Henry Shell v. Vicki Shell (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Feb 24 2016, 7:52 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 ATTORNEY FOR APPELLEE
Jordan L. Tandy Jeffry G. Price
Mark A. Frantz Peru, Indiana
Tiede Metz Downs Tandy & Petruniw,
P.C.
Wabash, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Henry Shell, February 24, 2016
Appellant-Respondent, Court of Appeals Cause No.
52A05-1505-DR-456
v. Appeal from the Miami Superior
Court
Vicki Shell, The Honorable Daniel C. Banina,
Appellee-Petitioner. Judge
Trial Court Cause No.
52D02-1310-DR-291
Barnes, Judge.
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Case Summary
[1] Henry Shell appeals the trial court’s division of property in the dissolution of his
marriage to Vicki Shell. We affirm.
Issues
[2] Henry raises two issues, which we restate as:
I. whether the trial court properly valued the marital
property; and
II. whether the trial court properly divided the marital
property.
Facts
[3] Henry and Vicki were married in 1966. As of 2014, Henry had been retired on
disability for approximately twenty years and received a pension. Vicki worked
and paid most of the household bills. She retired in 2012 and received pensions
from two previous employers, Schneider Electric and Moore Wallace. During
the parties’ marriage, Henry repeatedly filed bankruptcy due to credit card bills
that he incurred. The mortgage on the parties’ residence was caused by Henry
again incurring credit card debt that they were unable to pay. Henry also made
several personal injury claims during the marriage and placed his settlements in
a bank account in Kentucky that he shared with his brother. In 2002, Vicki
inherited a one-ninth interest in property in Kentucky that had been owned by
her mother. Henry apparently inherited an interest in an oil and gas lease in
Kentucky at some point during the marriage.
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[4] Vicki filed a petition for dissolution of marriage in October 2013. The trial
court held a final hearing in May 2014 and dissolved the parties’ marriage. The
trial court took the division of property under advisement and held a further
hearing in September 2014 regarding the parties’ marital assets and the division
of property. In December 2014, the trial court entered findings of fact and
conclusions thereon dividing the marital assets. Henry filed a motion to correct
error, which the trial court denied.
Analysis
[5] The parties here requested findings of fact and conclusions thereon under
Indiana Trial Rule 52(A), which prohibits this court from setting aside the trial
court’s judgment “unless clearly erroneous.” In re Marriage of Nickels, 834
N.E.2d 1091, 1095 (Ind. Ct. App. 2005). When a trial court has made special
findings of fact, its judgment is “clearly erroneous” only if its findings of fact do
not support its conclusions or its conclusions do not support its judgment. Id.We give due regard to “the opportunity of the trial court to judge the credibility
of the witnesses.” Id.[6] Henry first argues that the trial court adopted verbatim Vicki’s proposed
findings of fact and conclusions thereon. When a trial court accepts verbatim a
party’s proposed findings of fact and conclusions thereon, that practice
“weakens our confidence as an appellate court that the findings are the result of
considered judgment by the trial court.” Cty. of Lake v. Pahl, 28 N.E.3d 1092,
1100 (Ind. Ct. App. 2015), trans. denied. It is not uncommon or per se improper,
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however, for a trial court to enter findings that are verbatim reproductions of
submissions by the prevailing party. Id. Although we do not encourage the
wholesale adoption of a party’s proposed findings and conclusions, the critical
inquiry is whether such findings, as adopted by the court, are clearly erroneous.
Id. Here, the trial court did not accept verbatim Vicki’s proposed findings of
fact and conclusions thereon. Although Vicki proposed a $25,000 equalization
payment, the trial court ordered only a $10,000 equalization payment.
Moreover, the relevant issue is whether the trial court’s findings of fact and
conclusions thereon are clearly erroneous.
I. Valuation
[7] Henry first challenges the trial court’s valuation of several marital assets. The
trial court’s valuation of marital assets will only be disturbed for an abuse of
discretion. Nickels, 834 N.E.2d at 1095. As long as evidence is sufficient and
reasonable inferences support the valuation, an abuse of discretion does not
occur. Id. We will not reweigh the evidence, and we will consider the
evidence in the light most favorable to the judgment. Id. “Although the facts
and reasonable inferences might allow for a different conclusion, we will not
substitute our judgment for that of the trial court.” Id.[8] Henry first argues that the trial court abused its discretion by failing to assign a
value to Vicki’s one-ninth interest in a Kentucky property that she inherited
from her mother and shares with her siblings. With respect to this property, the
trial court found:
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It appears that both parties received some sort of property by
inheritance from their family. The court received no particular
information with regard to the value of the same. [Vicki]
received a one ninth share in her mother’s home, but there is no
indication that she receives any income or benefit from it and the
court received no specific information as to the value of the real
estate. [Vicki’s] mother died in 2002.
It appears that [Henry] received an interest from an oil and gas
lease also in the state of Kentucky. He may have received money
or other things of value by inheritance. Again, the court was not
provided with any specific information about those assets or their
value.
App. pp. 7-8.
[9] Our supreme court has held that, where “the parties fail to present evidence as
to the value of assets, it will be presumed that the trial court’s decision is
proper.” Quillen v. Quillen, 671 N.E.2d 98, 103 (Ind. 1996). It is incumbent on
the parties to present evidence of the value of property to the trial court, and
trial courts do not err in failing to assign values to property where no evidence
of such value was presented. Balicki v. Balicki, 837 N.E.2d 532, 537-38 (Ind. Ct.
App. 2005), trans. denied. Henry cannot now argue concerning the trial court’s
failure to assign a value to Vicki’s interest in the Kentucky property.1
1
Henry argues that the Kentucky property should have been valued according to Vicki’s testimony that the
marital residence was “worth a whole lot more [than the Kentucky property], three time [sic] as much as that
house in Kentucky.” Tr. p. 33. Contrary to Henry’s argument, Vicki’s vague testimony is simply insufficient
to establish a value of her interest in the Kentucky property. Henry also suggests that Vicki’s occasional use
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[10] Henry next argues that the trial court failed to assign a value to Vicki’s two
pensions. Indiana Code Section 31-15-7-4 requires all property to be considered
in the marital estate. Fobar v. Vonderahe, 771 N.E.2d 57, 60 (Ind. 2002). With
certain limited exceptions, the “one-pot” theory of Indiana family law
specifically prohibits the exclusion of any asset from the scope of the trial
court’s power to divide and award. Balicki, 837 N.E.2d at 539-40.
[11] Henry presented evidence that, as of October 3, 2013, Vicki’s Schneider Electric
pension had a value of $69,316, Vicki’s Moore Wallace pension had a value of
$24,457, and Henry’s GenCorp pension had a value of $33,735. The trial court
did not mention this evidence in its findings of fact or conclusions thereon.
However, the trial court did note that Vicki received “slightly more from her
two pensions than [Henry] does.” App. p. 7. The trial court ordered that each
party have their own pensions as their sole and separate property. “Valuing a
pension requires a court to determine (1) what evidence must be presented to
establish the value of the benefit, (2) what date must be used to assign a dollar
amount to the benefit, and (3) how much of the benefit’s value was the result of
contributions made after the final separation date.” Leonard v. Leonard, 877
N.E.2d 896, 900 (Ind. Ct. App. 2007). The trial court failed to engage in this
analysis. To the extent that the trial court failed to consider the present value of
the pensions, it was in error.
of the Kentucky property is evidence of a non-monetary benefit. Again, Henry presented no evidence
concerning the value of such a non-monetary benefit.
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[12] Finally, Henry argues that the trial court erred by excluding the mortgage from
the marital debts. The trial court ordered that Henry have the marital residence
subject to the mortgage thereon as his sole and separate property. In the
context of discussing Henry’s dissipation of assets and hiding assets, the trial
court later noted: “The court is not taking the existing mortgage, claimed by
Husband, into account because it appears to be entirely the result of Husband’s
credit card spending.” App. p. 12. It is not entirely clear from the findings of
fact or conclusions thereon that the trial court excluded the mortgage from the
marital debts. However, to the extent that it did so, the trial court erred.
II. Division of Marital Property
[13] Not every error in the division of martial assets, however, warrants reversal.
Elkins v. Elkins, 763 N.E.2d 482, 487 (Ind. Ct. App. 2002). Even in cases where
trial courts have erroneously excluded assets from the marital estate, we have
affirmed the property division when the error was harmless. Helm v. Helm, 873
N.E.2d 83, 89 (Ind. Ct. App. 2007). When the trial court’s reasons for
awarding certain assets to one party support an unequal division of property,
we will affirm despite an erroneous exclusion of property. Id.[14] We review a trial court’s division of a marital estate for an abuse of discretion.
J.M. v. N.M., 844 N.E.2d 590, 602 (Ind. Ct. App. 2006), trans. denied. An abuse
of discretion occurs when a trial court’s decision is clearly against the logic and
effect of the facts and circumstances before it. Id. In reviewing a trial court’s
division of a marital estate, we consider only the evidence most favorable to the
trial court, and we may not reweigh the evidence or reassess the credibility of
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witnesses. Id. A trial court’s discretion in dividing marital property is to be
reviewed by considering the division as a whole, not item by item. Fobar, 771
N.E.2d at 59. The party challenging the trial court’s division of the marital
estate must overcome a strong presumption that it considered and complied
with the applicable statute. J.M., 844 N.E.2d at 602.
[15] Indiana Code Section 31-15-7-5 provides that the trial court “shall presume that
an equal division of the marital property between the parties is just and
reasonable.” However, this presumption may be rebutted by a party who
presents relevant evidence, including evidence concerning the following factors,
that an equal division would not be just and reasonable:
(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.
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(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.
Ind. Code § 31-15-7-5.
[16] Henry argues that the trial court failed to specifically state that it was deviating
from an equal division of the marital property. However, the order as a whole
clearly indicates that the trial court was deviating from the statutory
presumption of an equal division. The trial court made findings relevant to
each of the five factors listed in Indiana Code Section 31-15-7-5.
[17] As for the contribution of each spouse to the acquisition of the property, the
trial court found that Henry had been disabled and unable to work for nearly
twenty years and that Vicki’s income had paid most of the household bills. As
for inheritances, although Vicki inherited a one-ninth interest in a Kentucky
property and Henry received an interest in an oil and gas lease, evidence
concerning the value of those inheritances was not presented by the parties.
Concerning the economic circumstances of the parties and their earning
abilities, the trial court noted that both parties were retired and that Vicki’s
health was not good. Finally, the trial court made substantial findings
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regarding Henry’s dissipation of assets during the marriage and his hiding of
assets. The trial court noted that Henry had hidden personal injury settlement
money during the marriage and that he had incurred substantial credit card
debts throughout the marriage, resulting in multiple bankruptcy filings. The
findings of fact and conclusions thereon are clear that the trial court found a
proper basis for deviating from the statutory presumption of an equal division.
[18] The trial court here satisfactorily explained its unequal division of the marital
property. Despite any error in the trial court’s valuation of the pensions or
exclusion of the mortgage debt, we conclude that any such error was harmless
because the trial court otherwise satisfied the requirements of Indiana Code
Section 31-15-7-5 and its reasons for awarding a greater share to Vicki fully
justify the unequal division. See, e.g., Helm, 873 N.E.2d at 90.
Conclusion
[19] Any error in the trial court’s consideration of the pensions or the mortgage debt
was harmless error. The trial court’s unequal division of the marital assets is
not clearly erroneous. We affirm.
[20] Affirmed.
[21] Altice, J., concurs.
Robb, J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Henry Shell, [Add Hand-down date]
Appellant- Respondent, Court of Appeals Case No.
52A05-1505-DR-456
v.
Vicki Shell,
Appellee-Petitioner.
Robb, Judge, dissenting
I respectfully dissent.
With respect to the valuation – or lack thereof – of Vicki’s interest in the
Kentucky property, the majority concludes Henry cannot now argue about the
trial court’s failure to assign a value because neither party presented evidence as
to the value of the property or Vicki’s interest in it. It appears, however, that
Vicki failed to respond to either Henry’s or the trial court’s requests that she
provide specific information as to the value. Even if the only evidence is Vicki’s
“vague testimony” of the property’s value in comparison to the marital
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residence, it is clear the property has value, and I cannot agree with the majority
that the trial court did not err in assigning it no value.
With respect to Vicki’s pensions, I agree with the majority that the trial court
erred in failing to consider Henry’s evidence of the actual value of the parties’
pensions, instead simply stating that Vicki’s pensions were “slightly more” than
Henry’s and setting them off to the respective parties. In fact, the evidence
shows Vicki’s pensions are worth more than twice Henry’s. With respect to the
mortgage on the marital residence, the trial court based its decision on Henry’s
credit card spending. However, without context for the credit card debt (for
instance, was it incurred for family purposes or Henry’s alone?), we cannot
assess whether it constitutes dissipation. I agree with the majority that to the
extent the trial court did not include the debt in the marital pot, it erred.
Despite finding errors in the trial court’s valuation of the marital property, the
majority nonetheless determines the errors are harmless and the trial court’s
unequal property division in Vicki’s favor was not clearly erroneous. Because
there were so many errors in valuation, and because all the errors favored Vicki,
I cannot agree that the errors were necessarily harmless. Perhaps they were, but
we are not able to evaluate the harm on a fully informed basis. Therefore, I
also cannot agree that the trial court’s property division is not clearly erroneous,
as it is, itself, based on acknowledged errors. I would remand to the trial court
to fix its errors in valuing the marital property and reconsider its property
division.
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