Jeffrey T. Boring v. Lisa K. Boring (mem. dec.) ( 2016 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    Feb 04 2016, 5:57 am
    this Memorandum Decision shall not be
    regarded as precedent or cited before any
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Mark Leeman                                              Jacob D. Winkler
    Leeman Law Offices                                       Katherine J. Noel
    Logansport, Indiana                                      Noel Law
    Kokomo, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Jeffrey T. Boring,                                       February 4, 2016
    Appellant-Respondent,                                    Court of Appeals Case No.
    34A02-1507-DR-875
    v.                                               Appeal from the Howard Superior
    Court 4
    Lisa K. Boring,                                          The Honorable George A.
    Appellee-Petitioner                                      Hopkins, Judge
    Trial Court Cause No.
    34D04-1304-DR-278
    Bailey, Judge.
    Court of Appeals of Indiana | Memorandum Decision 34A02-1507-DR-875 | February 4, 2016       Page 1 of 9
    Case Summary
    [1]   Appellant-Respondent Jeffrey T. Boring (“Husband”) and Appellee-Petitioner
    Lisa K. Boring (“Wife”) were divorced and each filed a post-dissolution
    motion. Following a hearing at which the parties agreed on a corrected child
    support amount but disagreed on aspects of the property distribution order,1 and
    the dissolution court declined to hear new evidence due to the limitations of the
    motion to correct error, Husband appeals. We affirm.
    Issues
    [2]   Husband presents two issues for review:
    I.       Whether the dissolution court abused its discretion by
    including in the marital pot the date-of-petition values of
    certain bank accounts; and
    II.      Whether the dissolution court abused its discretion by
    equally dividing an income tax refund.
    1
    Husband’s motion to correct error raised a single issue, pertaining to child support. At the outset of the
    consolidated hearing to address the motion to correct error and Wife’s motion for proceedings supplemental,
    the parties advised the dissolution court of their agreement to correct scrivener error as to child support.
    Husband testified and attempted to challenge the inclusion of certain sums in the property distribution. The
    dissolution court, observing that the motion to correct error had concerned only child support, declined to re-
    visit the issue of property distribution.
    Nonetheless, Husband is not precluded from challenging the property distribution on appeal. “Under the
    appellate rules, a party filing a motion to correct error need not raise every issue in the motion that will be
    raised on appeal.” Chapo v. Jefferson Cnty. Plan Comm’n, 
    926 N.E.2d 504
    , 509 n.3 (Ind. Ct. App. 2010).
    Court of Appeals of Indiana | Memorandum Decision 34A02-1507-DR-875 | February 4, 2016                 Page 2 of 9
    Facts and Procedural History
    [3]   Husband and Wife were married on July 25, 1992. They had two children,
    born in 1998 and 2001. On April 2, 2013, Wife filed a petition to dissolve the
    marriage. For some months after the filing of the petition, the children
    remained in the marital residence and the parents rotated days in the residence
    with the children.
    [4]   The spouses had acquired substantial assets and had relatively little debt.
    Around the time of the filing of the dissolution petition, they had several bank
    accounts. Husband took control of the larger accounts and deposited funds into
    a new account. On at least one of the accounts, both spouses were authorized
    to write checks and did so. By agreement, they paid off one vehicle and two
    charge cards.
    [5]   Pursuant to an agreement of the parties, a provisional order was entered on
    September 11, 2014. Wife was to have the physical custody of the younger
    child and Husband and Wife were to alternate the physical custody of their
    older child. No child support was ordered at that time. Husband agreed to be
    responsible for the expenses associated with the marital residence. At some
    point, Husband advanced to Wife $10,000.00.
    [6]   A final hearing commenced on February 23, 2015. Ultimately, the parties
    agreed to a division of personal property, retirement funds, and to valuation of
    Court of Appeals of Indiana | Memorandum Decision 34A02-1507-DR-875 | February 4, 2016   Page 3 of 9
    the marital residence at $193,000.00.2 They testified that marital funds had
    been used, post-separation, to pay off their debt and that Husband had
    advanced Wife $10,000.00 for which he should receive a credit. However, they
    disagreed as to the appropriate valuation of Harris Bank accounts from which
    payments had been made for attorney fees, residential expenses, and the
    children’s expenses.
    [7]   Wife requested one-half of an account that had a date-of-petition balance of
    $45,709.78 and one-half of the remainder of the account used to pay off the debt
    (purportedly $19,673.38). Husband disagreed with Wife’s proposal. He
    produced check copies and contended that one account had been depleted by
    family expenses and the other had a balance of $13,671.00. He also asserted
    that he should have more than one-half of a tax return because he had earned
    more of the gross taxable income and had increased his withholding after the
    marital separation.
    [8]   On March 18, 2015, the dissolution court entered a decree dissolving the
    parties’ marriage, awarding custody of one child to Wife and custody of one
    child to Husband, ordering Husband to pay child support, and dividing the
    marital estate. The dissolution court found that an equal distribution of the
    marital estate was appropriate. Included in the marital pot for equal division
    were the sums of $19,164.00 (attributable to a Harris Bank account after
    2
    Wife had initially contended that Husband had procured an artificially low appraisal and that the residence
    had a value of $241,776.00. (Pet. Ex. 2.)
    Court of Appeals of Indiana | Memorandum Decision 34A02-1507-DR-875 | February 4, 2016            Page 4 of 9
    deduction for payoffs of vehicular and charge card debt) and $45,709.78
    (attributable to a Harris Bank savings account existing at the time Wife
    petitioned for dissolution). Husband was ordered to make an equalization
    payment to Wife.
    [9]    Husband filed a motion to correct error, raising an issue with regard to child
    support. Wife filed proceedings supplemental motions. Husband’s child
    support was adjusted; he was afforded no other relief on motion to correct
    error. This appeal ensued.
    Standard of Review
    [10]   The division of marital property involves a two-step process. Thompson v.
    Thompson, 
    811 N.E.2d 888
    , 912 (Ind. Ct. App. 2004), trans. denied. First, the
    dissolution court must determine what property is to be included in the marital
    estate, or marital pot. 
    Id.
     Second, the court must divide the marital property
    under the presumption that an equal split is just and reasonable. 
    Id.
     (citing 
    Ind. Code § 31-15-7-5
    ).
    [11]   The division of marital assets lies within the sound discretion of the dissolution
    court, and we reverse only for an abuse of discretion. Hartley v. Hartley, 
    862 N.E.2d 274
    , 284 (Ind. Ct. App. 2007). A party who challenges the division of
    marital property must overcome a strong presumption that the court considered
    and complied with the applicable statute, and that presumption is one of the
    strongest presumptions applicable to our considerations on appeal. 
    Id.
     We do
    not reweigh the evidence or assess the credibility of the witnesses, but consider
    Court of Appeals of Indiana | Memorandum Decision 34A02-1507-DR-875 | February 4, 2016   Page 5 of 9
    only the evidence most favorable to the dissolution court’s disposition of the
    marital property. 
    Id.
     Finally, we do not substitute our judgment for that of the
    dissolution court even where the facts might allow for a different conclusion.
    
    Id.
    [12]   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. I.C. § 31-15-7-4(a); Hill v. Hill, 
    863 N.E.2d 456
    , 460 (Ind. Ct. App.
    2007). Property acquired by a spouse after the final separation date is excluded
    from the marital estate. Thompson, 
    811 N.E.2d at 912
    . The dissolution court is
    also required to divide the marital debt. See Moore v. Moore, 
    695 N.E.2d 1004
    ,
    1010 (Ind. Ct. App. 1998). As for selection of a valuation date, the dissolution
    court may use any date between the final separation and the date of dissolution.
    In re Marriage of Sloss, 
    526 N.E.2d 1036
    , 1038 (Ind. Ct. App. 1988).
    Inclusion of Savings Account Funds
    [13]   Husband contends that the court erred in determining the makeup of the
    marital pot. Specifically, Husband contends that, although he moved funds of
    $68,181.30, he and Wife jointly expended almost all that amount – $68,144.18
    – during the pendency of the dissolution proceedings. According to Husband,
    he had control of only $13,671.00 in liquid funds as of the time of the final
    hearing.
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    [14]   Although the dissolution court credited Husband with a $10,000.00 advance to
    Wife, and debt payments of $15,346.84 (vehicle), $1,845.38 (charge card), and
    $1,950.12 (charge card), Husband believes that he is entitled to full credit for all
    expenditures he itemized. More particularly, he argues that Wife received a
    “huge windfall” including “double payment” for attorney’s fees. (Appellant’s
    Br. at 10.)
    [15]   Directing our attention to Quillen v. Quillen, 
    659 N.E.2d 566
     (Ind. Ct. App.
    1995), adopted in relevant part, 
    671 N.E.2d 98
    , 100 (Ind. 1996), Husband asserts
    that his voluntary payments made during the pendency of the dissolution
    proceedings should have been considered in the dissolution court’s crafting of a
    fair and reasonable property distribution. In Quillen, the Court observed: “[i]t
    is permissible for the trial court to credit a spouse for voluntary payments of
    marital obligations made during the pendency of a dissolution petition.” 
    659 N.E.2d at 575
    . The wife had paid educational and healthcare expenses “from
    her separate funds” and the husband was appropriately ordered to reimburse
    her for a portion of those expenses. 
    Id.
    [16]   Here, Husband did not use his separate funds for the itemized expenditures for
    which he sought credit. Succinctly, Husband used marital funds to satisfy his
    parental obligation to support his children, maintain the marital residence he
    retained, and obviate the need for an attorney’s fees award. Husband earns
    approximately $80,000.00 per year and has the potential for bonuses. Wife
    earns approximately $40,000.00 per year. Given the disparity of income, it
    would have been appropriate for Wife to seek an order for the payment of
    Court of Appeals of Indiana | Memorandum Decision 34A02-1507-DR-875 | February 4, 2016   Page 7 of 9
    attorney’s fees, payable from Husband’s separate funds.3 Husband’s contention
    that Wife has received a double recovery because some attorney’s fees were
    paid is not supported by applicable law.
    [17]   We discern no abuse of discretion in the dissolution court’s selection of a
    valuation date. In re Sloss, 
    526 N.E.2d at 1038
    . Nor did the dissolution court
    abuse its discretion in the application of credits to the original asset value.
    2013 Tax Refund
    [18]   Husband argues that the tax refund should not have been split equally because
    it was, in large part, related to his post-separation tax contributions. He
    testified that he had increased his withholding in anticipation of filing a separate
    return; however, the parties decided to file a joint return.
    [19]   In Nill v. Nill, 
    584 N.E.2d 602
    , 605 (Ind. Ct. App. 1992), a husband made a
    similar argument, seeking an unequal division of a joint tax refund because he
    was the sole wage earner and had earned most of the underlying wages post-
    separation. The Nill Court recognized that there had been “a pecuniary
    advantage to the family as a whole” and that the wife had become jointly and
    severally liable for payment of any tax owed when she signed the return. 
    Id.
    According to the Court, the husband was “seek[ing] to enjoy the benefits of
    3
    Pursuant to Indiana Code Section 31-16-11-1, a dissolution court has broad discretion to impose attorney’s
    fees on either parent. Thompson v. Thompson, 
    868 N.E.2d 862
    , 870 (Ind. Ct. App. 2007). The court may
    properly consider the respective resources of the parties, their financial earning abilities, and “any other
    factors that bear on the reasonableness of the award.” 
    Id.
    Court of Appeals of Indiana | Memorandum Decision 34A02-1507-DR-875 | February 4, 2016            Page 8 of 9
    filing jointly, but disclaim the burdens.” 
    Id.
     This Court concluded that the
    dissolution court had acted properly by including the tax refund in property
    subject to division. Id. at 606.
    [20]   Here, the refund was produced by joint efforts. Both Husband and Wife earned
    money and paid taxes; each was liable upon signing the return. As Husband
    testified, they received a larger return because of the decision to file jointly. We
    find the reasoning of Nill to be sound, and we conclude that Husband has
    shown no abuse of discretion in the trial court’s decision to divide the tax return
    equally.
    Conclusion
    [21]   Husband has not established that the dissolution court abused its discretion in
    the division of marital assets.
    [22]   Affirmed.
    Vaidik, C.J., and Crone, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 34A02-1507-DR-875 | February 4, 2016   Page 9 of 9