In Re: The Marriage of Lisa Mae Slayback Gillispie v. Danny Lee Gillispie ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited FILED
before any court except for the purpose Mar 22 2012, 9:11 am
of establishing the defense of res
judicata, collateral estoppel, or the law CLERK
of the supreme court,
of the case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
LEANNA WEISSMANN TIMOTHY B. DAY
Lawrenceburg, Indiana Versailles, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE MARRIAGE OF )
)
LISA MAE SLAYBACK GILLISPIE, )
)
Appellant-Respondent, )
)
vs. ) No. 15A01-1108-DR-364
)
DANNY LEE GILLISPIE, )
)
Appellee-Petitioner. )
APPEAL FROM THE DEARBORN CIRCUIT COURT
The Honorable W. Gregory Coy, Special Judge
Cause No. 15C01-1007-DR-98
March 22, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Lisa Mae Slayback Gillispie (“Wife”) appeals from the trial court’s division of
marital property in the dissolution of her marriage to Danny Lee Gillispie (“Husband”).
Wife raises one issue which we revise and restate as whether the court erred in its
division of the marital property. We affirm.
The relevant facts follow. Husband and Wife were married in 1991, and no
children were born to the marriage. In 2003, Husband and Wife purchased a house and
used “$20 some thousand” from Husband’s father for the purchase. Transcript at 10. In
2007, Husband received another $10,000 from his father so that Husband would not lose
the house.
Husband worked for Schneider National for twenty years driving a truck.
Husband had a 401(k) which he cashed out in the amount of $40,981.44 in 2010 by check
dated June 15, 2010 and gave his father $32,000.
On July 7, 2010, Husband filed a verified petition for dissolution of marriage. On
August 2, 2010, Wife filed a counter-petition for dissolution of marriage. On July 14,
2011, the court held a hearing, and the parties stipulated that the marital residence had
been appraised at $68,000, that Husband would receive the residence and pay Wife
$34,000, and that Husband and Wife would keep their vehicles. Husband testified that
Wife “never worked a day in her life.” Id. at 28. Husband testified that the money
received from his father was considered a loan. Husband also testified that he gave his
father $32,000 and used the remaining amount from the 401(k) to pay for medicine and
insurance. Husband’s father testified that he gave Husband the money, expected that
Husband would pay back the money, and told Husband that he expected to be paid back
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when he knew that Husband and Wife were separating. Wife testified that the money
from Husband’s father was a gift. Wife indicated that she did not work outside the home
but that she and Husband “bought houses and sold them and fixed them up and
everything.” Id. at 59.
On July 19, 2011, the court entered an order concluding that Wife had no interest
in Husband’s 401(k). Specifically, the court’s order states:
The Court proceeds with a final hearing and finds as follows:
*****
5. The parties stipulate that the marital residence is worth $68,000; that
[Husband] should receive the residence as his property; and that he
should pay [Wife] $34,000 within ninety (90) days out of the equity
of the home. [Wife] shall quitclaim her interest in the property upon
receipt of the $34,000.
6. The parties further stipulate that each shall keep the vehicle they
have in their possession.
*****
8. [Husband’s] father, Larry Gillispie, at the time of the purchase of the
marital residence, paid over $20,000 toward the purchase of the
home and improvements to the home such as sidewalk(s) and septic.
9. [Husband’s] father later paid an additional $10,000 to help pay off
the balance owed on the residence.
10. The parties do not agree on whether the payments by Larry Gillispie
constituted a gift or a loan at the time the payments were made.
11. Larry Gillispie testified that he intended the payments to be a loan
and that he expected to be paid back.
12. [Husband] cashed out a 401(k) he had at his former employer,
Schneider National, which was in the amount of $40,981.44.
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13. [Husband] testified that he paid his father $32,000 from the proceeds
of the 401(k) and that the remainder was spent on medicine.
14. [Husband] is disabled and receives approximately $1,800 per month
disability; [Wife] is disabled and receives a total of approximately
$690 per month.
*****
23. If either party has personal items belonging to the other, such as
clothing, collectibles, etc., they should return those items to the
rightful owner immediately.
24. [Wife] contends that she is entitled to one half the 401(k) and also
one half of $6,000 which she claims was left at the residence.
Again, [Husband] claims not to know the whereabouts of the $6,000.
25. The Court finds that [Wife] did not work during the entirety of the
marriage, that [Husband] worked and paid for most of the parties’
living expenses, and that he was the sole contributor to the 401(k).
26. The Court finds that the $34,000 payment is all [Wife] is entitled to
based on her monetary contributions during the marriage.
27. As to the cable bill, the Court finds that the parties should split that
equally.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
1. The marriage of the parties is dissolved.
*****
4. [Husband] shall have permanent possession of the marital residence
located at 9054 Stitts Hill Road, Moores Hill, Indiana 47032; he
shall pay [Wife] the sum of $34,000 within ninety (90) days of the
date of this decree. Upon receipt of payment, [Wife] shall quitclaim
her interest in the property to [Husband].
5. Each party shall retain all other personal property in their possession,
including their cars currently in their possession.
6. [Wife] shall have no interest in the 401(k) retirement account
belonging to [Husband] through Schneider National.
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7. Each party shall be responsible for ½ of the outstanding cable bill of
$256.
Appellant’s Appendix at 4-6.
The issue is whether the trial court erred in its division of the marital property.
The trial court apparently entered sua sponte findings of fact and conclusions thereon. In
general, sua sponte findings control only as to the issues they cover, and a general
judgment will control as to the issues upon which there are no findings. Yanoff v.
Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). When a trial court has made findings of
fact, we apply the following two-tier standard of review: whether the evidence supports
the findings of fact, and whether the findings of fact support the conclusions thereon. Id.Findings will be set aside if they are clearly erroneous. Id. “Findings are clearly
erroneous only when the record contains no facts to support them either directly or by
inference.” Id. A judgment is clearly erroneous if it applies the wrong legal standard to
properly found facts. Id. To determine that a finding or conclusion is clearly erroneous,
our review of the evidence must leave us with the firm conviction that a mistake has been
made. Id. “A general judgment entered with findings will be affirmed if it can be
sustained on any legal theory supported by the evidence.” Id.Ind. Code § 31-15-7-4 governs the division of property in dissolution actions and
requires that the trial court “divide the property in a just and reasonable manner.” Ind.
Code § 31-15-7-4(b). The court shall presume that an equal division of marital property
between the parties is just and reasonable, and the trial court may deviate from an equal
division only when that presumption is rebutted. Ind. Code § 31-15-7-5. The trial court’s
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division of marital property is “highly fact sensitive and is subject to an abuse of
discretion standard.” Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002). Also, a trial
court’s discretion in dividing marital property is to be reviewed by considering the
division as a whole, not item by item. Id. We “will not weigh evidence, but will consider
the evidence in a light most favorable to the judgment.” Id. A trial court may deviate
from an equal division so long as it sets forth a rational basis for its decision. Hacker v.
Hacker, 659 N.E.2d 1104, 1109 (Ind. Ct. App. 1995).
“A party who challenges the trial court’s division of marital property must
overcome a strong presumption that the court considered and complied with the
applicable statute.” Wanner v. Hutchcroft, 888 N.E.2d 260, 263 (Ind. Ct. App. 2008).
“Thus, we will reverse a property distribution only if there is no rational basis for the
award.” Helm v. Helm, 873 N.E.2d 83, 89 (Ind. Ct. App. 2007) (citation omitted).
It is well-established that all marital property goes into the marital pot for division,
whether it was owned by either spouse before the marriage, acquired by either spouse
after the marriage and before final separation of the parties, or acquired by their joint
efforts. Ind. Code § 31-15-7-4(a); Beard v. Beard, 758 N.E.2d 1019, 1025 (Ind. Ct. App.
2001), trans. denied. This “one-pot” theory ensures that all assets are subject to the trial
court’s power to divide and award. Thompson v. Thompson, 811 N.E.2d 888, 914 (Ind.
Ct. App. 2004), reh’g denied, trans. denied. Marital property also includes both assets
and liabilities. Capehart v. Capehart, 705 N.E.2d 533, 536 (Ind. Ct. App. 1999), reh’g
denied, trans. denied. The trial court has no authority to exclude or set aside marital
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property but must divide all property. Moore v. Moore, 695 N.E.2d 1004, 1010 (Ind. Ct.
App. 1998).
Ind. Code § 31-15-7-5 provides:
The 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.
(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.
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Wife argues that the trial court abused its discretion in not equally dividing
Husband’s 401(k) and by focusing on only her monetary contributions to the marriage.
Wife argues that “[h]er efforts undoubtedly contributed to the couple leaving their
marriage debt-free.” Appellant’s Brief at 7. Wife argues that the court awarded an
unequal division and that “[b]ecause the court failed to make a finding on whether the
money from [Husband’s] father was a gift or a loan, this evidence cannot reasonably
justify a deviation from an equal split.” Id. Wife also asserts that “the Record points
more clearly in favor of a gift than a loan.” Id. She argues that “[t]he trial court
improperly relied only on the fact that [she] did not put money into [Husband’s] work-
related retirement account,” that “[t]his factor alone does not justify an unequal division
of marital property,” and that her income “is about two-thirds less than” Husband’s
income. Id. at 8-9.
Husband argues that Wife “appears to contend in her appeal that the Court
excluded [his] 401(k) account from the marital assets,” but “[t]here is nothing in the
Court’s Final Decree that indicates that the Court did not consider [his] 401(k) account to
be a marital asset.” Appellee’s Brief at 10. Husband argues that the trial court “had
every right to consider the loans from [his] father in connection with the marital real
estate to be valid debts of the marriage and conclude that the 401(k) funds paid to
extinguish those loans were no longer marital assets.” Id. Husband argues that “[i]n
eliminating the debt, [he] increased the equity in the marital real estate to be received by
[Wife] thereby granting her a fair share of the remaining marital assets.” Id. at 11.
Husband argues that “[i]t can reasonably be inferred that the Court took into
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consideration that [Wife] was leaving the marriage basically debt free and was taking
with her Thirty-Four Thousand Dollars ($34,000.00) in cash while [Husband] was
required to use a portion of his monthly Social Security Benefit to repay the loan needed
to pay [Wife] her share of the marital estate.” Id. at 12.
In her reply brief, Wife argues that Husband’s argument “does not justify unequal
division” because “this is not the rationale cited by the court” and “the Record disputes
[Husband’s] contention that his father loaned the couple money which he expected to be
repaid.” Appellant’s Reply Brief at 3. Wife points out that “[w]hile the court noted that
the parties disputed whether the money from [Husband’s] father was a gift or a loan, the
court made no conclusions concerning this money.” Id. Wife also argues that “[t]he
court’s order made it clear [she] isn’t sharing in the proceeds of the retirement account
because she didn’t pay into it.” Id. She further contends that Ind. Code § 31-15-7-5 “was
not intended to deprive a non-working spouse of marital assets” and that “[i]f that were
the intention, the statute would not specifically require the court to look at non-income
producing contributions to marriages.” Id. at 4.
According to Husband’s testimony, the $32,000 from his father was a loan to
Husband and Wife which was repaid from the funds in Husband’s 401(k). 1 The court
ordered that Husband receive the residence and pay Wife $34,000 which represented one-
half of the value of the residence, that the parties keep any vehicles and personal property
in their possession, and split the cable bill equally. Under the circumstances, we cannot
1
With respect to the remaining amount withdrawn from the 401(k) of $8,981.44, Husband
testified that he used the money to pay for medicine and insurance. Wife made no claim to the trial court
and does not argue on appeal that Husband improperly dissipated this amount.
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say that Wife has overcome the strong presumption that the court considered and
complied with the applicable statute.
For the foregoing reasons, we affirm the trial court’s division of the marital estate.
Affirmed.
MAY, J., and CRONE, J., concur.
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