MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 14 2016, 8:37 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Mark S. Lenyo Peter M. Yarbro South Bend, Indiana Fred R. Hains Sara E. Tumbleson Hains Law Firm, LLP South Bend, Indiana
IN THE COURT OF APPEALS OF INDIANA Robin L. Rajski, April 14, 2016 Appellant-Petitioner, Court of Appeals Case No. 71A03-1505-DR-259 v. Appeal from the St. Joseph Circuit Court Robert Rajski, The Honorable Michael G. Appellee-Respondent. Gotsch, Judge The Honorable Andre B. Gammage, Magistrate Trial Court Cause No. 71C01-1305-DR-273
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 1 of 16 STATEMENT OF THE CASE
[1] Appellant/Cross-Appellee-Petitioner, Robin Rajski (Robin), appeals the trial
court’s Decree of Dissolution, dissolving her marriage to Appellee/Cross-
Appellant-Respondent, Robert Rajski (Robert).
[2] We affirm, in part, reverse, in part, and remand.
ISSUES
[3] Robin raises six issues on appeal, which we consolidate and restate as:
(1) Whether the trial court abused its discretion in equally dividing the marital
estate;
(2) Whether the trial court abused its discretion by not awarding spousal
maintenance to Robin; and
(3) Whether Robin is entitled to attorney’s fees.
On Cross-Appeal, Robert raises one issue, which we restate as: Whether the
trial court abused its discretion by finding that he had dissipated marital assets.
FACTS AND PROCEDURAL HISTORY
[4] Robin and Robert were married on June 28, 1996, and one child was born,
Z.R., in 1998. The parties separated on December 3, 2012. During the
marriage, Robert was self-employed with Bella Terra Lawn Sprinklers, which
services lawn sprinklers during the warmer months and plows snow during the
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 2 of 16 winter months. In the calendar year of 2012, Robert had a gross income of
$51,743.00. Robin acted as the office manager for Bella Terra until the
separation, and her responsibilities included handling the books and the
accounts, mailing information to customers, and setting up appointments. She
worked twenty to sixty hours per week, at a rate of fifteen dollars per hour.
[5] Robin has an Associate’s Degree in Medical Assisting from Ivy Tech. While
attending Ivy Tech, Robin took out a student loan, which is currently in default,
with a balance of $1,286.44. She is also a Certified Medical Assistant and is
certified as a mortgage broker. On two occasions, most recently in 2012, she
worked at Memorial Hospital in South Bend. In connection with a position she
held previously at Notre Dame, Robin had a TIAA-CREF retirement account.
As of February 22, 2005, the account had a balance of $2,030.51. At the time
of the dissolution hearing, Robin was unemployed, had no income, and was
seeking disability benefits from the Social Security Administration. She has
already been denied benefits after a full agency application process, including
appeals. At the time of the appellate briefs, Robin has a pending lawsuit in
federal district court for judicial review of the agency’s determination.
[6] Robin reports to suffer from several auto immune disorders. She asserts to have
lupus, fibromyalgia, gastroparesis, lazy bowel syndrome, and arthritis of all
joints. In a deposition admitted at trial, Dr. James Harris (Dr. Harris), Robin’s
physician, testified that “several of [Robin’s] problems limit her from being able
to work or be an effective employee in any position.” (Petitioner’s Ex. 1, p. 15).
Dr. Harris did not “anticipate she will improve to the point where she can work
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 3 of 16 again.” (Petitioner’s Ex. 1, p. 17). Although he confirmed that Robin is still
able to drive and can maintain her house, Dr. Harris concluded that Robin is
“disabled,” which he defined as an “inability to hold gainful employment.”
(Petitioner’s Ex. 1, p. 38). He clarified
[a]s far as I can tell, her ability to use her hands as a medical transcriptionist is intact. I don’t see any problems with her hands or arms or ability to type or any of those things. The problem is her ability to function on a regular basis in any role to consistently attend work, to be able to be fully functional on a daily basis. I think her diseases collectively cause her a great number of days where she can’t function, where regardless of what her employment task might be, she wouldn’t be able to perform those in an effective way that would be satisfactory to an employer. For example, driving, yes, there are days she could do that maybe on a p.r.n. basis, you know. But to be consistently employed, that would be very difficult because of frequent illnesses, relapses, whatever.
A medical transcriptionist, she has the ability to be trained in that. She could - - I think she could mentally and physically do the work at a point in time, but I think on a regular basis, I think would be virtually impossible for her.
(Petitioner’s Ex. 1, pp. 40-41). However, Dr. Harris nuanced that it could be
“possible” for Robin to “work from home in some capacity.” (Petitioner’s Ex.
1, p. 43).
[7] Between May 2 and May 18, 2013, after the parties had separated but before
Robin had filed her petition for dissolution, Robert made five withdrawals from
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 4 of 16 the parties’ joint bank account, for a total amount of $4,666, without Robin’s
knowledge.
[8] On May 29, 2013, Robin filed a petition for dissolution of marriage. During the
hearing on December 3, 2013, the trial court affirmed the parties’ agreement for
joint legal and physical custody of Z.R. On December 1, 2014, the trial court
conducted a hearing on the petition for dissolution. On March 31, 2015, the
trial court entered its findings of fact and conclusions thereon, equally dividing
the marital estate. The trial court determined each party to be responsible for its
own attorney fees. On April 20, 2015, the trial court amended its order,
denying Robin’s request for spousal maintenance because she had “not
established that she is incapacitated, or that the party’s daughter, [Z.R.], is
incapacitated to the extent that [Robin] has to forego working to care for the
daughter.” (Appellant’s App. p. 62). On April 30, 2015, Robert filed a motion
to correct error, which was granted in part1 and denied in part by the trial court
on June 8, 2015.
[9] Robin now appeals and Robert cross-appeals. Additional facts will be provided
as necessary.
DISCUSSION AND DECISION
APPEAL
1 In its order, the trial court granted a downward revision in the amount of Robert’s weekly child support payments and clarified the tax exemptions. These issues are not before this court.
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 5 of 16 I. Division of the Marital Estate
[10] Robin contends that the trial court’s equal division of the marital estate was not
just and reasonable in light of her medical history, current condition, and
economic circumstances. The division of marital assets lies within the sound
discretion of the trial court. Bertholet v. Bertholet, 725 N.E.2d 487, 494 (Ind. Ct.
App. 2000). Thus, we will reverse only if that discretion is abused. Id. “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 the reasonable,
probable, and actual deductions to be drawn therefrom.” Id. (citing Wells v.
Collins, 679 N.E.2d 915, 916 (Ind. Ct. App. 1997)). As a reviewing court, we
may not reweigh the evidence or assess the credibility of witnesses, and we
consider only the evidence most favorable to the trial court’s disposition of
marital property. Id.
[11] Here, the trial court made findings of fact and conclusions of law thereon
pursuant to Ind. Trial Rule 52(A) in its dissolution decree and its amendment
thereof. Our standard of review is therefore two-tiered. “We first determine
whether the evidence supports the findings and then whether those findings
support the judgment.” Bertholet, 725 N.E.2d at 495. On review, we do not set
aside the trial court’s findings or judgment unless clearly erroneous. T.R.
52(A). A finding is clearly erroneous when there is no evidence or inferences
reasonably drawn therefrom to support it. Bertholet, 725 N.E.2d at 495. The
judgment is clearly erroneous when it is unsupported by the findings of fact and
conclusions entered on the findings. Id. We may affirm the judgment on any
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 6 of 16 legal theory supported by the findings if that theory is consistent with “all of the
trial court’s findings of fact and the inferences reasonably drawn from the
findings[,]” and if we deem such a decision prudent in light of the evidence
presented at trial and the arguments briefed on appeal. Id.
[12] The division of marital property in Indiana is a two-step process. Thompson v.
Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004), trans. denied. The trial
court must first determine what property must be included in the marital estate.
Id. Included within the estate is all the property acquired by the joint effort of
the parties. Id. With certain limited exceptions, this “one-pot” theory
specifically prohibits the exclusion of any assets from the scope of the trial
court’s power to divide and award. Id. Only property acquired by an
individual spouse after the final separation date is excluded from the marital
estate. Id.
[13] After determining what constitutes marital property, the trial court must then
divide the marital property under the presumption that an equal split is just and
reasonable. Ind. Code § 31-15-7-5. A party who challenges the trial court’s
division of the marital estate must overcome a strong presumption that the trial
court considered and complied with the applicable statute. Frazier v. Frazier, 737
N.E.2d 1220, 1223 (Ind. Ct. App. 2000). This presumption may be rebutted if a
party presents relevant evidence regarding the following factors: (1) each
spouse’s contribution to the acquisition of property, regardless of whether the
contribution was income producing; (2) acquisition of property through gift or
inheritance prior to the marriage; (3) the economic circumstances of each
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 7 of 16 spouse at the time of the disposition; (4) each spouse’s dissipation or disposition
of property during the marriage; and (5) each spouse’s earning ability. See I.C. §
31-15-7-5.
[14] Here, the trial court found that an equal division of the marital estate would be
just and reasonable. The trial court first established all the marital assets and
marital liabilities and then divided the net marital estate evenly between the
parties. “The [c]ourt determine[d] this disposition to be equitable and an equal
division of the assets, having taken into consideration the statutory
requirements in I.C. [§] 31-15-7-5, the significant disparity in income between
the parties, and the significate [sic] debts taken on by [Robert].” (Appellant’s
App. p. 22). Nonetheless, focusing upon her economic circumstances and
earning ability, Robin attempts to rebut the presumption of an equal division.
She maintains that during the marriage she made major contributions to
Robert’s business while at the same time being the primary care giver for their
daughter. Furthermore, she posits that her current economic circumstances are
negatively affected by her medical condition, which prevents her from working.
[15] The record reflects that prior to the parties’ separation, Robin worked twenty to
sixty hours per week in Robert’s business and she acknowledged to being paid
fifteen dollars per hour. Due to the separation, she discontinued her work in
the business. She now maintains that she cannot find work because of her
medical problems. Although she applied for social security disability benefits, it
should be noted that at the time of filing the appellate briefs, Robin’s request had
been declined and a federal appeal to that decision was pending.
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 8 of 16 Nevertheless, despite her extensive medical problems, the trial court gave
credence to Dr. Harris’ testimony that it might be possible for Robin to work
from home in some capacity. In its findings, the trial court accounted for
Robert’s earning abilities and “significant disparity in income” by assigning him
most of the debts of the marriage. Based on the evidence before us, we cannot
say that Robin overcame the strong presumption that an equal split of the
marital estate is just and reasonable.
[16] In a cursory argument, Robin also takes issue with three specific items in the
trial court’s property division: the specificity of the requirement that Robert pay
all of the joint taxes due, the attribution of Robin’s retirement account to her
share of the parties’ assets, and the requirement that she pay her own student
loan.
[17] With respect to the taxes due and owing, both parties agree that the trial court
intended Robert to pay these taxes but failed to specifically direct him to do so
in its order. Accordingly, we remand to the trial court to clarify its order.
[18] At trial, Robert submitted evidence of Robin’s TIAA-CREF retirement account
which had a balance of $2,030.51 in 2005. Despite Robin’s claim that she had
withdrawn all the money from the account “to pay off accounts,” no evidence
was submitted that this specific retirement account no longer existed.
(Transcript p. 55). Although the trial court acknowledged the age of the
account—“given it is seven years before the divorce is filed”—the trial court
admitted the evidence and placed it in the marital pot. (Tr. p. 146). As such, it
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 9 of 16 is apparent that the trial court weighed the evidence and judged the credibility of
the witnesses in reaching its decision on this issue. Robin’s claim amounts to a
request to reweigh the evidence, which we decline to do. See Bertholet, 725
N.E.2d at 494.
[19] With respect to Robin’s student loan in the amount of $1,286.44, she argues in a
single sentence that her “student loan should be included on the list of marital
[assets] as the loan was incurred in 2006 and is clearly a marital asset, and
should be included in the marital pot.” (Appellant’s Br. p. 19). In its division,
the trial court determined “[Robin’s] student loan is not included in the marital
debt. Mother is to pay this debt on her own and to hold [Robert] harmless
thereon.” (Appellant’s App. p. 20). Nevertheless, we have repeatedly held that
student loans incurred during the marriage are marital obligations and thus are
part of the marital estate. See Nornes v. Nornes. 884 N.E.2d 886, 889 (Ind. Ct.
App. 2008); Roberts v. Roberts, 670 N.E.2d 72, 77 (Ind. Ct. App. 1996), trans.
denied. Accordingly, the trial court erred by assigning Robin the student loans
on the basis that she has the degree and she should pay for it.2 We remand to
the trial court with direction to include the student loan in the marital pot.
II. Spousal Maintenance
2 However, a trial court may give due consideration to the effect that the degree may have in determining the earnings ability of the party holding the degree. See I.C. § 31-15-7-5(5).
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 10 of 16 [20] Robin contends that the trial court abused its discretion by failing to award her
spousal maintenance. Pointing towards her medical condition and Dr. Harris’
testimony, she claims that she is entitled to incapacity maintenance. A trial
court’s decision to award maintenance is purely within its jurisdiction and we
will only reverse if the award is against the logic and effect of the facts and
circumstances of the case. Augspurger v. Hudson, 802 N.E.2d 503, 508 (Ind. Ct.
App. 2004). “A maintenance . . . award is designed to help provide for a
spouse’s sustenance and support.” Wilhelm v. Wilhelm, 397 N.E.2d 1079, 1081
(Ind. Ct. App. 1979). “The essential inquiry is whether the incapacitated
spouse has the ability to support himself or herself.” McCormick v. McCormick,
780 N.E.2d 1220, 1224 (Ind. Ct. App. 2003).
[21] In reviewing a claim for incapacity maintenance, “[a] court may make the
following findings . . .: If the court finds a spouse to be physically or mentally
incapacitated to the extent that the ability of the incapacitated spouse to support
himself or herself is materially affected, the court may find that maintenance for
the spouse is necessary during the period of incapacity, subject to further order
of the court.” I.C. § 31-15-7-2(1). In its amended order of April 20, 2015, the
trial court extensively reviewed the evidence in its findings and found that
[o]ther than testimony from [Robin] regarding her list of maladies, the only other evidence presented at trial regarding [Robin’s] incapacity was the deposition of [Dr. Harris]. Dr. Harris testified that [Robin] was incapacitated and therefore unable to work; however, Dr. Harris also state[d] that [Robin] could possibly work from home.
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 11 of 16 (Appellant’s App. p. 60). The trial court concluded that “[b]ased on the
evidence presented at trial, [Robin] has not established that she is incapacitated
or that the party’s daughter, [Z.R.], is incapacitated to the extent that [Robin]
has to forego working to care for the daughter.”3 (Appellant’s App. p. 62).
[22] In Matzat v. Matzat, 854 N.E.2d 918, 921 (Ind. Ct. App. 2006), this court
reversed an award of maintenance where the wife had claimed back problems
but failed to present any evidence suggesting the nature or origin of the
problems, her diagnosis or prognosis, her recommended treatment, whether she
had followed such treatment, or the permanency of the problem. Significantly,
the wife in Matzat had applied for social security benefits and had been denied.
Id. We concluded that such meager evidence could not sustain an award of
incapacity maintenance. Id.
[23] Similarly, here, Robin testified as to her medical problems and submitted Dr.
Harris’ testimony. While Dr. Harris did not anticipate Robin to improve to the
point where she can work again, the trial court deemed it important that Dr.
Harris nuanced his testimony by noting that it could be “possible” for Robin “to
work from home in some capacity.” (Petitioner’s Ex. 1, p. 43). Moreover, the
trial court noted that Robin had worked for the family business and that she
was a certified medical assistant. Most importantly, Robin “had been denied
social security benefits.” (Appellant’s App. p. 61). Accordingly, in line with
3 On appeal, Robin no longer claims incapacity based upon her daughter’s condition, but focuses on spousal maintenance based on her own medical problems.
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 12 of 16 Matzat, we conclude that, based on the evidence, the trial court did not abuse its
discretion by declining to award incapacity maintenance.
III. Attorney’s Fees
[24] Robin contends that the trial court abused its discretion by not awarding her
attorney’s fees. Comparing Robert’s earning ability and award of the marital
residence to her lack of “assets of substantial value,” she requests this court to
reverse the trial court’s denial of attorney’s fees. (Appellant’s Br. p. 22).
[25] Indiana Code section 31-15-10-1(a) provides that a trial court in a dissolution
proceeding “periodically may order a party to pay a reasonable amount . . . for
attorney’s fees . . .; including amounts for legal services provided and costs
incurred before the commencement of the proceedings or after entry of
judgment.” We review a decision on attorney’s fees in connection with a
dissolution decree for an abuse of discretion. Crider v Crider, 15 N.E.3d 1042,
1053 (Ind. Ct. App. 2014), trans. denied. When deciding whether to award
attorney’s fees, trial courts must consider the relative resources of the parties,
their economic condition, the ability of the parties to engage in gainful
employment and earn an adequate income, and other factors that bear on the
reasonableness of the award. Id. The legislative purpose behind I.C. § 31-15-
10-1 is to ensure that a party in a dissolution proceeding is able to retain
representation when he or she would otherwise be unable to afford an attorney.
Id. When one party is in a superior position to pay fees over the other party, an
award of attorney’s fees is proper. Id.
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 13 of 16 [26] Here, despite a request for attorney’s fees from both parties, the trial court
ordered the parties to be responsible for their own legal fees. We agree. The
enumeration of assets in the marital estate reflects few items of substantial value,
and its total worth amounted to $152,472. These assets are practically
overshadowed by the liabilities carried by the parties during the marriage,
which amounted to $136,119, resulting in a net marital estate of $16,353. Even
though the trial court awarded Robert most assets of value, the trial court also
shifted most of the marital debts to him. In support of her argument, Robin
again relies on her inability to earn an income; however, the trial court, relying
on Dr. Harris’ testimony, opined otherwise. Accordingly, with a low balance in
the net marital estate and an equal division of these assets, we cannot say that
Robert is in a superior position to pay attorney’s fees. See id.
CROSS-APPEAL
[27] On cross-appeal, Robert challenges the trial court’s determination that he
dissipated marital assets.4 Our court reviews findings of dissipation in various
contexts under an abuse of discretion standard. Goodman v. Goodman, 754
N.E.2d 595, 598 (Ind. Ct. App. 2001), reh’g denied. We will reverse only if the
trial court’s judgment is clearly against the logic and effect of the facts and the
reasonable inferences to be drawn from those facts. Id.
4 Although our motions panel granted Robin time to file a reply/cross-appellee’s brief, Robin did not avail herself of this opportunity.
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 14 of 16 [28] Dissipation of marital assets involves “the frivolous, unjustified spending of
marital assets.” Id. The test for dissipation of marital assets is “whether the
assets were actually wasted or misused.” Id. Factors to consider in determining
whether dissipation has occurred include: (1) whether the expenditure
benefited the marriage or was made for a purpose entirely unrelated to the
marriage; (2) the timing of the transaction; (3) whether the expenditure was
excessive or de minimis; and (4) whether the dissipating party intended to hide,
deplete, or divert the marital asset. Id.
[29] In its order, the trial court concluded that Robert
removed the sum of $4,666.00 within about a two-week period, much of it withdrawn in cash and with no evidence of its use for the benefit of the family. The [c]ourt determined that the monies taken by [Robert] were used for his own benefit and not for the benefit of the family.
(Appellant’s App. p. 52).
The parties separated on December 3, 2012, with the petition for dissolution
filed on May, 29, 2013. The evidence reflects that Robert made five contested
withdrawals from the parties’ joint bank account: $1,700 on May 2, 2013; $900
on May 13, 2013, $1,006 on May 15, 2013, $60 on May 16, 2013, and $1,000
on May 18, 2013. See In re Marriage of Coyle, 671 N.E.2d 938, 943 (Ind. Ct.
App. 1996) (“[T]ransactions which occur during the breakdown of the
marriage, just prior to filing a petition or during the pendency of an action, may
require heightened scrutiny.”) Robin testified that she had “no idea what” the
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 15 of 16 withdrawals were for. (Tr. pp. 49-50). See id. (“The non-dissipating party’s
participation in or consent to the expenditure is a relevant consideration.”). In
his testimony, Robert stated—without any supporting evidence—that the
$1,006 withdrawal was “a mortgage payment.” (Tr. p. 178). However, he
admitted not to know what he did with the cash withdrawals of $1,700, $900,
and $1,000. In light of this evidence, the trial court concluded that all five
withdrawals were used for Robert’s own benefit and not for the family’s needs.
Accordingly, the trial court’s judgment is not clearly against the logic and effect
of the facts before it, and as we find no abuse of discretion, we affirm the trial
court’s conclusion of dissipation.
CONCLUSION
[30] Based on the foregoing, we remand to the trial court to specifically direct
Robert to pay the taxes due and owing. We also remand with instruction to
include Robin’s student loan in the marital estate and to recalculate the equal
division of the estate, if necessary. We affirm the trial court in all other
respects.
[31] Affirmed.
[32] Najam, J. and May, J. concur
Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016 Page 16 of 16