Kejbir Singh Bal v. Shivali Bal (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
May 06 2020, 9:15 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Cody Cogswell Rodney T. Sarkovics
Cogswell & Associates, LLC Sarkovics Law
Fishers, Indiana Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kejbir Singh Bal, May 6, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-DC-2137
v. Appeal from the
Hamilton Superior Court
Shivali Bal, The Honorable
Appellee-Plaintiff David K. Najjar, Judge
Trial Court Cause No.
29D05-1712-DC-11221
Vaidik, Judge.
Case Summary
[1] Kejbir Singh Bal (“Husband”) appeals the trial court’s decree dissolving his
marriage to Shivali Bal (“Wife”). Husband argues that the trial court erred by
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including certain property in the marital pot and in determining Husband’s
weekly income for purposes of child support. We affirm.
Facts and Procedural History
[2] Although the dissolution decree covers many topics, this appeal concerns only a
few of them. As such, we set forth the facts that are relevant to the issues that
the parties raise on appeal. Husband and Wife were married in May 2010.
Two children were born during the marriage: R.B. in 2011 and S.B. in 2016.
[3] In 2012, Husband received approximately $187,000 from his father for
promising to take care of his parents for the rest of their lives. Husband later
testified that out of the money he received from his father, “there was $60,000
that was supposed to be split between [Husband] and [Husband’s] two sisters.”
Tr. p. 117. In 2013, Husband started a trucking business, Bal Trucking. Over
time, his business grew to the point where Husband was earning approximately
$1,300-$1,400 per week.
[4] The parties purchased a Lexus 350 in 2013, using $46,000 of the money given
to Husband by his father. In 2014, the parties used $54,000 of the money to
buy the marital residence. See id. at 118.
[5] Husband’s trucking business started to decline in 2015. Eventually, Husband’s
truck deteriorated beyond repair, causing him to switch and work as a
dispatcher in the trucking business.
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[6] By October 2017, the marriage had begun to fall apart, and Husband asked
Wife to quitclaim her interest in the marital residence. Wife did so, and
Husband transferred ownership of the house to himself and his sister,
Satinderbir Kaur Nijjer. That December, Wife moved out of the marital
residence and filed for divorce.
[7] Both parties were represented by attorneys throughout the dissolution
proceedings. Leading up to the final hearing, Wife attempted to conduct
discovery, but Husband failed to respond to her requests. In July 2018, Wife
filed a motion to compel discovery, which the trial court granted. When Wife
received Husband’s responses, they were either “vague” or provided
“incomplete information.” Appellant’s App. Vol. II p. 13.
[8] In April 2019, the trial court held the final hearing. The parties each submitted
marital-estate summaries, showing proposed values for their marital assets.
Both parties included the equity in the marital residence and the Lexus on their
respective summaries. See Exs. 5, D. The parties also agreed on the value of
those assets: the equity in the marital residence was $47,732, and the Lexus was
valued at $14,000. See Exs. 5, D; see also Tr. pp. 31-32, 152.
[9] Another issue was determining Husband’s weekly income for the purposes of
child support. Wife testified that Husband was paid $343 a week for “taking
care of his mom” and earned income as a trucking dispatcher. Id. at 53. Wife
said that based on the deposits and withdrawals from Husband’s personal and
business bank accounts, she and her attorney determined that Husband’s
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average weekly self-employment income was $2,201.35. See id. at 62-75. Wife
explained that because Husband did not provide documentation of his income,
she and her attorney had to use “the bank statements” to determine his income.
Id. at 97. Wife also submitted a proposed child-support worksheet that
recommended Husband pay $234 a week to Wife in child support. See Ex. 21.
[10] Husband testified that his total income was “close to [$]3,000 a month” or “a
little under 800 a week.” Tr. p. 169. Husband said that he makes “about $540
approximately bi-weekly” for taking care of his mother and “made $19,000 last
year” “from trucking.” Id. at 174. Husband did not submit a child-support
worksheet but asserted that child support should be a “wash” and said that he
“can’t afford $234” a week in child support. Id. at 171-72.
[11] In July 2019, the trial court issued a decree of dissolution. The trial court
followed the parties’ marital-estate summaries and found that the equity in the
marital residence and the Lexus were marital property. As for the money given
to Husband by his father and the alleged debt to his sisters, the trial court
explained:
54. Husband received $187,000.00 during the marriage in 2012
from his Father. Husband testified that the money he received
was to be used for the care and support of Husband’s Father and
Mother. He was also to use $40,000.00 to pay each of his two (2)
sisters $20,000.00; $20,000.00 to keep himself.
*****
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56. Husband’s sisters are not demanding payment, no terms
apply for repayment and for several years Husband made no
payments to his sisters. Just before and during the divorce
proceedings, Husband only then began to claim that he was
paying his sisters back the $20,000.00 each.
Appellant’s App. Vol. II pp. 18-19, 24. Accordingly, the trial court did not
include the $40,000 that Husband alleged he owed to his sisters in the marital
estate as marital debt. After determining the value of the marital estate, the trial
court awarded 60% to Wife and 40% to Husband. The trial court found that an
unequal distribution of the marital estate was appropriate because there were
“multiple instances of disposition of assets on the part of Husband to the
detriment of Wife.” Id. at 21 (Finding M). Husband was assigned the equity in
the marital residence ($47,732.00) and the Lexus ($14,000.00) and ordered to
pay Wife an equalization payment of $79,579.89. See id. at 24.
[12] Regarding Husband’s weekly income, the trial court found:
Z. Husband testified that he was earning approximately $800.00
per week. This figure is not supported by the evidence showing
tens and hundreds of thousands of dollars being deposited into
his accounts and then being spent on personal items. Wife
argues that Husband’s income for child support purposes is over
$2,500.00 per week. This figure does not appear to hold up
against the evidence of Husband’s business expenses. While the
Court is leery of accepting evidence of Husband’s business
expenses at face value, given his repeated discovery violations
and multiple instances of dissipating the marital estate, the Court
cannot ignore business realities and discount any and all
expenses except for self-employment taxes.
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Id. at 25. Accordingly, the trial court found that based on Husband’s education,
experience, work history, and other factors related to his income, his weekly
income was $1,750.00 per week. The court then set Husband’s child support
obligation at $234.00 per week.
[13] Husband now appeals.
Discussion and Decision
[14] Where, as here, the trial court enters special findings and conclusions pursuant
to Indiana Trial Rule 52(A), we apply a two-tiered standard of review. Barton v.
Barton, 47 N.E.3d 368, 373 (Ind. Ct. App. 2015), trans. denied. We determine
first if the evidence supports the findings and second whether the findings
support the judgment. Id. The trial court’s findings and conclusions will be set
aside only if clearly erroneous. Id. We neither reweigh the evidence nor
reassess witness credibility. Id. Instead, we must accept the ultimate facts as
stated by the trial court if there is evidence to sustain them. Id.I. Property in the Marital Pot
[15] Husband contends that the trial court erred when it included two assets—the
marital-residence equity ($47,732) and the Lexus ($14,000)—in the marital pot.
He asks us to remand with instructions that the marital-residence equity and the
Lexus be removed from the marital pot.
[16] It is well settled that in a dissolution action, all marital property goes into the
marital pot for division, whether it was owned by either spouse before the
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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); Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind. Ct. App. 2014). For
purposes of dissolution, property means “all the assets of either party or both
parties.” Ind. Code § 31-9-2-98. The requirement that all marital assets be
placed in the marital pot is meant to insure that the trial court first determines
that value before endeavoring to divide property. Falatovics, 15 N.E.3d at 110.
Indiana’s “one pot” theory prohibits the 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. Id. While the trial court may decide to award a particular asset solely
to one spouse as part of its just and reasonable property division, it must first
include the asset in its consideration of the marital estate to be divided. Id.
[17] Husband specifically argues that the marital residence and the Lexus were
purchased using money that his father gave him, and therefore these assets
cannot be included in the marital pot. Wife argues that any error of which
Husband now complains was invited by him because he included the assets in
his marital-estate summary. Husband does not respond to this argument in his
reply brief. We fail to see how the trial court erred in including the assets—
which were acquired during the marriage—in the marital pot. See I.C. 31-15-7-
4(a). But even if it was error, we agree that Husband invited that error. The
doctrine of invited error is grounded in estoppel and precludes a party from
taking advantage of an error that he or she commits, invites, or which is the
natural consequence of his or her own neglect or misconduct. Balicki v. Balicki,
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837 N.E.2d 532, 541 (Ind. Ct. App. 2005), trans. denied. Husband’s marital-
estate summary (Exhibit D) listed the equity in the marital residence and the
Lexus as marital assets subject to division. The trial court was entitled to rely
on Husband’s representation that these assets were marital property since he
identified them as such. Under these circumstances, Husband cannot now ask
for a reconsideration of what property went into the marital pot with respect to
the marital-residence equity and the Lexus.1, 2
II. Child Support
[18] Husband also argues that the trial court erred in determining his weekly income
and ordering him to pay $234 per week in child support.3 He claims that the
court’s finding that his weekly income was $1,750 “comes from nowhere.”
Appellant’s Br. p. 17. Decisions regarding child support are within the sound
discretion of the trial court. Hicks v. Smith, 919 N.E.2d 1169, 1171 (Ind. Ct.
App. 2010), trans. denied. We reverse a court’s determination regarding child
1
Husband also argues that the trial court erred when it failed to include the $40,000 that he allegedly owes to
his sisters as marital debt. The trial court found that “Husband’s sisters are not demanding payment” and
that Husband only began to claim that he needed to repay his sisters “just before and during the divorce
proceedings.” Appellant’s App. Vol. II p. 19 (Finding 56). Husband’s argument is therefore a request to
reweigh his credibility, which we do not do on appeal. See Barton, 47 N.E.3d at 373.
2
In his reply brief, Husband seems to challenge the trial court’s 60-40 distribution of the marital estate.
Appellant’s Reply Br. p. 6. He has, however, waived this argument by failing to include it in his opening
brief. See U.S. Gypsum, Inc. v. Ind. Gas Co., 735 N.E.2d 790, 797 n.5 (Ind. 2000) (“[A]n argument raised for
the first time in a reply brief is waived.”).
3
It is not clear how the trial court landed on a support obligation of $234 per week using $1,750 as
Husband’s weekly income, when Wife also landed on $234 using $2,500+ as Husband’s weekly income. In
any event, Husband does not argue that $234 is incorrect if his income is $1,750. He argues only that $234 is
incorrect because his income is not $1,750.
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support only if there has been an abuse of discretion or the determination is
contrary to law. Id. An abuse of discretion occurs if the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before it. Id.[19] Here, Wife presented evidence that Husband’s weekly income was
approximately $2,500: Husband received $343 for taking care of his mother and
$2,201.35 from his trucking business. Husband testified that his weekly income
was $800. The trial court did not adopt either party’s calculation. The trial
court explained that it was “leery” of Wife’s estimate of Husband’s income
because it failed to account for his business expenses and that Husband’s
estimate of $800 was not supported by evidence showing that he spent a large
amount of money on personal items. Appellant’s App. Vol. II p. 25 (Finding
Z). Instead, the trial court found that given Husband’s education, experience,
work history, and other factors related to his income, his average weekly
income was $1,750.00. Id. Furthermore, Husband repeatedly committed
discovery violations, refused to provide documentation showing his income,
and did not complete a child-support worksheet. See Trabucco v. Trabucco, 944
N.E.2d 544, 552 (Ind. Ct. App. 2011) (“In light of Husband’s failure to present
evidence to the trial court adequately documenting his actual income, we
cannot conclude that the trial court’s use of income averaging was clearly
erroneous.”), trans. denied. For all of these reasons, we cannot say that
attributing an average $1,750 weekly income to Husband was clearly erroneous.
[20] Affirmed.
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May, J., and Robb, J., concur.
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