In the Matter of the Marriage of: Mark A. Del Priore v. Jill E. Del Priore , 65 N.E.3d 1065 ( 2016 )

FILED
Dec 14 2016, 7:44 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael H. Michmerhuizen Nicholas J. Hursh
Barrett McNagny LLP Edward E. Beck
Fort Wayne, Indiana Shambaugh, Kast, Beck &
Williams, LLP
Cornelius (Neil) B. Hayes
Fort Wayne, Indiana
Hayes & Hayes
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Marriage of: December 14, 2016
Mark A. Del Priore, Court of Appeals Case No.
02A03-1603-DR-605
Appellant-Respondent,
Appeal from the
v. Allen Superior Court
The Honorable
Jill E. Del Priore, Charles F. Pratt, Judge
The Honorable
Appellee-Petitioner. Lori Morgan, Judge Pro Tempore
The Honorable
Sherry A. Hartzler, Magistrate
Trial Court Cause No.
02D07-1307-DR-976
Kirsch, Judge.
[1] Mark A. Del Priore (“Husband”) appeals the trial court’s decree of dissolution
(“the Decree”) of his marriage to Jill E. Del Priore (“Wife”) and its distribution
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 1 of 26
of the marital estate. Husband raises several issues on appeal, which we restate
as:
I. Whether the trial court abused its discretion in its valuation of
the TD Ameritrade account because the trial court’s findings
were not supported by the evidence;
II. Whether the trial court abused its discretion in not excluding
certain payments from the marital estate that were made by
Husband for the benefit of the parties and their children;
III. Whether the trial court abused its discretion in ordering the
payment of graduate school expenses;
IV. Whether the trial court abused its discretion in ordering
Husband to pay 65% of the educational expenses of the children;
V. Whether the trial court abused its discretion in its valuation of
an investment when the evidence did not support the valuation;
VI. Whether the trial court abused its discretion in making its
property distribution because it failed to consider the tax
consequences of the property division;
VII. Whether the trial court abused its discretion when it
awarded Wife 55% of the marital estate; and
VIII. Whether the trial court abused its discretion when it
ordered Husband to pay a portion of Wife’s attorney fees.
[2] We affirm in part, reverse in part, and remand.
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 2 of 26
Facts and Procedural History
[3] Husband and Wife were married on June 18, 1988, and three children were
born of the marriage, Austin, Tyler, and Alyssa. At the time of the final
hearing in this case, Austin was twenty-two years old, Tyler was twenty years
old, and Alyssa was eighteen years old.
[4] Husband graduated with a bachelor’s degree from Indiana University-
Bloomington and then attended the University of Iowa, where he received his
MBA. Wife also graduated with a bachelor’s degree from Indiana University-
Bloomington; she then attended Indiana Purdue University Fort Wayne
(“IPFW”) for her master’s degree. After the parties got married, Wife moved to
Iowa and worked full-time as a teacher while Husband finished his MBA.
When Husband completed his MBA, the parties returned to Fort Wayne,
Indiana. Wife worked in a teaching position with Fort Wayne Community
Schools, and about six months after moving to Fort Wayne, Husband became
employed with Lincoln Life Insurance Company.
[5] In 1994, the parties’ second child was born, and Wife stayed home full-time for
approximately ten years. Husband later began employment with Insurance and
Risk Management and eventually became a part owner. Wife went back to
teaching part-time and, in approximately 2006, returned to working full-time as
a teacher. At the time of the final hearing, Wife was employed as a special
education teacher at Carroll Middle School, and her income, according to the
Child Support Obligation Worksheet, was $1,090 per week.
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 3 of 26
[6] In 2002 or 2003, Insurance and Risk Management was sold to Old National
Bank (“ONB”), and Husband received approximately one million dollars in
exchange for his partnership interest. After the sale of the business, Husband
became employed by ONB, where he is involved in insurance sales. Husband’s
income fluctuates from year to year based upon his performance, and at the
time of the final hearing, his income for child support purposes was $2,053 per
week. Husband earned significantly more in income than Wife during the
marriage, with his pay generally being more than twice what Wife made. In
2003 or 2004, Husband opened a TD Ameritrade account (“TD account”),
which included a stock account and money market accounts. During the
marriage, Husband secured and was the beneficiary of a life insurance policy
insuring one of his partners, which resulted in $500,000 in insurance benefits
being deposited into the parties’ TD account.
[7] At the beginning of the marriage, Wife took care of the finances for a short
period of time, but Husband later began taking care of the parties’ finances and
continued for the length of the marriage. Wife had her paycheck direct
deposited into the parties’ joint checking account and continued to do so until
October 2014. At that time, Wife withdrew $15,000 and opened a new
account. Husband continued to deposit his paycheck into the joint account
after this withdrawal by Wife.
[8] Wife filed a petition for dissolution of marriage on July 16, 2013. The trial
court entered an order enjoining the parties from transferring, encumbering,
concealing, selling, or otherwise disposing of any joint property of the parties or
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 4 of 26
asset of the marriage except in the usual course of business or for the necessities
of life, without the written agreement of both parties or the permission of the
trial court. Appellant’s App. at 3.
[9] No funds were disbursed from the TD account in 2013. During 2014, Husband
withdrew funds totaling $470,000 from the TD account and placed the funds in
the parties’ joint checking account. Prior to discovery in the dissolution action,
Wife was not aware of these withdrawals. Husband paid many extraordinary
expenses with the funds withdrawn from the TC account, including paying
taxes for 2013 and 2014, college payments for the children, and credit card bills.
However, approximately $93,344 of the funds withdrawn from the TD account
was not accounted for, although Husband claimed that the entire $470,000 was
exhausted by marital expenses. Before the final hearing, Husband and Wife
agreed to divide the remaining funds in the money market portion of the TD
account. Husband received $621,000, and Wife received $601,000.
[10] Husband was the sole investor for the parties during their marriage and did not
routinely discuss investments with Wife. One of Husband’s investments was in
a startup orthopedic company, Biopoly. After discussing it with Wife, Husband
invested $50,000 in Biopoly. Prior to the Decree, the parties equally split the
units in Biopoly. Sometime in 2011, Husband loaned $292,000 of the parties’
joint funds to RAINS Investments, LLC (“RAINS”) without discussing with
Wife. RAINS is a record label that has one musical artist. Husband owns fifty
units of RAINS and is a 50% owner. Although Husband referred to the loan as
a unit acquisition, it was listed as a loan for tax purposes by the IRS, and
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 5 of 26
RAINS, itself, showed that the $292,000 was a shareholder loan payable to
Husband. At the time of the final hearing, RAINS had not paid back the loan.
Husband estimated the value of RAINS to be approximately $40,000 based on
anticipated royalty income for the twelve months following the final hearing.
Tr. at 147. At the final hearing, Husband offered to give Wife the units in
RAINS for a credit of $40,000 or to split the units fifty-fifty.
[11] At the time of the final hearing, the parties’ oldest child, Austin, had graduated
from Butler University (“Butler”), their middle child, Tyler, was attending
IPFW, and their youngest child, Alyssa, had graduated from high school and
planned to attend Butler. Husband testified that if the parties had remained
married, they would have agreed to pay Alyssa’s tuition in an equivalent
amount to that of an in-state public school. Id. at 166. The parties had paid for
Austin’s college expenses at Butler, less scholarships received, which made the
cost of Butler close to what it would cost to attend Indiana University. Alyssa
was admitted to the physician’s assistant program at Butler, which is an auto
advance program that takes six years to complete and results in a bachelor’s and
a graduate degree. Her college expenses to attend Butler were expected to be
approximately $52,616 per year, less grants in the amount of $13,400, for a net
cost of $39,216 per year. Pet’r’s Ex. 2.
[12] At the final hearing, Wife testified that she believed a 55/45 division of the
marital estate was fair and equitable because, historically, Husband had a
higher earning potential throughout the marriage. Tr. at 65-66. Husband
earned $173,323 in 2011 and $148,656 in 2012. In 2014, Husband earned
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 6 of 26
$97,111, and Wife earned $50,937 according to their tax return. On November
30, 2015, the trial court issued the Decree, dividing the marital estate 55/45 in
favor of Wife. Husband filed a motion to correct error, which was denied by
the trial court, with the exception of a typographical error. Husband now
appeals.
Discussion and Decision
[13] Husband challenges the trial court’s division of the marital property.
Technically, however, he appeals from the denial of his motion to correct error.
This court reviews a trial court’s ruling on a motion to correct error under an
abuse of discretion standard. Wortkoetter v. Wortkoetter, 971 N.E.2d 685, 687
(Ind. Ct. App. 2012). An abuse of discretion occurs when the decision is clearly
against the logic and effect of the facts and circumstances before the court,
including any reasonable inferences therefrom. Id.[14] The motion to correct error addressed the trial court’s division of marital
property, which is a matter committed to the sound discretion of the trial court.
Wanner v. Hutchcroft, 888 N.E.2d 260, 263 (Ind. Ct. App. 2008). A party
challenging the trial court’s division of marital property must overcome a strong
presumption that the court considered and complied with the applicable statute.
Id. Even if the facts and reasonable inferences permit a conclusion different
from that reached by the trial court, we will not substitute our judgment for that
of the trial court unless its decision is clearly against the logic and effect of the
facts and circumstances before it. Perkins v. Harding, 836 N.E.2d 295, 299 (Ind.
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 7 of 26
Ct. App. 2005). We consider only the evidence favorable to the judgment and
we do not reweigh the evidence or reassess witness credibility. Id. In addition,
we will not set aside the findings or judgment unless clearly erroneous. Elkins v.
Elkins, 763 N.E.2d 482, 484 (Ind. Ct. App. 2002).
I. Valuation of the TD Account
[15] Husband argues that the trial court abused its discretion in its valuation of the
TD account when it failed to include $93,344 in the account’s valuation. The
trial court has broad discretion in ascertaining the value of property in a
dissolution action, and its valuation will only be disturbed for an abuse of that
discretion. Trabucco v. Trabucco, 944 N.E.2d 544, 557-58 (Ind. Ct. App. 2011),
trans. denied. An abuse of discretion occurs where the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before it. Id.at 558 (citing Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996)). A trial court
does not abuse its discretion if its decision is supported by sufficient evidence or
reasonable inferences therefrom. Id. When reviewing a trial court’s valuation
decision, we will not reweigh evidence, but will consider the evidence in a light
most favorable to the judgment. Id.[16] Husband contends that it was an abuse of discretion for the trial court to find
that he failed to account for $93,344 of funds from the TD account and to not
include that amount in its valuation of the TD account. He asserts that
Respondent’s Exhibit E (“Exhibit E”) demonstrated expenses in the amount of
approximately $92,451 against the unaccounted for expenses of $93,344 and
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 8 of 26
that the trial court erred when it found that Exhibit E did not properly account
for the $93,344. Husband further claims that Wife’s Petitioner’s Exhibit 4 did
not support the trial court’s findings, and the trial court’s reliance on it was an
abuse of discretion.
[17] The trial court made the following findings in the Decree:
38. Commencing in 2014, [Husband], without [Wife’s]
knowledge or consent, withdrew substantial amounts from the
TD [account]. From January 16, 2014 to November 24, 2014,
[Husband] withdrew $470,000 from the account. [Pet’r’s Ex. 3].
These funds were used in part for payment of what could be
considered extraordinary expenses of the marriage including
income taxes, home repair, college expenses, and family credit
cards. The total of these extraordinary expenses account for
$376,656 of the funds withdrawn, leaving $93,344 of said
distributions unaccounted for.
39. [Husband] has offered Respondent’s Exhibit E to account for
the above distributions. However, the Exhibit shows payments
made in 2013, prior to the withdrawals in 2014, or show
payments made which were not extraordinary in that they should
have been paid out of, and historically had been paid out of, the
parties’ income, for example, mortgage payments and payments
on Jill’s car loan.
Appellant’s App. at 18.
[18] As the trial court found, the evidence presented showed that Husband,
unbeknownst to Wife, withdrew funds totaling $470,000 from the TD account
during the time period of January 16, 2014 to November 24, 2014. Pet’r’s Ex. 3.
Although the majority of those funds were accounted for through the payment
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 9 of 26
during the relevant period of time of expenses, evidence was presented that
funds in the amount of $93,344 were not accounted for in these extraordinary
expenses. Pet’r’s Ex. 4. Husband’s Exhibit E purported to show expenses that
accounted for the $93,344; however, it only showed expenses totaling
approximately $92,451, and most of the expenses listed were made outside of
the relevant time period. Specifically, Husband listed expenses for furnace
replacement, a new roof, and a home automation upgrade for the primary
residence. Resp’t’s Ex. E. The evidence showed, however, that these expenses
were all paid in 2013, prior to the first withdrawal from the TD account in
January 2014. Tr. at 207-08, 210; Resp’t’s Ex. A, Item 3.1. Additionally, the
other expenses listed in Exhibit E were for mortgage payments for the primary
residence and payments of Wife’s car loan. Many of these expenses occurred
outside of the relevant time period, either prior to January 16, 2014 or after
November 24, 2014, and were expenses historically paid out of the parties’ joint
account and not extraordinary expenses in that they should have been paid out
of the TD account.1 Viewing the evidence in a light most favorable to the
judgment, we conclude that the trial court did not abuse its discretion when it
refused to give Husband credit for the $93,344 in expenses that the court found
to be unaccounted for. The trial court’s decision was supported by sufficient
1
The evidence presented showed that no withdrawals were taken out of the TD account in 2013, and all
mortgage and car loan payments were able to be paid out of the parties’ joint account. Pet’r’s Ex. 12.
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 10 of 26
evidence, and Husband’s argument is merely a request that we reweigh the
evidence. Trabucco, 944 N.E.2d at 558.
II. Payments by Husband
[19] Husband contends that the trial court abused its discretion when it failed to give
him a credit for payments he made benefitting the family during the pendency
of the dissolution proceedings. The division of marital assets lies within the
sound discretion of the trial court, and we will reverse only for an abuse of that
discretion. Troyer v. Troyer, 987 N.E.2d 1130, 1139 (Ind. Ct. App. 2013), trans.
denied. We may not reweigh the evidence or assess the credibility of the
witnesses, and we will consider only the evidence most favorable to the trial
court’s disposition of the marital property. Id. Although the facts and
reasonable inferences might allow for a different conclusion, we will not
substitute our judgment for that of the trial court. Id.[20] Husband argues that it was an abuse of discretion for the trial court to not give
him a credit against his equalization payments to Wife for certain payments he
made while the dissolution proceedings were pending and after the parties split
their joint account, totaling $48,719. He asserts that the payments were made
for household expenses and that the trial court erred in finding that these
payments were gratuitous. Specifically, he contends that many of the payments
were for the primary residence and for the children’s educational expenses, and
he should receive a credit for such payments.
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 11 of 26
[21] The trial court made the following findings pertinent to Husband’s request for a
credit for payments he made after the parties’ joint account was split:
60. [Husband] seeks a credit for payments made by him after the
parties divided their bank account on October 1, 2014. The total
amount of payments made by [Husband] is in the amount of
$48,719 for which he seeks a credit against his equalization
payment in the amount of $24,360. [Resp’t’s Ex. A, Item 2.1].
61. No Provisional Order has been entered in this case
identifying the obligations of the respective parties for the
payment of the ongoing marital obligations. Further, a review of
[Husband’s] Exhibit shows that many of the expenses for which
he seeks a credit were for child-related expenses for Austin and
Tyler, both of whom are emancipated for purposes of support.
[Husband’s] request for a credit for the payments outlined on
[sic] his Exhibit is denied in that, in the absence of a Provisional
Order, such payments are considered to have been voluntarily
given.
Appellant’s App. at 21-22.
[22] A provisional order is designed to maintain the status quo of the parties during
the dissolution proceedings. Mosley v. Mosley, 906 N.E.2d 928, 929 (Ind. Ct.
App. 2009). It is an interim order that terminates when the final dissolution
decree is entered. Id. at 930 (citing I.C. § 31-15-4-14). “Any disparity or
inequity in a provisional order—can and should—be adjusted in the trial court’s
final order.” Id.
[23] As the trial court found, no provisional order was entered in the present case to
assign the payment of certain marital expenses while the dissolution
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 12 of 26
proceedings were pending.2 Therefore, there was no order put in place to
maintain the status quo of the parties during the dissolution proceedings. The
majority of the expenses for which Husband requested a credit were on behalf
of Austin and Tyler, who were both over the age of nineteen and emancipated
at the time. The duty to support a child ceases when the child becomes
nineteen. Ind. Code § 31-16-6-6(a). Therefore, any payments on behalf of the
emancipated children were gratuitous, and no credit was required. The rest of
the expenses for which Husband requested a credit were either education-
related or medical-related expenses for the children, expenses for the primary
residence, or expenses for a storage unit owned by the parties. Here, no
provisional order was entered, and Husband likely, as the party with higher
earning ability, would have been ordered to pay many of these household
expenses provisionally during the dissolution proceedings. In light of the trial
court’s broad discretion in the division of the marital estate, we conclude that
the trial court did not abuse its discretion in not granting Husband a credit
against his equalization payment.
III. Graduate School Expenses
[24] Husband claims that the trial court abused its discretion when it ordered the
parties to pay for educational expenses beyond a bachelor’s degree for Alyssa.
2
Although no provisional order was issued in this case, the trial court did issue an order enjoining the parties
from transferring, encumbering, concealing, selling, or otherwise disposing of any joint property of the parties
or asset of the marriage except in the usual course of business or for the necessities of life, without the written
agreement of both parties or the permission of the trial court. Appellant’s App. at 3.
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 13 of 26
We review a trial court’s decision regarding the payment of post-secondary
educational expenses for an abuse of discretion. Hirsch v. Oliver, 970 N.E.2d
651, 662 (Ind. 2012); Snow v. Rincker, 823 N.E.2d 1234, 1237 (Ind. Ct. App.
2005), trans. denied. An abuse of discretion occurs if the trial court’s decision is
against the logic and effect of the facts and circumstances before the court, or
the reasonable inferences drawn therefrom. Hirsch, 970 N.E.2d at 662.
[25] Husband contends that the trial court abused its discretion in ordering the
parties to be responsible for Alyssa’s graduate school expenses. He asserts that
the Indiana Supreme Court recently held that the term “postsecondary” in
Indiana Code section 31-16-6-2 does not include graduate school and that
Alyssa’s chosen degree program includes a graduate degree, for which the
parties should not be responsible to pay the expenses. Therefore, Husband
maintains that it was an abuse of discretion for the trial court to order any
payment beyond a bachelor’s degree. We agree.
[26] Indiana Code section 31-16-6-2 provides that the child support order or
educational support order may include, where appropriate:
(1) amounts for the child’s education in elementary and
secondary schools and at postsecondary educational institutions,
taking into account:
(A) the child’s aptitude and ability;
(B) the child’s reasonable ability to contribute to educational
expenses through:
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 14 of 26
(i) work;
(ii) obtaining loans; and
(iii) obtaining other sources of financial aid reasonably available
to the child and each parent; and
(C) the ability of each parent to meet these expenses.
Ind. Code § 31-16-6-2(a)(1). Therefore, under section 31-16-6-2, a trial court
can order parties to pay for educational expenses for postsecondary education.
In Allen v. Allen, 54 N.E.3d 344 (Ind. 2016), our Supreme Court recently defined
the word “postsecondary” as it is used in Indiana Code section 31-16-6-2 and
held that the term “does not include graduate and professional school
expenses.” Id. at 349. The Supreme Court went on to state that, although it
was holding that the statutory language excludes professional and graduate
programs, it was not “our intent to limit the trial court’s ability to order
divorced parents to pay for education that is less than a baccalaureate degree.”
Id. at 348 n.1. The Court’s opinion was only meant to limit “payment of
educational expenses beyond a baccalaureate degree.” Id.
[27] In the present case, the trial court ordered the parties “to pay the costs of
Alyssa’s post-high school education expenses at Butler . . . for her to obtain a
six (6) year degree as a physician’s assistant.” Appellant’s App. at 23. The
evidence showed that Alyssa had been admitted to the physician’s assistant
program at Butler, which is an auto advance program that takes six years to
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 15 of 26
complete and will result in a bachelor’s and a graduate degree. Tr. at 43.
Pursuant to our Supreme Court’s decision in Allen, we find that the trial court
abused its discretion in ordering the parties to be responsible for paying for
Alyssa’s education expenses beyond a bachelor’s degree. We, therefore, reverse
this portion of the Decree and remand to the trial court to amend the Decree to
reflect that the parties are ordered to pay only for the portion of Alyssa’s
educational expenses that pertain to her obtaining a bachelor’s degree.
IV. Division of Educational Expenses
[28] Husband argues that the trial court abused its discretion when it ordered him to
pay 65% of the educational expenses for the children. An appellate court
reviews a trial court’s decision to order the payment of post-secondary
educational expenses for an abuse of discretion. Hirsch, 970 N.E.2d at 662
(citing Carr v. Carr, 600 N.E.2d 943, 945 (Ind. 1992)). Accordingly, we will
affirm the trial court unless its decision is against the logic and effect of the facts
and circumstances before the trial court. Id.[29] Husband contends that the trial court’s apportionment of college expenses was
an abuse of discretion. He claims that the trial court’s order was in error
because it was based on his former earning ability despite his assertion that his
earnings are declining and because the trial court had already used his past
earning ability to justify a deviation from the presumptive equal division of the
marital estate. Husband next alleges that the trial court failed to consider the
testimony by the parties that they had already saved for the children’s education
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 16 of 26
through investments contained in the marital estate and that his portion of the
marital estate was inflated with little liquid assets and a requirement to pay a
large cash equalization to Wife.
[30] In the present case, the evidence showed that there was a disparity in incomes
between Husband and Wife. The evidence presented supported this inequality
in the earning abilities of the parties because it showed that Husband’s income
was at least twice what Wife earned and that Husband’s income fluctuated
depending on performance while Wife’s was dependent on her contract with
the school corporation. We, therefore, conclude that the trial court did not
abuse its discretion in ordering that Husband should be responsible for 65% and
Wife for 35% of the children’s education expenses.
V. Valuation of RAINS Investment
[31] Husband contends that the trial court abused its discretion in its valuation of the
investment in RAINS. He asserts that the purchase of the RAINS units was an
investment, which was not worth anything at the time of the final hearing.
Husband alleges that there was no support for the trial court’s valuation of the
RAINS units “in an amount equal to a ‘loan’ on the books for tax purposes.”
Appellant’s Br. at 34 (citing Shriner v. Sheehan, 773 N.E.2d 833, 843 (Ind. Ct.
App. 2002), trans. denied). He claims that no one testified that the units were
worth the value of the booked loan, and therefore, the value used by the trial
court was outside the range supported by the evidence. Husband thus
maintains that the trial court abused its discretion in considering the units as a
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 17 of 26
loan, by valuing the units at full loan value, and for even including the units in
the marital estate.
[32] A trial court’s decision in ascertaining the value of property in a dissolution
action is reviewed for an abuse of discretion. Crider v. Crider, 15 N.E.3d 1042,
1056 (Ind. Ct. App. 2014) (citing Balicki v. Balicki, 837 N.E.2d 532, 536 (Ind. Ct.
App. 2005), trans. denied), trans. denied. Generally, there is no abuse of
discretion if a trial court’s chosen valuation is within the range of values
supported by the evidence. Id. “‘A valuation submitted by one of the parties is
competent evidence of the value of property in a dissolution action and may
alone support the trial court’s determination in that regard.’” Alexander v.
Alexander, 927 N.E.2d 926, 935 (Ind. Ct. App. 2010) (quoting Houchens v.
Boschert, 758 N.E.2d 585, 590 (Ind. Ct. App. 2001), trans. denied), trans. denied.
When we review a trial court’s valuation of property in a dissolution, we will
neither reweigh the evidence nor judge the credibility of witnesses. Crider, 15
N.E.3d at 1056.
[33] The trial court in the present case found that the investment in RAINS was a
shareholder loan repayable to Husband and set it off entirely to Husband in the
amount of $292,196. Appellant’s App. at 19. The evidence presented at the final
hearing showed that Husband made an investment in RAINS in 2011 in the
amount of $292,196 using marital funds without prior discussion with Wife;
this investment made him a 50% owner of RAINS. This investment was listed
in RAINS’s books as a shareholder loan payable to Husband, and it was
classified as a loan by the IRS for tax purposes. Tr. at 184-85. At the time of
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 18 of 26
the final hearing, RAINS had not repaid the loan and still owed the full amount
of $292,196 payable to Husband. Id. at 197. The RAINS units did not provide
any distributions during the marriage. Id. at 186-88, 194, 197. The evidence
supported the trial court’s determination that the amount loaned to RAINS
represented a loan owing to Husband and should be valued in the amount of
the unpaid loan, $292,196. Husband’s arguments are a request for us to
reweigh the evidence and judge witness credibility, which we cannot do. Crider,
15 N.E.3d at 1056. The trial court did not abuse its discretion in its valuation.
VI. Tax Consequences of Property Division
[34] Husband claims that the trial court abused its discretion when it failed to
properly consider the tax consequences of the property division. He contends
that the trial court erred when it awarded the mutual fund portion of the TD
account to him and ordered him to make an equalization payment to Wife of a
certain amount in cash, instead of dividing the units of the mutual funds among
the parties. Husband asserts that the trial court should have realized that, in
order to make the equalization payment, he would be required to liquidate a
portion of the mutual funds and incur negative capital gains taxes. He argues
that, because the trial court was statutorily required to consider the tax
consequences of the property disposition, the trial court abused its discretion in
not doing so.
[35] Pursuant to Indiana Code section 31-15-7-7, the trial court, “in determining
what is just and reasonable in dividing property under this chapter, shall
consider the tax consequences of the property disposition with respect to the
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 19 of 26
present and future economic circumstances of each party.” This statute,
however, requires the trial court to consider only the direct or inherent and
necessarily incurred tax consequences of the property disposition. Knotts v.
Knotts, 693 N.E.2d 962, 968 (Ind. Ct. App. 1998), trans. denied. “Future tax
consequences incident to the disposition of stock awarded one party are not a
proper considerations [sic] before the trial court.” Id. (citing DeHaan v. DeHaan,
572 N.E.2d 1315, 1327 (Ind. Ct. App. 1991), trans. denied).
[36] Here, Husband did not offer any evidence as to what the actual or potential tax
consequences would be if he sold a portion of the mutual funds. Additionally,
given that it is not definite whether Husband will have to sell a portion of the
mutual funds, or how much he may have to sell, the trial court was not required
to consider possible future tax consequences incident to any possible sale. We,
therefore, conclude that the trial court did not abuse its discretion.
VII. Division of Marital Property
[37] We will reverse a property distribution only if there is no rational basis for the
award—that is, if the result reached is clearly against the logic and effect of the
facts and circumstances before the court, including the reasonable inferences to
be drawn therefrom. Luttrell v. Luttrell, 994 N.E.2d 298, 301 (Ind. Ct. App.
2013), trans. denied. We do not reweigh the evidence, and we consider only the
evidence favorable to the dissolution court’s decision. Id. We will also reverse
where the trial court has misinterpreted the law or has disregarded evidence of
statutory factors. Id.Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 20 of 26
[38] Husband argues that the trial court abused its discretion when it deviated from
an equal division of the marital assets. He contends that the trial court failed to
consider all of the statutory factors necessary to rebut the presumption of an
equal division of property and that the evidence presented supported an equal
division. Husband specifically asserts that it was an abuse of discretion to
award Wife 55% of the marital estate based on his former earning ability
because he claims that he no longer has superior earning ability.
[39] The disposition of marital property is governed by Indiana Code section 31-15-
7-4 and 31-15-7-5. There is a presumption of an equal division of property, but
that presumption may be rebutted. Ind. Code § 31-15-7-5. This can include
evidence of the following factors:
(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.
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 21 of 26
(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.
Id. In dividing marital property, the trial court must consider all of these
factors, but it is not required to explicitly address each one in every case.
Montgomery v. Faust, 910 N.E.2d 234, 239 (Ind. Ct. App. 2009). To the
contrary, we presume that the trial court considered each factor. Id. This is one
of the strongest presumptions applicable to our consideration on appeal and
must be overcome by a party challenging the trial court’s division of property.
Eye v. Eye, 849 N.E.2d 698, 701 (Ind. Ct. App. 2006).
[40] In the present case, the trial court found that, when the parties were first
married, Wife worked full-time as a teacher while Husband finished his MBA
and continued to do so for the six months after his graduation when he secured
employment. Appellant’s App. at 13. Wife was employed full-time until the
birth of the parties’ second child, when she stayed home as a full-time mother
and homemaker for about ten years. Id. Although Wife later went back to
work as a teacher, first part-time and then full-time, her income has always been
less then Husband’s by at least half. Id. at 13-14. At the time of the final
hearing, Wife’s income was $1,090 per week, and Husband’s income was
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 22 of 26
$2,053 per week. Id. at 13. The trial court also found that Husband’s income in
insurance sales fluctuates from year to year based on his performance, while
Wife’s income as a teacher is subject to a contract with her school system. Id.
at 13, 22. Therefore, although Husband’s income had decreased in the recent
years prior to the final hearing, it was still over twice the amount of Wife’s
income, and Husband has the ability to increase according to his performance.
Id. at 14.
[41] The trial court also made findings that Husband withdrew a significant amount
of funds from the TD account without Wife’s knowledge or consent, totaling
$470,000, of which over $93,000 could not be accounted for, to pay
extraordinary expenses of the marriage. Id. at 18. Husband offered Exhibit E
to account for this amount, but the trial court found that many of the payments
shown in the exhibit were made prior to the funds being withdrawn and other
payments were not for extraordinary expenses. Id. Therefore, the trial court
found that Husband had failed to account for a portion of the withdrawals from
the TD account in the amount of $93,344. Id. Additionally, the trial court
found that Husband made an investment in RAINS in the amount of $292,196
without prior discussion with Wife that was classified as a shareholder loan of
which none had been repaid and which did not provide any distributions during
the marriage. Id. at 19.
[42] After making these findings, the trial court concluded that the presumption of
an equal division had been rebutted and granted Wife 55% and Husband 45%
of the marital estate. Id. at 22. The trial court properly considered the factors
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 23 of 26
and evidence showing that an unequal division would be just and reasonable.
We conclude that Husband has failed to overcome our presumption that the
trial court considered the proper factors and evidence. The trial court did not
abuse its discretion in awarding Wife 55% of the marital estate.
VIII. Attorney Fees
[43] Husband contends that the trial court abused its discretion in ordering him to
pay 65% of Wife’s attorney fees. Pursuant to Indiana Code section 31-15-10-1,
a trial court may order a party in a dissolution proceeding to pay a reasonable
amount of the other party’s attorney fees, after considering the parties’
resources, their economic condition, their ability to engage in gainful
employment and earn income, and other factors bearing on the reasonableness
of the award. Ahls v. Ahls, 52 N.E.2d 797, 803 (Ind. Ct. App. 2016) (citing
Troyer, 987 N.E.2d at 1142-43). The trial court has broad discretion in
awarding attorney fees. Barton v. Barton, 47 N.E.3d 368, 377 (Ind. Ct. App.
2015) (citing Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind. Ct. App. 2012), trans.
denied), trans. denied. We will only reverse where the trial court’s award is
clearly against the logic and effect of the facts and circumstances before the
court. Id. “Further, ‘the trial court need not give its reasons for its decision to
award attorney’s fees.’” Bessolo, 966 N.E.2d at 733 (quoting Thompson v.
Thompson, 811 N.E.2d 888, 905 (Ind. Ct. App. 2004), trans. denied).
[44] Husband argues that the trial court’s award of attorney fees to Wife was against
the logic and effect of the circumstances before it. He specifically claims that
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 24 of 26
the purpose of awarding attorney fees in a dissolution is to make sure a party
who could not otherwise afford an attorney is able to retain representation, see
Ahls, 52 N.E.3d at 803, and that because Wife was able to retain counsel who
could competently represent her, she should not have been awarded attorney
fees. He further contends that Wife was awarded significant liquid assets in the
Decree such that she could afford to pay her attorney fees. Husband also
argues that the trial court should not have used his alleged superior financial
position as support to justify an award of attorney fees to Wife.
[45] Here, the trial court concluded that “[g]iven the disparity of earnings of the
parties,” Husband should pay 65% of the total amount of attorney fees and
costs of the parties and that Wife should be responsible for 35% of attorney fees
and costs. Appellant’s App. at 28. Although the trial court was not required to
cite to any reasons for its decision to award attorney fees, see Bessolo, 966
N.E.2d at 733, the trial court based its award on the disparity in incomes
between Husband and Wife. The evidence presented supported this inequality
in the earning abilities of the parties because it showed that Husband’s income
was at least twice what Wife earned and that Husband’s income fluctuated
depending on performance while Wife’s was dependent on her contract with
the school corporation. We, therefore, conclude that the trial court did not
abuse its discretion in ordering that Husband should be responsible for 65% and
Wife for 35% of the total attorney fees and costs.
[46] Affirmed in part, reversed in part, and remanded.
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 25 of 26
[47] May, J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016 Page 26 of 26