Timothy Kendrick v. Angela Kendrick

44 N.E.3d 721, 2015 Ind. App. LEXIS 641, 2015 WL 5562440
CourtIndiana Court of Appeals
DecidedSeptember 22, 2015
Docket49A02-1412-DR-888
StatusPublished
Cited by14 cases

This text of 44 N.E.3d 721 (Timothy Kendrick v. Angela Kendrick) 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
Timothy Kendrick v. Angela Kendrick, 44 N.E.3d 721, 2015 Ind. App. LEXIS 641, 2015 WL 5562440 (Ind. Ct. App. 2015).

Opinions

BROWN, Judge.

[1] Timothy Kendrick (“Husband”) appeals from the trial court’s decree of dissolution of marriage. He raises one issue, which we revise and restate as whether the court abused its discretion in ordering him to make monthly equalization payments to Angela Kendrick (‘Wife”) prior to the distribution of his pension benefits. Wife raises one issue on cross-appeal, which we revise and restate as whether the court abused its discretion in determining and distributing the marital estate. We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] Husband and Wife were married in September 1995. On December 12, 2013, Husband filed a petition alleging that the parties lived together until they were separated on or about November 8, 2013, and have not since lived together as husband and wife and requesting the dissolution of the marriage.

[3] On October 29, 2014, the court held a final dissolution hearing at which the parties presented evidence and argument related to the value of the marital property, including the parties’ vehicles, debt, the marital residence, and Husband’s retirement accounts. The evidence included a valuation report prepared by Financial Evaluations, Inc., related to Husband’s retirement through the Public Employees’ Retirement Fund (“PERF”). The report stated that Husband’s retirement through PERF consisted of two components, a defined benefit pension and a defined contribution annuity savings account. The report also stated that the defined benefit pension required ten years to vest and, in its standard form, was single life payable at age sixty-five with a five year guarantee. The report stated that, with over fifteen years of service, the normal retirement age is sixty with no actuarial reduction for age and that, if the employee is at least age fifty-five and the employee’s years of creditable service plus age at retirement equals eighty-five, the employee is entitled to an immediate annuity.

[4] The report stated that the purpose of the report was to “form a professional opinion as to assets (present) value of the accrued PERF pension benefit (normal retirement option: $950.79 per month at age 60.03 and life thereafter) existing on the date of valuation (12/12/2013)” and to “compute the coverture fraction and to estimate the portion of the pension which was earned during the marriage.” Petitioner’s Exhibit 1 at 2. In its findings, the report stated that the present value of the defined benefit pension annuity starting at age 60.03 and continuing through the retiree’s projected death was $172,285.30 and that the amount earned during the marriage, based on a coverture fraction of 67.4658 percent, was $116,233.64. In a section setting forth assumptions and biographical data, the report set forth assumed discount rates published by the Pension Benefits Guaranty Corporation and stated that Husband was born on December 20,1957, that his age at the date of valuation was 55.98, that he would receive a monthly payment of $950.79 payable at [723]*723age 60.08 for sixty “[m]onths [c]ertain” and “life thereafter,” and that his life expectancy at the date of valuation was 27.45 years. Petitioner’s Exhibit 1.

[5] In addition, the evidence included an appraisal report related to the marital residence, a mortgage statement, a spreadsheet of Husband’s debts and expenses with supporting documentation, and Husband’s estimated cost to repair two windows in the marital residence. The evidence also included an account balance statement of Husband’s defined contribution annuity savings account through PERF, a portfolio statement from TIAA-CREF, a statement of an investment account, and evidence of the estimated value of the parties’ vehicles.

[6] Husband testified that he had worked for IUPUI for twenty-six years, he made approximately twenty dollars per hour, he would have retirement benefits through PERF, he did not currently have access to those funds and would have access to them when he retired, he was fifty-six years old, and that he did not know when he would retire. He testified that he had been married for eighteen years and had been contributing to PERF for twenty-six years. In the file-stamped copy of his verified financial declaration filed with the trial court, Husband indicated that his gross weekly salary was $841.60. When asked if he “wanted to give [Wife] ½ of the time that [he] was married,” Husband stated “[t]hat is correct.” Transcript at 13-14. He testified that he did not. have the ability to pay any lump sum, he did not have any other assets besides PERF where there is a sum of money, that the amount he owed on the house was higher than the house’s value, and that Wife’s son had caused damage to two windows.

[7] Wife testified that she had fallen at work and receives approximately $900 monthly in social security disability benefits. She stated that Husband had taken all of her keys, that when she returned to the house on one occasion to obtain- her things Husband was home and would not open the door, that her son broke a window to access the house so that she could retrieve her property, and that she and her son did not cause any other damage. Wife requested that the court award her $50,000 and that it order Husband to pay her in installments over an eight-year period. She testified that she is unable ■ to work and support herself and that, if it were not for her son, she would not have a place to live.

[8] On November 5, 2014, the court entered a decree of dissolution of marriage. In the decree, the court awarded Husband the marital residence and ordered that he be responsible for all obligations on the residence including the mortgage. The court found the amount of the mortgage on the residence to be $82,500 based on the admitted mortgage statement, and the value of the residence to be $79,000 based on the admitted appraisal report, for a net negative value of $3,500. The court awarded Husband a vehicle valued at $1,902, debt obligations totaling $24,492, his “PERF Saving account—$49,752.00,” and his “PERF Pension—$116,233.64.” Appellant’s Appendix at 6. The court awarded Wife the TIAA-CREF account of $10,180.30, an IRA of $500, and a vehicle valued at $1,983.

[9] The court further found “that a presumption of an equal division of the marital estate has not been rebutted in this cause.” Id. at 7. The court ordered that- Husband “shall pay [Wife] the sum of $62,154.17 to equalize the division of the marital estate after deducting the cost to replace the window broken by [Wife] and/or her son.”. Id. This sum was reduced to judgment in favor of Wife and against Husband. The court’also found [724]*724that “no interest shall accrue on said judgment unless [Husband] defaults on payments since the bulk of the marital estate is the PERF pension benefits which he is not eligible to receive until retirement and which are not exempt by state, law from division by Court order.” . Id. The court further ordered Husband to pay $500 per month to Wife ,on the amount due her and to pay $500 in attorney fees to Wife’s counsel. . : ■

[10] Husband filed a motion to correct error arguing that he will not receive any benefit from the PERF pension until he is retirement age, that a large portion of the amount, awarded to Wife is derived from the PERF pension, and that essentially he is prepaying Wife her share of the pensiqn even before he is eligible to. receive pension benefits himself. The court denied Husband’s motion to correct error.

Discussion

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Cite This Page — Counsel Stack

Bluebook (online)
44 N.E.3d 721, 2015 Ind. App. LEXIS 641, 2015 WL 5562440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timothy-kendrick-v-angela-kendrick-indctapp-2015.