Montgomery v. Faust

910 N.E.2d 234, 2009 Ind. App. LEXIS 1026, 2009 WL 2252325
CourtIndiana Court of Appeals
DecidedJuly 29, 2009
Docket85A04-0901-CV-32
StatusPublished
Cited by28 cases

This text of 910 N.E.2d 234 (Montgomery v. Faust) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montgomery v. Faust, 910 N.E.2d 234, 2009 Ind. App. LEXIS 1026, 2009 WL 2252325 (Ind. Ct. App. 2009).

Opinion

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Petitioner, Lori (Faust) Montgomery (Wife), appeals the trial court's division of property arising from the dissolution of her marriage to Appel-lee-Respondent, Dennis Faust (Husband), and the trial court's denial of her petition for attorney fees.

We affirm in part, reverse in part, and remand with instructions.

ISSUES

Wife presents two issues for our review, which we restate as:

(1) Whether the trial court abused its discretion in dividing the marital property; and
(2) Whether the trial court abused its discretion in denying her petition for attorney fees.

FACTS AND PROCEDURAL HISTORY

Husband and Wife were married on May 12, 2008. On July 6, 2006, Wife filed a petition for dissolution of the marriage. On January 31, 2007, the trial court entered its Final Decree of Dissolution (Final Decree). The court wrote that its division of property was "intended to be substantially equal." (Appellant's App. p. 41). In a footnote to that sentence, however, the court wrote:

While the division is intended to be substantially equal, due to the short duration of the marriage, the Court is setting off to each that property which they possessed and brought into the marriage and dividing equally only what was acquired during the marriage. Such set offs are reflected by an "x" in the respective columns.

(Appellant's App. p. 41). The property set off to Husband, and therefore not assigned values by the trial court, included 9.72 acres of land on Dora Road in Wabash, Indiana (Dora Road property), which was appraised at $42,500.00 in late 2006, and a Chevrolet truck, to which Wife assigned a value of $5,525.00. Wife appealed, and we reversed, holding that the trial court had abused its discretion by excluding from the marital pot the property that the parties had brought into the marriage. Montgomery v. Faust, No. 85A02-0707-CV-644, slip op. at 4-5, 883 N.E.2d 225 (Ind.Ct.App. March 18, 2008). We remanded the case to the trial court "with instructions to put all of the marital property, including property owned by Husband and Wife before the marriage, into the marital pot before determining the appropriate division." Id. at 6.

On June 18, 2008, the trial court issued its order on remand, which provided, in pertinent part:

*237 Attached to this Order and incorporated herein is Exhibit A. The Court specifically finds that the [Dora Road property] and Chevrolet Truck owned by the Respondent prior to the marriage (Assets, Items #2 and #7, Exhibit A, respectively) as well as the balance of the Assets listed on Exhibit A are marital assets and the Court has included same in the marital pot and considered same in its distribution.
*% ohh ok
However, due to the short duration of the marriage and that the [Dora Road property] and Chevrolet Truck, as well as the other Assets valued at "x" on Exhibit A, were owned by each party, as so indicated, prior to the marriage, the Court is returning such property to their possession and thereafter equitably dividing the remaining Assets and Debts on a substantially equal basis. After returning such property to the party bringing same into the marriage, the Court now reaffirms the distribution as made by Order dated January 31, 2007, . and notes that it results in an unequal distribution of all the marital assets/debts favoring the respondent but such is appropriate for the above stated reasons.

(Appellant's App. p. 8). The trial court also ordered Wife to pay Husband $5,451.52 as an equalization payment. On July 18, 2008, Wife filed a Motion to Correct Errors and a Petition for Attorney Fees. After a hearing, the trial court denied both.

Wife now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Wife appeals both the trial court's division of the marital property on remand following the first appeal and the trial court's denial of her petition for the attorney fees arising from that appeal. As in the first appeal, Husband has not filed an appellate brief. When the appellee does not file a brief, we need not undertake the burden of developing an argument on the appellee's behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.2006). Rather, the appellant needs only to present a case of prima facie error, which is defined in this context as "at first sight, on first appearance, or on the face of it." Id. (quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind.Ct.App.1999)).

I. Property Division

Wife first argues that the trial court failed again on remand to properly include all marital assets, namely, the Dora Road property and the Chevrolet truck, in the marital pot. In our original opinion, we instructed the trial court "to put all of the marital property, including property owned by Husband and Wife before the marriage, into the marital pot before determining the appropriate division." Montgomery, No. 85A02-0707-CV-644, slip op. at 6. In its order on remand, the trial court stated that it included all of the marital assets "in the marital pot and considered same in its distribution." (Appellant's App. p. 8). Then, however, the trial court, citing the short duration of the marriage, stated that it was returning to each party all property that each owned prior to the marriage "and thereafter equitably dividing the remaining Assets and Debts on a substantially equal basis." (Appeliant's App. p. 8). Wife contends that simply setting off such property in such a perfunctory manner "constitutes the type of systematic exclusion of assets" that we held to be an abuse of discretion in our original opinion. (Appellant's Br. p. 14). We agree. Purporting to put all marital assets into the marital pot but then *238 removing certain assets before dividing the rest is equivalent to excluding those assets from the pot in the first place.

The "one-pot" requirement is no mere technicality. When dividing marital property, the trial court must, at a minimum, be "sufficiently apprised of the approximate[ ] gross value of the marital estate." Libunao v. Libunao, 180 Ind.App. 242, 245, 388 N.E.2d 574, 576 (1979); see also Howland v. Howland, 166 Ind.App. 572, 579, 337 N.E.2d 555, 559 (1975) ("A trial court commits an abuse of discretion if it orders a property distribution without knowing the value of the property it is distributing."). The requirement that all marital assets be placed in the marital pot is meant to insure that the trial court first determines that value before endeavoring to divide property. In doing so, the trial court is compelled to confront the actual extent of the disparate treatment, if any, that results from its division of the property, rather than merely labeling the distribution "unequal," as the trial court did in this case.

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Cite This Page — Counsel Stack

Bluebook (online)
910 N.E.2d 234, 2009 Ind. App. LEXIS 1026, 2009 WL 2252325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-faust-indctapp-2009.