D.G. v. S.G. (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), 08/28/2017, 10:18 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
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
Julie C. Dixon William O. Harrington
Darlene R. Seymour Harrington Law, P.C.
Ciyou & Dixon, P.C. Danville, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.G., August 28, 2017
Appellant-Petitioner, Court of Appeals Case No.
32A01-1701-DR-164
v. Appeal from the Hendricks
Superior Court
S.G., The Honorable Karen M. Love,
Appellee-Respondent. Judge
Trial Court Cause No.
32D03-1501-DR-33
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 1 of 22
Case Summary
[1] The marriage of D.G. (“Mother”) and S.G. (“Father”) was dissolved, they were
awarded joint legal and physical custody of their two sons (“Children”), and
their marital property was distributed in a purportedly 50/50 split. Mother now
appeals, challenging the custody order and the property division. We affirm in
part, reverse in part, and remand with instructions.
Issues
[2] Mother presents three issues for review:
I. Whether she was denied due process when the final
hearing was ended without the testimony of two
anticipated witnesses, her parents;
II. Whether the joint physical custody/parenting time order is
clearly erroneous; and
III. Whether the property division is clearly erroneous.
Facts and Procedural History
[3] The parties were married in September of 1999. In September of 2014, Father
moved out of the marital residence. On January 22, 2015, Mother filed a
petition to dissolve the marriage. At that time, Children were aged eleven and
seven. They initially remained in the primary physical custody of Mother, who
is a critical care flight nurse with a rotating work schedule.
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 2 of 22
[4] At first, Father would care for Children in the marital residence while Mother
worked two shifts per week (one 24-hour shift and one 12-hour shift). Father
worked as a graphic designer with regular daytime hours. He was also
responsible for maintenance and rent collection with respect to the parties’ five
rental houses. Children were involved in multiple sports, including baseball,
basketball, and football, some with traveling or All-Star teams. The
complicated family schedules were such that the parents welcomed frequent
help from both paternal and maternal grandparents (“Grandparents”).
Grandparents’ assistance included such things as drop-off at school, meeting the
school bus after school, providing meals, and assisting with homework.
[5] The informal arrangement soured after Mother alleged that she found web-
cams that had been installed by Father in the marital residence, more
specifically, in her bedroom. Mother began to rely upon her mother (“Maternal
Grandmother”) to stay in the marital home with Children when she worked
overnight shifts, as opposed to Father doing so. Father desired more access to
Children and, with the assistance of his father (“Paternal Grandfather”)
obtained a home in Children’s school district. Father began to rely upon
Paternal Grandfather to regularly meet the school bus at the marital residence
and bring Children to Father when his work day ended. It was not always clear
who would be awaiting Children. On at least one occasion, the younger child
was left alone and once, Paternal Grandfather and Maternal Grandmother got
into a disagreement over who would take Children after school.
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 3 of 22
[6] A Guardian Ad Litem (“the GAL”) was appointed on May 29, 2015. As the
dissolution action was pending in 2015 and 2016, the GAL made several
recommendations to the court and various interim parenting time orders were
entered. One preliminary agreed order incorporated the parents’ agreement
that, if one parent was working and the other was available, Children would be
with the non-working parent. However, the parents also agreed upon a summer
break exception, that is, if a parent worked during his or her extended parenting
time and a grandparent was available, the other parent need not be given the
right-of-first-refusal of parenting time. Over the course of the interim orders,
Father’s parenting time progressed to Guideline-based parenting time plus one
overnight during the week. At some point, Mother changed her 12-hour shift to
a daytime shift.
[7] The parties reached a partial mediated agreement with respect to some of their
property. They agreed that Father would continue to manage the rental
properties and collect rents. He would report any gains or losses on his
individual income tax return for 2015. They had the rental properties and
marital residence appraised, and stipulated to the appraisal values. They also
agreed upon the valuation of vehicles and items of personal property. Mother
was to retain the marital residence and each party was to retain the vehicle in
his or her possession.
[8] The final hearing commenced on September 29, 2015, and continued on
January 14 and July 14, 2016. By this juncture, the contested issues involved
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 4 of 22
custody, parenting time, and whether a deviation from the presumptive 50/50
split of marital property was warranted.
[9] Mother’s position was that she should have primary physical custody of
Children, and Father should have Children during her work hours and alternate
weekends. She requested a 60/40 split of marital assets in her favor, citing
significant monetary and sweat-equity contributions by her parents pertinent to
the real estate property acquisitions. Mother asked to be awarded two of the
rental properties as well as the marital residence.
[10] Father’s position was that he should have custody of Children half-time and be
awarded half the marital estate. He requested all five of the rental properties.
He testified that Mother’s preference for allowing Maternal Grandmother to
provide childcare had caused difficulty with him having the time to which he
was entitled. The GAL recommended a 60/40 split of parenting time, with
Mother having 60% and Father having “parenting guidelines plus one
[overnight].” (Tr. Vol. II pg. 212.) She also recommended that, when
grandparents were available during an extended school break, the parent
exercising parenting time had no obligation to offer the other parent a right-of-
first-refusal for work hours.
[11] Children’s therapist also testified, acknowledging the bond between Children
and both parents, as well as between Children and Grandparents. She related
the eldest child’s expressed desires for a set schedule and ability to see both
parents regularly. She opined that both parents were meeting Children’s
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 5 of 22
emotional needs, but further opined that Children were over-extended by sports
activities and needed a more balanced schedule.
[12] As the second day of testimony ended, the trial court addressed the attorneys
and described the anticipated order on parenting time, which appeared to
mirror the GAL’s recommended 40/60 split. Father was to have alternate
weekends consisting of Friday, Saturday, and Sunday. Father was to have a
Wednesday overnight when Mother’s work schedule did not include a
weekday. Thus, he was to be assured of having at least five of fourteen nights.
The right-of-first-refusal of parenting time provision was to apply to time blocks
of four hours or more and “ancillary provisions of the [Indiana Parenting Time]
Guidelines” (hereinafter, “Guidelines”) were to apply. (Tr. Vol. IV, pg. 84.)
The parties were to use the services of a parenting time coordinator for two
years. The trial court also distributed some of the personal property before
adjourning.
[13] Immediately before the final hearing concluded on the third day, Mother
testified that her 12-hour work shift had changed. She was working from 6:00
to 6:00 p.m. in Indianapolis and would expect to arrive home around 6:30 p.m.
Her 24-hour shift remained a rotating shift.
[14] On December 27, 2016, the trial court issued a decree dissolving the parties’
marriage. The final order on custody and parenting time did not reflect the trial
court’s oral pronouncement; rather, the order allocated set parenting days on a
50/50 basis with additional time to Father when Mother worked. The marital
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 6 of 22
estate was to be divided without Mother’s requested deviation from a 50/50
split. Father was awarded all the rental properties. Mother retained the marital
residence and was ordered to pay Father $7,278.34 as an equalization payment.
This appeal ensued.
Discussion and Decision
Due Process
[15] Mother argues that the trial court denied her a sufficient opportunity to present
witnesses, thereby violating her due process rights. The Fourteenth
Amendment prohibits a state from depriving a person of “life, liberty, or
property, without due process of the law.” U.S. Const. amend. XIV, § 1. In
general, due process requires notice, an opportunity to be heard, and an
opportunity to confront witnesses. Morton v. Ivacic, 898 N.E.2d 1196, 1199
(Ind. 2008). Whether a party was afforded an opportunity to be heard is a
question of law, which is reviewed de novo. Id.[16] Mother contends that, throughout the final hearing, she “made it clear” that she
intended to call her parents as witnesses, but was ultimately prevented from
doing so by the court’s abrupt termination of the proceedings at noon on the
third day of testimony. Appellant’s Brief at 30. The record does not support
Mother’s claim of an abrupt and unexpected end to the proceedings.
[17] Presumably, Mother wished to have her parents describe their contributions to
the acquisition of the marital estate. Mother testified in some detail about her
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 7 of 22
parents’ financial help and her father’s renovation work. A brief discussion
ensued between the trial court and Mother’s counsel as to whether additional
testimony in this area would be redundant and time-consuming, with the trial
court ultimately saying, “I’ll let you decide how to use your time.” (Tr. Vol.
III, pg. 79.) As the second day of testimony neared an end, the trial court asked
Mother’s counsel for an estimate of how much time should be allotted for the
final day of hearing. Counsel requested a “half-day” and the trial court asked if
three hours would be enough, to which counsel responded, “I would hope so.”
(Tr. Vol. IV, pg. 83.) Three hours were allotted, without objection.
[18] On the final day of the hearing, Father objected that Mother was “rehashing”
previous testimony and, in deciding to allow the line of inquiry by Mother’s
counsel to proceed, the trial court cautioned, “if we run out of time, we’re out,
we’re done today at noon.” (Tr. Vol. IV. pg 101. Mother’s counsel responded,
“Yes, your honor, I understand.” (Tr. Vol. IV. pg 101.) Thereafter, the trial
court reminded counsel on multiple occasions that time was drawing short. By
the noon deadline, Mother’s counsel had not called either of Mother’s parents
to testify. Nor did counsel make an offer of proof as to what their anticipated
testimony would be.
[19] Under the invited error doctrine, a party may not take advantage of an error
that she commits, invites, or which is the natural consequence of his own
neglect or misconduct. Trabucco v. Trabucco, 944 N.E.2d 544, 551 (Ind. Ct.
App. 2011), trans. denied. Here, the trial court repeatedly engaged Mother’s
counsel in discussions of timing issues. Counsel acquiesced to a three-hour
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 8 of 22
hearing on the final day and chose to elicit other testimony in lieu of calling
Mother’s parents to testify. Mother may not now complain that she was
deprived of the opportunity to present her case, particularly when she has not
identified any additional factual detail that would have been forthcoming from
one of her parents.
Custody and Parenting Time Order
[20] The trial court ordered that Mother and Father share joint legal and physical
custody of Children, with Mother having overnights Monday, Tuesday, and
alternate weekends beginning Friday. Father was to have overnights
Wednesday, Thursday, and alternate weekends beginning Friday. Father was
given additional parenting time based upon Mother’s work schedule. Ancillary
provisions of the Guidelines were to apply, except that the right-of-first refusal
would not apply during summer break, to permit greater grandparent
interaction with Children.
[21] Mother argues that the award of joint physical custody to Father is unsupported
by the evidence. She asserts that Father now has more parenting time than the
half-time he requested and the 40/60 split recommended by the GAL, which
the trial court had appeared inclined to adopt in its oral pronouncement.
[22] Father filed a written request for special findings pursuant to Indiana Trial Rule
52(A). When a trial court enters findings of fact pursuant to this rule, we
review for clear error, employing a two-tiered standard of review. In re the
Paternity of M.G.S., 756 N.E.2d 990, 996 (Ind. Ct. App. 2001). First, we must
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 9 of 22
determine whether the evidence supports the trial court’s findings of fact and
second, we must determine whether those findings of fact support the trial
court’s conclusions thereon. Id. Findings are clearly erroneous only when the
record leaves us with a firm conviction that a mistake has been made. Bowling
v. Poole, 756 N.E.2d 983, 988 (Ind. Ct. App. 2001). We do not reweigh the
evidence, but consider the evidence most favorable to the judgment with all
reasonable inferences drawn in favor of the judgment. Id. A judgment is
clearly erroneous if it relies on an incorrect legal standard. Id.[23] In conjunction with the Trial Rule 52 standard, there is a longstanding policy
that appellate courts should defer to the determination of trial courts in family
law matters. Gold v. Weather, 14 N.E.3d 836, 841 (Ind. Ct. App. 2014). We
accord this deference because the trial court, who saw and interacted with the
witnesses, is in the best position to assess credibility and character. Id.[24] The court is to make a custody determination in accordance with the best
interests of the child or children, and is required to consider all relevant factors,
including:
(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:
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 10 of 22
(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 adjustment 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 a child has been cared for by a de facto
custodian[.]
Ind. Code § 31-17-2-8.
[25] Here, the decree is arranged such that there are 157 uncaptioned paragraphs
preceding a comparatively brief section captioned Conclusions of Law. These
uncaptioned paragraphs intertwine dispositional language, such as “each parent
shall be entitled to call the children,” with findings of fact. (Tr. Vol. I, pg. 14.)
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 11 of 22
We have attempted to glean the trial court’s factual findings from the order,
relative to the statutory factors.
[26] The trial court found the following: both parents love and prioritize Children;
Father has regular work hours and flexibility; Paternal Grandfather is involved
in school pick-up and homework; Mother has a rotating work schedule lacking
predictability;1 both parents have always been very involved with Children;
Children are bonded to both parents and identified positive aspects of each;
during the marriage, each parent had performed household tasks and had left
work early to get a sick child; Father had coached Children’s sports teams;
Mother had been responsible for medical appointments; after the separation,
Mother refused Father parenting time in favor of Maternal Grandmother
having Children while Mother worked; Father had been flexible with requested
schedule changes; the parents live in close proximity to each other; the eldest
child advised his therapist that he did not like an unpredictable schedule and
missed either parent if he didn’t see them for two or three days;2 he also
reported enjoying hunting with Maternal Grandfather; the younger child
reported that he wanted to see his parents equally; Children have friends,
activities, and stability in their current school system; and both sets of
grandparents have been very involved with Children in a positive manner. The
1
The trial court’s review of Mother’s 12-hour work shifts (9 a.m. to 9 p.m., 9 p.m. to 9 a.m., 7 a.m. to 7 p.m.,
and 7 p.m. to 7 a.m.) did not address Mother’s final testimony that she then worked her 12-hour shift in
Indianapolis from 6 a.m. to 6 p.m.
2
The trial court entered a specific finding that the therapist’s testimony was found to be credible.
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 12 of 22
trial court specified that it gave substantial weight to the GAL’s testimony and
that Children needed substantial time with each parent.
[27] These factual findings have evidentiary support. There was ample testimony of
Children’s interactions with their parents and their grandparents. By all
accounts, Children have tremendous family support and emotionally healthy
relationships with both parents and their extended family. Both parents have
demonstrable skills in meeting Children’s needs and have historically prioritized
Children. Children expressed desires to have regular contact with both parents.
With this factual background, the order for joint physical custody has support.
We are not firmly convinced that a mistake has been made.
[28] That said, the custody and parenting time order cannot completely achieve both
Children’s wishes and the trial court’s expressed objectives – equal parenting
time and predictability. Father and Mother earn their relatively high incomes,
benefiting Children, by sometimes working non-traditional hours. Mother
earns around $100,000 annually as a flight nurse, while Father has a salary of
$48,000 plus income from five rental properties. Neither critical care nursing
nor responding to tenant’s maintenance and repair issues is confined to a “9 to
5” schedule.
[29] Mother asserts that the trial court prioritized predictability over equal parenting
time and gave Father more than one-half time. According to Mother, she will
inevitably lose some time due to her work schedule, the trial court mis-stated
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 13 of 22
her scheduled hours, and she was deprived of the make-up time contemplated
by the Guidelines.
[30] Although Mother appears to have some control over her schedule, and is now
working her 12-hour shift as a day-time shift,3 her 24-hour shifts are subject to
rotation. Thus, she will inevitably be unable at some times to exercise her
scheduled parenting time. However, we do not read the custody and parenting
time order as excluding the make-up provision of the Guidelines. The order
expressly provides that ancillary provisions of the Guidelines apply, and the
Guidelines contemplate parental make-up time for parents with irregular work
schedules. Paragraph 5 of the Commentary to Section II, Specific Parenting
Time Provisions, states:
For parents with non-traditional work schedules, who may
regularly work weekends, weekday parenting time should be
substituted for the weekend time designated in these rules.
Similar consideration should also be given to parents with other
kinds of non-traditional work hours.
We discern no express or implicit intent on the part of the trial court to exclude
make-up time. Without the Guideline-promoted make-up time for missed
parenting time due to work schedule irregularity, the goal of roughly equal
parenting time would not be achieved here. We further observe that, although
3
Mother testified without objection or contradiction in this regard.
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 14 of 22
make-up time may present some logistical challenges, the parents have the
benefit of a parenting coordinator for a two-year period.
[31] However, we agree with Mother that the trial court’s order did not reflect her
latest schedule change with respect to the 12-hour shift. The trial court
contemplated 12-hour shifts where Mother worked up until 9 p.m. or began
work at 9 p.m. Either of these situations involved Father having Children
additional time and taking them to school the next morning. With a day shift
of 6 a.m. to 6 p.m., different considerations are present. We remand to the trial
court with instructions to enter a parenting time order incorporating the most
current parental work schedule.
[32] Finally, Mother contends that the summer break order allowing grandparents to
have priority is contrary to the Guideline provisions and her “fundamental right
as a parent to raise her children.” Appellant’s Brief at 21. Although the factual
findings with respect to the significant grandchild-grandparent bonds have
evidentiary support, the findings do not support the conclusion that parents
should be deprived of their right-of-first refusal of parenting time during
summer or extended school breaks. The trial court made no factual finding that
either parent is unable or unwilling to exercise additional parenting time during
such breaks. Nor did the parties agree to this provision as part of the final
order.4 We agree with Mother that the provision was entered in contravention
4
Parents had reached such an agreement for one prior summer during the pendency of the dissolution
proceedings.
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 15 of 22
of the Guidelines, which are enacted to implement the exercise of parental
rights. Our family law statutes and Guidelines do not provide grandparents
with access rights superior to those of parents who desire to spend additional
time with a child.
Property Division
[33] Mother presents a two-fold challenge to the property distribution. First, she
argues that a deviation from an equal split is warranted because Maternal
Grandparents made significant monetary and sweat-equity contributions to the
acquisition of the marital residence and the rental properties. Second, she
claims that the trial court erred in its inclusion and exclusion of assets. Mother
argues that rental income should be a divisible asset and the value of the
Children’s 529 college accounts is not a marital asset.
Presumptive Split
[34] Indiana Code Section 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.
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 16 of 22
(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 earnings 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.
[35] Mother testified that, at the beginning of the marriage, her parents had
purchased a house and then transferred it to Mother and Father for $36,000 less
than the purchase price.5 She also testified that her parents significantly assisted
the younger couple in flipping houses and securing rental properties. For
example, they provided interest-free loans and once transferred a property after
5
Father moved into the home and was renovating it prior to the marriage.
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 17 of 22
repairs had been made. Maternal Grandfather and Father attended auctions
together to obtain properties. Maternal Grandfather was very active in
renovation; for example, he installed roofing and siding, dug a well, and
carpeted floors. There was also testimony that Paternal Grandfather performed
some renovation work and that Father would assist Maternal Grandfather at
Maternal Grandfather’s properties. Mother managed the income from the
rental properties.
[36] The properties at issue were not inherited or acquired by the efforts of only one
spouse. Each spouse contributed to the acquisitions, assisted by generous gifts
of time and money from Maternal Grandparents. The trial court entered
findings of fact acknowledging contributions by Mother’s parents and the
parties’ respective financial positions as of the final hearing. Ultimately, the
trial court determined that a deviation from the presumptive 50/50 split was
unwarranted. A disposition is to be considered as a whole, not item by item,
and “[e]ven if some items meet the statutory criteria that may support an
unequal division of the overall pot, the law does not require an unequal division
if overall considerations render the total resolution just and equitable.” Fobar v.
Vonderahe, 771 N.E.2d 57, 60 (Ind. 2002). The trial court was within its
discretion to divide the marital property equally.
Inclusion of Assets
[37] The parties were separated for over two years before the final property
distribution was made. As to the income generated from the five rental
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 18 of 22
properties during this two-year period, the trial court made the following
findings and conclusions:
Wife agreed that she wanted Husband to claim all of the income
and expenses from the rental properties on his 2015 income tax
return. Husband did claim the income and expenses of the rental
properties in his 2015 income tax return. Husband shall claim all
the income and expenses on the rental properties on his 2016
income tax return.
Wife admitted that the tenant at 700 South was not paying rent
since March of 2015. Bridgefield property was also vacant many
months due to mold. Other tenants were also behind on rent.
Neither party presented the Court with accurate information on
the rents collected or expenses incurred. Husband reported the
income and claimed the expenses on his 2015 taxes but he did
not provide the court with a copy of his 2015 income tax return.
Wife did provide Exhibit “21” and “21A” which indicated that if
every tenant paid each month, the parties would collect
$4,550.00 per month or $54,600.00 for the year. In 2014 the
parties did not collect from every tenant each month and parties
reported total rent collection of $50,675.00. Husband provided
Exhibit “FFFF” which indicated that in 2015 he collected
$47,655.00 in rent.
In 2014, the parties reported, for tax purposes, net rental income
of $13,776. The Court finds that the 2014 net income reported
for income tax purposes is the best evidence available for as to
[sic] the income from rental properties in 2015 and 2016.
The Court divides the assets as of the date of filing. The Court is
setting over to Husband all of the rental properties. Therefore, all
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 19 of 22
of the rental income earned during 2015 and 2016 shall be his
income and his property. Husband paid the income tax on the
rental income and the Court added the net rental income to his
income for wages to arrive at his weekly gross income for child
support purposes.
(Tr. Vol. I, pg. 15.)
[38] In essence, the trial court deferred to and expanded the parties’ partial mediated
agreement for 2015. They had agreed that Father would collect rents and
report net income on his 2015 personal income tax return. There is no such
mediated agreement for 2016. Presumably, Father collected rents and
deposited them into the rental account, as no express allegation has been made
that he dissipated marital assets. The trial court failed to treat the 2016 rental
income, generated from marital property that had not yet been transferred to
one party, as marital property. “Indiana’s ‘one-pot’ theory prohibits exclusion
of any asset in which a party has a vested interest from the scope of the trial
court’s power to divide and award.” Wanner v. Hutchcroft, 888 N.E.2d 260, 263
(Ind. Ct. App. 2008). On remand, the trial court is to treat the 2016 rental
income as a marital asset.6
[39] Finally, Mother argues that the trial court erroneously included Children’s 529
college accounts as divisible marital assets. “529 accounts pertain to education
expenses” and are “existing property” with payments “contemplated to be
6
We acknowledge that the rental income allocated solely to Father for child support purposes, that is,
$13,776.00, over-stated his 2016 income available for child support and he may be due a credit.
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 20 of 22
made from the accounts in the future.” Greenan v. Greenan, 150 Conn. App.
289, 311 (2014), citing 26 U.S.C. § 529. The named custodian owns the
property, but it is intended for the benefit of the child. See id.[40] Mother testified that Maternal Grandparents had substantially funded 529
accounts for each child, and Mother and Father had made some ongoing
contributions. She further testified that the accounts were to be maintained for
funding Children’s college educations. Father agreed that the accounts were for
college funds, but he requested a custodial allocation on the basis of “her take
one – me take one.” (Tr. Vol. III, pg. 40.)
[41] The trial court included the two accounts, in the amounts of $39,538.06 and
$14,087.14, in the marital pot. It did not err in doing so. See Trabucco, 944
N.E.2d at 544 (“because the [college expenses] account was funded with
marital assets, the policies behind Indiana’s one-pot theory require its inclusion
within the marital estate”). However, the trial court treated the accounts as
Mother’s separate property in the distribution. This is not consistent with the
uncontroverted evidence that the 529 funds were solely to be used as college
funds for Children. Although the trial court might order one or both parents to
act as custodian, neither parent requested the power or right to liquidate the
funds or use them for any purpose other than education expenses. On remand,
the trial court should set aside the 529 accounts before valuing the distribution
to either parent or ordering an equalization payment.
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 21 of 22
Conclusion
[42] Mother was not denied due process in the conduct of the final hearing. The
award of joint physical custody is not clearly erroneous. The parenting time
order should be revised to reflect Mother’s updated work schedule and the
preference for parental, as opposed to grandparental, access to Children. The
trial court’s decision to divide the marital property in accordance with the
statutory presumption of an equal division is not clear error. However, the trial
court erred in excluding rental income for 2016 and treating the 529 accounts as
Mother’s sole property.
[43] Affirmed in part, reversed in part, and remanded with instructions.
Baker, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 32A01-1701-DR-164 | August 28, 2017 Page 22 of 22