband testified that he did not present a valuation of Deal Zone
because. during discovery, Wife did not provide information that would have
helped Husband present a proposed valuation of Deal Zone to the trial court.
Tr. Vol. 3 at 9-10, 49. The trial court acknowledged that Wife had not provided
such information. Appellant’s App. Vol. 2 at 24 n.2.
[26] We agree with Husband that the trial court’s valuation of Deal Zone at
$1,000.00 had no connection to the evidence presented at trial. Moreover,
Husband was not able to present evidence about Deal Zone’s value because of
Wife’s failure to provide information about Deal Zone. Thus, we vacate the
trial court’s $1,000.00 valuation of Deal Zone and direct the trial court on
remand to assess a new valuation for Deal Zone. Wife shall provide Husband
and the trial court the information regarding Deal Zone that Husband had
earlier requested during discovery and any other information the trial court may
find helpful. The trial court’s valuation shall include a valuation of the
goodwill in Deal Zone, including both personal and enterprise goodwill. The
trial court may, at its discretion, receive additional evidence from the parties
regarding the value of Deal Zone. To the extent the trial court determines that
the value of Deal Zone is not $1,000.00, it shall revise the division of marital
assets in an amended decree to achieve an equal division of marital property.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 14 of 20 Wife’s Cross Appeal [27] Wife argues that the trial court erred in ordering that Husband’s attorney fees be
paid from the parties’ trust account. We review an award of attorney fees in a
dissolution action for an abuse of discretion. Balicki v. Balicki, 837 N.E.2d 532,
542 (Ind. Ct. App. 2005), trans. denied. Specifically, Wife is referring to the
following language in the decree: [T]he remaining funds ($32,500) held in
Husband's counsel’s trust account shall be used to pay attorney fees for Gregg
Theobald, Brian Walker, and Ball Eggleston . . . . Any remaining funds in the
Husband’s counsel’s trust account shall be equally divided by the parties.
Appellant’s App. Vol. 2 at 23.
[28] Husband responds that, even if the trial court’s order regarding attorney fees
was erroneous, Wife invited this error. Husband refers to Wife’s proposed
findings of fact and conclusions of law, in which she proposed:
The Court concludes that of the $32,579.45 in the trust account of Husband’s attorney, Wife’s attorney fees of $9,026.18 shall be paid from the money in the Ball Eggleston trust account. The remaining money in said trust account shall be paid to counsel for Husband for his attorney fees incurred herein through July 17, 2018. Thereafter, each party shall pay their own attorney fees incurred herein.
Appellant's Supp. App. Vol. 2 at 3-4.
[29] We first observe that Wife’s proposed findings and conclusions and the actual
attorney fee provision in the decree stated that the attorney fees of Husband and
Wife shall be paid from the Husband’s counsel’s trust account. Id.; Appellant’s
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 15 of 20 App. Vol. 2 at 23. However, because Husband’s attorney fees ($32,222) were
more than three times the amount of Wife’s attorney fees ($9,026), Appellant’s
App. Vol. 2 at 20, the attorney fee provision in the decree resulted in an unequal
division of marital assets, which was contrary to the trial court’s conclusion of
law that “an equal division of property and debts is appropriate.” Id. at 22.
[30] We agree with Husband that Wife invited any error in the trial court’s attorney
fee award. “The doctrine of invited error is grounded in estoppel and precludes
a party from taking advantage of an error that he or she commits, invites, or
which is the natural consequence of his or her own neglect or misconduct.”
Balicki, 837 N.E.2d at 541. Here, in her proposed findings of fact and
conclusions of law, Wife proposed the disposition of the attorney fee issue that
she now challenges in her cross appeal. See Appellant’s Supp. App. Vol. 2 at 3-4.
A party may invite an error through proposed findings of fact and conclusions
of law. Cf. Chem. Waste Mgmt. of Ind. L.L.C. v. City of New Haven, 755 N.E.2d
624, 632 n.4 (Ind. Ct. App. 2001) (“By failing to submit proposed findings with
respect to its . . . argument to the trial court, [the appellant] invited any error
with respect to that issue.”). More generally, we have applied the invited error
in various contexts within dissolution cases. See Webb, 891 N.E.2d at 1155 (any
error by trial court in failing to consider Wife’s sale of automobile as dissipating
assets and assigning a value to the automobile was invited error in dissolution
action because Husband testified that he had no objection to the automobile
being sold with no profit, so Husband could not complain about the valuation
or alleged error on appeal); see also Wright v. Wright, 782 N.E.2d 363, 368 (Ind.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 16 of 20 Ct. App. 2002) (where Wife objected at final hearing to only one word in
visitation provision and did not object to any part of the agreement submitted to
the trial court, Wife’s challenge on appeal to visitation provision was barred by
the invited error doctrine); Batterman v. Bender, 809 N.E.2d 410, 414 (Ind. Ct.
App. 2004) (Husband invited error on issue of whether trial court had sufficient
evidence to enter temporary child support order and apply it retroactively).
Accordingly, we decline to grant relief to Wife on the issue of the trial court’s
attorney fee award because she invited the error upon which she predicates this
claim. See Balicki, 837 N.E.2d at 541.
[31] Affirmed in part, vacated in part, and remanded.
Pyle, J., concurs.
Tavitas, J., concurs in part and dissents in part with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 17 of 20 IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Marriage: Court of Appeals Case No. 19A-DR-2192 Menashi Cohen, Appellant-Respondent, v. Fran Cohen, Appellee-Petitioner.
Tavitas, Judge, concur in part and dissent in part.
[32] I respectfully concur in part and dissent in part. I agree with the majority’s
refusal to grant relief to Wife regarding the attorney fee award. I disagree,
however, with the majority’s decision to remand regarding Wife’s expenses on
the California residence and the valuation of Deal Zone.
[33] This decision effectively allows Husband a second chance to present evidence in
this case. We “place the burden of producing evidence as to the value of the
marital property squarely where it belongs on the shoulders of the parties and
their attorneys.” In re Marriage of Church, 424 N.E.2d 1078, 1082 (Ind. Ct. App.
1981). “[T]he general rule is that parties to a legal proceeding are bound by the
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2192 | November 18, 2020 Page 18 of 20 evidence they introduce at trial and they are not allowed a second chance if
they fail to introduce crucial evidence.” Id. We have found “no reason to
make dissolution proceedings an exception to this rule.” Id.
[34] The trial court here did the best it could in light of the lack of evidence
presented and what the trial court found to be suspicious circumstances. See,
e.g., Perkins v. Harding, 836 N.E.2d 295, 302 (Ind. Ct. App. 2005) (“We are
confident the court attempted to divide the marital estate equally between the
parties, and it did the best it could in light of the dearth of evidence regarding
the value of some of the larger assets in the estate.”); Galloway v. Galloway, 855
N.E.2d 302, 305-06 (Ind. Ct. App. 2006) (holding that the husband was
“estopped from appealing the trial court’s distribution” where “the trial court
was faced with an unenviable task: to divide a marital estate that included both
a pension and a business, neither of which had any value placed upon them, by
stipulation or otherwise”). Under these circumstances, I would affirm the trial
court’s decision.
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