MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Jul 08 2015, 8:53 am precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Perry D. Shilts Cathleen M. Shrader Shilts Law Office Emily S. Szaferski Fort Wayne, Indiana Barrett & McNagny Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mohammed Nadeem, July 8, 2015
Appellant-Respondent, Court of Appeals Case No. 02A04-1407-DR-343 v. Appeal from Allen Superior Court The Honorable Charles F. Pratt, Shahidatul Abubakar, Judge Trial Court Cause No. Appellee-Petitioner 02D07-1212-DR-957
Mathias, Judge.
[1] The Allen Superior Court issued an order dissolving the marriage between
Mohammed Nadeem (“Husband”) and Shahidatul Abubakar (“Wife”).
Husband appeals and presents four issues, which we restate as:
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 1 of 22 I. Whether the trial court abused its discretion in valuating certain marital assets as of the date of the filing of the petition for dissolution instead of the date of the dissolution hearing;
II. Whether the trial court abused its discretion in refusing to consider funds Husband received from his parents as a loan;
III. Whether the trial court abused its discretion in awarding to Wife sixty percent of the marital estate and awarding to Husband forty percent of the marital estate;
IV. Whether the trial court abused its discretion in ordering Husband to pay $14,000 of Wife’s attorney’s fees.
[2] We affirm.
Facts and Procedural History
[3] The parties were married in December 1992, when both were in college.
Husband completed his bachelor’s degree and later a master’s degree, but Wife
completed only about one year of courses. The marriage produced five children:
O.N., born in 1993; Sh.N., born in 1996; S.N., born in 1999; F.N., born in
2002; and M.N., born in 2008. At the time of dissolution, Husband was fifty
years old, and Wife was forty-one years old. Wife was a homemaker and the
children’s primary caregiver. Husband worked for various companies during
the marriage.
[4] From 2005 to 2007, Husband worked for Alcan Inc. in India and earned
approximately $130,000 per year, not including bonuses and his expenses in
India, which included housing, transportation, and tuition for the children.
From 2007 to 2011, Husband worked for Terex Corp. in India, where his base
salary was approximately $150,000 per year. In 2007, Husband began to work
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 2 of 22 for Paharpur 3P (“Paharpur”), where he was the managing director/chief
executive officer (“CEO”). After 2011, Husband’s employment was divided
between time in India and time in Indiana. Husband typically spent three weeks
per month in India and one week per month in Fort Wayne, where Wife and
the children lived. As CEO, his base salary was approximately $150,000 per
year. In addition, many of his expenses in India were paid by the company,
including a car and driver, housing in India, and regular trips between India
and Fort Wayne.
[5] In 2012, Wife became involved in a physical relationship with Husband’s
nephew, her children’s cousin. When Husband discovered this, he became
emotionally distraught and was prescribed antidepressant medications.
Husband even discharged a firearm at the parties’ home while arguing with his
nephew about his affair with Wife. Eventually, the parties and their children
went to India, but Wife and the children returned to Indiana after one week.
[6] The parties attended marital counseling, which was ultimately unable to repair
their marital relationship. On December 27, 2012, at one of the counseling
sessions, Wife served Husband with her petition for dissolution. At this time,
the trial court entered a provisional order preventing either party from
transferring, encumbering, concealing, or disposing of the marital property
except for necessary expenses. Also, during the pendency of the dissolution, the
parties shared physical custody of the children under what the trial court
referred to as a “bird’s nest” arrangement, whereby the children remained at the
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 3 of 22 marital home at all times, and the parents lived in the marital home only when
they had physical custody of the children.
[7] After Wife had filed the petition for dissolution, Husband informed Wife that
he had earlier resigned as CEO of Paharpur, apparently because of his
emotional state. However, Husband did not inform Wife or their marital
counselor of his resignation until after Wife had filed for dissolution. Husband
instead took a job with Paharpur as an “advisor” to the office of the CEO, even
though another CEO was not selected. As an advisor, Husband’s salary
substantially decreased to $80,000 per year, with no bonuses or other
perquisites. Thus, Husband was now personally responsible for the expenses
associated with him working in India and travelling back and forth between
India and Indiana.
[8] As found by the trial court, Husband “made multiple efforts to make life as
difficult as possible for [Wife] during the pendency of the [dissolution] case.”
Appellant’s App. p. 26. For example, Husband allowed the lease to expire on
the vehicle Wife used to transport the children and made no effort to help Wife
find other means of transportation for the children. Husband also denied Wife
access to their daughter’s car. When Husband eventually did allow Wife to
have access to their daughter’s car, he surreptitiously attached a GPS device to
the car in an attempt to track Wife’s whereabouts, despite an order from the
trial court to the contrary. He also accessed Wife’s computer without her
knowledge or consent.
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 4 of 22 [9] Husband also attempted to harm Wife’s reputation in the local Islamic
community by showing, or attempting to show, explicit photos and videos of
Wife to various members of that community. He also discussed Wife’s affair
with his nephew in front of the children and even attempted to show the explicit
photos of Wife to their daughter. Husband failed to pay for financial obligations
that were in Wife’s name despite the provisional order requiring him to do so;
yet, Husband kept current on the financial obligations that were in his name.
[10] Wife’s capability or willingness to supervise the children declined at this time,
especially in the area of school attendance and overseeing the activities of the
oldest daughter and her friends. Husband would spend approximately eight
days per month with the children, and Wife would spend the remaining days
with the children.
[11] The trial court held a dissolution hearing on March 21 – 25, 2014. On July 7,
2014, the trial court entered a dissolution decree containing findings of fact and
conclusions of law deciding issues of child custody and support and the division
of marital assets. Husband now appeals.
I. Date of Valuation of Marital Assets
[12] Husband first challenges the trial court’s decision to value certain marital assets
as of the date of the filing of the petition for dissolution instead of the date of
the dissolution hearing. At the time of the filing of the petition, the marital
assets included the following accounts:
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 5 of 22 Asset Value Chase Account No. 0036 ....................... $11,417.00 Citibank Account No. 3538.................... $14,995.00 TD Ameritrade Account No. 2548 ....... $102,807.00 JP Morgan Chase Account No. 8214 ...... $68,792.00 TOTAL ............................................... $198,011.00
See Appellant’s App. p. 34.
[13] By the time of the date of the dissolution hearing, however, these accounts had
been depleted to a total of only $395.00. By awarding him these now-depleted
assets, Husband claims that the trial court awarded him effectively none of the
marital estate.
[14] The trial court has broad discretion in determining the value of property in a
dissolution action, and its valuation will only be disturbed for an abuse of that
discretion. Trabucco v. Trabucco, 944 N.E.2d 544, 557-58 (Ind. Ct. App. 2011),
trans. denied. With regard to the date for the valuation of a marital asset, our
courts have long held that trial courts have discretion to value the marital assets
at any date between the date of filing and the date of the final hearing, and we
will reverse the trial court’s decision as to a valuation date only where it is
clearly against the logic and effect of the facts and circumstances before the trial
court. Id. at 558. In our review of the trial court’s valuation decision, we will
not weigh evidence but will consider the evidence in a light most favorable to
the judgment. Id. Although the date selected for the valuation of an asset has
the effect of allocating the risk of a change in the asset’s value to one party or
the other, this allocation of risk is entrusted to the discretion of the trial court.
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 6 of 22 Id. The choice to assign an early valuation date to an asset that later decreases
in value is not necessarily an abuse of discretion. Id.
[15] We discussed the broad scope of the trial court’s discretion in such matters in
Trabucco. There, we noted that our court had previously held that “‘where . . .
the value of a marital asset changes radically between the date of final
separation and the final hearing, it is an abuse of the trial court’s discretion to
select a valuation date that does not account for the events contributing to that
change.’” Id. at 558-59 (quoting Quillen v. Quillen, 659 N.E.2d 566, 570-73 (Ind.
Ct. App. 1995), trans. granted). Our supreme court granted transfer in Quillen,
affirmed the trial court, and held our opinion in Quillen had impermissibly
impinged upon the discretion of the trial court. See id. at 559 (citing Quillen v.
Quillen, 671 N.E.2d 98, 103 (Ind. 1996)). Our supreme court reiterated that the
selection of a valuation date for a particular marital asset has the effect of
allocating the risk of change in the value of that asset during the pendency of
the proceedings and that the allocation of such risk is entrusted to the discretion
of the trial court. Quillen, 671 N.E.2d at 103. With this standard of review in
mind, we address Husband’s arguments regarding the trial court’s choice of
valuation date.
[16] Husband lists thirteen reasons why he believes the trial court abused its
discretion in choosing to value the accounts at issue as of the date of filing.
First, he takes issue with the trial court’s characterization of his decision to
resign as CEO of Paharpur as “poor judgment.” Appellant’s App. p. 35.
Husband claims that this finding by the trial court implies some sort of fault on
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 7 of 22 his part, and he correctly notes that Indiana is a “no fault” divorce state.
However, Husband’s argument misses the mark. As Wife correctly notes, the
concept of “fault” in a no-fault dissolution refers to the reason why the marriage
failed, not fault for why a certain asset has been depleted. See e.g., Haville v.
Haville, 825 N.E.2d 375, 379 (Ind. 2005) (noting that with the adoption of the
Uniform Dissolution of Marriage Act, Indiana “eliminated the need to assign
blame for the failure of a marriage, such that people frequently call it ‘no-fault
divorce.’”). As such, Husband’s argument that the trial court impermissibly
faulted him is unavailing.
[17] Husband next claims that the trial court’s reference to his “poor judgment” in
resigning as CEO is “insensitive, thoughtless and legally irrelevant,”
Appellant’s Br. at 27, because Husband was being treated for depression at the
time of his resignation. However, the trial court did not find that Husband was
being treated for depression, and his references to the evidence that he was
being treated for depression are not in favor of the trial court’s judgment.
Accordingly, we may not consider such evidence on appeal. See Trabucco, 944
N.E.2d at 558. Nor does Husband explain why the trial court’s alleged
insensitivity is legal error justifying reversal of the trial court’s decision.
[18] Thirdly, Husband claims that the trial court’s findings imply that his resignation
was “part of some plan.” Appellant’s Br. at 27. This, Husband claims, is
“ridiculous” because he claims he resigned a month before Wife filed for
dissolution. Id. Again, however, this refers to evidence that does not favor the
trial court’s valuation decision, and we may not consider it on appeal. See
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 8 of 22 Trabucco, 944 N.E.2d at 558. The evidence favorable to the trial court’s decision
indicates that Husband did not tell Wife about his resignation until after she
filed for dissolution, casting doubt on the veracity of his claim that he had
resigned earlier.
[19] The same is true for Husband’s fourth argument regarding the trial court’s
valuation decision, i.e., that the trial court erred in implying that his resignation
was intentional. Husband claims this is error because he testified that his
employer asked him to resign due to his mental health. Again, however, the
trial court was under no obligation to credit Husband’s testimony, and we may
not consider it on appeal as it does not favor the trial court’s judgment. See
Trabucco, 944 N.E.2d at 558.
[20] Husband next claims that the trial court’s valuation decision was improper
because the trial court did not find that he misused or misspent any of the funds
in the accounts at issue. While the trial court did not find that Husband misused
the funds in the accounts, the trial court’s findings emphasized that Husband
took a position that paid significantly less than his position as CEO; Husband’s
new position was as advisor to the CEO even though a new CEO was not
hired. Also, in reports to the Indian government and at trade shows, Husband
still listed himself as CEO or managing director of Paharpur even after his
resignation. It is apparent from the trial court’s findings that the court did not
credit Husband’s version of events, i.e., that he was effectively forced to resign
his higher-paying position due solely to his emotional state after discovery his
wife’s infidelity. The trial court also noted that after Husband’s resignation, he
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 9 of 22 continued to pay for family expenses with the funds from the accounts at issue.
The import of the trial court’s findings are that the depletion of the accounts at
issue was more attributable to Husband than to Wife. Given our deferential
standard of review in such matters, we cannot say that the trial court’s
valuation decision was an abuse of the trial court’s significant discretion.
[21] Husband’s next argument simply notes that, during the pendency of the
dissolution action, Husband paid approximately $16,500 to Wife and her
attorney. However, Husband makes no cogent argument as to why this renders
the trial court’s valuation decision an abuse of discretion. See Ind. Appellate
Rule 46(A)(8)(a) (noting that each contention in an appellant’s brief must be
supported by cogent reasoning); Schwartz v. Schwartz, 773 N.E.2d 348, 353 n.5
(Ind. Ct. App. 2002) (noting that failing to make a cogent argument as required
by Rule 46(A)(8)(a) results in waiver of the issue on appeal). More importantly,
Husband’s argument ignores that the trial court obviously attributed Husband’s
significant decrease in salary to his decision to resign as CEO.
[22] Husband’s eighth argument against the trial court’s valuation decision is that
Wife never objected to Husband’s use of the accounts and even sought court
permission to use some of the marital assets to purchase a replacement vehicle
for her and the children. Husband cites no authority, however, to support his
claim that Wife was required to object to his use of the accounts. While such an
action may have been more prudent, we cannot say that it was required. With
regard to Wife’s request to purchase a vehicle, this was because Husband had
allowed the lease on the van to expire, made no effort to provide a replacement
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 10 of 22 vehicle, and even prevented Wife from using their daughter’s vehicle to
transport the children.1 Husband’s argument in this regard does not persuade us
that the trial court’s valuation decision was an abuse of discretion.
[23] Husband’s ninth reason why the trial court’s valuation decision was improper is
similarly unavailing. He claims that the trial court effectively ignored its own
finding that his income was now $80,000 per year and that he was therefore not
able to pay the family’s expenses without depleting the marital assets. However,
as discussed above, the trial court clearly laid the blame for the reduction in
Husband’s income on his decision to resign as CEO, thereby significantly
reducing his salary.
[24] The same is true for Husband’s tenth assertion of error, that the trial court
“ignored” his efforts to be fully transparent with his expenses. Husband notes
that he provided detailed financial documentation showing where and why he
spent the funds in the accounts. Yet again, this ignores that the trial court
believed that Husband was responsible for the significant reduction in his
income as a result of his resignation as CEO.
[25] Husband’s next argument regarding the trial court’s valuation decision is that
the depletion of the accounts was not due to market forces, as was the case in
Trabucco. Husband claims that he could not have lessened his expenses without
endangering other assets. For example, he claims that had he stopped paying
1 Wife also testified that she never purchased a vehicle and was still without a car at the time of the final dissolution hearing.
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 11 of 22 the mortgage, the marital house would have gone into foreclosure. He further
claims that if he stopped paying for their son’s college expenses, the son would
have had to quit school. Of course, the latter claim ignores the availability of
student loans or part-time employment for son to help put himself through
college.
[26] Simply said, Husband depleted the accounts to maintain a standard of living
that neither he nor his family could afford due to his resignation as CEO. The
trial court recognized that the breakup of the marriage was precipitated by
Wife’s infidelity. However, this does not alter the fact that Husband maintained
a lifestyle that he admitted put him in a monthly budget deficit of
approximately $10,000 after he resigned from his position as CEO.
[27] Husband’s twelfth argument simply notes that we have held before that the
“reasonable and necessary use of marital funds to pay for routine financial
obligations does not constitute dissipation of assets.” Balicki v. Balicki, 837
N.E.2d at 532, 540 (Ind. Ct. App. 2005). However, the trial court did not find
that Husband dissipated assets. It simply noted that Husband used the money in
the accounts to pay for family expenses due to his significantly reduced income,
which itself resulted from Husband’s questionable resignation as CEO of
Paharpur.2
2 Husband also briefly notes that the trial court could have given him credit for the $16,500 he paid to Wife and her attorney during the pendency of the case, citing Herron v. Herron, 457 N.E.2d 564,567 (Ind. Ct. App. 1983). However, the fact that the trial court could have done this does not mean that the trial court abused its discretion in failing to do so.
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 12 of 22 [28] Lastly, Husband again takes the trial court to task for referring to his resignation
as CEO as “poor judgment” on his part, noting again that the dissolution of the
marriage was precipitated by Wife’s infidelity. However, Husband overlooks
the trial court’s acknowledgment of Wife’s behavior. The trial court specifically
noted that Wife had had an affair with her children’s cousin, sent explicit
photos and videos to the cousin, spent an inordinate amount of time each day
talking or texting on her phone, and blatantly lied to the trial court when she
earlier stated that her relationship with Husband’s nephew had ended in 2012.
Indeed, the trial court was not overly impressed with the behavior of either
party, noting, “The negatives of each party seem to outweigh the positives.”
Appellant’s App. pp. 27. However, the fact that Wife’s behavior triggered the
dissolution of the marriage does not mean that the trial court could not also
look to Husband’s behavior and conclude that the depletion of the accounts at
issue was attributable to his actions, thus justifying its decision to value the
accounts as of the date of filing.
[29] In summary, none of Husband’s thirteen arguments, either alone or in
aggregate, convinces us that the trial court abused its discretion in deciding to
value the accounts awarded to Husband as of the date of filing instead of the
date of the final hearing. The trial court clearly thought that the reason these
accounts were depleted was due to Husband’s questionable resignation of his
position as CEO and his decision to maintain a family lifestyle that his reduced
level of compensation could not support during the pendency of the dissolution.
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 13 of 22 II. Failure to Consider Money from Husband’s Parents as a Loan
[30] Husband next alleges that the trial court erred when it found that money the
family had received from his parents was not a loan. Husband presented
evidence that, between 2005 and 2012, his parents had given him over $50,000.
In support of his claim that these funds were a loan that needed to be repaid,
Husband submitted into evidence a promissory note dated June 7, 2012.
Husband claims that because Wife failed to object to this promissory note or
present testimony to counter his claim that the funds received were a loan, the
trial court was required to accept his claim. We disagree.
[31] First, as Wife notes, Wife never agreed with Husband or stipulated as to the
value of Husband’s alleged debt to his parents. Wife’s documentation of the
marital debts excluded any alleged loans from Husband’s family, indicating that
she did not agree with the inclusion of this alleged debt in the marital estate.
[32] More importantly, as the trial court explained in its findings regarding the
alleged debt, Husband’s evidence regarding the alleged loan casts doubt on his
claim that he was required to pay back the funds. Although Husband presented
significant documentation that his father helped pay for his travel expenses and
made charitable donations on behalf of Husband and Wife, no indication exists
in this documentation that Husband had ever made any payments on the
alleged debt even when he had the resources to do so.
[33] Ultimately, Husband’s argument hinges on the promissory note evidencing the
debt to his parents. However, as we noted in our recent decision in Crider v.
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 14 of 22 Crider, 15 N.E.3d 1042 (Ind. Ct. App. 2014), trans denied, the fact that an alleged
debt is evidenced by a promissory note is not dispositive.
[34] In Crider, the husband claimed that the trial court had erred by failing to include
as a marital debt money he had received from his father. The husband argued
on appeal that because the loans were evidenced by promissory notes, the trial
court was required to include them in the marital estate as liabilities. We
rejected this argument, noting that our cases have held that trial courts “are not
required to accept one party’s characterization of funds received from a third
party as a debt as opposed to an outright gift.” Id. at 1062 (citing Macher v.
Macher, 746 N.E.2d 120, 124 (Ind. Ct. App. 2001). Instead, when deciding
whether the exchange of money is either a gift or a loan, courts should consider
factors such as an expectation or agreement regarding repayment or the accrual
and payment of interest. Id. (citing Grose v. Bow Lanes, Inc., 661 N.E.2d 1220,
1225 (Ind. Ct. App. 1996)).
[35] The same is true here. The trial court was not required to accept Husband’s
characterization of the money he had received from his family as a debt, and
the fact that the alleged debt is evidenced by a promissory note is not
dispositive; instead, we look to whether any expectation or agreement regarding
repayment and the accrual and payment of interest exists. See id. Here,
consideration of such factors leads us to conclude that the trial court had
sufficient evidence to support its conclusion that the money received was not a
debt. The promissory note does not contain an interest rate or any terms of
repayment. Even though many of the alleged debts secured by the promissory
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 15 of 22 note were incurred as far back as 2005, the promissory note was not executed
until 2012. Under these facts and circumstances, the trial court could
reasonably conclude that the funds Husband received from his family were not
a debt that should be included as a liability in the marital estate. See id.
III. Distribution of the Marital Estate
[36] Husband next claims that the trial court erred in awarding Wife sixty percent of
the marital estate.3
[37] The division of marital property is a task within the sound discretion of the trial
court, and we will reverse only for an abuse of discretion. Love v. Love, 10
N.E.3d 1005, 1012 (Ind. Ct. App. 2014). An abuse of discretion occurs if the
trial court’s decision is clearly against the logic and effect of the facts and
circumstances before the court, or if the trial court has misinterpreted the law or
disregards evidence of factors listed in the controlling statute. Id. When we
review a claim that the trial court improperly divided marital property, we will
not reweigh the evidence and must consider only the evidence most favorable to
the trial court’s disposition of the property. Id. Even if the facts and reasonable
inferences might allow for a different conclusion, we will not substitute our
judgment for that of the trial court. Id.
3 Husband also claims that, since the trial court considered the value of the accounts awarded to him as of the date of filing instead of the date of the final hearing, he was effectively awarded one percent of the martial assets. However, we have already determined above that the trial court’s decision with regard to the date of valuation was not an abuse of discretion. Therefore, we proceed with our analysis on the basis that Wife was awarded sixty percent of the marital assets and Husband awarded forty percent, as found by the trial court.
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 16 of 22 [38] Pursuant to Indiana Code section 31-15-7-5, an equal division of marital
property is presumed to be just and reasonable.
However, this presumption may be rebutted by a party who presents 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.
I.C. § 31-15-7-5. If the trial court decides to order an unequal division of marital
assets, it must consider all of the factors set forth in the statute. Love, 10 N.E.3d
at 1012. Although a trial court may abuse its discretion in considering a factor
in isolation from the other four factors, the court is not required to explicitly
address each factor. Id. at 702. However, a court on appeal must be able to infer
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 17 of 22 from the trial court’s findings that all the statutory factors were considered. Id.
at 703.
[39] The trial court’s division of marital property is highly fact sensitive. Id. (citing
Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002)). The trial court’s discretion
in dividing marital property is to be reviewed on appeal by considering the
division as a whole, not item by item. Id. A trial court may deviate from an
equal division so long as it sets forth a rational basis for its decision. Id. The
party challenging the trial court’s division of marital property must overcome a
strong presumption that the court considered and complied with the applicable
statute. Id. at 1012-13. Accordingly, we will reverse the trial court’s distribution
decision only if no rational basis exists for the court’s decision. Id.
[40] Here, the trial court explicitly cited to Indiana Code section 31-15-7-5 and listed
the factors relevant to an award of unequal distribution. The trial court then
found:
122. Petitioner’s primary contribution to the parties’ marital estate was her role as homemaker and primary caretaker in the raising of the parties’ five (5) children. 123. Respondent’s primary contribution to the parties’ marital estate was his income from employment. 124. Petitioner’s family and Respondent’s family both made contributions to the parties’ marital estate. The contributions from each family do not constitute a significant share of the marital estate. 125. The economic circumstances of Petitioner and Respondent are not as positive at this time as compared to their circumstances on the date of filing due to the liquidation of assets with a value Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 18 of 22 of approximately One Hundred Ninety Five Thousand Dollars ($195,000.00) during the pendency of this case. Petitioner will receive a significant portion of the funds from the parties’ Chase IRA which will improve her economic circumstances. *** 131. The Court does not find that Petitioner dissipated marital assets during the parties’ marriage. 132. Respondent’s earnings and earning ability is significantly greater than Petitioner’s earnings and earning ability. 133. Petitioner has rebutted the presumption of an equal division of the parties’ marital estate.
Appellant’s App. pp. 15-17.
[41] Husband does not claim that the trial court failed to consider the appropriate
statutory factors, nor does he directly attack the validity of the trial court’s
factual findings. Instead, he simply asks us to reweigh the evidence, consider
evidence contrary to the trial court’s judgment, and come to a conclusion
different from that of the trial court. However, this is not our role on appeal. See
Love, 10 N.E.3d at 1012-13.
[42] Furthermore, sufficient evidence supported the trial court’s findings. Wife
dropped out of college to stay at home with the parties’ children, whereas
Husband has a bachelors degree and masters degree in engineering. His
income, even though currently $80,000, has the potential to be and was in the
recent past nearly twice that amount, with many expenses attendant to his
employment fully paid by his employer. In contrast, Wife had not been
employed prior to the separation and worked as a homemaker and caregiver to
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 19 of 22 the parties’ children. At the time of the final hearing, Wife had no vehicle and
worked as a teachers assistant earning $8 per hour and paid over $50 per week
for childcare.4 As the marital home was awarded to Husband, Wife will have to
provide for housing. Under the facts and circumstances of the present case, we
cannot say no rational basis existed for the trial court’s distribution of marital
assets.
IV. Attorney Fees
[43] Lastly, Husband claims that the trial court clearly erred in ordering him to pay
$14,000 of Wife’s attorney fees. As we explained in Hartley v. Hartley:
Indiana Code Section 31-15-10-1 provides that a trial court may order a party to pay a reasonable amount to the other party for the cost of maintaining or defending any action in dissolution proceedings. We review a trial court’s award of attorney fees in connection with a dissolution decree for an abuse of discretion. The trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before it. When making such an award, the trial court must consider the resources of the parties, their economic condition, the ability of the parties to engage in gainful employment and to earn adequate income, and other factors that bear on the reasonableness of the award. Consideration of these factors promotes the legislative purpose behind the award of attorney fees, which is to insure that a party in a dissolution proceeding, who would not otherwise be able to afford an attorney, is able to retain representation. When one party is in a superior position to pay fees over the other party, an award of attorney fees is proper. The trial court need not, however, give reasons for its determination.
4 Although Wife was enrolled in classes at Indiana University Purdue University—Fort Wayne, the trial court found that Wife was not adequately committed to completing her college education and earning a degree.
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 20 of 22 862 N.E.2d 274, 286-87 (Ind. Ct. App. 2007) (citations and internal quotations
omitted).
[44] Here, the trial court ordered Husband to pay $11,000 to Wife for her attorney
fees, in addition to $3,000 he was previously ordered to pay but had not yet
paid. Husband claims that given that the trial court’s uneven distribution of the
marital assets, which he claims is exacerbated by the trial court’s act of
awarding him certain accounts that now have very little value, the order for him
to pay $14,000 in attorney fees is erroneous.
[45] However, considering only the evidence favorable to the trial court’s decision,
we cannot say that the trial court abused its discretion. The trial court’s findings
reveal that Husband’s economic and his income-earning capabilities are
significantly greater than Wife’s. As noted above, Husband has an advanced
degree in engineering and has demonstrated the ability to earn significantly
more than his current $80,000 per year salary. Wife, at the time of the final
dissolution hearing, earned $8 per hour. Under these facts and circumstances,
we cannot say that the trial court abused its discretion in ordering Husband to
pay $14,000 to Wife for attorney fees.
Conclusion
[46] The trial court did not abuse its discretion in choosing a valuation date for
certain marital assets that were subsequently depleted by Husband’s spending;
nor did it abuse its discretion in failing to consider the funds Husband had
received from his family as a marital debt. Likewise, the trial court did not
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 21 of 22 abuse its discretion in awarding sixty percent of the marital estate to Wife
considering Husband’s significantly greater earning potential. Lastly, the trial
court did not abuse its discretion in ordering Husband to pay $14,000 to Wife
for attorney fees.
[47] Affirmed.
May, J., concurs. Robb, J., concurs in result without opinion.
Court of Appeals of Indiana | Memorandum Decision No. 02A04-1407-DR-343 | July 8, 2015 Page 22 of 22