MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 09 2018, 9:17 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Craig A. Dechert Mark A. Dabrowski Kokomo, Indiana Dabrowski Law Office Kokomo, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas Rees, August 9, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-DR-447 v. Appeal from the Howard Superior Court Judith Rees, The Honorable Brant J. Parry, Appellee-Petitioner Judge Trial Court Cause No. 34D02-1604-DR-300
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 1 of 9 [1] Thomas Rees appeals the trial court’s order dissolving the marriage between
Thomas and Judith Rees. Thomas contends that the trial court erroneously
valued an asset and erred in dividing the marital assets equally between the two
parties. Finding no error, we affirm. We also find that Judith is entitled to at
least a portion of her appellate attorney fees. Therefore, we remand for
calculation of her fees and a determination of what portion Thomas owes.
Facts [2] Thomas and Judith were married in February 2009; each party brought a
Kokomo residence into the marriage. On April 26, 2016, Judith filed a petition
to dissolve the marriage. At the time the petition was filed, the couple owned
several motor vehicles, including a 2007 Chateau motor home.
[3] During the marriage, Judith was “separated from” the couple’s financial
dealings. Tr. Vol. II p. 36. She had no access to any information about
Thomas’s retirement account and had no information about anything related to
a lien on the motor home.
[4] On May 20, 2016, Judith’s counsel served discovery on Thomas, including
interrogatories and a request for production. Thomas did not respond;
therefore, on August 26, 2016, Judith’s counsel filed a motion to compel, which
the trial court granted. Thomas never provided any documents in response to
the request for production. He provided interrogatory responses on September
8, 2016. In response to a series of detailed questions regarding real property,
vehicles, lienholders of vehicles, and debt, he repeatedly responded “N/A[.]”
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 2 of 9 Tr. Ex. p. 48. At the hearing on the dissolution petition, the following
discussion occurred between Thomas and Judith’s attorney regarding Thomas’s
discovery responses:
Q: Can you tell me please since I’ve been waiting to get here for a number of months in to court, why you didn’t disclose the existence of your real property, your motor vehicles, the amounts that you now claim are owed or otherwise?
A: You want to know the reason why?
Q: Yes can you tell us why you didn’t?
A: Because I was just plain ass pissed off. Matter of fact when, if my lawyer would confirm, when I came in and they handed this to me I threw it back to them and then most recently I didn’t fill it out at all.
Q: How about interrogatory number 30 did we ask you about what you owed?
A: I suppose you did.
Q: Did you answer it?
A: Probably not.
***
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 3 of 9 Q: Did you bring anything with you here today sir that establishes the lien you allege is on the RV? The payment that you make?
A: No.
Q: Nothing?
Tr. Vol. II p. 17-18. It was eventually established that Thomas had even
stonewalled his own attorney. Judith’s attorney later asked Thomas, “were you
so pissed off that you didn’t even tell your lawyer about the liabilities that you
owe?” Thomas responded, “No, I did not.” Id. at 29.
[5] The final hearing on the petition to dissolve took place on December 4, 2017.
At the hearing, Thomas claimed, in relevant part, that the couple had a lien on
the motor home, which had an original purchase price of $130,000, totaling
approximately $100,000. He offered no documentary evidence, either before
the hearing in response to discovery requests, or at the hearing itself, to support
this claim (or any of his other claims).
[6] Thomas has a retirement account worth approximately $296,000; Judith has a
retirement account valued at approximately $38,500. Thomas receives
approximately $250 per month from Social Security and approximately $3,600
per month from other sources; Judith receives approximately $1,150 from
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 4 of 9 Social Security per month and approximately $105 per month from other
sources.
[7] On December 6, 2017, the trial court entered a decree of dissolution. In
relevant part, the trial court found that the value of the motor home was
$130,000, noting as follows:
[Thomas] testified that there is a debt on the vehicle. However, [Thomas] could not provide an exact amount. Further, as [Thomas] did not provide discovery to [Judith], [Judith] was unable to obtain evidence of the same. [Thomas’s investment] account decreased several hundred thousand dollars during the course of the marriage. It is not clear whether this vehicle was purchased with a portion of that money. Therefore, the Court will not include a debt for the vehicle.
Appealed Order p. 2. The trial court awarded each party the residences they
respectively owned prior to the marriage. Ultimately, having considered the
required statutory factors, the trial court ordered that the marital estate be
divided equally. It also ordered Thomas to pay a portion of Judith’s attorney
fees in the amount of $3,500. Thomas now appeals.
Discussion and Decision I. Valuation of Motor Home [8] Thomas first argues that the trial court erred by valuing the motor home at
$130,000. He contends that the amount of the alleged lien on the motor home
should have been subtracted from the overall amount. Trial courts have broad
discretion in ascertaining the value of property in a dissolution action. E.g.,
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 5 of 9 Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). We will not reverse unless
the valuation is clearly against the logic and effect of the facts and
circumstances before the trial court, and in conducting our review, we will not
reweigh the evidence. Id.
[9] In this case, there is no evidence supporting Thomas’s assertion that there is a
lien on the motor vehicle other than the bald declarations he made during his
testimony. The reason that there is no such evidence is his dogged refusal to
respond to Judith’s interrogatories in an honest and forthright manner and his
outright refusal to produce any documents at all. It is readily apparent that the
trial court questioned his credibility—which is certainly a fair assessment, given
Thomas’s testimony reproduced above—and declined to credit his statements
absent documentary evidence to back them up.
[10] Thomas notes that after the decree of dissolution was entered, he filed a motion
to correct error, seeking to introduce evidence of the vehicle lien for the first
time. But this is evidence that he has had in his possession from the start. By
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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 Aug 09 2018, 9:17 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Craig A. Dechert Mark A. Dabrowski Kokomo, Indiana Dabrowski Law Office Kokomo, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas Rees, August 9, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-DR-447 v. Appeal from the Howard Superior Court Judith Rees, The Honorable Brant J. Parry, Appellee-Petitioner Judge Trial Court Cause No. 34D02-1604-DR-300
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 1 of 9 [1] Thomas Rees appeals the trial court’s order dissolving the marriage between
Thomas and Judith Rees. Thomas contends that the trial court erroneously
valued an asset and erred in dividing the marital assets equally between the two
parties. Finding no error, we affirm. We also find that Judith is entitled to at
least a portion of her appellate attorney fees. Therefore, we remand for
calculation of her fees and a determination of what portion Thomas owes.
Facts [2] Thomas and Judith were married in February 2009; each party brought a
Kokomo residence into the marriage. On April 26, 2016, Judith filed a petition
to dissolve the marriage. At the time the petition was filed, the couple owned
several motor vehicles, including a 2007 Chateau motor home.
[3] During the marriage, Judith was “separated from” the couple’s financial
dealings. Tr. Vol. II p. 36. She had no access to any information about
Thomas’s retirement account and had no information about anything related to
a lien on the motor home.
[4] On May 20, 2016, Judith’s counsel served discovery on Thomas, including
interrogatories and a request for production. Thomas did not respond;
therefore, on August 26, 2016, Judith’s counsel filed a motion to compel, which
the trial court granted. Thomas never provided any documents in response to
the request for production. He provided interrogatory responses on September
8, 2016. In response to a series of detailed questions regarding real property,
vehicles, lienholders of vehicles, and debt, he repeatedly responded “N/A[.]”
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 2 of 9 Tr. Ex. p. 48. At the hearing on the dissolution petition, the following
discussion occurred between Thomas and Judith’s attorney regarding Thomas’s
discovery responses:
Q: Can you tell me please since I’ve been waiting to get here for a number of months in to court, why you didn’t disclose the existence of your real property, your motor vehicles, the amounts that you now claim are owed or otherwise?
A: You want to know the reason why?
Q: Yes can you tell us why you didn’t?
A: Because I was just plain ass pissed off. Matter of fact when, if my lawyer would confirm, when I came in and they handed this to me I threw it back to them and then most recently I didn’t fill it out at all.
Q: How about interrogatory number 30 did we ask you about what you owed?
A: I suppose you did.
Q: Did you answer it?
A: Probably not.
***
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 3 of 9 Q: Did you bring anything with you here today sir that establishes the lien you allege is on the RV? The payment that you make?
A: No.
Q: Nothing?
Tr. Vol. II p. 17-18. It was eventually established that Thomas had even
stonewalled his own attorney. Judith’s attorney later asked Thomas, “were you
so pissed off that you didn’t even tell your lawyer about the liabilities that you
owe?” Thomas responded, “No, I did not.” Id. at 29.
[5] The final hearing on the petition to dissolve took place on December 4, 2017.
At the hearing, Thomas claimed, in relevant part, that the couple had a lien on
the motor home, which had an original purchase price of $130,000, totaling
approximately $100,000. He offered no documentary evidence, either before
the hearing in response to discovery requests, or at the hearing itself, to support
this claim (or any of his other claims).
[6] Thomas has a retirement account worth approximately $296,000; Judith has a
retirement account valued at approximately $38,500. Thomas receives
approximately $250 per month from Social Security and approximately $3,600
per month from other sources; Judith receives approximately $1,150 from
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 4 of 9 Social Security per month and approximately $105 per month from other
sources.
[7] On December 6, 2017, the trial court entered a decree of dissolution. In
relevant part, the trial court found that the value of the motor home was
$130,000, noting as follows:
[Thomas] testified that there is a debt on the vehicle. However, [Thomas] could not provide an exact amount. Further, as [Thomas] did not provide discovery to [Judith], [Judith] was unable to obtain evidence of the same. [Thomas’s investment] account decreased several hundred thousand dollars during the course of the marriage. It is not clear whether this vehicle was purchased with a portion of that money. Therefore, the Court will not include a debt for the vehicle.
Appealed Order p. 2. The trial court awarded each party the residences they
respectively owned prior to the marriage. Ultimately, having considered the
required statutory factors, the trial court ordered that the marital estate be
divided equally. It also ordered Thomas to pay a portion of Judith’s attorney
fees in the amount of $3,500. Thomas now appeals.
Discussion and Decision I. Valuation of Motor Home [8] Thomas first argues that the trial court erred by valuing the motor home at
$130,000. He contends that the amount of the alleged lien on the motor home
should have been subtracted from the overall amount. Trial courts have broad
discretion in ascertaining the value of property in a dissolution action. E.g.,
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 5 of 9 Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). We will not reverse unless
the valuation is clearly against the logic and effect of the facts and
circumstances before the trial court, and in conducting our review, we will not
reweigh the evidence. Id.
[9] In this case, there is no evidence supporting Thomas’s assertion that there is a
lien on the motor vehicle other than the bald declarations he made during his
testimony. The reason that there is no such evidence is his dogged refusal to
respond to Judith’s interrogatories in an honest and forthright manner and his
outright refusal to produce any documents at all. It is readily apparent that the
trial court questioned his credibility—which is certainly a fair assessment, given
Thomas’s testimony reproduced above—and declined to credit his statements
absent documentary evidence to back them up.
[10] Thomas notes that after the decree of dissolution was entered, he filed a motion
to correct error, seeking to introduce evidence of the vehicle lien for the first
time. But this is evidence that he has had in his possession from the start. By
his own admission at the final hearing, he simply and intentionally refused to
produce it or to answer Judith’s questions about it honestly. Under these
circumstances, the trial court was perfectly correct to deny the motion to correct
error.
[11] As it stands, the only evidence in the record that the trial court found to be
credible establishes the value of the motor home to be $130,000. Therefore, its
decision to value the vehicle in that amount was not erroneous.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 6 of 9 II. Division of the Marital Estate [12] Thomas also argues that the trial court erred by dividing the marital estate
equally. According to Thomas, he brought the majority of the couple’s assets
into the marriage by way of his retirement account. He also admits that Judith
is economically disadvantaged at the time of dissolution but argues that he left
her “in a better position” than she was in when they got married. Appellant’s
Br. p. 13.
[13] When dividing a marital estate, the presumption is that the estate should be
divided equally. The presumption may be rebutted by evidence that an equal
division would not be just and reasonable. Ind. Code § 31-15-7-5. Among
other things, the following factors may be considered:
(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.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 7 of 9 (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.
Id. The party challenging the trial court’s property division must overcome a
strong presumption that the court complied with the statute and considered the
evidence on each of the statutory factors. E.g., Harrison v. Harrison, 88 N.E.3d
232, 234 (Ind. Ct. App. 2017), trans. denied.
[14] In this case, the only evidence presented by Thomas was his own testimony and
one document, which established the value of a retirement account in 2014—
two years before the petition to dissolve was filed—and which was included in
the exhibits introduced by Judith. As noted above, the trial court evidently
found Thomas to be lacking in credibility, which is a sound conclusion given
his admitted dishonesty throughout the proceedings. As a result, there is no
evidence supporting Thomas’s argument or assertions. In other words, he fails
to overcome the strong presumption that the trial court complied with the
statute.
[15] The trial court awarded Judith a portion of her attorney fees in the decree of
dissolution. Given that Thomas’s arguments on appeal all stem from his own
obstinacy and obstreperousness during discovery and at the final hearing, we
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 8 of 9 believe it warranted to remand to the trial court to calculate Judith’s appellate
attorney fees and decide what portion1 of those fees Thomas should bear.
[16] The judgment of the trial court is affirmed and remanded for calculation of
appellate attorney fees.
May, J., and Robb, J., concur.
1 The trial court is free to find that Thomas should bear all, or only a part, of Judith’s appellate attorney fees.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018 Page 9 of 9