In Re: the Marriage of: William Scott Wilson v. Andrea (Wilson) Gunning ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
Jul 03 2013, 6:57 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JANICE MANDLA MATTINGLY RYAN H. CASSMAN
RACHAEL C. EHLICH CATHY M. BROWNSON
Janice Mandla Mattingly & Associates Coots, Henke & Wheeler, P.C.
Carmel, Indiana Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF: )
)
WILLIAM SCOTT WILSON )
)
Appellant-Petitioner, )
)
vs. ) No. 29A04-1208-DR-435
)
ANDREA (WILSON) GUNNING, )
)
Appellee-Respondent. )
)
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Steven R. Nation, Judge
Cause No. 29D01-1009-DR-1172
July 3, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
William Scott Wilson (Husband) appeals from the trial court’s order dissolving his
marriage to Andrea R. Wilson Gunning (Wife) and determining various issues including
division of property, attorney fees, child support, and custody. The issues presented in this
appeal are as follows:
1. Did the trial court err by allowing Wife to relocate with the minor child?
2. Did the trial court err in its child support calculation?
3. Did the trial court erroneously divide the marital estate?
4. Did the trial court err by ordering Husband to pay a portion of Wife’s
attorney fees?
5. Did the trial court abuse its discretion by failing to find Wife in contempt
for non-payment of the mortgage on the marital residence?
We affirm.
Husband and Wife were married on February 26, 2000 and one child (Child) was born
of the marriage on February 22, 2006. Husband and Wife separated in July of 2010 and
Husband’s petition for dissolution of marriage was filed on September 7, 2010. After
hearing the evidence on various issues raised by the parties, the trial court entered its decree
of dissolution on August 1, 2012. Although the decree is very thorough and detailed, we will
set forth only the provisions that are pertinent to this appeal. The trial court awarded primary
physical custody of Child to Wife, with Husband and Husband’s extended family permitted
extensive parenting time and visitation. Child was granted permission to relocate with Wife
to Wife’s new residence. The trial court granted joint legal custody of Child to Husband and
Wife.
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With regard to child support, the trial court awarded credit to Husband for 140
overnights per year on the child support obligation sheet for the parenting time he exercised
pursuant to the preliminary order and additional time beyond that which was required by the
preliminary order. The trial court imputed to Husband weekly income in the amount of
$1,405.95, which was derived from his part-time employment with Kelley Services, his
employment with Westfield Washington School Corporation, and his farm income. Although
Wife expressed a desire to switch from full-time to part-time employment, the trial court
imputed to Wife her current earnings of $807.69 per week. The trial court ordered Husband
to pay child support to Wife in the amount of $72.00 per week by means of an income
withholding order, and made provisions for a credit attributable to Husband’s payment of
health insurance premiums. The trial court’s order also provided for the payment of
Husband’s child support arrearage and payment to reimburse Wife for the uninsured medical
expenses she incurred during the pendency of the dissolution action. Husband was found to
be in contempt for his non-payment of child support, and was ordered to pay $3000.00 of
Wife’s attorney fees.
With respect to division of the marital estate, the trial court awarded Husband sole
ownership of the marital residence. The mortgage on the residence had been foreclosed on
and the mortgagor had begun the process of requesting a sheriff’s sale of the property. Wife
did not request that Husband pay Wife for any equity lost due to Husband’s failure to pay
child support to Wife, thus resulting in her delinquency on mortgage payments, or for
Husband’s failure to pay the mortgage on the marital residence. The trial court
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acknowledged Wife’s failure to pay any mortgage payment, a term that had been ordered by
the trial court. The trial court further provided that Husband should receive thirty percent of
the present value of Wife’s remainder interest in some farmland in Tipton County that she
received from her grandfather’s trust when he passed away. That amount was made payable
upon Wife gaining a possessory interest in the farmland. Husband now appeals. Additional
facts will be supplied as needed.
Although neither party to this dissolution proceeding requested them, the trial court
made special findings of fact and conclusions thereon. When that is the case, we treat the
trial court’s findings as sua sponte findings of fact. Estudillo v. Estudillo, 956 N.E.2d 1084(Ind. Ct. App. 2011). “Sua sponte findings control only the issues they cover, and a general
judgment will control as to the issues upon which there are no findings.” Estudillo v.
Estudillo, 956 N.E.2d at 1089-90 (citing Yanoff v. Muncy, 688 N.E.2d 1259 (Ind. 1997)).
The standard of review to be applied where a trial court has made findings of fact is two-
tiered. Id. First, we determine whether the evidence supports the findings of fact, and then
we determine if the findings of fact support the conclusions thereon. Id. Findings will be set
aside only if we find that they are clearly erroneous, namely when the record contains no
facts to support them directly or inferentially. Id. A finding or conclusion is clearly
erroneous when we are left with the firm conviction that a mistake has been made. Id.
1.
Husband and Wife entered into a mediated preliminary entry on April 28, 2011, in
which they agreed that Husband should have parenting time with Child pursuant to the
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Indiana Parenting Time Guidelines with Wife having primary physical custody. In the trial
court’s preliminary order entered on July 6, 2011, the trial court granted Husband and Wife,
by stipulation, joint legal custody of Child and, again by stipulation, Wife primary physical
custody of Child, with Husband having parenting time as detailed in that order. In the
dissolution decree, the trial court made the following findings pertinent to this issue:
11. Wife requests sole legal and primary physical custody and permission to
relocate the minor child’s residence to Brownsburg, Indiana, as reflected in
Mother’s Notice of Intent to Relocate filed March 8, 2012. Husband seeks
joint legal and primary physical custody of the minor child if Wife relocates.
If Wife does not relocate, the Father has asked for joint legal and physical
custody.
12. Husband currently lives in Cicero with his girlfriend and her two
children.
13. Should physical custody be awarded to Husband, Dr. Miller [the
custody evaluator] recommended that the minor child have her own bedroom
in Husband’s residence. Further if the minor child would reside in the
Husband’s residence, the minor child would become one of four children in the
home along with Husband’s girlfriend, and this would cause one of the
girlfriend’s children to lose his or her bedroom and he or she would then have
to share a bedroom with another sibling.
14. Wife’s intended relocation is to move to the home of her boyfriend,
whom she testified she intends to marry, due to the foreclosure of the marital
residence and pending sheriff’s sale. Should physical custody be awarded to
Wife, the minor child would continue to live in a single child environment and
would have her own bedroom as recommended by Dr. Miller.
15. Upon Wife’s relocation, Wife intends to seek part-time employment in
order to be there for the minor child before and after school.
16. Wife expressed a willingness to shoulder the responsibility of travel to
ensure Parenting Time occurs should the Court award her custody and allow
the minor child’s relocation.
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17. The Court received and considered the custody evaluation prepared by
Dr. Janine Miller.
18. The Court finds and orders that it is in the best interest of the minor
child of the parties that Wife be awarded primary physical custody of the
minor child. Further, the Court finds and Orders that the minor child shall be
allowed to relocate to Brownsburg with Wife.
....
23. The Court is concerned that Wife, because of being awarded primary
physical custody, may without justification restrict the Parenting Time of
Husband or visitation with the extended family. The Court finds that any such
attempt would be detrimental to the minor child and not in her best interest
based on the findings of Dr. Miller.
24. The Court further finds and orders that it is in the best interests of the
minor child that Husband and Husband’s extended family be permitted
extensive Parenting Time and/or Visitation. Husband and Husband’s extended
family shall have all Parenting Time and/or Visitation that is agreed to by the
parties and Husband shall have Parenting Time at a minimum as follows:
....
Appellant’s Appendix at 38-41.
Husband contends that the trial court abused its discretion by allowing Wife to
relocate with Child to a home approximately one hour away from where Husband currently
resides. Husband argues this is so given Wife’s “demonstrated pattern of interfering with
Husband’s parenting time and the child’s close connection to both her father and her
community.” Appellant’s Brief at 9. More specifically, he claims that the trial court failed to
consider several of the statutory factors under Ind. Code Ann. § 31-17-2.2-1(b) (West,
Westlaw current through June 29, 2013, excluding P.L. 205-2013). His argument in a
nutshell contests the sufficiency of the trial court’s findings, claiming that the trial court did
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not thoroughly consider the evidence pertinent to those factors. It does not appear that he is
arguing that the trial court completely failed to consider the factors. Wife, on the other hand,
contends that the trial court’s findings support the decision to allow Wife to relocate with the
Child, and that the trial court was not required to consider the statutory factors at issue,
although it did so.
A provisional order is designed to maintain the status quo of the parties, is temporary
in nature, and terminates when the final dissolution decree is entered or the petition for
dissolution is dismissed. Ind. Code Ann. § 31-15-4-14 (West, Westlaw current through June
29, 2013, excluding P.L. 205-2013); Mosley v. Mosley, 906 N.E.2d 928 (Ind. Ct. App. 2009).
A trial court’s determination of temporary orders in a dissolution action is reviewed for an
abuse of discretion. Mosley v. Mosley, 906 N.E.2d 928. I.C. § 31-17-2.2-2 (West, Westlaw
current through June 29, 2013, excluding P.L. 205-2013), provides that if a party gives notice
of relocation at an initial hearing to determine custody, the trial court may consider the
relocation statutory factors.
In the present case, the parties entered into a mediated preliminary entry, which the
trial court accepted and incorporated in its preliminary order, which provided for additional
parenting time for Husband. That order remained in effect until the entry of the decree of
dissolution. The parties were able to present evidence on the issue of custody of Child and
the impact that Child’s relocation with Wife would have on Husband’s parenting time and
interaction with Child. The trial court did consider the factors included in the relocation
statute. Husband’s argument is a request for this court to reweigh the evidence to reach the
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outcome he would have preferred. His citation to evidence in the record which would tend to
discount the trial court’s conclusion is unhelpful to our resolution here, because the record
contains evidence which supports the trial court’s findings and order. We decline to reweigh
the evidence and conclude that Husband has failed to meet his burden of establishing that the
trial court abused its discretion.
2.
Husband argues that the trial court erred in its child support calculations, contending
that the amount imputed to him for his farming income is too high and is not supported by the
evidence, while the amount of Wife’s imputed income was too low and not supported by the
evidence. Wife initially contends that Husband has waived this issue for appellate review,
and in the alternative, argues that the trial court did not abuse its discretion in making the
child support calculation.
Wife correctly observes that Husband has failed to provide us with a standard of
review for this issue. Ind. Appellate Rule 46(A)(8)(b) provides that an argument section of
an appellant’s brief shall contain contentions supported by cogent reasoning, and that each
contention must be supported by citations to the authorities, statutes, and relevant portions of
the record. The argument must also include for each issue a concise statement of the
applicable standard of review. Id. We agree that Husband’s appellate argument on this issue
is neither supported by citations to authorities or statutes, and fails to set out the appropriate
standard of review. 1 Husband’s argument arguably is waived, but we will consider the merits
1
Husband’s reply brief, however, provides the applicable standard of review and citation to authority.
8
nonetheless. See Estate of Dyer v. Doyle, 870 N.E.2d 573, 581 (Ind. Ct. App. 2007) (noting
waiver of review of the issue where the appellant fails to comply with the rule, but the issue
was considered on the merits, acknowledging that the defect was remedied in the reply brief).
Waiver notwithstanding, we begin our review by stating the applicable standard of
review, which follows:
Child support calculations are made utilizing the income shares model set forth
in the Indiana Child Support Guidelines. The Guidelines apportion the cost of
supporting children between the parents according to their means, on the
premise that children should receive the same portion of parental income after
a dissolution that they would have received if the family had remained intact.
The trial court is vested with broad discretion in making child support
determinations. A calculation of child support under the Guidelines is
presumed to be valid.
We will reverse a trial court’s grant or denial of a request for modification of
child support only where the court has abused its discretion. An abuse of
discretion occurs when the trial court misinterprets the law or the decision is
clearly against the logic and effect of the facts and circumstances before the
court. We do not reweigh the evidence or judge the credibility of the witnesses
upon review; rather, we consider only the evidence most favorable to the
judgment and the reasonable inferences to be drawn therefrom.
Sandlin v. Sandlin, 972 N.E.2d 371, 374-75 (Ind. 2012) (internal citations omitted).
Husband takes issue with the amount of income the trial court imputed to him and to
Wife. The trial court made the following findings with respect to the income of the parties at
issue here:
C. CHILD SUPPORT
27. In the Court’s preliminary order, issued July 5, 2011, the Court found
Wife’s income to be $1,057.00 per week and Husband’s income to be
$1,405.95 per week.
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28. Both parties presented evidence as the parties’ incomes, and the
application of the incomes to the calculation of child support.
29. Since the issuance of the preliminary order, Wife lost her job and was
unemployed from August 16, 2011 to January 3, 2012. Wife’s income from
August 19, 2011 through December 31, 2011 was Two Hundred Ninety-
Dollars ($290.00) which equals the amount of her unemployment
compensation. Wife’s income at her new employment beginning on January 3,
2012 was $807.69 per week as reflected in her Financial Declaration. Even
though Wife expressed an intent to switch to part-time employment upon her
relocation to Brownsburg, the Court finds that her current earnings shall be
imputed to her for purposes of calculating child support.
30. Based upon the evidence presented, the Court finds that Husband’s
income should be imputed in the amount of $1,405.95 as previously
determined by the Court, and such income includes his part-time employment
with Kelley Services, his employment with Westfield Washington School
Corporation, and his farm income.
31. Husband incurs an expense of $63.00 per week to maintain health
insurance for the minor child.
32. Wife has incurred $130.00 per week for work-related child care during the
pendency of this case. Wife further testified that since she will be obtaining
part-time employment, there will not be a need for work-related child care
moving forward.
33. The evidence presented by both parties indicates that Husband enjoyed the
parenting time established by the Preliminary Order from August 19, 2011
through December 31, 2012. Beginning in January 2012, Husband enjoyed the
parenting time set forth in the Preliminary Order plus alternating Sunday
overnights and every Wednesday overnight. Therefore, he should receive
credit on the Indiana Child Support Obligation Worksheet for one hundred
forty (140) overnights per year.
34. Husband is hereby ordered to pay child support to Wife in the amount of
Seventy-Two Dollars and nine cents ($72.0[9]) per week by means of an
Income Withholding Order for the support of the minor child, beginning on the
first Friday after the entry of the Decree of Dissolution of Marriage. A copy of
the Court’s child support worksheet is attached hereto and marked as Exhibit
A. All child support payments shall be paid directly to the Indiana State
Central Collections Unit for the use and benefit of the minor child. The
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attorney representing the payor shall prepare the Income Withholding Order.
The child support payments shall be paid via cash, certified check or money
order until the Income Withholding Order takes effect.
35. The Court in its preliminary order ordered Husband to pay Wife child
support in the amount of $175.24 per week. The evidence reflects that
Husband has not made any child support payments in compliance with this
Court’s preliminary Order, with the exception of a $40.00 payment made
March 8, 2012 (approximately one week prior to the final hearing setting), and
another $40.00 payment made on May 21, 2012 (made on the actual day of the
final hearing). Mother previously filed a contempt citation due to such non-
payment and the same was before the Court at final hearing.
36. On August 19, 2011, Wife filed a Verified Petition to Modify Preliminary
Order. The Petition was filed because Wife had lost her job, and due to her
unemployment, she was unable to meet her financial obligations under the
Preliminary Order. She requested that Husband be ordered to pay the expenses
related to the marital residence that had been her responsibility. Moreover,
Wife requested a modification of the child support being paid by Husband.
37. Although hearings were held with regard to the Verified Petition to
Modify Preliminary Order, evidence was not concluded, and the only
modification took place from the bench on November 15, 2011 at which time
Husband was ordered to pay Wife’s health insurance.
38. Immediately after Wife’s employment ceased, Husband began to cover the
minor child on his health insurance available through his employer, Westfield
Washington School Corporation.
39. The Court finds that child support should be retroactively modified due to
the changes of circumstances to reflect the parties’ incomes at the time of the
filing of the Petition to Modify.
40. The Court finds that Husband’s child support obligation from August 19,
2011 through the date of this Decree should have been and is $3,600.00
($72.00 per week x 50 weeks).
41. The Court finds that Husband should be and is given a credit for payment
of the health insurance premium in the amount of $63.00 per week since Sept.
1, 2011. Such credit through the date of the Decree is $3,087.00 ($63.00 per
week X 49 weeks). Further Husband should receive credit for the two $40.00
payments.
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42. Husband’s child support arrearage as of the date of the Decree is $433.00.
Husband is found in contempt for his failure to pay child support. Husband
shall pay an additional $10.00 per week until such arrearage is paid in full.
43. Husband is ordered to provide medical insurance for the minor child as
available through his employer.
44. Husband is ordered to reimburse Wife the sum of $359.54 for uninsured
medical expenses Wife incurred due to Husband not providing Wife with an
insurance card in a timely manner, which sum shall be paid within ninety (90)
days of the Court’s order.
45. In accordance with the Indiana Child Support Guidelines and Rules, Wife
shall pay the first Eight Hundred Sixty-Four and 24/100 Dollars ($864.24) per
year of the minor child’s uninsured health care expenses, including medical,
dental, optical, ophthalmological, orthodontic, prescriptive, and counseling
expenses. Said sum represents six percent (6%) of the parties’ combined
annual support obligation as determined by multiplying the weekly amount on
line 4 of the Child Support Obligation Worksheet by fifty-two (52) weeks and
further multiplying that product by six percent (6%). All such uninsured
expenses in excess of that amount per year shall be paid sixty-four percent
(64%) by Husband and thirty-six percent (36%) by Wife. Any reimbursements
owed by one party to the other shall be paid within seven (7) days of
presentment of receipts or invoices for said expenses.
46. The parties shall proportionately divide all extra-curricular expenses
relating to the minor child with sixty-four percent (64%) to be [paid] by
Husband and thirty-six percent (36%) to be paid by Wife. Any
reimbursements owed by one party to the other shall be paid within seven (7)
days of presentment of receipts or invoices for said expenses.
....
48. Pursuant to I.C. § 31-16-9-1, the child support Husband shall be liable for
the payment of the Clerk’s Office annual Child Support Docket Fee upon
notice of or demand therefor, or on the first business day of each January of
each year following the date of entry of a Decree Of Dissolution Of Marriage
herein, whichever event shall first occur. The Husband shall be responsible for
completing the Child Support Information Sheet and providing this completed
form to the Office of the Clerk prior to the start of the Husband’s child support
obligation. It shall be the duty and obligation of the Husband to inform the
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Office of the County Clerk of any change in his residence address that might,
in any way, affect his timely receipt of child support checks mailed to that
Office by Wife. Similarly, it shall be the obligation of the Wife to notify the
Office of the County Clerk of any change in her residence address so as to
facilitate the mailing of notices from the Office to Wife.
Appellant’s Appendix at 43-48.
Our review of the record and the trial court’s findings and conclusions on this issue
lead us to conclude that the trial court did not abuse its discretion. Husband does not
challenge the trial court’s finding imputing income to him from driving a school bus,
approximately $17,000.00 annually, and for his work at Kelley Services, approximately
$7500.00 annually. His challenge centers on the income imputed to him from his farming
business. Husband testified that his farming income fluctuated and that the appropriate
amount that should be imputed to him is $22,627.00 annually. Husband argued that his
income, therefore, should be calculated at $907.00 weekly, or $47,164.00 annually.
Husband testified, however, that he should be able to make at least $30,000.00
annually from farming. Further, Husband testified that he had omitted approximately
$41,000.00 worth of income from his calculation and that $788.00 a week was left out of his
estimated weekly income of $907.00. Wife testified based upon her familiarity with
Husband’s farming business that the income does fluctuate, but that farming is a “cash heavy
business.” Transcript at 294. Exhibits offered by Wife and considered by the trial court
showed that for 34 weeks from January 1, 2011 to August 30, 2011, Husband’s personal
account weekly deposits averaged $3369.46 and that for those same 34 weeks Husband’s
business account averaged weekly deposits of $428.44. For 43 weeks from January 1, 2010
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through October 21, 2010, Husband’s personal checking account averaged $1532.57 and his
business account averaged $1868.24 in deposits.
The trial court’s calculation based upon income imputed to Husband at $1,405.95
weekly, or approximately $73,000.00 annually, is the same amount the trial court assigned to
Husband after the contested preliminary hearing. Husband’s sources of employment had not
changed since that time. The trial court’s child support calculation as it pertains to
Husband’s income is within the range of evidence introduced at the hearing. A trial court’s
child support calculation is presumptively valid. Sandlin v. Sandlin, 972 N.E.2d 371. To the
extent it could be said that the calculation with respect to the farming income is not
mathematically precise, we acknowledge that we do not expect mathematical precision, given
the nature of the evidence before the trial court. See Cox v. Cox, 580 N.E.2d 344, 350 (Ind.
Ct. App. 1991) (“[T]he court’s determination was limited by the nature of the evidence
before it. In such circumstances, an expectation of mathematical precision by the reviewing
court would be an exercise in futility and we will not so indulge ourselves.”). We find no
error here.
As for the income imputed to Wife, we likewise find no error in the trial court’s
calculation. Wife testified that her income had decreased following a period during which
she was unemployed. Wife collected unemployment benefits from August 16, 2011 through
December 31, 2011. Wife testified that she was seeking to reduce her employment to part-
time work, but the trial court imputed to her weekly income based upon her current earnings
at her new job. The trial court’s calculation of Wife’s income at $807.69 per week is
14
supported by the evidence. Husband has failed to establish that the trial court’s calculation is
clearly erroneous.
3.
Husband contests the trial court’s division of the marital property claiming that the
trial court erred in its treatment of Wife’s inheritance of a remainder interest in farmland
from her grandfather’s trust upon his death. The trial court made the following determination
in its order:
F. MARITAL ESTATE
52. There was little dispute with respect to what was in the marital estate,
with the exception of the issue of Wife’s remainder interest in Tipton County
farmland received from her grandfather’s trust (Robert N. Smith Revocable
Living Trust) upon his passing. Such remainder interest is owned jointly with
Wife’s brother and is subject to successive life estates (one deed has
successive life estates in Wife’s grandmother and then Wife’s uncle, and the
other deed has successive life estates in Wife’s Mother and Wife’s Aunt).
53. The evidence is clear that while Wife has a remainder interest in such
real estate, but [sic] she has no present possessory interest. Wife is not actually
in possession of said real estate and she has no present possessory right to
occupy or use the land as she sees fit until such time as the successive life
tenants pass away. Wife has no present rights to either mortgage or sell such
real estate. Husband presented evidence that the value of Wife’s remainder
interest as of the date of the petition for dissolution was $453,308.00, as
reflected by the testimony of Ryan Miller. Wife contended that the remainder
interest was too remote to constitute marital property that would be subject to
division.
54. The Court finds that this remainder interest was transferred and vested
during the marriage and that Husband was not named as a recipient of the gift,
only the Wife. Therefore, Wife’s remainder interest is vested and should be
included in the marital estate. Since this property was a gift, the Court must
consider this fact as a significant factor in support of the deviation from the
presumption of an equal division of the marital estate. The Court finds that the
fair and equitable division of the value of this property should be 70% Wife
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and 30% Husband. Wife shall not mortgage, sell or impair the title to such real
estate in any way without prior notice to Husband. Wife shall immediately
notify the Husband of receiving the possessory interest in such real estate and
shall pay to the Husband the sum of $135,992.00 (30% of the value) within
thirty (30) days of the Wife receiving such possessory interest. Wife shall hold
her remainder interest in the Tipton County real estate free and clear from all
claims of Husband except her remainder interest and the real estate shall be
subject to the required payment by the Wife to the Husband as set forth in this
Decree.
....
65. The Court finds that there is insufficient evidence to deviate from the
statutory presumption that an equal division of the marital estate is fair and
equitable except as previously discussed concerning the remainder interest in
the Tipton County real estate.
Appellant’s Appendix at 25-31.
Husband contends that the trial court’s valuation of the farmland was erroneous
because it deprives him of the benefit of potential future increases in the value of the
farmland, by using a definitive cash value calculation for purposes of dividing the marital
property. Wife disagrees contending that the trial court did not abuse its discretion, and
suggests that the trial court could have found that the Wife’s interest is too remote to be
included in the property division.
In general, the marital pot closes on the day the petition for dissolution is filed.
Granzow v. Granzow, 855 N.E.2d 680 (Ind. Ct. App. 2006). I.C. § 31-15-7-4 (West,
Westlaw current through June 29, 2013, excluding P.L. 205-2013), provides in pertinent part
that a trial court shall divide the property of the parties to a dissolution action whether the
property was acquired by either spouse in his or her own right before or after the marriage.
I.C. § 31-15-7-5 further provides in part that the trial court in a dissolution action shall
16
presume that an equal division of the parties is just and reasonable except that the
presumption may be rebutted by evidence of the extent to which the property was acquired
by a spouse through inheritance or gift. The appropriate standard of review of this issue has
been expressed as follows:
The standard for reviewing the trial court’s valuation of property is the same as
the standard for reviewing the court’s division of property. The valuation of
assets is committed to the trial court’s sound discretion, and as the reviewing
court, we will not reweigh the evidence, but will consider it in a light most
favorable to the judgment. We will only reverse the trial court if the valuation
is clearly against the logic and effect of the circumstances before it.
Hacker v. Hacker, 659 N.E.2d 1104, 1108 (Ind. Ct. App. 1995) (internal citations omitted).
In this case, the only evidence before the trial court was Husband’s expert’s testimony
that the value of Wife’s remainder interest was $435,308.00 and Wife’s contention that the
interest was too remote to constitute marital property capable of being subject to division.
The trial court used Husband’s tendered valuation, explained its reasons for deviating from
the presumptive equal division, and entered its order to the effect that Wife pay 30% of the
present value of the property to Husband within 30 days of acquiring a possessory interest in
the property. Even if error existed, and we do not reach that conclusion here, the error, at
best, is invited error. See Balicki v. Balicki, 837 N.E.2d 532, 541 (Ind. Ct. App. 2005) (“the
doctrine of invited error is grounded in estoppel and precludes a party from taking advantage
of an error that he or she commits, invites, or which is the natural consequence of his or her
neglect or misconduct”).
A trial court has discretion to set any date between the date of filing the dissolution
petition and the date of the final hearing as the date for marital property valuation. Deckard
17
v. Deckard, 841 N.E.2d 194 (Ind. Ct. App. 2006). “Even some vested interests, such as
remainders in which the spouses have no present possessory interest, are deemed too remote
to be included in a property award settlement.” Hacker v. Hacker, 659 N.E.2d 1104, 1107
(Ind. Ct. App. 1995) (citing Loeb v. Loeb, 261 Ind. 193, 1999, 301 N.E.2d 349, 353 (1973)).
In this case, the trial court chose to treat Wife’s vested remainder interest in the farmland
acquired during the marriage as a marital asset capable of division and reasonably relied upon
Husband’s tendered valuation in dividing the asset. 2 We cannot say that the trial court
abused its discretion.
4.
Husband claims that the trial court abused its discretion by ordering Husband to pay a
portion of Wife’s attorney fees. Wife contends that Husband has waived this argument for
purposes of appellate review by failing to state the appropriate standard of review or statutory
or common-law authority. We agree with Wife that Husband’s arguments along this vein do
not comply with Ind. Appellate Rule 46(A).
Waiver notwithstanding, our review of a trial court’s decision to award attorney fees
in connection with a dissolution decree is for an abuse of discretion. Thompson v. Thompson,
811 N.E.2d 888 (Ind. Ct. App. 2004). When the trial court makes such an award, it must
consider the resources of the parties, their economic conditions, the ability of the parties to
2
Husband’s reliance on Moyars v. Moyars, 717 N.E.2d 976 (Ind. Ct. App. 1999), is not helpful to the
resolution of this issue because it involved the review of whether a remainder interest in property was too
remote to be included in the property division. Here, the trial court included the property in the marital pot and
the issue is one of valuation. The matter in Moyars was remanded to the trial court to consider evidence of
valuation, which evidence had been previously excluded.
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engage in gainful employment, to earn adequate income, and other factors pertinent to an
assessment of the reasonableness of the award. Id. A trial court need not state its reasons for
its decision to award attorney fees. Id. Misconduct that results in further litigation expenses,
however, may be considered by the trial court when deciding whether to award attorney fees.
Id. Additionally, I.C. § 31-15-10-1(West, Westlaw current through June 29, 2013, excluding
P.L. 205-2013), provides that a trial court may periodically order a party to pay a reasonable
amount for the cost to the other party of maintaining or defending a dissolution action by way
of attorney fees incurred before the commencement of the proceedings or after entry of
judgment.
Wife’s attorney fee exhibit, which was admitted in evidence, showed that she had
incurred over $34,000.00 in attorney fees related to the dissolution action. Husband was
ordered to pay $3000.00 of preliminary fees for Wife’s attorney fees, and an additional
$3000.00 toward Wife’s attorney fees in the dissolution decree. Although not required to do
so, the trial court stated in its order that “[h]aving considered the evidence, the Court’s
contempt finding for Husband’s non-payment of child support, and the financial
circumstances of the parties finds that a final award of attorney fees is appropriate.”
Appellant’s Appendix at 37. Based upon our review of the record, we conclude that the trial
court did not abuse its discretion in ordering Husband to pay a portion of Wife’s attorney
fees.
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5.
In a paragraph of the argument section of Husband’s brief concerning the division of
the marital estate and in another paragraph of the argument section addressing the trial
court’s award of attorney fees to Wife, Husband made the following claims:
The trial court erred by not finding Wife in contempt for her dissipation of a
marital asset. Wife failed to make mortgage payments on the marital residence
after she began her new job in January 2012, as the court stated in Paragraph
56 of the Decree. As a result, the house went into foreclosure. At the time of
the final hearing, the house had no equity and actually had a negative value as
the parties’[sic] still owed $23,350.36 on a home equity loan. [App. p. 29,
Decree 19, ¶ 63]
....
The court also ignored Wife’s own costly contempt of the Preliminary Order of
July 6, 2011 that she pay and be responsible for the mortgage on the marital
residence. [App. p. 95] The court noted that “Wife failed to pay any mortgage
payment as ordered by the Court even after her employment in January, 2012.”
[App. p. 27 Decree 17, ¶ 56] Wife’s failure to pay the mortgage on the
marital residence contributed to the marital residence falling into foreclosure
and losing any value as a marital asset.
Appellant’s Brief at 30-31. Wife contends that Husband has waived any argument
concerning the trial court’s failure to find her in contempt of its order by failing to state this
issue under a separate heading and to describe the issue presented. We agree with Wife that
Husband’s arguments along this vein do not comply with Ind. Appellate Rule 46(A). There
is no citation of the appropriate standard of review or citation to authority.
Waiver notwithstanding, whether a party is in contempt of a court order is a matter left
to the sound discretion of the trial court. Richardson v. Hansrote, 883 N.E.2d 1165 (Ind. Ct.
App. 2008). We will reverse the trial court’s determination only where we find the trial court
20
abused that discretion. Id. An abuse of discretion occurs when the trial court’s
determination is against the logic and effect of the facts and circumstances presented. Id.Additionally, indirect contempt has been defined as the willful disobedience of any lawfully
entered court order of which the offender had notice. Id.In the present case, the record reflects that Husband failed to pay much, if any, child
support following the entry of the provisional order until the time of trial. Wife testified that
she was unemployed and that impacted her ability to make the mortgage payment. The trial
court acknowledged that Wife continued to fail to pay the mortgage after she became
employed, but also acknowledged that she had been unemployed for some time. When Wife
received some child support, she applied a majority of it toward reduction of the mortgage
delinquency. Consistent with our standard of review, which prohibits this court from
reweighing the evidence, we cannot say that the trial court abused its discretion by failing to
find Wife in contempt.
Judgment affirmed.
ROBB, C.J., and CRONE, J., concur.
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