MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 13 2017, 9:42 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Patrick L. Jessup Chad L. Rayle Anthony L. Kraus Thompson Smith Yoder & Kraus, P.C. Smith, Smith & Rayle, P.C. Kendallville, Indiana Auburn, Indiana
IN THE COURT OF APPEALS OF INDIANA
Rachea Eytcheson, January 13, 2017 Appellant-Petitioner, Court of Appeals Case No. 57A03-1607-DR-1711 v. Appeal from the Noble Circuit Court Jason Eytcheson, The Honorable G. David Laur, Appellee-Respondent. Judge Trial Court Cause No. 57C01-1512-DR-223
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017 Page 1 of 6 Case Summary [1] In this divorce case, the trial court set aside one-third of Jason Eytcheson’s
(Husband) 401(k) account to him and then divided the remainder equally
between Husband and Rachea Eytcheson (Wife). The court, following
Husband’s lead, reasoned that Husband had the 401(k) account for eight
years—or one-third of the account’s age—before the parties were married.
Wife argues that this was error. Because Husband did not present any evidence
of the amount he contributed to his 401(k) account during those eight years or
the value of his account when the parties got married, we conclude that the trial
court abused its discretion in setting aside one-third of Husband’s 401(k)
account to him. We therefore order the trial court to include this amount in the
marital pot for division.
Facts and Procedural History [2] Husband and Wife were married in December 1999. Husband began
participating in a 401(k) plan through his employer in April 1992; he continued
participating in the 401(k) plan throughout his marriage to Wife. Wife filed for
divorce in December 2015.
[3] At the final dissolution hearing in June 2016, the major contention was
Husband’s 401(k) account. Husband submitted Exhibit B, which was a
quarterly statement from his 401(k) account valuing it at $237,419.76 as of
Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017 Page 2 of 6 September 30, 2015.1 The parties agreed on the value; however, they disagreed
how to divide it.2 Wife’s attorney argued that there was no evidence as to the
401(k) account’s value when they got married in December 1999 and that the
account should be divided evenly. In response, Husband’s attorney said he
tried to get a value of the 401(k) account in December 1999 but could not. As
such, he felt that the “reasonable” way to divide the 401(k) account was to set
aside one-third of the $237,419.76 to Husband and then divide the remainder
equally. Husband’s attorney reasoned that Husband’s 401(k) account was
twenty-four years old and Husband had the account for eight, or one-third, of
those years before the parties were married. Tr. p. 34.
[4] The trial court agreed with Husband. Accordingly, the court set aside one-
third, or $79,139.92, to Husband and then divided the remaining $158,279.84
equally between Husband and Wife, giving $79,139.92 to each of them.
Appellant’s App. Vol. II, p. 11, 15. Due to Husband’s superior earning
capacity—“in that [Husband] earns six (6) times more than Wife”—the court
“deviate[d] from the presumptive equal division” and awarded Wife 55% of the
1 This was the value according to the most recent quarterly statement when Wife filed for divorce, which was before the December 30, 2015 quarterly statement. Tr. p. 33. 2 Wife’s attorney told the trial court that up until 5:30 p.m. the night before the final hearing, the parties had agreed to split the $237,419.76 evenly. See Tr. p. 30.
Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017 Page 3 of 6 “net” marital assets and Husband 45%. Id. at 11. Notably, the net marital
assets did not include the $79,139.92 that had been set aside to Husband.3
[5] Wife now appeals.
Discussion and Decision [6] Wife contends that the trial court erred in setting aside $79,139.92 from
Husband’s 401(k) account to him because Husband did not present any
evidence regarding the extent to which he contributed to his 401(k) account
before their marriage or the account’s value when they got married. The
division of marital property is highly fact sensitive. In re Marriage of Marek, 47
N.E.3d 1283, 1287 (Ind. Ct. App. 2016), trans. denied. It is a task within the
sound discretion of the trial court, and we will reverse only for an abuse of
discretion. Id.
[7] Indiana Code chapter 31-15-7 governs the disposition of marital assets in a
dissolution proceeding. Indiana Code section 31-15-7-4 provides that the trial
court shall divide the property of the parties in a “just and reasonable manner,”
whether that property was owned by either spouse before the marriage,
acquired by either spouse in his or her own right after the marriage and before
final separation, or acquired by their joint efforts. This “one pot” theory of
3 If the $79,139.92 that was set aside to Husband was included, then Wife actually received 43.76% of the marital assets while Husband received 56.24%.
Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017 Page 4 of 6 marital property ensures that all marital assets are subject to the trial court’s
power to divide and award. Marek, 47 N.E.3d at 1288.
[8] “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. However, the
presumption of equal division may be rebutted by a party who presents
evidence that an equal division would not be just and reasonable because of the
contribution each spouse made to the acquisition of property; the extent to
which property was acquired before the marriage or through inheritance or gift;
the economic circumstances of each spouse at the time of dissolution; the
conduct of the parties during the marriage relating to their property; and the
earnings or earning ability of each party. Id. The party seeking to rebut the
presumption of equal division bears the burden of proof of doing so. Id.
[9] Here, the trial court set aside one-third of Husband’s 401(k) account to him
because he had the 401(k) account for eight years—or one-third of the account’s
age—before the parties were married. However, there is no evidence in the
record regarding how much Husband actually contributed to his 401(k) account
during those eight years or the account’s value when he and Wife got married
in December 1999. The only evidence Husband presented was how much his
401(k) account was valued on September 30, 2015, approximately sixteen years
after the relevant date. Ex. B. As Wife argues on appeal, Husband could have
made smaller contributions during those initial eight years, when his salary was
most likely smaller, or there could have been market fluctuations during that
time period. It is always the burden of the spouse seeking segregation of an
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 13 2017, 9:42 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Patrick L. Jessup Chad L. Rayle Anthony L. Kraus Thompson Smith Yoder & Kraus, P.C. Smith, Smith & Rayle, P.C. Kendallville, Indiana Auburn, Indiana
IN THE COURT OF APPEALS OF INDIANA
Rachea Eytcheson, January 13, 2017 Appellant-Petitioner, Court of Appeals Case No. 57A03-1607-DR-1711 v. Appeal from the Noble Circuit Court Jason Eytcheson, The Honorable G. David Laur, Appellee-Respondent. Judge Trial Court Cause No. 57C01-1512-DR-223
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017 Page 1 of 6 Case Summary [1] In this divorce case, the trial court set aside one-third of Jason Eytcheson’s
(Husband) 401(k) account to him and then divided the remainder equally
between Husband and Rachea Eytcheson (Wife). The court, following
Husband’s lead, reasoned that Husband had the 401(k) account for eight
years—or one-third of the account’s age—before the parties were married.
Wife argues that this was error. Because Husband did not present any evidence
of the amount he contributed to his 401(k) account during those eight years or
the value of his account when the parties got married, we conclude that the trial
court abused its discretion in setting aside one-third of Husband’s 401(k)
account to him. We therefore order the trial court to include this amount in the
marital pot for division.
Facts and Procedural History [2] Husband and Wife were married in December 1999. Husband began
participating in a 401(k) plan through his employer in April 1992; he continued
participating in the 401(k) plan throughout his marriage to Wife. Wife filed for
divorce in December 2015.
[3] At the final dissolution hearing in June 2016, the major contention was
Husband’s 401(k) account. Husband submitted Exhibit B, which was a
quarterly statement from his 401(k) account valuing it at $237,419.76 as of
Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017 Page 2 of 6 September 30, 2015.1 The parties agreed on the value; however, they disagreed
how to divide it.2 Wife’s attorney argued that there was no evidence as to the
401(k) account’s value when they got married in December 1999 and that the
account should be divided evenly. In response, Husband’s attorney said he
tried to get a value of the 401(k) account in December 1999 but could not. As
such, he felt that the “reasonable” way to divide the 401(k) account was to set
aside one-third of the $237,419.76 to Husband and then divide the remainder
equally. Husband’s attorney reasoned that Husband’s 401(k) account was
twenty-four years old and Husband had the account for eight, or one-third, of
those years before the parties were married. Tr. p. 34.
[4] The trial court agreed with Husband. Accordingly, the court set aside one-
third, or $79,139.92, to Husband and then divided the remaining $158,279.84
equally between Husband and Wife, giving $79,139.92 to each of them.
Appellant’s App. Vol. II, p. 11, 15. Due to Husband’s superior earning
capacity—“in that [Husband] earns six (6) times more than Wife”—the court
“deviate[d] from the presumptive equal division” and awarded Wife 55% of the
1 This was the value according to the most recent quarterly statement when Wife filed for divorce, which was before the December 30, 2015 quarterly statement. Tr. p. 33. 2 Wife’s attorney told the trial court that up until 5:30 p.m. the night before the final hearing, the parties had agreed to split the $237,419.76 evenly. See Tr. p. 30.
Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017 Page 3 of 6 “net” marital assets and Husband 45%. Id. at 11. Notably, the net marital
assets did not include the $79,139.92 that had been set aside to Husband.3
[5] Wife now appeals.
Discussion and Decision [6] Wife contends that the trial court erred in setting aside $79,139.92 from
Husband’s 401(k) account to him because Husband did not present any
evidence regarding the extent to which he contributed to his 401(k) account
before their marriage or the account’s value when they got married. The
division of marital property is highly fact sensitive. In re Marriage of Marek, 47
N.E.3d 1283, 1287 (Ind. Ct. App. 2016), trans. denied. It is a task within the
sound discretion of the trial court, and we will reverse only for an abuse of
discretion. Id.
[7] Indiana Code chapter 31-15-7 governs the disposition of marital assets in a
dissolution proceeding. Indiana Code section 31-15-7-4 provides that the trial
court shall divide the property of the parties in a “just and reasonable manner,”
whether that property was owned by either spouse before the marriage,
acquired by either spouse in his or her own right after the marriage and before
final separation, or acquired by their joint efforts. This “one pot” theory of
3 If the $79,139.92 that was set aside to Husband was included, then Wife actually received 43.76% of the marital assets while Husband received 56.24%.
Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017 Page 4 of 6 marital property ensures that all marital assets are subject to the trial court’s
power to divide and award. Marek, 47 N.E.3d at 1288.
[8] “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. However, the
presumption of equal division may be rebutted by a party who presents
evidence that an equal division would not be just and reasonable because of the
contribution each spouse made to the acquisition of property; the extent to
which property was acquired before the marriage or through inheritance or gift;
the economic circumstances of each spouse at the time of dissolution; the
conduct of the parties during the marriage relating to their property; and the
earnings or earning ability of each party. Id. The party seeking to rebut the
presumption of equal division bears the burden of proof of doing so. Id.
[9] Here, the trial court set aside one-third of Husband’s 401(k) account to him
because he had the 401(k) account for eight years—or one-third of the account’s
age—before the parties were married. However, there is no evidence in the
record regarding how much Husband actually contributed to his 401(k) account
during those eight years or the account’s value when he and Wife got married
in December 1999. The only evidence Husband presented was how much his
401(k) account was valued on September 30, 2015, approximately sixteen years
after the relevant date. Ex. B. As Wife argues on appeal, Husband could have
made smaller contributions during those initial eight years, when his salary was
most likely smaller, or there could have been market fluctuations during that
time period. It is always the burden of the spouse seeking segregation of an
Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017 Page 5 of 6 asset from the marital estate to prove the grounds for the segregation and the
amount to be segregated. Morey v. Morey, 49 N.E.3d 1065, 1073 (Ind. Ct. App.
2016). Husband has failed to meet this burden by not presenting competent
evidence regarding the amount to be segregated. See id. (“At the hearing,
Husband testified that his Reynolds pension, annuity, and 401(k) started
accruing when his employment began in 1983. He also testified that he did not
know the value of either the Reynolds pension or 401(k) on the date of
marriage and that he was not completely vested in the Reynolds pension or the
401(k) during part [of] the eight years he worked at Reynolds prior to marriage.
. . . We agree with the trial court that Husband did not carry his burden on this
issue . . . .” (emphasis added)). Accordingly, the trial court abused its discretion
in setting aside one-third of Husband’s 401(k) account to him. We therefore
reverse the trial court on this issue and order it to include the $79,139.92 in the
marital pot. And because of Husband’s superior earning capacity, as
recognized by the trial court, Wife should receive 55% of the marital assets
while Husband should receive 45%.
[10] Reversed and remanded.
Bradford, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017 Page 6 of 6