FILED Feb 12 2024, 9:16 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Alexander N. Moseley Elizabeth Eichholtz Walker Dixon & Moseley, P.C. Becker Bouwkamp Walker, P.C. Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lela Jo Boucher, February 12, 2024 Appellant-Respondent, Court of Appeals Case No. 23A-DN-1534 v. Appeal from the Delaware Circuit Court Dennis J. Doyle, The Honorable John Feick, Judge Appellee-Petitioner. Trial Court Cause No. 18C04-2112-DN-379
Opinion by Judge Riley Judges Crone and Mathias concur.
Riley, Judge.
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 1 of 14 STATEMENT OF THE CASE [1] Appellant-Respondent-Cross-Petitioner, Lela Jo Boucher (Wife), appeals the
trial court’s Order dividing the marital estate in favor of Appellee-Petitioner-
Cross-Respondent, Dennis Doyle (Husband).
[2] We affirm.
ISSUE [3] Wife presents this court with one issue, which we restate as: Whether the trial
court’s deviation from the presumptive equal division of the marital estate was
clearly erroneous.
FACTS AND PROCEDURAL HISTORY [4] Husband and Wife wed on January 21, 2017. On the date of their marriage,
Husband owned four bank accounts at Indiana Member’s Credit Union, stock
in Southern Company, a timeshare in Tennessee, funds which were ultimately
rolled into two Edward Jones IRAs, a retirement savings account at Fidelity,
and certain personal property. On the date of their marriage, Wife owned the
home that the parties shared during the marriage, an Edward Jones IRA, and
certain personal property.
[5] Husband has a high school diploma and some technical school training.
Husband worked as a fleet and facility supervisor for thirty-six years at the same
location under several different employers. Husband began working for
Citizens Energy Group in 2016, and by the time of the final hearing was
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 2 of 14 making $85,000 per year. Wife holds a bachelor’s and a master’s degree in
health science. In 1997, Wife began working in the home health care field.
Prior to the parties’ marriage, Wife had been able to pay all her own expenses
through her income. For the first eighteen months of the marriage, Wife
worked for an in-home health care company making $59,000 per year. In June
of 2018, Wife voluntarily left her employment. From June 2018 to the date of
separation, Husband paid all the parties’ expenses. After Wife left her
employment, she obtained her real estate license in 2020. Wife sold real estate
in 2020 and 2021 but had an actual net loss in income.
[6] On December 8, 2021, Husband filed a petition for dissolution of marriage, and
on January 13, 2022, Wife filed a cross-petition which she amended once. On
April 5, 2022, the trial court ordered the parties to participate in mediation,
which was ultimately unsuccessful.
[7] On April 21, 2023, the trial court held the final hearing. Wife was sixty-five
years old as of the final hearing. As to her retirement account, Wife related that
in 2017 she had rolled over approximately $150,000 in funds into her Edward
Jones IRA. Wife testified that in 2022, she netted $12,000 from her real estate
dealings but that she did not expect her income to increase because the real
estate market in the area was low in stock and did not show any signs of
improving. During the marriage and the pendency of the dissolution
proceedings, Wife had not sought out any additional employment to
supplement her earnings from her real estate dealings. Wife had hopes of using
her real estate license to obtain employment managing real estate properties.
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 3 of 14 Wife requested a 50/50 split of the marital estate. Husband testified that at the
time of marriage, the approximate value of his bank and retirement accounts
was $500,000. Husband essentially requested that each party be awarded the
property and investments brought into the marriage, which would result in him
receiving 62% of the marital estate, while Wife would receive 38%.
[8] On April 26, 2023, the trial court entered a summary decree of dissolution of
marriage. On June 8, 2023, the trial court entered its Decree of Dissolution
dividing the parties’ marital estate. The trial court entered the following
relevant findings of fact and conclusions thereon:
24. Because of the short-term nature of the marriage and the extent to which property was acquired by each spouse before the marriage, Husband has rebutted the presumption that an equal division of the marital estate is just and reasonable.
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26. Husband came into the marriage with the majority of the marital estate and 100% of the assets he now asks this court to award him. More specifically, Husband came into the marriage with the following funds and assets which have remained in his individual name for the duration of the parties’ relationship:
a. IMCU *3801-001, *3801-0010, *3801-0030, *3801-0106,
b. Southern Co. Stock;
c. Tennessee Timeshare;
d. Edward Jones *7017 IRA and *7103 IRA; and
e. Fidelity Citizens Energy Group.
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 4 of 14 27. The combined value of two (2) of Husband’s premarital retirement account assets (See Edward Jones *7017 IRA and *7103 IRA following rollovers from his accounts Suez and Citizens Energy Group in 2017) exceed $636,000 on the date of filing of this action. Neither of which were contributed to during the course of the parties’ marriage.
28. Wife’s earning capacity with a [b]achelor’s [d]egree plus hours toward her [m]aster’s [d]egree and real estate license is potentially far more than that of Husband, who only holds a high school diploma; therefore, her economic circumstances and earning ability can be superior to those of Husband.
29. Husband has been employed by Citizens Energy Group for 36 years. Wife left her employment in June of 2018. At the time, she earned approximately $59,000 working at an in-home health care company. Husband financially supported the household from June of 2018 until December 8, 2021, including making all mortgage, insurance, property tax, utilities payments on the Marital Residence. In addition, Husband made improvements to the Marital Residence, both financial and nonfinancial. Husband has made all automobile loan payments on the Toyota Rav4. Husband has proposed Wife keep both the Marital Residence and the Toyota Rav4.
30. Wife obtained her real estate license during the marriage. Husband paid for Wife to obtain her real estate license as well as the start-up expenses for her real estate agency. Wife is currently underemployed and is looking to obtain employment as a property manager post-decree. Wife made no employment efforts during the 16 months this cause of action was pending. No reason was provided by Wife despite acknowledging she needed to change careers.
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 5 of 14 (Appellant’s App. Vol. II, pp. 19-20) (record citations omitted). The trial court
found that it had “considered all marital property and weighed all factors
provided for in Indiana Code Section 31-15-7-5” and that Husband had
rebutted the presumption of an equal division of the marital estate. (Appellant’s
App. Vol. II, p. 20). The trial court awarded each party the assets, retirement
accounts, and real property each had owned before the marriage and divided
the parties’ other property, resulting in Huband receiving 62% of the marital
estate and Wife receiving 38%.
[9] Wife now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[10] Wife challenges the division of the marital estate following the trial court’s sua
sponte entry of findings of fact and conclusions of law. 1 We review a trial
court’s sua sponte findings and conclusions under a two-tiered standard of
review to determine whether the evidence supports the findings and whether the
findings support the judgment. Kakollu v. Vadlamudi, 175 N.E.3d 287, 295 (Ind.
Ct. App. 2021) (citing Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016)), trans.
denied. We will not set aside the trial court’s findings or its judgment unless it is
clearly erroneous, giving due regard to the trial court’s opportunity to judge
1 Neither party requested Indiana Trial Rule 52 findings of fact and conclusions thereon. Although the trial court permitted the parties to submit proposed decrees, the chronological case summary does not reflect that any were filed.
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 6 of 14 witness credibility. Id. Findings of fact are only clearly erroneous where the
record lacks any evidence or reasonable inferences to support them. Wyzard v.
Wyzard, 771 N.E.2d 754, 756-57 (Ind. Ct. App. 2002). When determining
whether a finding or judgment is clearly erroneous, we consider only the
evidence most favorable to the judgment, along with all reasonable inferences
therefrom, neither reweighing the evidence nor assessing witness credibility. Id.
at 757. Issues not covered by the findings are reviewed under the general
judgment standard, which means that, as a reviewing court, we should affirm
based on any legal theory that is supported by the evidence. Kakollu, 175
N.E.3d at 295.
[11] We review a trial court’s division of marital assets and debts for an abuse of its
discretion, which only occurs if its decision is clearly against the logic and effect
of the facts and or reasonable inferences, if its misapplies the law, or if it
overlooks evidence of applicable statutory factors. Ivankovic v. Ivankovic, 205
N.E.3d 1061, 1064 (Ind. Ct. App. 2023). The appellant “bears the burden of
overcoming a strong presumption that the trial court considered and complied
with the applicable statute, and that presumption is one of the strongest
presumptions applicable to our consideration on appeal.” Crider v. Crider, 26
N.E.3d 1045, 1047 (Ind. Ct. App. 2015) (internal quote omitted). To succeed
on appeal, it is not enough for the appellant to demonstrate that the evidence
might support some other conclusion; rather, the appellant must show that the
evidence positively requires the desired conclusion. Kirk v. Kirk, 770 N.E.2d
304, 307 (Ind. 2002).
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 7 of 14 II. Division of the Marital Estate
[12] Wife contends that the trial court’s unequal division of the marital estate is
clearly erroneous. In Indiana, a presumption exists that an equal division of the
marital estate is “just and reasonable.” Ind. Code § 31-15-7-5. However, the
presumption may be rebutted through “relevant evidence[,]” including evidence
of the following factors:
(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 . . . .
(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. The list of statutory factors is non-exclusive, but when dividing the marital
estate, a trial court must consider all the relevant factors. Id.; Smith v. Smith,
136 N.E.3d 275, 282 (Ind. Ct. App. 2019). All of the factors are to be
considered together, and no single factor is dispositive. In re Marriage of Marek,
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 8 of 14 47 N.E.3d 1283, 1290-21 (Ind. Ct. App. 2016), trans. denied. Our supreme court
has recently clarified that
[s]o long as it expressly considers all assets and liabilities, and so long as it offers sufficient findings to rebut the presumptive equal division, a trial court need not follow a rigid, technical formula in dividing the marital estate and we will assume that it applied the law correctly.
Roetter v. Roetter, 182 N.E.3d 221, 229 (Ind. 2022).
[13] Here, the trial court found that it had “considered all marital property and
weighed all factors provided for in Indiana Code section 31-15-7-5[.]”
(Appellant’s App. Vol. II, p. 20). In addition, it found that the parties’ less than
five-year marriage was of short duration, Husband brought the majority of the
assets into the marriage, during the marriage neither party had contributed to
the major marital asset–Husband’s Edward Jones IRAs–, and that Wife had
substantial earning capability. Thus, the trial court entered specific findings and
conclusions on the statutory factors of the contributions of the parties, the
premarital nature of the parties’ assets, and the earning capabilities of the
parties. 2 Once the trial court considered all the statutory factors, it was not
required to enter findings and conclusions regarding each factor. See Israel v.
2 The trial court also detailed the history of various motions filed by Husband seeking compliance with discovery requests and documentation requirements provided for in the provisional orders, found that Husband had incurred additional attorney’s fees, and noted that it had “considered [H]usband’s excess payment of attorney fees in the division of the property.” (Appellant’s App. Vol. II, p. 25). Neither party mentioned these findings on appeal, so we exclude them from our analysis.
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 9 of 14 Israel, 189 N.E.3d 170, 176 (Ind. Ct. App. 2022) (noting that after considering
all the statutory factors, a trial court “is not required to explicitly address all the
factors in every case”), trans. denied. In addition to the statutory factors, the trial
court properly considered the short duration of a marriage, which “may rebut
the presumption favoring equal division, especially if one party brought
substantially more property into the marriage.” Roetter, 182 N.E.3d at 227
(citing Houchens v. Boschert, 758 N.E.2d 585, 591 (Ind. Ct. App. 2001)).
[14] Despite the evidence, findings, and conclusions supporting the trial court’s
judgment, Wife argues that “the trial court erred by giving considerable weight
to the extent of assets that Husband brought into the marriage, while failing to
recognize that Wife also brought a significant amount of assets into the
marriage.” (Appellant’s Br. p. 12). Wife contends that this is illustrated by the
fact that the assets she brought into the marriage were valued at $446,000 when
the parties separated. However, the trial court necessarily considered the
amount and value of Wife’s premarital assets when it found that Husband
brought the “majority” of the assets into the marriage, a finding that Wife does
not specifically dispute, and the value of Wife’s assets at the time of marriage,
not separation, is the relevant value for purposes of this issue. (Appellant’s
App. Vol. II, p. 19). We observe that at the time of marriage, Wife’s Edward
Jones account had a value of approximately $150,000, while Husband brought
at least $500,000 into the marriage, and there was no evidence presented at the
final hearing regarding the value of Wife’s other major premarital asset, the
marital home, at the time of marriage. Wife’s argument on this point is merely
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 10 of 14 a request that we reweigh the evidence, which, pursuant to our standard of
review, we will not do. Wyzard, 771 N.E.2d at 757.
[15] Next, Wife asserts that the trial court failed to consider evidence of the
economic circumstances of the parties, a factor which she maintains weighed in
her favor, and she contends that the trial court clearly erred when it found that
she was in a superior economic position to Husband. However, Wife’s
argument mischaracterizes the trial court’s findings, which emphasized the
short duration of the marriage, the premarital nature of the majority of the
parties’ assets, and their earning capabilities. The trial court found that, given
her education, Wife’s economic circumstances “can be superior to those of
Husband[,]” not that they were superior. (Appellant’s App. Vol. II, p. 20)
(emphasis added). Wife does not argue that this was an improper
consideration. In addition, the trial court also expressly found that it had
“weighed all factors provided for in Indiana Code section 31-15-7-5[.]”
(Appellant’s App. Vol. II, p. 20). Having done so, it was not required to enter
findings and conclusions regarding the parties’ economic circumstances at the
time of dissolution. See Israel, 189 N.E.3d at 176. In addition to the trial court’s
express finding that it had considered all the statutory factors, we indulge a
strong presumption that the trial court did so and applied the law correctly.
Crider, 26 N.E.3d at 1047; Montgomery v. Faust, 910 N.E.2d 234, 239 (Ind. Ct.
App. 2009) (“[W]e presume that the trial court considered these factors.”).
Wife has failed to overcome this presumption.
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 11 of 14 [16] Wife’s final contention is that “the trial court’s finding that Wife has a higher
earning ability than Husband is not supported by the evidence.” (Appellant’s
Br. p. 13). This argument is unpersuasive. The trial court did not find that
Wife’s earning capability was superior to Husband’s; rather, it found that, given
her education, it “can be” superior to Husband’s, a consideration which Wife
does not contend was improper, and it determined that Wife was
underemployed. (Appellant’s App. Vol. II, p. 20). A trial court may consider a
party’s work history, occupational qualifications, prevailing job opportunities,
and earning levels in the community to find that a party is underemployed for
purposes of determining earning capability in a dissolution proceeding. See
Hyde v. Hyde, 751 N.E.2d 761, 767-78 (Ind. Ct. App. 2001) (applying these
factors from the Indiana Child Support Guidelines in evaluating the trial court’s
determination that a party was underemployed when dividing the marital
estate).
[17] The evidence supporting the trial court’s judgment was that Wife is not disabled
and that, since no children were born of the marriage, she had not absented
herself from the workforce during the marriage for child rearing responsibilities.
Wife has a bachelor’s and a master’s degree in health science, from which it can
be inferred that she has earning capability. See Trost-Steffen v. Steffen, 772
N.E.2d 500, 507 (Ind. Ct. App. 2002) (inferring from evidence that mother held
a master’s degree and father held a Ph.D. that both parties were capable of
earning), trans. denied. Although Wife makes much of Husband’s thirty-six-year
work history at the same employment, the record reflects that Wife worked
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 12 of 14 from 1997 to 2018 in the home health care industry and that, prior to the
marriage, she made up to $59,000 per year and was able to support herself from
her labor in that field. Wife contends that in 2018, she was “forced to switch
careers” when her employer closed, but Husband testified that Wife had left
voluntarily due to frustration with the work and with the other people who
worked there. (Appellant’s Br. p. 14). Inasmuch as Husband’s testimony
supports the trial court’s judgment, it is the evidence we will credit. Wyzard,
771 N.E.2d at 757. In addition, during the marriage, Wife obtained a real
estate license which she planned to use to obtain employment in property
management. Although Wife had failed to earn any significant income from
her real estate dealings, she had never sought any other form of work to
supplement her income.
[18] Given this evidence, we conclude that the trial court’s determination that Wife
was underemployed was supported by the evidence and, thus, that the trial
court’s determination on this issue supported the judgment. Wife’s reliance on
Gish v. Gish, 111 N.E.3d 1034, 1038-39 (Ind. Ct. App. 2018), trans. denied,
wherein another panel of this court held that it was an abuse of the trial court’s
discretion to award the husband his entire retirement account, resulting in an
unequal division of the marital estate, is misplaced. Gish is factually
distinguishable because the parties were married for twenty-six years, the
husband’s earning capability was four times greater than the wife’s, the wife’s
earning capability was limited by the solo nature of her hair styling business,
and the wife had health issues. Id. at 1038. Gish is additionally distinguishable
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 13 of 14 because, despite this evidence, the trial court did not enter any findings and
conclusions thereon regarding the earning capability of the parties. Id. Here,
the trial court did enter findings of fact and conclusions thereon on this
statutory factor. Wife’s argument on this issue otherwise consists of directing
our attention to her version of events and to evidence that does not support the
judgment, both of which are contrary to our standard of review. See Wyzard,
771 N.E.2d at 757. Accordingly, we do not disturb the trial court’s judgment.
CONCLUSION [19] Based on the foregoing, we hold that Wife has failed to demonstrate that the
trial court’s deviation from the presumptive equal split of the marital estate was
[20] Affirmed.
[21] Crone, J. and Mathias, J. concur
Court of Appeals of Indiana | Opinion 23A-DN-1534 | February 12, 2024 Page 14 of 14