Russell Goodman v. Stephanie Goodman , 94 N.E.3d 733 ( 2018 )

FILED
Mar 06 2018, 9:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT
Leanna Weissmann
Lawrenceburg, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Russell Goodman, March 6, 2018
Appellant-Respondent, Court of Appeals Case No.
77A04-1706-DR-1300
v. Appeal from the Sullivan Circuit
Court
Stephanie Goodman, The Honorable Lakshmi Reddy,
Appellee-Petitioner. Special Judge
Trial Court Cause No.
77C01-1502-DR-117
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, Russell Goodman (Husband), appeals the trial court’s
Order dissolving the marriage between Husband and Appellee-Petitioner,
Stephanie Goodman (Wife).
[2] We affirm.
ISSUES
[3] Husband presents us with seven issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion by deviating from the
presumption of an equal division of marital assets;
(2) Whether the trial court abused its discretion by omitting to offset the
value of certain marital assets already in Wife’s possession from the
marital estate;
(3) Whether the trial court abused its discretion by including goodwill as a
marital asset;
(4) Whether the trial court abused its discretion when valuating certain
assets of the marital estate;
(5) Whether the trial court abused its discretion by awarding physical
custody of the minor child to Wife;
(6) Whether the trial court abused its discretion by ordering Husband to pay
child support retroactively; and
(7) Whether the trial court abused its discretion by ordering Husband to pay
a portion of Wife’s attorney fees.
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FACTS AND PROCEDURAL HISTORY
[4] When divorce proceedings span more than half a decade, it is reasonable to
assume that this was not an amicable breakup. Exploiting the judicial system to
its fullest, the parties caused the trial court to enter two hundred and thirty-six
entries in the chronological case summary since March 9, 2015 alone. Over the
last two years, the trial court issued ninety-two orders and ten income
withholding orders. Instead of aiding the trial court in reaching its decision by
submitting the customary excel spreadsheet with the proposed allocation of
assets, the trial court had to wade through a box of loose exhibits and puzzle
together the parties’ marital estate. We are very grateful for the detailed
findings of fact and conclusions thereon issued by the trial court which brought
this herculean task to an end.
[5] Husband and Wife married on June 24, 1995, and both had children from
previous relationships. While no children were born during the marriage, the
parties adopted Husband’s natural granddaughter, K.G., born on November 5,
2006. Around March 2012, Wife and K.G. moved out of the marital residence
and Wife filed a petition for dissolution of marriage on March 12, 2012. On
May 30, 2012, the trial court entered a joint temporary restraining order. On
July 26, 2012, the parties submitted a Provisional Agreed Order, which was
approved by the trial court on July 31, 2012, and which included the following
provisions:
a. [Wife] with primary custody of [K.G.] and [Husband] to
exercise parenting time pursuant to the Indiana Parenting Time
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Guidelines. [Husband] to pay child support in the amount of
$110.00/week.
b. [Husband] to have temporary possession of the marital
residence at 7834 S. Pleasant Main, Carlisle, Indiana 47838 and
shall not be permitted to allow any other individuals to reside
within the marital residence until further order by the court.
c. [Husband] shall be responsible for all debts in his name
individually and all debts associated with the business A1
Affordable Goodman’s Tree Service. [Wife] shall be responsible
for all debts in her name individually and any joint debts shall be
allocated at the final hearing.
d. [Wife] was to be paid $9,500.00 for the Chevy Camaro within
ten (10) days from July 5, 2012, and if she was not paid, then the
parties were to trade and/or sell said vehicle to a dealership for a
vehicle of [Wife’s] choosing and [Wife] was to maintain full
possession and title of the new vehicle of her choosing. If any
financing was required, [Wife] would be responsible for the debt
associated with the new vehicle.
e. The parties were to inventory the personal items within the
marital residence and amicably divide temporary possession of
the personal property and if they were unable to agree, then the
property was to remain in the marital residence. [Wife] was
entitled to her clothes, [K.G.’s] toys, and [K.G.’s] bedroom suite.
f. [Husband] shall be responsible for the operation and expense of
A1 Affordable Goodman’s Tree Service. [Husband] shall be
entitled to temporary possession of all assets of A1 Affordable
Goodman’s Tree Service in order to dutifully operate said
business.
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(Trial Court’s Order, p. 5).
[6] For the next five years, the parties engaged in fierce and relentless litigation,
filing more than one-hundred-and-seventy pleadings resulting in the issuance of
ninety-two orders. Finally, by agreement, the marriage was dissolved on
December 2, 2015, with bifurcation of the issues regarding the division of
marital assets, apportionment of marital debt, and establishment of custody,
parenting time, and K.G.’s support arrangements. On December 4, 2015, Wife
filed a Verified Motion for Order to Produce Documents, contending that
Husband failed to respond to discovery requests and produce the requested
documents. Wife alleged that she requested discovery on August 14, 2015 and
on August 24, 2015, but each time Husband produced the same non-responsive
and handwritten responses without attaching the supporting documents. The
discovery dispute was never resolved as Wife continued to indicate that she did
not receive all the documents requested and Husband argued that he properly
responded and produced all documents in his possession.
[7] The trial court conducted a final hearing over seven non-consecutive days:
May 15 & 27, 2016, August 22 & 23, 2016, December 14, 2016, and February
22, 2017. During these hearings, the trial court received evidence concerning
Husband’s one-hundred-and-six pleadings filed over the past two years and
Wife’s sixty-four pleadings filed in the same time period. The evidence
presented during the proceedings reflected that during the marriage, Husband
and Wife both worked in their tree trimming business. Despite receiving an
income from the business, the family was on government health insurance,
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received food stamps, and qualified for free/reduced school lunches and
textbooks. Testimony suggests that Husband had complete and total financial
control during the marriage over the parties’ personal and business possessions,
with ownership of all property placed in his name.
[8] Both Husband and Wife were gamblers: they often purchased lottery tickets
and visited the casino in Evansville. Over the years, Husband accrued
significant winnings from gambling. In 2009, Husband won a scratch off
lottery ticket in the amount of $100,000. While Wife testified that there was at
least $70,000 left in a lock box at the time of filing the divorce proceeding,
Husband claimed that he and Wife lost all the money gambling, eating in five
star restaurants, and purchasing a $20,000 Camaro for Wife. Family members
stated that Husband would often hide money in shoe boxes and mattresses and
kept a very low balance in a checking account.
[9] Despite having received parenting time in accordance with the Indiana
Parenting Time Guidelines, by February 2015, Wife was always present during
Husband’s parenting time. The Guardian ad Litem (GAL) noted, in a
February 2015 report, that the parties frequently did things together as a family.
Wife indicated that she attended the visits because K.G. was afraid to stay
alone. However, after two in camera interviews of K.G., the trial court did not
find evidence that K.G. was fearful of Husband, “but did determine that [K.G.]
has been coached and influenced by [Wife].” (Trial Court Order, p. 28). The
trial court clarified that “[m]uch like [Husband] has engaged in a pattern and
behavior of hiding financial assets, the [c]ourt believes that [Wife] has been less
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than truthful in [K.G.’s] feelings towards her father and has tried to discourage
and prevent a meaningful relationship between [K.G.] and [f]ather.” (Trial
Court’s Order, p. 29).
[10] On May 16, 2017, after receiving evidence for seven days, the trial court issued
its Order, spanning forty-nine pages, including one-hundred and sixty findings
of fact and ninety conclusions of law. The trial court concluded, in pertinent
part, as follows:
6. This [c]ourt deviates from the presumption of equal division of
assets because there is such a large disparity of income and
because [Husband] has engaged in dissipation of assets. While
[Husband’s] income tax returns for several years provide that his
income was nominal and a net income of less than $20,000, this
[c]ourt finds that to be contrary to the evidence presented.
Documentation submitted by [Wife] for the year 2013,
demonstrates that [Husband] was receiving checks in large
amounts written in his individual name and that [Husband]
cashed these checks at the payor’s bank, rather than depositing
into his business account. [Husband] did not provide any bank
statements to rebut this or to show where these checks were
deposited and how the money was used. The [c]ourt also
believes that [Husband] engaged in dissipation of assets because
he has no real good explanation of what happened to all his
lottery and casino winnings or engaged in dissipation of assets by
using such large amounts of discretionary income to gamble
rather than paying debts, timely paying child support, or have
some type of savings for their future. In addition, the [c]ourt
believes that [Husband] has engaged in a pattern of hiding assets
and not turning over documentation that was reasonably
requested on numerous occasions and the [c]ourt believes that
there are assets that [Husband] has not disclosed and so an
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unequal distribution seems only reasonable and fair under the
circumstances.
7. For the foregoing reasons, the [c]ourt awards [Wife] Sixty
Percent (60%) of the assets and [Husband] Forty Percent (40%).
[Husband] can continue to earn tremendous income through his
business as he has done for decades and/or through his gambling
efforts which he appears to be very successful at based upon his
income tax returns. His income tax returns are not reflective of
all his gambling winnings and may not be reflective of any lottery
winnings. Any and all debts in [Husband’s] name and any and
all business debts shall be the responsibility of [Husband] as the
[c]ourt finds no reasonable explanation for these debts not to
have been paid when he had so much discretionary income to
gamble.
****
24. The total value of marital assets to be allocated is Three
Hundred Thirty Two Thousand Eight Hundred Thirty Nine and
00/100 Dollars ($332,839.00). In order to provide [Wife] with
60% of the marital assets, [Huband] will have to make an
equalization payment to [Wife] in the amount of One Hundred
Ninety Nine Thousand Seven Hundred Three and 40/100
Dollars ($199,703.40). Because this matter has been pending for
five (5) years, the [c]ourt believes that the best course of action
and to conserve judicial economy so the parties are not
constantly returning to [c]ourt for collection purposes, the [c]ourt
hereby reduces this property settlement to a judgment . . .
****
31. [] A trial court has discretion to make a modification of child
support relate back to the date the petition to modify is filed, or
any date thereafter. The [c]ourt sees no reason to use any other
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date for child support modification other than the date that
[Wife] filed her Petition to Modify. Accordingly, the child
support is modified retroactive to May 24, 2013.
****
33. Accordingly, [Husband’s] child support payment of
$320/week is modified retroactive to the date of filing, which is
May 24, 2013. Because it took the parties so long to reach the
point where they could litigate this issue, [Husband] now has a
substantial arrearage. As stated already, the reason for this long
delay rests with the actions of both parties. [Husband] repeatedly
failed to fully respond to discovery requests and provide
necessary financial information, which to this day has still not
been produced. [Wife] was not diligent on numerous occasions
on bringing the matter to the [c]ourt’s attention until just days
before a scheduled hearing making it too late to attempt to
remedy the dispute before having to continue and reschedule
hearings. Additionally, [Husband] made efforts to hide assets
and/or dissipate assets and knowing how much income he was
earning, [Husband] should have known all along that his child
support should have been significantly more than the $110/week.
****
51. [Wife] is hereby awarded sole legal custody due to the
inability of the parties to communicate in any reasonable and
effective manner. However, [Husband] has the right to all
information regarding [K.G.] and [Wife] is to follow the
recommendations of GAL [] to insure that [Husband] has all
such information and that the school and medical providers have
his contact information. [Wife] is hereby cautioned that it will
reflect negatively on her if the [c]ourt discovers that [Wife] is
failing or refusing to provide school, medical, extra-curricular or
relevant information regarding [K.G.] to [Husband]. It would be
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in [K.G.’s] best interest if someday these parties reach a point
where they can better communicate and both be involved in
important decisions regarding [K.G.].
52. [Wife] is hereby awarded primary physical custody.
****
59. The [c]ourt believes that it is time for [Husband] to have
unsupervised parenting time with [K.G.] as there does not appear
to be any basis for supervised parenting time to continue. That
there has been the opinion of the GAL which the [c]ourt has
adopted. However, much time has lapsed and the [c]ourt
provides for a short transition period. The [c]ourt EXPECTS
[Wife] to cooperate and allow this relationship to be rebuilt and
not to engage in action that causes [K.G.] to be in fear of her
father. Children thrive when they have a relationship with both
parents and they both chose to adopt [K.G.] together and must
now figure out how to co-parent effectively and successfully.
****
64. [Husband] submitted an Affidavit for Attorney Fees in the
amount of over Fifty Thousand and 00/100 Dollars ($50,000.00)
requesting reimbursement. [Husband] also filed a Notice of Lien
of Attorney Fees for over $27,000.00. The [c]ourt DENIES
[Husband’s] request for attorney fees.
65. [Wife] submitted an Affidavit for Attorney Fees in the
amount of over One Hundred Fifty Thousand and 00/100
Dollars ($150,000.00) requesting reimbursement. The legal fees
expended by [Wife] are significantly high in comparison to the
assets available to the parties and the [c]ourt could not possibly
award fees in that amount. The legislative purpose behind
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authorizing a [c]ourt to order one party to pay another party’s
attorney fees is to ensure that party to a dissolution proceeding
has access to an attorney who would not otherwise be able to
afford it. In determining whether to award one party attorney
fees, the court looks at the economic circumstances of the parties,
the ability of the parties to engage in gainful employment to earn
adequate income, and any other pertinent factors. In this
circumstance, [Wife] has no income by which she could have
afforded an attorney and would not have been able to present her
case without an attorney. [Husband] complicated and delayed
the process by not producing proper discovery responses and
documents. However, the [c]ourt must be reasonable in the fees
awarded and the [c]ourt takes into account that she has been
awarded a property settlement. Based on the foregoing, the
[c]ourt awards [Wife’s] attorney’s fees in the amount of Twenty-
Five Thousand and 00/100 Dollars ($25,000.00) and those fees
shall be reimbursed by [Husband]. [Husband] shall have one
hundred and twenty (120) days to reimburse [Wife’s] counsel.
[Husband] is instructed that he needs to find a good method of
keeping track of his payments, such as utilizing checks or
cashier’s checks rather than cash that cannot be accounted for.
(Trial Court’s Order, pp. 30-31, 34, 35, 36, 40-41, 42, 43).
[11] Husband now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[12] After the final hearing, the trial court entered findings of fact and conclusions
thereon regarding the parties’ dissolution proceedings. In reviewing an order in
which the trial court makes findings of fact and conclusions thereon, our
standard of review is well-settled. First, we determine whether the evidence
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supports the findings and second, whether the findings support the judgment.
Troyer v. Troyer, 987 N.E.2d 1130, 1134 (Ind. Ct. App. 2013), trans. denied. In
deference to the trial court’s proximity to the issues, we disturb the judgment
only where there is no evidence supporting the findings or the findings fail to
support the judgment. Id. We do not reweigh the evidence, but consider only
the evidence favorable to the trial court’s judgment. Id. Challengers must
establish that the trial court’s findings are clearly erroneous. Findings are
clearly erroneous when a review of the record leaves us firmly convinced a
mistake has been made. Id. Additionally, a judgment is clearly erroneous
under Indiana Trial Rule 52 if it relies on an incorrect legal standard. Id. We
evaluate questions of law de novo and owe no deference to a trial court’s
determination of such questions. Id. Thus, on appeal, we “shall not set aside
the findings or judgment unless clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge the credibility of the witnesses.”
Ind. Trial Rule 52(A).
II. Division of Marital Property
[13] Challenging the trial court’s division of marital property, Husband contends
that the trial court improperly based its deviation from an equal division on its
findings that he dissipated marital assets and the disparate income between the
parties. A trial court has broad discretion in dividing the marital estate, and we
will reverse a trial court’s decision only for an abuse of discretion. O’Connell v.
O’Connell, 889 N.E.2d 1, 10 (Ind. Ct. App. 2008). The “party challenging the
trial court’s division of marital property must overcome a strong presumption
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that the trial court considered and complied with the applicable statute, and that
presumption is one of the strongest presumptions applicable to our
consideration on appeal.” Id. On review, we will neither reweigh evidence nor
assess the credibility of witnesses, and “we will consider only the evidence most
favorable to the trial court’s disposition of the marital property.” Id.
[14] In dissolution proceedings, the trial court is required to divide the property of
the parties “in a just and reasonable manner.” Ind. Code § 31-15-7-4(b). This
division of marital property is a two-step process. See O’Connell, 889 N.E.2d at
10. First, the trial court must ascertain what property is to be included in the
marital estate; second, the trial court must fashion a just and reasonable
division of the marital estate. Id. The “one-pot” theory—i.e., that all property
acquired before or during the marriage is to be included in the marital estate—
ensures “that all assets are subject to the trial court’s power to divide and
award. Id. While the trial court may ultimately determine that a particular
asset should be awarded solely to one spouse, it must first include the asset in its
consideration of the marital estate to be divided.” Id. at 11 (quoting Hill v. Hill,
863 N.E.2d 456, 460 (Ind. Ct. App. 2007)).
[15] In determining how to divide a marital estate, the trial court “shall presume that
an equal division of the marital property between the parties is just and
reasonable.” I.C. § 31-15-7-5 (emphasis added). However, this is a rebuttable
presumption, and a party may present relevant evidence to establish that an
equal division would not be just and reasonable. I.C. § 31-15-7-5. The trial
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court may consider evidence of the following factors in concluding whether it
would be appropriate to deviate from the presumption of an equal division:
(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 or 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.
(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.
I.C. § 31-15-7-5.
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[16] Here, the trial court found that Wife rebutted the presumption and awarded
60% of the marital estate to her. In support of its decision to deviate from the
presumption of an equal division, the trial court relied on the evidence littered
throughout the proceedings that Husband dissipated the marital estate by
gambling and the extensive documentation and testimony that Husband was
not completely forthcoming in reporting his income, including in his lottery and
casino winnings.
1. Dissipation of Marital Assets
[17] We have previously stated,
Fault is not relevant in dissolution proceedings except as related
to the disposition or dissipation of marital assets. One spouse’s
claim of improvident spending by the other spouse can be a
powerful weapon in an attempt to secure a larger share of the
marital estate.
In re Marriage of Coyle, 671 N.E.2d 938, 942 (Ind. Ct. App. 1996). “Waste and
misuse are the hallmarks of dissipation. Our legislature intended that the term
carry its common meaning denoting ‘foolish’ or ‘aimless’ spending. Dissipation
has also been described as the frivolous, unjustified spending of marital assets
which includes the concealment and misuse of marital property.” Id. at 943.
Factors to consider in determining whether dissipation has occurred, include:
(1) whether the expenditure benefited the marriage or was made for a purpose
entirely unrelated to the marriage; (2) the timing of the transaction; (3) whether
the expenditure was excessive or de minimis; and (4) whether the dissipating
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party intended to hide, deplete, or divert the marital asset. Goodman v.
Goodman, 754 N.E.2d 595, 598 (Ind. Ct. App. 2001).
[18] Although both parties did gamble during the marriage, the evidence establishes
that Husband had complete and total financial control over all assets, including
the gambling winnings. Wife submitted documentary evidence that between
2006 and 2010, Husband earned $140,961 in gambling winnings. After Wife
filed for divorce in 2012, Husband’s gambling winnings through 2015
amounted to $200,639. Yet, during the marriage, Husband had complete
control over the finances and only allocated a little bit of money to Wife on a
weekly basis to help with the household expenses. The family was on
government health insurance, received food stamps, and K.G. received a
free/reduced lunch and textbooks at school. After the separation and
institution of an initial child support order, Husband failed to contribute to the
payment of the marital debts and incurred a significant debit on his child
support obligations. Instead, Husband testified that while he was in prison
from December 2012 through May 2013, he helped other inmates buy supplies
and pay their attorney fees. A more egregious example of dissipation would be
hard to come by.
2. Disparate Income
[19] Husband also claims that no true earning disparity exists between him and his
Wife. Focusing on the tax returns, he asserts that his reported income is barely
higher than Wife’s annual earnings of $30,368. However, the record is littered
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with testimony of Husband’s attempts to hide his assets. Several witnesses
testified about Husband’s habits of carrying large sums of cash with him and
counting wads of money on the kitchen island. At times, this cash alone
amounted to $16,000. In his business dealings, Husband would encourage
customers to pay cash or make checks payable in his name. Husband would
then cash the check at the customer’s bank so the income was never shown in
his business records or deposited in his business bank account. Another witness
testified that Husband had informed him that the business income in 2014 was
$420,000, and $480,000 in 2015. Based on the exhibits submitted by Wife and
witness testimony, we agree with the trial court’s finding that “it is reasonable
to conclude that in 2013, [Husband] cashed checks and received cash payments
in the amount of $160,458.12,” which he failed to report as income. (Trial
Court’s Order, p. 13).
[20] Without any supporting references to the voluminous record, Husband asserts
that the trial court also failed to account for the payments made to his business
partner, which would reduce his purported business income. However, our
review indicates that Husband’s business partner is his adult daughter from a
previous marriage, who testified that even though she is the half-owner of the
business on paper, she received no income from the business but instead relies
on public assistance to meet her own living expenses.
[21] Considering the evidence most favorable to the trial court’s division of marital
property, and the wealth of evidence that Husband was less than forthcoming
about his income, we conclude that Wife rebutted the presumption of an equal
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division of marital assets and a deviation from an equal split was warranted.
We affirm the trial court’s award of 60% of the marital estate to Wife.
III. Offsetting the Value of Certain Assets
[22] Next, Husband contends that the trial court abused its discretion by omitting to
offset the value of certain assets to Wife in its calculation of the respective
shares of the marital estate. Pointing to the Agreed Provisional Order entered
into by the parties on July 5, 2012, Husband argues that the trial court failed to
credit Wife’s share of the marital estate with the value of the Camaro and the
personal property in her possession.
[23] With respect to the Camaro, the Provisional Agreed Order provided Husband
with the option to either keep the Camaro himself and pay Wife $9,500 to
purchase a vehicle or to sell or trade in the Camaro, allowing Wife $9,500 from
the sale or trade to purchase a vehicle. During the final hearing, Wife testified
that Husband elected to trade in the vehicle and pay off the balance of
$18,759.67 on the car loan. Husband affirmed that he was able to pay off the
balance with the trade-in amount received for the Camaro and had only $500
left over. Although the parties never explicitly testified to it, a reasonable
inference can be made that in light of the high debt still remaining on the
vehicle at the time of trade-in, Wife never received the $9,500 she was due to be
paid after trading in the Camaro, or received a vehicle of her choice.
[24] Husband makes a similar argument with respect to the personal property valued
at $13,510. The Provisional Agreed Order alluded to a future amicable division
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of the marital property with the exception of Wife’s clothing, and K.G.’s toys
and bedroom suite which were awarded to Wife in 2012. The Agreed Order
required the parties to inventory the personal items remaining within the
marital residence and if the parties were unable to agree about their ownership,
the property was to remain in the marital residence, which was temporarily
awarded to Husband. Despite a prohibition to remove the personal property
from the marital residence, Husband admitted to having relocated some of the
property. Nevertheless, during the final hearing, Husband submitted an
appraisal of the personal property left in the marital residence in the amount of
$13,510. Absent any other evidence submitted by either party, and based on the
fact that Husband had control over the marital residence, the trial court could
reasonably infer that this personal property was in Husband’s possession and
should properly be credited to him.
IV. Goodwill
[25] With respect to the division of the business assets, Husband contends that the
trial court abused its discretion by including the business’ goodwill into the
calculation of the marital estate and by assigning him the totality of the
business’ debts.
[26] In Yoon v. Yoon, 711 N.E.2d 1265, 1268-69 (Ind. 1999) (internal citations
omitted), our supreme court analyzed the issue of goodwill as follows:
Goodwill has been described as the value of a business or
practice that exceeds the combined value of the net assets used in
the business. Goodwill in a professional practice may be
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attributable to the business enterprise itself by virtue of its
existing arrangements with suppliers, customers or others, and its
anticipated future customer base due to factors attributable to the
business. It may also be attributable to the individual owner’s
personal skill, training or reputation. This distinction is
sometimes reflected in the use of the term “enterprise goodwill,”
as opposed to “personal goodwill.”
Enterprise goodwill “is based on the intangible, but generally
marketable, existence in a business of established relations with
employees, customers and suppliers.” Factors affecting this
goodwill may include a business’s location, its name recognition,
its business reputation, or a variety of other factors depending on
the business. Enterprise goodwill is an asset of the business and
accordingly is property that is divisible in a dissolution to the
extent that it inheres in the business, independent of any single
individual’s personal efforts and will outlast any person’s
involvement in the business. It is not necessarily marketable in
the sense that there is a ready and easily priced market for it, but
it is in general transferrable to others and has a value to others.
****
In contrast, the goodwill that depends on the continued presence
of a particular individual is a personal asset, and any value that
attached to a business as a result of this “personal goodwill”
represents nothing more than the future earning capacity of the
individual and is not divisible. * * * *
The General Assembly has determined that the “relative earning
power” of the parties is not a divisible asset because it is not
property, but may be considered in determining the percentage of
property to be given to each. Accordingly, we join the states that
exclude goodwill based on the personal attributes of the
individual from the marital estate.
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[27] In its identification and quantification of enterprise goodwill, the trial court
concluded that:
As the parties were married for nearly seventeen (17) years before
the date of filing and the testimony was clear that [Wife]
participated heavily in the administrative side of the business
which was a significant role and she continued to participate in
the business on occasion through 2015, this [c]ourt believes it is
appropriate to assign some value to goodwill, especially when
there is no business valuation, no true inventory of business
assets along with value, and so much dispute as to what the
business is worth.
The parties did a poor job of reporting income and keeping track
of income and business expenses. It is difficult to ascertain how
much of a role [Wife] played independently or whether she was
coerced into this business practice, but it appears that [Husband]
has continued to engage in the same business practice after the
date of filing. He continued to purchase business equipment in
his individual name, sometimes he places title in his children’s
names, and often pays cash. This [c]ourt really does not have an
accurate way to value the business so has determined that the
best it can do is take what it believes to be the annual net income
and divide that in half to assign a goodwill value to the business.
[Wife] would then he entitled to 60% of that figure.
(Trial Court’s Order, p. 33) (footnote omitted).
[28] In an effort to challenge the trial court’s conclusion of enterprise goodwill,
Husband contends that the survival of the business is dependent on his
continued presence. In support of his argument, he focuses on his habit to title
business assets in his personal name, pay his employees in cash, and accept
customer checks written to Husband personally instead of the business entity.
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We find that this evidence rather establishes Husband’s propensity to
intermingle personal and business assets and points towards an inference of
hiding assets.
[29] To the contrary, we find that the record supports the trial court’s conclusion.
As noted by the trial court, Wife continued her involvement with the
administrative side of the business for several years after filing for dissolution.
Wife’s adult son from a previous marriage testified that he worked in the
parties’ business for about ten years in a supervisory position with financial
responsibilities. Likewise, Husband’s adult daughter from a previous marriage
informed the trial court that Husband at times would place business assets in
her name and even though she was made co-owner of the tree trimming
business she received no income. Accordingly, as the business was
“transferable” to other family members and thus “independent” of Husband’s
“personal efforts,” we affirm the enterprise goodwill in the amount of $76,748.
See Yoon, 711 N.E.2d at 1268.
[30] Continuing to dispute the trial court’s division of the parties’ business, Husband
claims that the trial court abused its discretion by finding that “Husband must
pay business debt totaling $46,438.00 because he should have been paying off
debt during the marriage instead of gambling.” (Appellant’s Br. p. 34). The
record indicates that after the marriage, Wife became a homemaker and
assisted Husband’s business by soliciting work, scheduling jobs, and accounting
services. Even after she filed for dissolution, Wife continued her involvement in
Husband’s tree trimming business. While Wife worked in the business for more
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than twenty years, she received no income. Considering the evidence in the
record that Husband interpreted the business to be his own personal fiefdom in
which he could intermingle personal and business assets as well as the absence
of any salary for Wife’s employment in the business, we find that the
assignment of all business debt to Husband was “just and reasonable.” Crider v.
Crider, 26 N.E.3d 1045, 1048 (Ind. Ct. App. 2015). Although the trial court
based its finding on a different ground—Husband’s gambling habit—we will
not reverse the trial court’s Order with respect to the business debts as it does
not amount to a prejudicial error. Riehle v. Moore, 601 N.E.2d 365, 369 (Ind. Ct.
App. 1992) (“[W]e may reverse a trial court’s judgment only if its findings
constitute prejudicial error. A finding of fact is not prejudicial to a party unless
it directly supports a conclusion of law adverse to him.)
V. Valuation Date
[31] Husband’s final argument with respect to the marital property relates to three
specific assets, which, according to Husband, were not in existence on the
valuation date and therefore should not have been included in the marital pot.
[32] Generally, the marital pot closes on the day the petition for dissolution is filed.
Sanjari v. Sanjari, 755 N.E.2d 1186, 1192 (Ind. Ct. App. 2001). The date of
filing is defined by statute as the date of “final separation.” I.C. § 31-9-2-46.
When dividing property in a dissolution proceeding, the court shall include
property owned by either spouse prior to the marriage, acquired by either
spouse in his or her own right after the marriage and before the final separation
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of the parties, or acquired by the joint efforts by the spouses. I.C. § 31-15-7-
4(a).
[33] After identifying the marital assets, the trial court has discretion to set any date
between the date of filing the dissolution petition and the date of the hearing for
their valuation. Eyler v. Eyler, 492 N.E.2d 1071, 1074 (Ind. 1986). “The
selection of the valuation date for any particular asset has the effect of allocating
the risk of change in the value of that asset between the date of the valuation
and date of the hearing. Quillen v. Quillen, 671 N.E.2d 98, 103 (Ind. 1996). We
entrust this allocation to the discretion of the trial court. Id.
[34] Husband first contends that the trial court abused its discretion when it included
the marital residence and the real estate on which it is located in the marital
estate even though the property was owned by Husband’s adult daughter from a
previous marriage. The evidence reflects that even though ownership of the
residence and real estate was in name transferred to Husband’s daughter,
Husband and Wife continued to reside in the house for several years, Husband
continued to pay the taxes, and remodeled the property several years after Wife
filed for dissolution. Husband’s daughter testified that she never claimed the
residence as her own nor paid its taxes and in fact was living in subsidized
housing. Although Wife moved to join Husband’s adult daughter into the
proceedings on December 7, 2015, the trial court denied the motion, ordering
Husband’s daughter to be called as a witness. Instead, viewed in light of the
overwhelming evidence in the record of Husband hiding assets, we agree with
the trial court that the property transfer was “just a scheme to keep assets from”
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Wife. (Trial Court’s Order, p. 32). Therefore, it was properly included in the
marital pot.
[35] In 2009, Husband won $100,000 with a scratch off ticket. Husband claims that
the entire winnings were expended prior to the dissolution and should not have
been included in the marital assets in the amount of $70,000. Husband testified
that the lottery winnings, which had been placed in a lockbox, purchased
Wife’s Camaro for $20,000, with the remainder spent on gambling and eating at
five star restaurants. Mindful of the Camaro’s purchase price and the parties’
other expenditures, we conclude that the trial court’s valuation of the asset at
$70,000 was reasonable and we will not disturb its decision.
Lastly, Husband disputes the trial court’s inclusion of his 2013 gambling
winnings in the amount of $42,694. He claims that because the dissolution was
filed in 2012, the 2013 winnings are not part of the marital assets. However,
Husband intermingles the identification of marital assets with their valuation.
The record is overflowing with references to the parties’ gambling during the
marriage. Wife submitted documentary evidence that between 2006 and 2010,
Husband earned $140,961 in gambling winnings. As these amounts were
“acquired after the marriage and before the final separation of the parties,” they
are part of the marital estate. I.C. § 31-15-7-4(a). As they are part of the marital
pot, the valuation of these gambling winnings falls within the discretionary
province of the trial court, which we will not disturb absent an abuse of
discretion. See Quillen, 671 N.E.2d at 103.
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[36] The trial court valued the gambling winnings at their 2013 amount and
reasoned that
[t]he [c]ourt does not utilize [Husband’s] 2012 tax return as that
is the only year in which he had negative income and the [c]ourt
questions whether this was intentional due to the fact that the
Petition for Dissolution was filed in the year 2012. This
conclusion is based on the evidence of [Husband’s] attempt to
hide assets and observations of him over the course of seven (7)
days for [f]inal [h]earings and a few other hearings. Accordingly,
the [c]ourt used information from 2013.
(Trial Court’s Order, p. 33). “So long as there is sufficient evidence and
reasonable inferences to support the valuation, an abuse of discretion does not
occur.” Id. at 103. Nevertheless, Husband now posits that the trial court
omitted “to account for gambling losses and tax consequences.” (Appellant’s
Br. p. 38). However, the trial court noted that “Father did not introduce
evidence that these losses needed to be deducted from the winnings. He also
did not introduce evidence of the amount of all his other winnings because
testimony revealed [Husband] could have had winnings not included in the
W2G total.” (Trial Court’s Order, p. 15). “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.” Id. at 103. We affirm the trial court.
VI. Custody of K.G.
[37] Moving away from the marital assets and now turning towards the minor child,
Husband advocates for a change in custody. He advances that the trial court
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abused its discretion by awarding physical custody of K.G. to Wife as Wife
“has actively tried to poison K.G. against her [f]ather,” and her best “interests
would be served by being in the custody of her [f]ather.” (Appellant’s Br. p.
46).
[38] Pursuant to Indiana Code section 31-17-2-8, the trial court shall determine
custody and enter a custody order in accordance with the best interests of the
child. In determining the best interests of the child, there is no presumption
favoring either parent; instead, the court shall consider all relevant factors,
including the following:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the
child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A)The child’s parent or parents;
(B) The child’s sibling; and
(C) Any other person who may significantly affect the child’s
best interests.
(5) The child’s adjustments to the child’s:
(A)Home;
(B) School; and
(C) Community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either
parent.
(8) Evidence that the child has been cared for by a de facto
custodian, and if the evidence is sufficient, the court shall
consider the factors described in section 8.5(b) of this chapter.
I.C. § 31-17-2-8. As our supreme court has held:
The court must consider factors that are relevant, including but
not limited to those explicitly listed in the statute. Although a
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court is required to consider all relevant factors in making its
determination, it is not required to make specific findings. A trial
court’s custody determination is reviewable only for an abuse of
discretion. An abuse of discretion occurs where the decision is
clearly against the logic and effect of the evidence before the
court.
Russell v. Russell, 682 N.E.2d 513, 515 (Ind. 1997) (footnote and citations
omitted).
[39] Out of the 160 findings made by the trial court, 24 deal with the custody issue;
and out of the 90 trial court conclusions, 14 involve K.G.’s custody. Even
though Husband contends that Wife maintained a persistent pattern of
preventing his parenting time and tried to discourage a relationship with his
minor child, the record and Order—including two in camera interviews with
K.G.—both demonstrate that the trial court carefully considered these
allegations, as well as a multitude of others, in ensuring that its custody decision
would be in K.G.’s best interests. Husband now merely asks that we reweigh
all this evidence in his favor. As the trial court’s order clearly reflects that it
gave proper consideration to the statutory facts when determining the custody
arrangement that was in K.G.’s best interests, we conclude that the trial court
acted within its discretion in awarding primary physical custody to Wife.
VII. Child Support
[40] Next, Husband challenges the trial court’s increase of his child support
obligation and its retroactive application to the date of filing for the
modification of child support on May 24, 2013. Despite evidence that Husband
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gave the family barely sufficient money to support the basic necessities to
survive, Husband now incredibly claims that “[t]he [r]ecord reveals this child
lived in a manufactured home, attended public school and relied on social
services for basic needs. Far from living a lifestyle of the rich and famous, K.G.
ha[d] a normal middle-class existence.” (Appellant’s Br. p. 55) (internal reference
omitted, emphasis added). As such, Husband maintains that the current weekly
support obligation of $330 is too high compared to the standard of living K.G.
enjoyed during the marriage of the parties.
[41] As part of the divorce proceedings between two parents of a child, the trial
court may order either of them “to pay any amount reasonable” for the child’s
support. I.C. § 31-16-6-1. A trial court’s calculation of child support is
presumptively valid and its decision will only be reversed if it is clearly
erroneous or contrary to law. Young v. Young, 891 N.E.2d 1045, 1047 (Ind.
2008). Child support calculations are made utilizing the income shares model
set forth in the Indiana Child Support Guidelines. Sandlin v. Sandlin, 972
N.E.2d 371, 374 (Ind. Ct. App. 2012). The guideline approach is promulgated
in Indiana Code section 31-16-6-1, which considers, among other things, the
standard of living the child would have enjoyed if the marriage had not been
dissolved and the financial resources and needs of the noncustodial parent.
Nikolayev v. Nikolayev, 985 N.E.2d 29, 33 (Ind. Ct. App. 2013).
In making its calculation, the trial court concluded
31. [Wife’s] petition of modify child support was filed on May
24, 2013 and a hearing was never conducted on that Petition nor
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was a decision ever rendered. It could not have been issued any
earlier without the introduction of evidence which took place
during the days of the [f]inal [h]earing. Perhaps if [Husband] had
been transparent about his gambling winnings and income
generated but not shown as business income, the issue of child
support could have been resolved much earlier. []
32. Because the most accurate information that the [c]ourt has is
related to 2013 and [Wife’s] Petition to Modify was filed on May
24, 2013, the [c]ourt utilizes income information for 2013 in
calculating child support. As stated above, [Husband’s] business
income in 2013 was $153,495. However, child support is based
on all income received and the gambling/lottery winnings are
income. By adding the $42,694.00 gambling winnings in 2013,
[Husband’s] income in 2013 was $196,189.00 which is the
equivalent of $3,772.86/week. [Wife] was working as a waitress
at that time and her income is imputed at minimum wage.
Attached in a child support obligation worksheet identified as
Exhibit B which includes what the [c]ourt most accurately
reflects the parties’ income in 2013 and shows that [Husband’s]
child support in 2013 would have been $320/week.
(Trial Court’s Order, p. 36).
[42] Acknowledging that this new child support order represents a considerable
increase from the temporary 2012 order of $110/week, the trial court
emphasized Husband’s efforts to hide assets and the overwhelming evidence
that Husband earned far more than disclosed in his tax returns. During the
marriage, Husband controlled the purse strings, forcing the family to survive on
food stamps, rely on government health care, and free school lunches while he
went gambling, played the lottery, and had large amounts of cash in his
possession. Even though Husband “never gave [Wife] money and she may not
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have been living at a standard commensurate with the amount of income that
[Husband] was generating, [] that should not deprive [K.G.] of now being able
to live at a standard that is commensurate with the earnings of the parties.”
(Trial Court’s Order, p. 38).
[43] In light of Husband’s challenge to the retroactive application of the trial court’s
child support order, we note that it is well established that “the trial court has
the discretionary power to make a modification for child support relate back to
the date the petition to modify is filed or any date thereafter chosen by the trial
court.” Laux v. Ferry, 34 N.E.3d 690, 695 (Ind. Ct. App. 2015). Here, the trial
court elected to relate Husband’s obligation back to May 24, 2013, the date the
petition to modify was filed.
[44] Trial courts make case-by-case determinations regarding weekly gross income
from self-employment and impute income for the purpose of computing child
support based on specific circumstances as they exist or are presented to the
court. Our standard of review is flexible enough to permit the trial court to
fashion a child support order that is tailored to the circumstances of the
particular case before it and consequently reflects its best judgment. Given
Husband’s propensity to hide his assets, his discretionary money to gamble
extensively while not paying child support, and his business dealings, we
conclude that the trial court properly calculated Husband’s child support
obligation.
VIII. Attorney Fees
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[45] As a final issue, Husband contends that the trial court abused its discretion
when ordering him to reimburse $25,000 out of Wife’s incurred attorney fees in
the amount of $150,000.
[46] Indiana Code section 31-15-10-1 provides that a trial court may order a party to
pay a reasonable amount to the other party for the cost of maintaining or
defending any action in dissolution proceedings. We review a trial court’s
award of attorney fees in connection with a dissolution decree for an abuse of
discretion. Hartley v. Hartley, 862 N.E.2d 274, 286 (Ind. Ct. App. 2007). When
making such an award, the trial court must consider the resources of the parties,
their economic condition, the ability of the parties to engage in gainful
employment and to earn adequate income, and other factors that bear on the
reasonableness of the award. Id. Consideration of these factors promotes the
legislative purpose behind the award of attorney fees, which is to insure that a
party in a dissolution proceeding, who would not otherwise be able to afford an
attorney, is able to retain representation. Id. The trial court need not, however,
give reasons for its determination. Hartley, 862 N.E.2d at 287.
[47] Where, as here, “one party is in a superior position to pay fees over the other
party, an award of attorney fees is proper.” Ratliff v. Ratliff, 804 N.E.2d 237,
249 (Ind. Ct. App. 2004). Despite Husband’s contention, other evidence found
credible by the trial court suggests that the business generated $420,000 in 2014,
and $480,000 in 2015. Viewed in light of the particularized circumstances of
this case, we conclude that the disparity of the parties’ earnings, Husband’s
dissipation of marital assets, and his “misconduct that directly result[ed] in
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additional litigation expenses” justified the trial court’s decision to award
attorney’s fees to Wife. Hanson v. Spolnik, 685 N.E.2d 71, 80 (Ind. Ct. App.
1997), trans. denied.
CONCLUSION
[48] Based on the foregoing, we hold that the trial court did not abuse its discretion
in (1) dividing the marital estate between the parties; (2) awarding custody of
K.G. to Wife and calculating Husband’s child support obligation; and (3)
granting attorney fees to Wife.
[49] Affirmed.
Mathias, J. and Brown, J. concur
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