Richard L. Smart v. Kristina L. Smart

• Court: Indiana Court of Appeals
• Decided: September 23, 2014
• Docket: 35A02-1403-DR-171
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing Sep 23 2014, 9:30 am the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

JOSHUA I. TOURKOW ROBERT S. GARRETT Tourkow Crell Rosenblatt & Johnston Bowers, Brewer, Garrett & Wiley, LLP Fort Wayne, Indiana Huntington, Indiana

IN THE COURT OF APPEALS OF INDIANA

RICHARD L. SMART, ) ) Appellant-Petitioner, ) ) vs. ) No. 35A02-1403-DR-171 ) KRISTINA L. SMART, ) ) Appellee-Respondent. )

APPEAL FROM THE HUNTINGTON SUPERIOR COURT The Honorable Jeffrey R. Heffelfinger, Judge Cause No. 35D01-1205-DR-408

September 23, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Richard L. Smart (“Husband”) appeals the trial court’s judgment and division of

assets and debts entered following the dissolution of his marriage from Kristina L. Smart

(“Wife”).

We vacate and remand.

FACTS AND PROCEDURAL HISTORY

Husband and Wife were married on June 27, 2009. Husband filed a petition for

dissolution of marriage on May 14, 2012. A hearing was held on the petition on November

1, 2013, and the parties submitted proposed division of assets balance sheets. On January

17, 2014, the trial court entered its Dissolution Judgment, which included certain findings,

and its division of the marital estate, which the trial court appended to its Judgment as

Exhibit 1.1 The trial court found “no compelling reason not to divide the assets and debts

on an equal basis considering the marriage was less than 3 years.” Appellee’s App. at 2.

DISCUSSION AND DECISION

Husband argues on appeal that the trial court abused its discretion when it divided

the couple’s marital assets and liabilities. When it divides a marital estate, “first, the trial

court determines what property is to be included in the marital pot; second, the trial court

must divide the property.” Pitcavage v. Pitcavage, 11 N.E.3d 547, 565 (Ind. Ct. App.

2014) (quoting Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004), trans.

denied). The marital pot includes property owned by either spouse before the marriage,

property acquired by either spouse in his or her own right after the marriage but before the

1 We note that the copies of Exhibit 1 that Husband included in his Appendix and attached to his Brief included handwritten notes that impeded our review of this case. 2 final separation, and property acquired by their joint efforts. Ind. Code § 31-15-7-4(a)(1)-

(3). The division of the marital pot is subject to a presumption that an equal split is just

and reasonable. Ind. Code § 31-15-7-5. An unequal division of the marital pot may be

justified by the factors listed in Indiana Code section 31-15-7-5. If a trial court deviates

from an equal split, it must state why it did so. Troyer v. Troyer, 987 N.E.2d 1130, 1139

(Ind. Ct. App. 2013) (citations omitted), trans. denied.

Here, the trial court’s judgment deviates from the statutory requirement that all

assets and liabilities of the parties acquired before filing must be included in the marital

pot. The full value of the home, Wife’s savings account containing her tuition

reimbursement, Husband’s 1923 Ford, and the Kiss tickets must be included in the marital

pot. Because the issues may reoccur on remand, we make the following observations:

First, the valuation of all of the property of the parties, including the home, must be made

as of a date between the date of filing and the date of the final hearing. Eyler v. Eyler, 492

N.E.2d 1071, 1074 (Ind. 1986). Second, the entire value of the home, less the mortgage

debt thereon, should be included in the marital pot. Finally, we direct the trial court to the

fact that it found that Wife caused $1,244.89 worth of damage to Husband’s truck, but that

it does not appear that the trial court factored that damage into its division of the marital

assets. We remand for entry of a judgment that is consistent with the dissolution statute.

Vacated and remanded.

BAKER, J., and ROBB, J., concur.