Richard A. Vagedes v. Betty Jo Vagedes (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 19 2016, 8:16 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Steven K. Raquet Jeffry G. Price
Derick W. Steele Peru, Indiana
Raquet, Vandenbosch & Steele
Kokomo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard A. Vagedes, May 19, 2016
Appellant-Petitioner, Court of Appeals Case No.
52A02-1506-DR-700
v. Appeal from the Miami Superior
Court
Betty Jo Vagedes, The Honorable Daniel C. Banina,
Appellee-Respondent. Judge
Trial Court Cause No.
52D02-1310-DR-294
Robb, Judge.
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Case Summary and Issue
[1] The marriage of Richard Vagedes (“Husband”) and Betty Jo Vagedes (“Wife”)
was dissolved by a Decree of Dissolution entered by the trial court on May 15,
2015. Husband appeals the trial court’s division of property, raising the sole
issue of whether it was error to divide the marital property equally between the
parties. Concluding the trial court did not err in finding an equal division was
just and reasonable in this case, we affirm.
Facts and Procedural History 1
[2] Husband and Wife were married in 2003 and separated in 2013. No children
were born to the marriage. Husband owned a home valued at $98,000
encumbered by no debt at the time of the marriage. During the marriage,
Wife’s name was added to the deed and the parties took out a mortgage on the
house. In addition, Husband came into the marriage with an investment
account that was funded by monetary gifts from his first wife’s parents and by
money he inherited when his first wife died. The account was valued at
approximately $114,000 at the time of the marriage. By the time of the final
hearing, the investment account was valued at approximately $55,000.
1
We commend Husband for keeping the Statement of the Case and the Statement of Facts in his brief
concise and relevant to the issue presented. We also commend Wife for agreeing with Husband’s Statement
of the Case.
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[3] Husband worked a full-time job for the first few years of the marriage, until he
was disabled by a back injury. Wife also worked full time at various jobs during
the marriage until she was temporarily disabled by a cancer diagnosis. Both
parties were receiving disability benefits at the time of the final hearing—
Husband receives approximately $1,350 per month and Wife receives
approximately $1,300 per month—and Husband receives a pension of
approximately $850 per month. Wife was also working a temporary job at the
time of the final hearing, making approximately $520 per week. Wife has an
IRA she contributed to throughout the marriage valued at $11,000.
[4] The trial court held a final hearing in February of 2015. Husband, Husband’s
daughter who was managing his finances, and Wife all testified. As the trial
court characterized it, Husband proposed an “extreme deviation” from the
presumptive equal division of the marital property, arguing Wife should only
take from the marital estate what she brought in – the value of her vehicle and
her IRA, or approximately $24,000.2 Appellant’s Appendix at 29. Wife
proposed an equal distribution.
[5] The trial court entered its Decree of Dissolution on May 15, 2015:
Both parties have had serious medical conditions. Both parties
receive Social Security Disability benefits but [Husband] also
receives a pension in addition to the Social Security. The court
2
Based on the trial court’s calculation that the net marital estate was valued at $130,760, Husband’s proposal
would have resulted in an 18/82 percent division in his favor.
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notes that [Husband] receives slightly more income than [Wife]
does.
[Wife] testified that during most of their marriage, [Husband] did
not work and drew disability while she worked for the majority
of the marriage. She testified that her income provided the
health insurance for the couple and helped pay the household
bills.
However, [Wife] testified that she currently is in remission from
breast cancer Stage III and has started back to work full time
through a temp agency. [Wife] also said that she must have
reconstruction surgery in April that will take her away from her
work for several weeks and there will be future testing to monitor
the cancer. Thus, while [Wife] expects to make a full recovery
and eventually go back to work full time, her health and financial
security in the future are currently unknown.
[Husband] appeared to claim that he received an inheritance in
the form of the [investment] account before marrying [Wife] and
that he should receive all of what’s left. [Husband] did not argue
that the [investment] account was not marital property, just that
there should be an extreme deviation from the presumption of an
equal and just division, presumably because of the inheritance.
[Wife] presented evidence that marital funds were used to pay a
loan taken against the [investment] account and that [Wife] had
expected to receive a portion of those funds if [Husband] passed
away.
[Husband] testified that he also had the marital residence from
before the marriage to [Wife] and that he should receive that as
well. However, [Husband] added [Wife] to the house deed in
June 2003. [Wife] contributed financially to its maintenance
during the marriage by cosigning on a mortgage to make certain
large repairs, such as the roof, soffits and driveway. . . .
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The parties seemed to agree that each would receive any bank
accounts that each person now has and each party would retain
any other personal property now in his or her own
possession. . . .
The court is to presume an equal division of the marital property.
I.C. 31-15-7-5. The statute instructs the court to consider what
the parties brought into the marriage, the parties’ behavior during
the marriage with respect to any dissipation of assets and as well
as accumulation of assets and debts during the marriage. The
court is also to take into account the parties’ incomes as they
proceed into the future. The court now concludes that a just and
reasonable division for both parties would be an approximate
equal division of the assets and debts
. . . . The court does not find that [Husband] has overcome this
burden or that there was evidence of a “true” inheritance to
justify a deviation.
***
As a result of the equal distribution of assets and debts [Husband]
owes [Wife] $36,182.71.
Id. at 28-31 (emphasis in original). Husband now appeals the trial court’s
division of property.
Discussion and Decision
I. Standard of Review
[6] Indiana Code chapter 31-15-7 governs disposition of marital assets in a
dissolution proceeding. Pursuant to Indiana Code section 31-15-7-4, the trial
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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
the final separation, or acquired by their joint efforts. This “one pot” theory of
marital property ensures that all marital assets are subject to the trial court’s
power to divide and award. Estudillo v. Estudillo, 956 N.E.2d 1084, 1090 (Ind.
Ct. App. 2011). The division of marital property is highly fact sensitive, Fobar v.
Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002), and is therefore a task within the
sound discretion of the trial court, Love v. Love, 10 N.E.3d 1005, 1012 (Ind. Ct.
App. 2014). We will not weigh the evidence, instead considering the evidence
in the light most favorable to the judgment. Fobar, 771 N.E.2d at 59. We will
reverse only for an abuse of discretion; that is, if there is no rational basis for the
award or if the trial court has misinterpreted the law or disregarded evidence of
the statutory factors. Luttrell v. Luttrell, 994 N.E.2d 298, 301 (Ind. Ct. App.
2013), trans. denied. Although the facts and reasonable inferences might allow
for a conclusion different from that reached by the trial court, we will not
substitute our judgment for that of the trial court. Webb v. Schleutker, 891
N.E.2d 1144, 1154 (Ind. Ct. App. 2008).
[7] The trial court’s judgment here included sua sponte findings of fact and
conclusions. Where a trial court enters findings sua sponte, we review issues
covered by the findings with a two-tiered standard of review that asks whether
the evidence supports the findings, and whether the findings support the
judgment. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). Any issue not covered
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by the findings is reviewed under the general judgment standard, meaning a
reviewing court should affirm based on any legal theory supported by the
evidence. Id.
II. Equal Division of Marital Property
[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. Beckley v.
Beckley, 822 N.E.2d 158, 163 (Ind. 2005).
[9] Husband argues the trial court erred in equally dividing the marital property.
As the trial court noted, Husband did not advocate leaving the value of the
house or the investment account out of the marital pot, and he does not do so
on appeal. Rather, he asserts the trial court failed to give proper “weight and
credit to the value of the property [Husband] brought into the marriage, the
length of time the property was owned prior to the marriage and the
contributions, or lack thereof, provided by [Wife] in obtaining the property.”
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Brief of Appellant at 7. Accordingly, Husband argues the trial court should
have deviated from the presumptive equal division and awarded him a greater
percentage of the marital estate.3
[10] The trial court’s property division is to be considered as a whole and not item
by item. Fobar, 771 N.E.2d at 59. No one factor listed in section 31-17-7-5 is
entitled to special weight over any other. See Bertholet v. Bertholet, 725 N.E.2d
487, 496 (Ind. Ct. App. 2000). “Even if some items meet the statutory criteria
that may support an unequal division of the overall pot, the law does not
require an unequal division if overall considerations render the total resolution
just and equitable.” Fobar, 771 N.E.2d at 59. With respect to the factors set out
in Indiana Code section 31-15-7-5, Husband did bring the majority of the
marital property into the marriage, at least some of which was acquired by
inheritance or gift. See Ind. Code § 31-15-7-5(1) and (2). Not only does
Husband already have a greater income, Wife is about to lose her temporary
employment for medical reasons, and although she hopes and expects to be able
to return to work, there is no guarantee that she will so her future economic
circumstances are uncertain. See Ind. Code § 31-15-7-5(3) and (5). The parties
treated the house and the investment account as joint property. See Ind. Code §
31-15-7-5(4). Husband owned the house when the parties were married, but
3
Wife misconstrues Husband’s argument when she states Husband “got what he asked for, namely the house
was awarded to him.” Appellee’s Brief at 9. He did indeed receive the physical house, but what Husband
advocated was that he also receive the value of the house on his side of the balance sheet with no offsetting
payment to Wife.
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Wife was added to the deed on the house and co-signed a mortgage used to
make repairs and improvements. As to the investment account, whether or not
Wife had direct access to the investment account herself, monies were
withdrawn from that account for family purposes. Further, Wife testified that
the investment account was to be shared equally between her and Husband’s
daughters upon Husband’s death. In fact, after the downturn in the market
caused the value of the account to decrease, the shares were rearranged so that
Wife would receive a greater percentage.
[11] Although the couple’s largest assets were brought into the marriage by
Husband, there was no requirement that any assets or value be set off to him
and no requirement that the overall pot be unequally divided. The evidence
favorable to the judgment amply supports the trial court’s finding that an equal
division of the marital pot is just and reasonable.4
Conclusion
[12] The trial court did not err in finding that Husband had failed to rebut the
presumption that an equal division of the marital property is just and
reasonable. Accordingly, the trial court’s judgment dividing the property
equally is affirmed.
4
Although not raised by Wife, we note the trial court awarded Husband’s pension to him and Wife’s IRA to
her. However, the trial court assigned no value to Husband’s pension while including the $11,000 value of
Wife’s IRA in the marital pot. So in fact, Husband did receive more than fifty percent of the marital estate.
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[13] Affirmed.
Barnes, J., and Altice, J., concur.
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