MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 11 2020, 8:22 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Cody Cogswell Sarah T. Baker Joshua A. Martin Brooke Jones Lindsey Fishers, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jason Xuejun Tang, June 11, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-DC-2452 v. Appeal from the Hamilton Circuit Court Biru Zhang, The Honorable Paul A. Felix, Appellee-Plaintiff. Judge Trial Court Cause No. 29C01-1706-DC-5869
Tavitas, Judge.
Case Summary [1] Jason Xuejun Tang (“Husband”) appeals the trial court’s order regarding the
dissolution of his marriage to Biru Zhang (“Wife”). We affirm.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 1 of 24 Issues [2] Husband raises five issues, which we restate as:
I. Whether the trial court properly ordered an unequal division of the marital estate.
II. Whether the trial court properly determined the value of Husband’s E-Trade account.
III. Whether the trial court properly ordered Husband to pay a portion of Wife’s attorney fees.
IV. Whether the trial court properly calculated Husband’s child support obligation.
V. Whether the trial court properly declined to award Husband a credit for expenses he paid pursuant to the trial court’s provisional order.
Facts [3] Husband and Wife were married in August 2006, and they had one child, R.T.,
(“Child”) in April 2008. Husband has a doctorate in biophysics and works as a
scientist at Eli Lilly. Wife obtained a master’s degree in graphic design in 2012.
When the couple moved to Indiana in 2012, Wife stayed home to care for the
Child. Wife later began working part-time as a patient service representative for
a physician.
[4] On June 21, 2017, Wife filed a petition for dissolution of marriage. In
September 2017, the trial court entered a provisional order that provided, in
part:
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 2 of 24 Husband shall timely pay expenses related to the Marital Residence, including the utilities, maintenance, property taxes, homeowners’ association dues, and homeowners’ insurance. Husband shall maintain the families’ medical/vision/dental health insurance, life insurance, and auto insurance in existence as of the date of filing and shall make payments on any outstanding credit card debt in his name individually. Credit to Husband for making said payments will be considered at final disposition of the matter.
Appellant’s App. Vol. II p. 49. The order also provided: “The Court finds that
Husband’s Child Support obligation is $287.00 per week, which shall be
reduced by $87.00, for a net weekly payment of Child Support of $200.00, to
credit Husband from covering the expenses related to the Marital Residence
during the pendency of this proceeding.” Id. at 50.
[5] In October 2018, Wife filed a petition to modify the provisional child support
order. On November 29, 2018, the trial court signed the parties’ agreed entry.
As part of the agreed entry, Husband agreed to advance Wife $75,000.00 from
the marital estate. The parties reserved their right “to argue the allocation as
payment of attorney fee award, versus as an advance of property settlement at
the final hearing.” Id. at 58.
[6] On August 12, 2019, the trial court entered a final decree of dissolution of the
parties’ marriage. At the time of the final hearing, Husband was sixty-two years
old, and Wife was forty-three years old. The trial court ordered the parties to
share joint legal custody of the Child with Wife having primary physical
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 3 of 24 custody and Husband having parenting time. The trial court ordered Husband
to pay child support as follows:
a. Three Hundred and Twenty-Two Dollars ($354.00) [sic] per week from October 19, 2018 through February 28, 2019;
b. Four Hundred and Twenty-Eight Dollars ($428.00) per week from March 1, 2019 through June 11, 2019; and
c. Four Hundred and Twenty-Eight Dollars ($428.00) + 7.4% of Husband’s gross irregular income over $6,915.89 per week beginning June 11, 2019.
Id. at 23. The child support orders included a parenting time credit for 126-130
overnights for each time period. The trial court also found that Husband had a
child support arrearage of $11,168.72 as of June 11, 2019.
[7] The trial court found that Wife rebutted the presumption in favor of an equal
division of marital property. The trial court concluded: (1) the disputed marital
property was acquired by the joint efforts of both Husband and Wife; (2)
Husband acquired certain assets prior to the date of the marriage; (3) Husband’s
economic circumstances are considerably better than Wife’s economic
circumstances; (4) Husband distributed at least $10,000.00 to family members
after the petition for dissolution was filed; and (5) Husband’s income is more
than ten times Wife’s income. The trial court ordered that Wife receive 55% of
the marital estate and that Husband receive 45% of the marital estate. The trial
court ordered Husband to pay a cash equalization payment of $240,914.00 to
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 4 of 24 Wife. Regarding attorney fees, the trial court ordered Husband to pay
$85,000.00 toward Wife’s attorney fees.
[8] Wife filed a verified request for clarification of the final order, and on August
28, 2019, the trial court entered an order clarifying its final order. Specifically,
the trial court clarified the attorney fee award and also ordered Husband to pay
a revised cash equalization payment of $325,914.00.
[9] Husband filed a motion to correct error. Husband argued that the trial court
erred in: (1) dividing the marital assets; (2) valuing several assets; (3) calculating
child support; and (4) ordering Husband to pay Wife’s attorney fees. On
October 2, 2019, the trial court granted the motion to correct error and revised
Husband’s child support arrearage to $5,784.72. The trial court denied the
remainder of Husband’s motion to correct error. Husband now appeals.
Analysis [10] Husband appeals the trial court’s dissolution decree. The trial court entered sua
sponte findings of fact and conclusions thereon to accompany its dissolution
decree. 1 “In such a situation, the specific factual findings control only the issues
that they cover, while a general judgment standard applies to issues upon which
1 The Chronological Case Summary (“CCS”) indicates that Wife filed a request for special findings of fact and conclusions thereon on May 20, 2019. Wife, however, later withdrew her request. See Tr. Vol. II pp. 81- 82
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 5 of 24 there are no findings.” Fetters v. Fetters, 26 N.E.3d 1016, 1019 (Ind. Ct. App.
2015), trans. denied.
[11] When reviewing the accuracy of findings entered sua sponte, we first consider
whether the evidence supports them. Id. at 1020. We will disregard a finding
only if it is clearly erroneous, meaning the record contains no facts to support it
either directly or by inference. Id. We will not reweigh the evidence or judge
witness credibility. Id. Next, we consider whether the findings support the
judgment. Id. “A judgment also is clearly erroneous if it relies on an incorrect
legal standard, and we do not defer to a trial court’s legal conclusions.” Id.
[12] If one or more findings are clearly erroneous, we may affirm the judgment if it
is supported by other findings or is otherwise supported by the record. Id. at
1019. “We may affirm a general judgment with sua sponte findings upon any
legal theory supported by the evidence introduced at trial.” Id. at 1019-20. We
may look both to other findings and beyond the findings to the evidence in the
record to determine if the result is against the facts and circumstances before the
court. Id. at 1020.
[13] “Appellate deference to the determinations of our trial court judges, especially
in domestic relations matters, is warranted because of their unique, direct
interactions with the parties face-to-face, often over an extended period of
time.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). Trial courts are, thus,
“enabled to assess credibility and character through both factual testimony and
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 6 of 24 intuitive discernment. . . .” Id. “[O]ur trial judges are in a superior position to
ascertain information and apply common sense . . . .” Id.
I. Unequal Division
[14] Husband argues the trial court abused its discretion by awarding an unequal
division of the marital estate. The division of marital assets is within the trial
court’s discretion, and we will reverse a trial court’s decision only for an abuse
of discretion. Smith v. Smith, 136 N.E.3d 275, 281 (Ind. Ct. App. 2019). The
party challenging the trial court’s division of marital property must overcome a
strong presumption that the trial court considered and complied with the
applicable statute. Id. This presumption is one of the strongest presumptions
applicable to our consideration on appeal. Id. On review, we will neither
reweigh evidence nor assess the credibility of witnesses, and “we will consider
only the evidence most favorable to the trial court’s disposition of the marital
property.” Id.
[15] In dissolution proceedings, the trial court is required to divide the property of
the parties “in a just and reasonable manner[.]” Ind. Code § 31-15-7-4(b). This
division of marital property is a two-step process: (1) the trial court must
ascertain what property is to be included in the marital estate; and (2) the trial
court must fashion a just and reasonable division of the marital estate. Smith,
136 N.E.3d at 281. “The court shall presume that an equal division of the
marital property between the parties is just and reasonable.” Ind. Code § 31-15-
7-5. This presumption, however, “may be rebutted by a party who presents
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 7 of 24 relevant evidence, including evidence concerning the following factors, that an
equal division would not be just and reasonable”:
(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, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.
(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. We consider the statutory factors together in determining what is just and
reasonable without giving any one factor special weight. Smith, 136 N.E.3d at
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 8 of 24 282. A party challenging the trial court’s decision on appeal must overcome a
strong presumption that the trial court acted correctly in applying the statute.
Id.
[16] In making its division of marital assets, the trial court made extensive findings
of fact and conclusions thereon. The trial court found:
a. Contribution of Each Spouse. Husband contributed economically to the acquisition of the parties’ property and Wife contributed through her support of Husband’s career and her caretaking of [the Child], and marital residence. The Court finds the parties contributed equally to the acquisition of property. Wife assumed and carried out all responsibilities of raising [the Child] while Husband pursued his career at Eli Lilly. Wife performed all the duties associated with managing the marital residence; including, but not limited to, grocery and household shopping, cleaning, meal preparation, and laundry. . . . The disputed marital property was acquired by the joint efforts of Husband and Wife.
b. The Extent to Which Property was Acquired before The Marriage (or Through Inheritance). It is clear Husband acquired certain marital assets prior to the date of marriage. Namely, Fidelity Roth IRA . . . . and Fidelity Traditional IRA . . . . Husband brought into the marriage his Wyeth/Pfizer pension. Husband was employed at Wyeth/Pfizer prior to and during a portion of the parties’ marriage. Husband had the pension evaluated by Dan Andrews as to the amount that accrued during the marriage by way of a coverture fraction. The Court finds the present-day value of the Wyeth/Pfizer pension to be $362,464 but that only $52,738.50 was accumulated during the parties’ marriage. However, Husband was unemployed on two occasions during the parties’ marriage. The first time when [the Child] was born and again from 2009 through 2011 (the date
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 9 of 24 Husband was hired at Eli Lilly). Husband was in the process of purchasing the Haikou property when the parties married. Other than a down payment, Husband completed the purchase after the date of the parties’ marriage. The Court does concludes [sic] that this evidence works against a finding that Wife should get a larger percentage of the marital estate.
c. The Economic Circumstances of Each Spouse at the Time of Disposition of The Property. Husband’s economic circumstances are considerably superior to Wife. Husband has a base salary of $188,425.00 in addition to incentive bonuses and long-term incentive compensation in the form of Eli Lilly Restricted Stock Units and Performance Shares/Units. As of April 30, 2019, said additional compensation has already exceeded $171,200.94. Wife, in comparison, currently makes $13.79 per hour, with potential for an annual bonus of $560. These facts lead convincingly toward an unequal division of the estate in [Wife’s] favor.
d. Dissipation of Assets. Husband, without Wife’s knowledge or consent, took at least $10,000.00 to China after the DOF. It is unknown how much money Husband has taken to China, but Husband testified that he took at least $10,000.00 in cash and distributed it to various family members. Husband argued at the Final Hearing that Wife dissipated assets prior to the Date of Filing by withdrawing $15,000.00 from her Chase Bank Acct. #2950 on July 15, 2016. Husband’s allegations are meritless.
e. Earnings or Earning Ability of the Parties. The parties have disparate earning ability. Husband is a Research Fellow at Eli Lilly and Company. Husband has a substantial source of income, making more than 10 times the amount Wife makes, without any consideration of Husband’s irregular (variable) income. Wife is a part-time employee with Community Health Network as a patient representative. Beginning in August 2019, Wife will begin working 36 hours a week at her employment and Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 10 of 24 intends to do so. Wife earned a Master of Arts Degree in Graphic Design. Her opportunities to use this degree to her financial gain were foregone [sic] in order to relocate to Indianapolis and Husband’s desire for Wife to stay at home.
Appellant’s App. Vol. II pp. 28-31 (footnotes omitted). The trial court
concluded that only one factor worked in Husband’s favor and that Wife met
her burden to rebut the presumption of an equal division of the marital estate.
The trial court then divided the marital estate with Wife receiving 55% and
Husband receiving 45%.
[17] According to Husband, the trial court failed to properly consider assets that
Husband acquired before the marriage, including: “the Yeshiva Basic Plan, the
Canadian RRSP Dynamic Fund, and the Canadian RRSP CIBC”; the Haikou
City, China, property; the Chase Bank savings account; and the Bank of
America checking account. Appellant’s Br. p. 26.
[18] As for the Haikou City, China, property, the trial court, in fact, discussed this
property when making findings on Husband’s premarital assets. Wife presented
evidence that some of the purchase price of the property was paid during their
marriage. Wife also testified that, although Husband’s parents lived in the
house, it was purchased for Husband and Wife’s retirement. Husband, on the
other hand, argues that the property was purchased as a gift for his parents.
Husband’s argument is merely a request that we reweigh the evidence, which
we cannot do. See Smith, 136 N.E.3d at 281.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 11 of 24 [19] Regarding the remainder of the property that Husband contends was excluded
from the list of premarital assets, we begin by noting that Husband provided
Wife with many documents only days before the final hearing. During the final
hearing, Wife repeatedly objected to the admission of those documents. The
trial court sustained the objections to most of the documents because they were
not timely provided during discovery and because the values presented on the
documents did not represent the values of the accounts on the date of marriage.
Although the trial court gave Husband an opportunity to request a continuance
because of the late discovery issues, Husband did not make such a request.
[20] The trial court addressed this issue in its findings of fact and conclusions
thereon and found:
Although Husband argued certain marital assets were premarital from the onset of this matter (and despite numerous requests from Wife/Wife’s counsel); Husband did not provide any documentation to support his claims until June 3, 2019 at 3:24 PM. Additional previously unprovided documentation from Husband to support his claims was provided at 5:17 PM on June 10, 2019 (the day before the first day of the Final Hearing).
Appellant’s App. Vol. II p. 29 n.3.
[21] In discussing the Chase Bank savings account and the Bank of America
checking account, Husband argued that these funds were originally in an
EmigrantDirect.com account and HSBC accounts and that he had these
accounts before his marriage to Wife. Husband attempted to introduce
documentation of the value of these accounts near the time of the marriage as
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 12 of 24 Exhibit M and Exhibit N. The trial court, however, did not admit those
exhibits because Husband failed to timely provide the documents during
discovery. Similarly, Husband attempted to introduce evidence of the June 30,
2006 value of the CIBC retirement investment account and the Dynamic Funds
RRSP account as Exhibit O and Exhibit P. The trial court did not admit either
exhibit. Husband did not make an offer of proof regarding any of these
documents; as such, we do not have those documents on appeal. Given
Husband’s discovery violations and failure to introduce evidence regarding the
value of these accounts at the time of the marriage, we cannot say the trial court
abused its discretion by not mentioning these accounts in its list of premarital
assets.
[22] The trial court did admit Exhibit U, which detailed the value of the Yeshiva
retirement savings account between April 1, 2006, and June 30, 2006. 2 The
trial court, however, did not “know how much weight it has, if any” because
the value was not reflective of the value on the date of marriage. Tr. Vol. III p.
25. Regardless, however, the trial court should have included the Yeshiva
account in its list of premarital assets. 3
2 The account had a value of $47,182.22 on June 30, 2006, and the trial court valued the account at $73,464.00 in the dissolution decree. 3 In his reply brief, Husband also argues that the trial court erred by failing to consider a Fidelity account ending in 4354 as a premarital asset. Although Husband mentions this account in his Appellant’s Brief, Husband did not argue the trial court erred by failing to consider the account as a premarital asset. In his reply brief, Husband also argues that the trial court erred by including portions of his Wyeth/Pfizer pension, which was subject to a coverture calculation, as marital assets. Husband did not make this argument in his
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 13 of 24 [23] Finally, Husband also argues that the trial court failed to consider that Husband
is nearing retirement and that Wife has many years left until retirement.
Husband testified that he plans to retire in two to two and one-half years. This
argument fails to take into account the extreme disparity in Husband’s and
Wife’s incomes. Husband’s earning capacity is significantly more than Wife’s
earning capacity. Husband further speculates that he will have to liquidate
some retirement assets to pay the equalization payment, which will cause him
to incur additional taxes and penalties and further reduce his share of the
marital estate. This argument, however, is mere speculation.
[24] Even if the trial court should have included the Yeshiva account as a premarital
asset, we do not find this to be reversible error. We note that the trial court
considered the fact that Husband entered the marriage with significant assets
and concluded that this factor weighed in Husband’s favor. The trial court,
however, found that the other factors weighed in Wife’s favor. Husband’s
argument is merely a request that we weigh the fact that he had significant
premarital assets more heavily than the other factors here, including the
extreme difference in incomes of the parties and the fact that Wife stayed home
to care for the Child, resulting in foregone opportunities to utilize her degree.
We, however, consider the statutory factors together in determining what is just
Appellant’s Brief. Arguments raised for the first time in a reply brief are waived. See, e.g., Felsher v. University of Evansville, 755 N.E.2d 589, 593 n.6 (Ind. 2001) (holding that an argument was waived because it was raised for the first time in the reply brief); see also Ind. App. R. 46(C) (“No new issues shall be raised in the reply brief”). Accordingly, these arguments are waived.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 14 of 24 and reasonable without giving any one factor special weight. Smith, 136
N.E.3d at 282. Given these circumstances, the trial court did not abuse its
discretion in finding that Wife rebutted the presumption of an equal division of
marital assets. The trial court did not abuse its discretion by awarding Wife
55% of the marital assets. See, e.g., In re Marriage of Marek, 47 N.E.3d 1283
(Ind. Ct. App. 2016) (holding that wife rebutted the presumption of an equal
division where she received a significant inheritance that was kept separate
from other marital assets, she had been out of the workforce for a significant
amount of time, and husband’s income was significantly higher than wife’s
income), trans. denied.
II. Valuation of Marital Assets
[25] Husband argues that the trial court abused its discretion in valuing the E-Trade
brokerage account. Wife filed her petition for dissolution of marriage on June
21, 2017. The parties presented evidence that the E-Trade account was valued
at $7,105.40 on June 21, 2017, and $15,614.48 on June 30, 2017, due to market
changes. The trial court valued the account at $15,614.00. According to
Husband, the trial court abused its discretion by using the June 30, 2017 value.
[26] After identifying the marital assets, the trial court has discretion to set any date
between the date of filing the dissolution petition and the date of the hearing for
their valuation. Goodman v. Goodman, 94 N.E.3d 733, 747 (Ind. Ct. App. 2018),
trans. denied. “The selection of the valuation date for any particular asset has
the effect of allocating the risk of change in the value of that asset between the
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 15 of 24 date of the valuation and date of the hearing.” Id. We entrust this allocation to
the discretion of the trial court. Id.
[27] We addressed a similar issue in Webb v. Schleutker, 891 N.E.2d 1144, 1152 (Ind.
Ct. App. 2008). There, the wife filed a petition for dissolution of marriage on
August 9, 2005. The value of the account on the date of filing was $5,615.07,
and the value on August 31, 2005, was $14,279.97. The trial court valued the
account at $14,279.00. We held that the trial court had “the authority to select
any date between the date of filing the dissolution petition and the date of the
final hearing as the date of valuation of marital assets,” and the trial court did
not abuse its discretion in valuing the account. Webb, 891 N.E.2d at 1152.
[28] Similarly, here, the trial court valued the E-Trade account based upon its value
nine days after Wife’s petition for dissolution was filed. We cannot say that the
trial court abused its discretion. See id.
III. Attorney Fees
[29] Next, Husband argues that the trial court abused its discretion by ordering him
to pay a portion of Wife’s attorney fees. Under Indiana Code Section 31-15-10-
1, a trial court may order a party in a dissolution proceeding to pay a reasonable
amount of the other party’s attorney’s fees. Eads v. Eads, 114 N.E.3d 868, 879
(Ind. Ct. App. 2018). The court has broad discretion in deciding whether to
award attorney’s fees. Id.
[30] In determining whether an award of attorney fees in a dissolution proceeding is
appropriate, trial courts should consider the parties’ resources, their economic
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 16 of 24 condition, their ability to engage in gainful employment and earn income, and
other factors bearing on the reasonableness of the award. Id. A party’s
misconduct that directly results in additional litigation expenses may also be
considered. Id. Consideration of these factors promotes the legislative purpose
behind the award of attorney fees, which is to ensure that a party who would
not otherwise be able to afford an attorney is able to retain representation. Id.
When one party is in a superior position to pay fees over the other party, an
award is proper. Id.
[31] Regarding attorney fees, the trial court found:
Pursuant to Indiana Code Section 31-15-10-1 and the disparate earning ability and resources available to the parties, an award of attorney fees is justified. While the parties will each have assets upon dissolution, given Husband’s significantly greater earning ability, it is proper for this Court to order Husband to contribute to Wife’s attorney fees. Husband’s actions have directly caused Wife to incur unnecessary attorney fees. See Petitioner’s Exhibits 79, 80, 83, 84. Wife incurred a total of $125,033.96 in attorney fees and litigation expenses through the final hearing. Husband shall pay $85,000.00 toward Wife’s attorney fee[s]. Husband shall be given credit for $10,000 preliminary fees he has paid to Katzman & Katzman P.C., pursuant to the Court’s Order on Preliminary and Contempt issues entered 9/18/2017; along with credit for the $75,000 advanced by Husband pursuant to Agreed Entry approved 11/29/18 and file-marked 11/30/2018, for a total of $85,000 credit against total preliminary and final attorney fees Wife incurred.
Appellant’s App. Vol. II p. 40.
[32] The trial court later clarified the order and found: Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 17 of 24 Wife incurred a total of $125,033.96 in attorney fees and litigation expenses through the final hearing. Husband shall pay $85,000.00 toward Wife’s attorney fees. Wife’s attorney fee award shall be deemed paid in full as Husband shall be given credit for $10,000.00 paid to Katzman & Katzman, P.C. pursuant to the Court’s Order on Preliminary and Contempt Issues entered 9/18/2017; along with credit for the $75,000.00 advanced by Husband pursuant to the Agreed Entry approved 11/29/18 and file-marked 11/30/2018, for a total of $85,000.00 credit against total preliminary and final attorney fees Wife incurred.
Id. at 45.
[33] On appeal, Husband argues that Wife incurred unreasonable and excessive
attorney fees. Husband, however, only identifies the following fees as
excessive: the interpreter fees; the fact that two attorneys attended the
depositions and final hearing for Wife; and 1¾ hours of attorney fees during the
depositions during breaks and before the start of the depositions. According to
Husband, the trial court failed “to conduct a full analysis of the reasonableness
of [Wife’s] counsel’s attorney fees” pursuant to Indiana Professional Conduct
Rule 1.5(a). Appellant’s Br. p. 37. Wife, however, contends that Husband
directly caused her to incur unnecessary attorney fees because he failed to
timely respond to discovery requests and failed to disclose assets.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 18 of 24 [34] The parties’ dissolution proceedings have been pending since June 21, 2017,
and both parties incurred significant attorney fees. 4 The trial court specifically
found that “Husband’s actions have directly caused Wife to incur unnecessary
attorney fees,” and Wife’s attorney testified that Husband’s actions caused at
least an additional $29,000.00 in attorney fees. Appellant’s App. Vol. II p. 40.
Husband has many more resources than Wife, Husband’s economic condition
is better than Wife’s, and Husband’s ability to earn an income is many times
greater than Wife’s ability. Given these conditions, the trial court did not abuse
its discretion by ordering Husband to pay a significant portion of Wife’s
attorney fees. See, e.g., Goodman, 94 N.E.3d at 751 (holding that the disparity of
the parties’ earnings, the husband’s dissipation of marital assets, and husband’s
“misconduct that directly result[ed] in additional litigation expenses” justified
the trial court’s decision to award attorney’s fees to the wife).
IV. Child Support
[35] Husband argues that the trial court erred in calculating the child support owed
by Husband. “A trial court’s calculation of child support is presumptively
valid.” Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008). A trial court’s
decision regarding child support will be upheld unless the trial court has abused
its discretion. Martinez v. Deeter, 968 N.E.2d 799, 805 (Ind. Ct. App. 2012). A
trial court abuses its discretion when its decision is clearly against the logic and
4 Husband presented evidence that his attorney fees and other litigation expenses were $87,292.00. Wife presented evidence that she incurred $118,214.35 in attorney fees.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 19 of 24 the effect of the facts and circumstances before the court or if the court has
misinterpreted the law. Id.
A. Parenting Time
[36] Husband first argues that the trial court erred in giving him a parenting time
credit of 126-130 overnights. Husband contends that he is entitled to at least
155 days of parenting time credit. Husband, however, submitted three
proposed child support worksheets to the trial court—one giving Husband
credit for 130 overnights with Wife having primary physical custody; one giving
Husband credit for 182 overnights under a joint physical custody arrangement;
and one giving Wife credit for 104 overnights with Husband having primary
physical custody. See Respondent’s Exhibits H, I, and J.
[37] Although Husband now argues that he was entitled to 155 days of parenting
time credit, he did not make that argument to the trial court; instead, Husband
proposed a parenting time credit of 126-130 days, which the trial court used. A
party may not take advantage of an error that he commits, invites, or which is
the natural consequence of his own neglect or misconduct. Evans v. Evans, 766
N.E.2d 1240, 1244 (Ind. Ct. App. 2002). Invited error is not subject to review
by this court. Id. Because the error complained of was invited by Husband, his
claim is not subject to our review.
B. Voluntary Underemployment
[38] Next, Husband argues that Wife is voluntarily underemployed and that the trial
court should have imputed income to her when calculating child support. Trial
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 20 of 24 courts may impute income to a parent for purposes of calculating child support
upon determining that he or she is voluntarily unemployed or underemployed.
Sandlin v. Sandlin, 972 N.E.2d 371, 375 (Ind. Ct. App. 2012). Indiana Child
Support Guideline 3(A)(3) provides:
If a court finds a parent is voluntarily unemployed or underemployed without just cause, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor’s employment and earnings history, occupational qualifications, educational attainment, literacy, age, health, criminal record or other employment barriers, prevailing job opportunities, and earnings levels in the community.
[39] Husband sought to impute income of $600.00 per week to Wife because she
was not working full-time. On appeal, Husband argues that Wife should have
been able to find employment as a graphic designer because she volunteered at
the Indy Asian American Times for six years. 5
[40] Wife presented evidence that she has a master’s degree in graphic design. Upon
moving to Indianapolis in 2012, however, she stayed home to care for the
5 In his reply brief, Husband states: “[Wife] testified that she did not work more than the twenty-six hours she receives at Community Health, due to her volunteer work.” Appellant’s Reply Br. p. 18. Wife, however, testified that she worked part-time at her current employment because the employer only needed a part-time employee. Wife then testified that she had been unsuccessful in finding employment as a graphic designer. When asked by Husband’s counsel, “why couldn’t you get a job at a Chinese restaurant every other weekend?,” Wife responded that she did volunteer work at the newspaper. Tr. Vol. II p. 228. Contrary to Husband’s argument, Wife did not testify that she could not work more than twenty-six hours a week due to her volunteer work.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 21 of 24 Child. She later became employed part-time as a patient service representative
at a physician’s office. Wife anticipated increasing her work hours to at least
thirty-six hours a week beginning in August 2019. Wife testified that she
looked for employment as a graphic designer, but she was unsuccessful in
finding such employment. Wife also testified that she had volunteered with the
Indy Asian American Times since 2012 to use her art design skills.
[41] In the final decree, the trial court noted that Wife’s opportunities to use her
master’s degree “to her financial gain were foregone [sic] in order to relocate to
Indianapolis and Husband’s desire for Wife to stay at home.” Appellant’s App.
Vol. II p. 31 (footnote omitted). The trial court then declined to impute income
to Wife in calculating child support. Wife presented evidence that she struggled
to find employment as a graphic designer given her time out of the workforce.
Wife was, however, increasing her hours at her current employment and
continuing to volunteer for the newspaper to gain design experience. Given
Wife’s circumstances, we cannot say that the trial court abused its discretion in
declining to impute income to Wife. See, e.g., Sandlin, 972 N.E.2d at 376
(holding that the trial court did not abuse its discretion by declining to impute
income to the wife in determining child support).
V. Credit
[42] Husband also argues that the trial court erred by failing to award him a credit
for expenses he paid pursuant to the provisional order. According to Husband,
he paid $32,103.00 in court-ordered provisional payments from July 2017 to
June 2019. Husband contends the payments were for health, life, and auto Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 22 of 24 insurance, property taxes, utilities, home insurance, homeowners’ association
fees, and home repairs.
[43] Husband’s argument is a challenge to the trial court’s division of marital assets.
The division of marital assets lies within the sound discretion of the trial court,
and we will reverse only for an abuse of that discretion. Priore v. Priore, 65
N.E.3d 1065, 1073 (Ind. Ct. App. 2016), trans. denied. We may not reweigh the
evidence or assess the credibility of the witnesses, and we will consider only the
evidence most favorable to the trial court’s disposition of the marital property.
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.
[44] The trial court denied Husband’s requested credit for the expenses he paid
during the proceedings. The trial court noted that Husband was requesting
“credit for payment of [Child’s] childcare and health insurance which he is
already receiving credit for in the Provisional child support order.” Appellant’s
App. Vol. II p. 41 n.7. The trial court also noted that the Child’s “childcare was
even less than the credit provided.” Id. Husband also fails to note that, in the
provisional order, Husband’s weekly child support payment was reduced by
$87.00 to “credit Husband for covering the expenses related to the Marital
Residence during the pendency of the dissolution proceedings.” Id. at 22 n.1.
Husband also has significantly greater income and earning ability than Wife.
Under these circumstances, we cannot say that the trial court abused its
discretion by denying Husband’s request for a credit. See, e.g., Priore, 65 N.E.3d
at 1074 (holding that the trial court did not abuse its discretion by denying the
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 23 of 24 husband’s request for a credit for expenses he paid during the dissolution
proceedings because “Husband likely, as the party with higher earning ability,
would have been ordered to pay many of these household expenses
provisionally during the dissolution proceedings”).
Conclusion [45] The trial court did not abuse its discretion when it concluded that Wife rebutted
the presumption in favor of an equal division of marital assets. The trial court
did not abuse its discretion in valuing the E-Trade account or by ordering
Husband to pay a portion of Wife’s attorney fees. The trial court did not abuse
its discretion in calculating child support owed by Husband or by denying
Husband’s request for a credit for expenses he paid pursuant to the trial court’s
provisional order. We affirm.
[46] Affirmed.
Riley, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2452 | June 11, 2020 Page 24 of 24