Vance Voorhis v. Danielle Voorhis (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be
Oct 22 2019, 8:42 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
Richard Ranucci Katherine J. Noel
Carmel, Indiana Noel Law
Kokomo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Vance Voorhis, October 22, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-DR-1778
v. Appeal from the Tipton Circuit
Court
Danielle Voorhis, The Honorable Thomas R. Lett,
Appellee-Petitioner. Judge
Trial Court Cause No.
80C01-1508-DR-263
Friedlander, Senior Judge.
[1] In this dissolution action, the trial court issued its findings of fact, conclusions
thereon, and decree of dissolution that dissolved the parties’ marriage, valued
the parties’ assets, and divided the marital estate. To effect an equal
distribution of the parties’ marital assets, the trial court entered a judgment in
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the amount of $15,167.50 against Vance Voorhis (“Husband”) and in favor of
Danielle Voorhis (“Wife”). The court also directed Husband to pay $10,000.00
of Wife’s attorney fees as well as outstanding valuation expenses that Wife
owed to the company that she hired to perform business valuation services.
Husband appeals, presenting three issues for our review, which we consolidate
and restate as follows:
1. Whether the trial court abused its discretion when valuing the
property of the marriage and then distributing it; and
2. Whether the trial court improperly ordered Husband to pay
Wife’s attorney fees and outstanding valuation expenses.
We affirm in part, reverse in part, and remand with instructions.
[2] The facts of this case are as follows. Husband and Wife were married on July
27, 1991. Wife filed a petition for dissolution on July 2, 2015. At the time Wife
sought dissolution of the marriage, the parties had no children under nineteen
years old. Wife was employed as an elementary school teacher, and Husband
was self-employed.
[3] During the marriage, the parties jointly owned a home, located in Tipton
County, Indiana (“marital home”), that had an attached lot. The parties owned
several vehicles, including a 2011 Chevrolet HHR. The parties also owned a
Kubota mower that was used to mow the grounds at the marital home.
[4] During the course of the marriage, the parties also owned three businesses:
D&V Housing, LLC (“D&V”); B.E.S. Enterprises, Inc. (“BES”); and
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Tomorrow Transport (“TT”). D&V is a real estate holding company, owned by
both Husband and Wife, that held four different real estate properties. The
properties were located on College Street in Windfall, Indiana; East Street in
Tipton, Indiana; Washington Street in Tipton, Indiana; and Dearborn Street in
Tipton, Indiana. BES, owned solely by Husband, is a company that provides
concession stand services for sporting events. TT was created as a holding
company for the vehicles used by BES, which included two Ford Transits, a
GMC Cargo Van, a fork truck, and two Isuzu vehicles. All the businesses were
run by Husband, and Wife did not participate in the day-to-day operations of
the businesses. The marital estate also included insurance proceeds for fire
damage to the property located on East Street, as well as additional personal
property, retirement assets, and bank account funds.
[5] On December 18, 2017, and then continuing on May 22, 2018, the trial court
conducted a final hearing where the parties presented competing evidence
regarding the valuation of the marital assets. Wife’s experts were Brian Minor
from Blue & Co., LLC, and Steven Taylor, a real estate appraiser. Husband’s
experts were Douglas Speer, an appraiser, and Penny Lutocka, a certified public
accountant with Houlihan Valuation Advisors. With respect to the values
assigned to the marital assets, the trial court largely accepted the valuations,
methodologies, and conclusions of Wife’s experts.
[6] On July 22, 2018, the trial court entered a final dissolution decree, accompanied
by extensive findings of fact and conclusions thereon, dissolving the parties’
marriage, ordering an equal distribution of the parties’ assets, and detailing the
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distribution of the marital property. To achieve an equal distribution, the trial
court entered a $15,167.50 judgment against Husband. The trial court also
required him to “be responsible for $10,000.00” of Wife’s attorney fees and the
outstanding balance that Wife owed to Blue & Co., the company that she hired
to perform the valuations of Husband’s businesses. Appellant’s App. Vol. 2, p.
18. The trial court’s findings, conclusions thereon, and decree provide in
relevant part as follows:
10. Just prior to the filing of the dissolution, the rental home
[1]
located at 116 Dearborn St., Tipton, was destroyed by fire [sic].
Husband received insurance proceeds in the sum of $29,250.00.
He kept said sum and did not divide it with Wife.
...
14. Wife had business valuations performed to appraise the value
of Husband’s three business entities, BES, Tomorrow Transport,
and D&V Housing. Mr. Brad Minor of Blue & Company
presented and testified to his valuations in great detail. Mr.
Minor concluded the value of BES was $243,000.00, Tomorrow
Transport was $34,000.00, and D&V Housing was $81,000.00.
Mr. Minor’s testimony was credible and unbiased. The Blue &
Co. report was substantially delayed due to [Husband’s] failure to
cooperate in turning over documentation.
15. Husband had a valuation of BES and Tomorrow Transport
conducted by Houlihan Valuation Advisors. The valuation
presented by Husband concluded the value of both entities to be
$209,207.00. This value is perplexing in that Tomorrow
1
The trial court’s findings, conclusions thereon, and dissolution decree mistakenly found that the Dearborn
Street property was destroyed by fire prior to Wife filing the dissolution petition. It was, however, the East
Street property that was damaged by a fire that occurred after Wife filed her petition for dissolution. We have
determined that these errors are immaterial.
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Transport alone owns six commercial vehicles, commercial real
estate, and has provided a significant source of income to the
marriage. The Court also believes this valuation was based on
inaccurate property values for the [College Street] building, as
[Husband’s] appraisal was almost ½ that of the assessed value of
the property and prior appraisals.
...
18. The Court finds there is a disparity in income between Wife
and Husband. While Husband testified he believes he makes less
than Wife, the Court finds this suspicious. Husband is in
controls [sic] of what salary, expenses, costs, and income the
business provides. The parties have acquired substantial assets
and little debt during the marriage. This was clearly not
accomplished on a teacher’s salary alone.
19. The Court finds the parties [sic] assets and liabilities shall be
[ 2]
divided pursuant to Exhibit [1]. Further, [W]ife shall receive a
judgment against [H]usband in the sum of $$15,167.50 [sic] to
effectuate an equal distribution of the martial [sic] estate. The
Court declines to deviate from an equal distribution.
...
21. Due to the disparity in income, [Husband] shall be
responsible for $10,000.00 of [Wife’s] attorney fees. [Husband]
shall also be responsible for [Wife’s] outstanding balance to Blue
& Co.
*****
DECREE OF DISSOLUTION
...
1. The marriage of the parties is hereby dissolved.
2
Exhibit 1 contains a table illustrating the distribution of the parties’ marital assets (hereinafter, “marital
balance sheet”). While information from the marital balance sheet has been included in this opinion, the
sheet itself has not been reproduced and included herein.
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2. Wife is awarded as her sole and separate property the
following: all property (and its value therein) listed in the “Wife”
Column in Exhibit 1, and the [marital home and the attached]
real estate . . . , and her personal property now in her possession.
...
4. Husband is awarded as his sole and separate property the
following: all property (and its value therein) listed in the
“Husband” Column in Exhibit 1, and the real estate located at . .
. College [St.], . . . East St., . . . Washington St., . . . and . . .
Dearborn St. . . . , and his personal property now in his
possession.
5. Husband is awarded BES, Tomorrow Transport, and D&V
Housing and all the assets and liabilities associated therewith, . . .
. Husband is awarded the [fire] insurance proceeds [for the
damage to the East Street property] in the sum of $29,250.00. He
is further awarded [the] . . . 2011 Chevy HHR, . . . [the] 1995
Kubota [mower] and attachments, . . . household goods and
furnishings in his possession, and the guns and ammunition.
Id. at 16-21.
[7] This appeal followed. Additional facts will be provided as necessary.
[8] Husband contends that the trial court abused its discretion when it valued the
property of the marriage, distributed it, and ordered him to pay Wife’s attorney
fees and outstanding valuation expenses. The division of marital assets is
within the trial court’s discretion, and we will reverse only for an abuse of that
discretion. DeSalle v. Gentry, 818 N.E.2d 40 (Ind. Ct. App. 2004). The parties
must overcome the presumption that the trial court considered and complied
with the applicable law, and that presumption is one of the strongest
presumptions pertinent to our consideration on appeal. Id. We may not
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reweigh the evidence or judge the credibility of the witnesses, and we consider
only the evidence most favorable to the trial court’s disposition of the marital
property. Id.[9] According to the record before us, neither party filed a Trial Rule 52(A) written
request with the trial court for special findings and conclusions thereon.
Instead, at some point during the final hearing, the parties asked to submit to
the court proposed findings and conclusions, and at the close of the final
hearing, the trial court directed the parties to do so. See Tr. Vol. 2, p. 227. We
therefore treat the trial court’s findings as sua sponte findings of fact. See Piles v.
Gosman, 851 N.E.2d 1009, 1012 (Ind. Ct. App. 2006); see also Estudillo v.
Estudillo, 956 N.E.2d 1084, 1089 (Ind. Ct. App. 2011).
[10] Sua sponte findings control only as to the issues they cover, and a general
judgment standard will control as to the issues upon which there are no
findings. Yanoff v. Muncy, 688 N.E.2d 1259 (Ind. 1997). We will affirm a
general judgment entered with findings if it can be sustained on any legal theory
supported by the evidence. Id. When a court has made special findings of fact,
we review sufficiency of the evidence using a two-step process. Id. First, we
must determine whether the evidence supports the trial court’s findings of
fact. Id. Second, we must determine whether those findings of fact support the
trial court's conclusions of law. Id.Court of Appeals of Indiana | Memorandum Decision 18A-DR-1778 | October 22, 2019 Page 7 of 31
[11] We “shall not set aside the findings or judgment unless clearly erroneous, and
due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.” Ind. Trial Rule 52(A).
A decision is clearly erroneous if it is clearly against the logic and
effect of the facts and circumstances before the dissolution court,
or if a review of the record leaves this court with a firm
conviction that a mistake has been made. In making this
determination, we will not weigh the evidence or make
credibility determinations, and we will only consider the
evidence favorable to the judgment and reasonable inferences
drawn therefrom.
R.R.F. v. L.L.F., 956 N.E.2d 1135, 1139 (Ind. Ct. App. 2011) (internal citation
omitted). “Findings are clearly erroneous if there are no facts in the record to
support them either directly or by inference, and a judgment is clearly erroneous
if the wrong legal standard is applied to properly found facts.” Crider v.
Crider, 26 N.E.3d 1045, 1047 (Ind. Ct. App. 2015). “[W]e may look both to
other findings and beyond the findings to the evidence of record to determine if
the result is against the facts and circumstances before the court.” Stone v.
Stone, 991 N.E.2d 992, 998 (Ind. Ct. App. 2013), aff’d on reh’g, 4 N.E.3d 666.
[12] On appeal, Husband specifically contends that the trial court abused its
discretion by: including certain assets and debts in the marital pot and
excluding others, improperly valuing certain marital property, and awarding
Wife attorney fees and outstanding valuation expenses. Husband’s first two
arguments are, essentially, a challenge to the trial court’s valuation and
distribution of certain marital assets, and we will consolidate and address those
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arguments as such. Thereafter, we will address Husband’s argument regarding
the award to Wife of fees and expenses.
Husband’s Challenge to Trial Court’s Valuation and
Distribution of Certain Marital Assets
[13] Husband takes issue with the trial court’s valuation and distribution of the
following marital assets: (1) D&V, specifically the East Street property held by
the business and the fire insurance proceeds for the property; (2) BES and TT;
(3) the lot adjoining the marital residence; (4) the Chevrolet HHR; (5) the
Kubota mower; (6) Husband’s household items; and (7) the parties’ jewelry.
“We review a trial court’s decision in ascertaining the value of property in a
dissolution action for an abuse of discretion.” Balicki v. Balicki, 837 N.E.2d 532,
536 (Ind. Ct. App. 2005), 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) (quotation and citation
omitted), trans. denied. In reviewing a trial court’s valuation of property in a
dissolution, we will neither reweigh the evidence nor judge the credibility of
witnesses. Bass v. Bass, 779 N.E.2d 582 (Ind. Ct. App. 2002), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1778 | October 22, 2019 Page 9 of 31
1. D&V – East Street Property and Fire Insurance Proceeds
3
[14] D&V, which held four properties, was valued at $81,000.00. One of the
properties held by D&V was the East Street property. The East Street property
was a double that contained two residential rental units. On April 16, 2016, a
fire damaged the property. On June 2, 2016, Husband received from the
insurance company two checks, both in the amount of $14,625—for a total
payment of $29,250.00. Husband, however, refused to disclose the amount of
the insurance proceeds to Wife’s expert at Blue & Co., as Husband determined
that the expert did not need to know the amount of the insurance proceeds to
calculate the value of the property.
[15] Blue & Co. valued the East Street property at $60,000.00. To arrive at this
value, Blue & Co. listed a net book value for the property of $26,457.00 and
added a $33,543.00 adjustment “based on [the] Douglas Speer report plus
estimated insurance proceeds based on prior rent amounts.” Appellant’s App.
Vol. 2, p. 60. Thus, Blue & Co. utilized the income approach to value when it
based the $60,000.00 value in part on the amount of rental income the property
had produced in the past. Husband’s expert, Douglas Speer, assessed a value of
3
The $81,000.00 valuation for D&V was based on the trial court’s acceptance of the following values for the
four properties held by the business: East Street at $60,000.00; Washington Street at $38,000.00; Dearborn
Street at $2,500.00; and College Street at $158,000.00. The marital balance sheet lists the four properties but
does not assign individual values to the properties. Instead, the sheet lists the value assigned to D&V
($81,000.00) and shows that D&V was awarded to Husband.
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$8,000.00 for the property, pre-fire, based upon the condition in which previous
tenants had left the property.
[16] Husband contends that the trial court erred by accepting Blue & Co.’s valuation
of the East Street property because, according to Husband, the valuation failed
to account for the fact that “renters had about destroyed the inside [of the
property,] and [the property] needed everything to be repaired”; and the
valuation “rested on the mistaken assumption that the East Street fire occurred
before Speer’s appraisal of East Street for $8,000.00.” Appellant’s Br. pp. 19, 29
(emphasis added). He argues that the trial court should have accepted the
$8,000.00 value that Speer placed on the property because that value was
assessed pre-fire. Husband also argues that by overvaluing the East Street
property, the trial court overvalued D&V. We disagree.
[17] The trial court heard testimony regarding both valuations for the property,
including the impact of the fire and the tenants’ vandalism on the value of the
property. For example, Wife’s expert from Blue & Co., Brian Minor, testified
during cross-examination as follows regarding how he arrived at the $60,000.00
valuation and his opinion of Speer’s $8,000.00 valuation for the property:
A . . . [W]e utilized the appraisal but then we had to estimate
the value of the real estate based on some prior rents. So, that
property was receiving rents of about [$]9500 a year. [Speer’s]
appraisal valued the property at [$]8,000, but the appraisal valued
it after the property was destroyed by fire. . . .
Q Now, are you sure that the appraisal was done after the fire?
A Yes.
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Q But if it’s not then that number’s incorrect?
A Then the 8,000 would be accurate. Well, it wouldn’t make sense.
I mean obviously a property that’s receiving rents of 9500 a year
wouldn’t be worth $8,000. It would pay for itself in less than a year.
That wouldn’t make any sense. . . . So, just common sense says that no,
that appraisal would not be accurate. Common sense tells me that it
was after the fire.
Tr. Vol. 2, pp. 22-23 (emphasis added). Speer testified that the reason he valued
the property at $8,000.00, pre-fire, was because the property had been
“destroyed inside” by the previous tenants, and the property needed extensive
repair work. Id. at 92. He also testified, however, that if an individual “put
about 50,000 [dollars] in [the property],” it might be worth between $70,000.00
and $75,000.00. Id.
[18] The trial court heard the testimony of both experts, including Minor’s mistaken
belief that Speer’s appraisal was performed post-fire, and determined that the
East Street property was worth $60,000.00 and that D&V was worth
$81,000.00. The trial court’s determination is within the scope of the evidence
and therefore not an abuse of discretion.
[19] Husband further argues that the trial court “improperly double counted
insurance proceeds for the fire [that occurred] at [the] East Street [property].”
Appellant’s Br. p. 9. According to Husband, the $60,000.00 valuation that the
court accepted for the property accounted for the $29,250.00 in insurance
proceeds. Thus, Husband claims that the trial court erred in “includ[ing] the
fire insurance payments in the marital estate a second time, by counting them as
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a separate asset” attributable to Husband. Id. We agree and, therefore, must
remand for the trial court to remove the $29,250.00 as an asset attributable to
Husband as that amount was included in arriving at the value placed on the
East Street property.
2. BES and TT
[20] Husband next challenges the valuations of BES and TT. His argument is two-
fold. First, he argues that the trial court abused its discretion by failing to
include in the marital estate, as a debt of the marriage, a $23,293.26 debt owed
to BES. He also argues that the trial court erred by assigning a value of
$243,000.00 to BES and a separate value of $34,000.00 to TT.
A. Debt Owed to BES
[21] In 2010, Husband and Wife refinanced their home to obtain a lower interest
rate on funds they borrowed to finance BES. As part of the refinance, they
were required to pay off the existing home mortgage in the amount of
$52,000.00. Husband and Wife borrowed the $52,000.00 from BES and paid
off the mortgage. As a result, Husband and Wife owed BES $52,000.00. Blue
& Co. listed this $52,000.00 debt on the BES balance sheet as an asset and
labeled it “Loans to shareholders[.]” Appellant’s App. Vol. 2, p. 43. When
Blue & Co. determined the valuation of BES, it counted the loan as an asset to
BES.
[22] Between 2010, and the date of the dissolution filing, Husband withheld money
from his paychecks to pay down this debt owed to BES. As of the date of the
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dissolution filing, the BES balance sheet showed a remaining debt of
$23,293.26.
[23] Husband asserts that the trial court erred by not including the $23,293.00
(amount rounded to nearest whole number) as a debt on the marital balance
sheet. According to Husband, since this debt was counted as an asset of BES,
the debt increased the value of BES by $23,293.00. Husband argues that
because the amount was not included as a marital debt, Husband received no
credit for the debt, and the debt on BES’s books is, essentially, dissolved.
Husband claims that “[t]he net effect is for Wife to take a residence without
mortgage, and Husband owes the equivalent to BES, but gets no credit for the
debt, even though he was assigned the corresponding asset within BES.”
Appellant’s Br. p. 25. Husband contends that this was an abuse of discretion
that requires remand so that the trial court can add the debt to the marital pot
and divide the debt equally between the parties. We disagree.
[24] Blue & Co. valued BES at $243,000.00, taking into account the $23,293.00
owed to BES and an additional $156,353.00 that Blue & Co. listed on BES’s
balance sheet as “Loans from shareholders”—an amount BES owes to the
parties. Appellant’s App. Vol. 2, p. 43 (emphasis added). Regarding the
$156,353.00, Minor, with Blue & Co., testified that the amount was a
“shareholder note[,] which is monies that were owed to [Husband.]” Tr. Vol.
2, p. 14. He further testified that the amount was an account receivable owed
to Husband from BES. On direct examination, Minor was asked, “If
[Husband] were to waive that claim or request that he not have those monies
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returned to him, would that number then need to be added into [BES’s
valuation]?” Id. at 19. Minor answered, “Correct.” Id. When asked, “[a]nd in
fact, just to clarify, you’ve discounted the value of the business due to that
account receivable[,]” Minor replied, “I lowered the value by that . . . exact
number.” Id.
[25] Returning to the $23,293.00 at issue, and applying Husband’s argument
regarding the debt, if the trial court erred by failing to include the $23,293.00
owed to BES in the marital pot as a debt of the parties, then the trial court also
erred in failing to include in the marital pot as an asset the $156,353.00 that BES
owes the parties. Husband has not carried his argument thus far.
[26] Both the debt and the asset values were taken into account in Blue & Co.’s
determination of the value of BES. The trial court accepted the valuation,
included the valuation amount in the marital pot, and awarded BES to
Husband. As the $23,293.00 debt was already accounted for in the valuation of
BES, the trial court did not need to list the amount as a separate, line-item-debt
on the marital balance sheet. No abuse of discretion occurred here.
B. Valuation of BES and TT
[27] Husband argues that the trial court abused its discretion by adopting Blue &
Co.’s valuations for BES at $243,000.00 and TT at $34,000.00. Blue & Co.
used an income approach in reaching the valuations—evaluating income
stream, capitalization rate, value of operations, excess working capital, and
structured debt for both companies, and making adjustments for lack of
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marketability as well as for personal goodwill (the personal relationships that
Husband has developed with his customers). Husband takes particular issue
with the addition of excess working capital in the values of the two businesses.
According to Husband:
If Blue [& Co.] had not added excess working capital to the
values of BES and TT, the . . . values of these businesses would
have been $71,888 less ($67,604 for BES plus $4,284 for TT).
[Thus,] Blue’s . . . valuations of BES and TT, together $277,000
($243,000 + $34,000), without excess working capital increases
for both ($277,000 - $71,888), would have been $205,112.
Appellant’s Br. p. 33. Husband also notes that his expert with Houlihan
Valuation Advisors, Penny Lutocka, did not include excess working capital in
her determination of the value of the businesses and calculated a combined
4
indicated value for BES and TT, together, at $206,300.00.
[28] Husband attempts to support his arguments by asserting that Blue & Co. used
incorrect accounting ratio methodologies to calculate the excess working capital
values and that this error led to an overvaluation of the businesses. Husband
maintains that there is no evidence in the record to support the use of the
particular ratios Blue & Co. used to calculate excess working capital in its final
determination of the valuations for the businesses. We disagree.
4
We note that the trial court found Lutocka’s valuation “perplexing in that Tomorrow Transport alone owns
six commercial vehicles, commercial real estate, and has provided a significant source of income to the
marriage.” Appellant’s App. Vol. 2, p. 17.
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[29] The trial court heard extensive testimony from both parties’ experts regarding
the valuations for BES and TT, which included testimony regarding excess
working capital and ratios. The trial court ultimately adopted Wife’s valuations
that were provided by Blue & Co. The court was well within its discretion to
do so. See Balicki, 837 N.E.2d at 536 (generally, there is no abuse of discretion
if a trial court’s chosen valuation is within the range of values supported by the
evidence).
3. Lot Adjoining Marital Residence
[30] Husband also argues that the trial court abused its discretion by failing to
include in the marital pot the value of the lot that adjoins the marital residence.
Wife’s expert, Steven Taylor, appraised the marital residence and the adjacent
lot as having a combined value of $300,000.00. The trial court adopted the
appraised amount and awarded the marital residence and the lot to Wife.
Husband maintains that Taylor’s appraisal included the lot upon which the
marital residence sat but did not include the value of the separate lot that was
located adjacent to that of the marital residence. According to Husband, “[t]his
mistake in turn resulted in incorrect valuation of the entire marital estate and
corrupted the intended equal division of the whole pot.” Appellant’s Br. p. 10.
We find that the evidence of record does not support Husband’s argument and
that Husband’s argument is an invitation to reweigh the evidence, which we
cannot do. See DeSalle, 818 N.E.2d 40.
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[31] Taylor testified on direct examination as follows regarding his appraisal of the
marital residence and the adjacent lot:
Q And in fact did you go to the home site and inspect the home?
A Yes, uh-huh.
Q And the land around the area?
A Yes.
*****
Q Okay. And the property you appraised had some acreage
with it as well; is that correct?
A Correct.
Q And what is, I’m sorry, your appraisal actually includes that
acreage; is that accurate?
A Yes, it’s -- yeah.
Q And what value did you determine that the property located
[in Tipton] was as of the day of your valuation?
A It was 300,000.
Q And that was for the house and the property attached thereto?
A Yes, the land and the outbuilding and everything, yes.
Tr. Vol. 2, pp. 6-7 (emphasis added). Wife testified that she recalled that
Taylor’s appraisal included the marital residence and the adjacent lot.
Husband, on the other hand, testified that Taylor’s appraisal did not include the
value of the lot in question, and Husband offered the testimony of his expert,
Douglas Speer, who testified that the lot had a separate value of $20,000.00.
[32] Husband’s argument, essentially, is that the trial court should have believed his
testimony, and that of his expert, over the testimony of Wife’s expert. The trial
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court, however, was not required to believe Husband’s testimony. “[I]t is the
province of the trial court to determine which witnesses to believe when it hears
the evidence.” In re Marriage of Julien, 397 N.E.2d 651, 654 (Ind. Ct. App.
1979). The trial court determined that Taylor’s appraisal included the marital
residence and the adjacent lot and that the appraised value of the two properties
totaled $300,000.00. We will not second-guess the trial court and assume the
role of factfinder. No error occurred here.
4. Chevrolet HHR
[33] Husband next argues that the trial court abused its discretion by assigning a
value to the parties’ 2011 Chevrolet HHR vehicle that, according to Husband,
was not supported by the evidence. The trial court has broad discretion in
ascertaining the value of property in a dissolution action, and its valuation will
only be disturbed where the decision is clearly against the logic and effect of the
facts and circumstances before the trial court. Trabucco v. Trabucco, 944 N.E.2d
544 (Ind. Ct. App. 2011). If the trial court’s chosen valuation is within the
range of values supported by the evidence, we will affirm. Goossens v.
Goossens, 829 N.E.2d 36 (Ind. Ct. App. 2005).
[34] Wife originally placed zero dollars on the value of the HHR on her proposed
assets and liabilities sheet, as the vehicle was driven exclusively by the parties’
daughter. Wife wanted the vehicle to be given to their daughter and any value
associated with the vehicle to be excluded from the divorce proceedings. At the
final hearing, however, Husband testified that he was not “comfortable” giving
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1778 | October 22, 2019 Page 19 of 31
the vehicle to his daughter and excluding the vehicle’s value from the marital
pot. Tr. Vol. 2, p. 126.
[35] Husband also testified that the HHR was worth $4,237.00, based upon the
5
Kelley Blue Book value of the vehicle. He admitted into evidence a copy of the
valuation from Kelley Blue Book, listing the vehicle’s condition as “Good
Condition” and a value of $4,237.00. Respondent’s Ex. Q, Ex. Vol. 4, p. 15.
Wife then testified that she had placed a value of $4,700.00 on the vehicle, and
that this was reflected on her revised assets and liabilities spreadsheet that was
admitted into evidence. Wife did not submit any documentation supporting her
valuation of the vehicle. The trial court ultimately found the HHR to be an
asset of the marriage, assigned a value of $4,700.00, and awarded the vehicle to
Husband.
[36] Husband maintains that the trial court erred by adopting Wife’s valuation for
the HHR, claiming that “Wife offered no basis for her valuation[,]” whereas his
valuation was based upon the value listed in the Kelley Blue Book pricing
report. Appellant’s Br. p. 41. Husband’s argument, however, is a request for us
to reweigh the evidence and judge witness credibility, which we cannot do.
Crider, 15 N.E.3d 1042. It is well-settled that a valuation submitted by one of
the parties is competent evidence of the value of property in a dissolution
5
The Kelley Blue Book has been used since 1926 as a resource used to find the value of a vehicle. See
KELLEY BLUE BOOK®, https://www.kbb.com (last visited Sept. 11, 2019).
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1778 | October 22, 2019 Page 20 of 31
proceeding and may alone support the trial court’s determinations in that
regard. See, Alexander, 927 N.E.2d at 935. Additionally, we “will not reverse a
judgment on the basis of conflicting evidence[.]” Ernst v. Ernst, 503 N.E.2d 619,
621 (Ind. Ct. App. 1987) (citation omitted). The trial court’s determination that
the HHR was worth $4,700.00 was not clearly against the logic and effect of the
facts and circumstances before the court. We therefore find that the trial court
did not abuse its discretion by adopting the value.
[37] Husband also argues that the trial court abused its discretion by failing to
include on the marital balance sheet the $4,463.53 debt (remaining loan)
associated with the HHR. We agree.
[38] It is well established that all marital property goes into the marital pot for
division, including both the assets and the liabilities of the parties, whether it
was owned by either spouse before the marriage, acquired by either spouse after
the marriage and before final separation of the parties, or acquired by their joint
efforts. Ind. Code § 31-15-7-4(a); Webb v. Schleutker, 891 N.E.2d 1144 (Ind. Ct.
App. 2008); Capehart v. Capehart, 705 N.E.2d 533 (Ind. Ct. App. 1999), trans.
denied. This “one-pot” theory ensures that all assets are subject to the trial
court’s power to divide and award. Thompson v. Thompson, 811 N.E.2d 888,
914 (Ind. Ct. App. 2004), trans. denied. While the trial court may ultimately
determine that a particular asset should be awarded solely to one spouse, it
must first include the asset in its consideration of the marital estate to be
divided. Id.Court of Appeals of Indiana | Memorandum Decision 18A-DR-1778 | October 22, 2019 Page 21 of 31
[39] Here, the evidence establishes that as of June 30, 2015, two days prior to the
filing of the dissolution petition, the HHR carried a loan balance of $4,463.53.
No evidence was presented that the debt was retired during the dissolution
proceedings. Thus, the loan debt is a marital liability and it should have been
considered by the trial court in fashioning an equitable division of the marital
property. Therefore, we remand with instructions to the trial court to include
the debt associated with the HHR in the marital pot and determine how the
debt should be allocated.
5. Kubota Mower
[40] Husband next contends that the trial court abused its discretion by valuing the
parties’ Kubota mower at $4,000.00 and assigning the mower to Husband.
According to Husband, “[t]his was error because the parties, by their respective
attorneys, made a verbal, on-the-record stipulation that the Kubota would be
assigned to Wife at a value of $3,500.” Appellant’s Br. p. 40.
[41] On the first day of the final hearing, Wife testified on direct examination as
follows regarding her desire to keep the Kubota mower and how much she
thought the mower was worth:
Q You want to keep that vehicle [sic]?
A Yes. That mower, yes.
Q That mower. And you’ve valued that at $3500?
A Correct.
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Tr. Vol. 2, p. 34. Husband’s attorney then stipulated to the assignment of the
mower to Wife, and Wife’s attorney agreed.
[42] Approximately five months later, however, at the continuation of the final
hearing, Wife presented testimony on direct examination indicating that she
wanted the mower assigned to Husband and that the mower should be valued
at $4,000.00 because it had a snowblower attachment. The testimony was as
follows:
Q Okay. And then we have also moved the Kubota tractor and
attachments over to Husband’s column; is that correct?
A Correct.
Q Now, that Kubota mower is $3500 I believe a stipulated value,
but it also has an attachment that wasn’t included at the last
hearing; is that correct?
A Correct. He also took the snowblower that went with it.
Q And that has a value of $500 so you’ve totaled it to 4,000?
A Correct.
Id. at 154. Husband did not object to Wife’s desire to have the mower assigned
to him. Later, however, on cross-examination, he testified that he believed the
value of the mower, including the attachment, was $3,500.00.
[43] The parties originally agreed that the mower would be assigned to Wife;
however, Wife later indicated that she wanted the mower assigned to Husband,
and Husband did not object. The trial court heard the testimony of the parties
and ultimately determined that the mower and its attachment were valued at
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$4,000.00 and that the mower should be assigned to Husband. The court was
within its discretion to do so.
6. Husband’s Household Items
[44] Husband argues that the trial court abused its discretion by assigning to
Husband’s household items a value that, according to Husband, was not
supported by the evidence. Husband “[took] a garage sale approach” in
estimating the value of his household items and introduced into evidence a
detailed item-by-item inventory that indicated his household items were worth
$4,100.00. Appellant’s Br. p. 38. Wife testified on direct examination as
follows regarding her belief that Husband’s items were worth $7,685.00:
Q Okay. Now, you have various household items; is that
accurate?
A Correct.
Q And pursuant to your husband’s estimate, he has $7,685 of
household goods and furnishings?
A Yes.
...
Q And this is going through, your husband has lots of tools and
equipment and things like that; is that accurate?
A That is accurate.
Tr. Vol. 2, p. 36. The trial court adopted Wife’s valuation for Husband’s
household items.
[45] Husband’s argument, essentially, is that because Wife offered only her
testimony as to what value she believed should be placed on Husband’s items
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and did not provide her own detailed valuation for the items, Wife’s evidence
was not sufficient to support the trial court’s adoption of her valuation.
Husband further argues that the manner in which Wife’s attorney examined
Wife at the hearing, and the answers that Wife provided, failed to provide
context for Wife’s answers or clarify whether the $7,685.00 valuation was an
estimate that was “a holdover from confidential negotiations or mediation.”
Appellant’s Br. p. 39.
[46] 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.” Skinner v. Skinner, 644 N.E.2d 141, 144 (Ind. Ct.
App. 1994) (citations omitted). Additionally, we “will not reverse a judgment
on the basis of conflicting evidence[.]” Ernst, 503 N.E.2d at 621 (citation
omitted).
[47] Here, Husband provided the trial court with an item-by-item list of his
household items—items that included numerous tools and equipment—and the
estimated values that Husband believes should be placed on each item, using a
“garage sale approach,” for a total value of $4,100.00 Appellant’s Br. p. 38.
Wife testified that Husband’s items were valued at $7,685.00. The trial court
was not obliged to accept Husband’s assertion of the value of individual
household items, even if Wife did not expressly refute Husband’s evidence. To
the contrary, it is well established that “[a] trial court, like a jury, is entitled to
take into consideration in weighing the evidence its own experience and the
ordinary experiences in the lives of men and women.” Clark v. Hunter, 861
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1778 | October 22, 2019 Page 25 of 31
N.E.2d 1202, 1207 (Ind. Ct. App. 2007) (alteration original; quotation and
citation omitted). Here, because Husband’s valuations were estimations based
upon a garage sale approach, and in light of our standard of review, we decline
to question the trial court’s determination of the valuation evidence for
Husband’s household items. We therefore find that the trial court did not abuse
its discretion in adopting Wife’s valuation for Husband’s household items.
7. Parties’ Jewelry
[48] Next, Husband argues that the trial court erred in not including in the marital
pot an engagement ring that Husband purchased for Wife sometime in 2013,
that Husband valued at $2,300.00, and a pair of diamond earrings that Husband
purchased during the marriage for $1,500.00. Evidence was presented at the
final hearing that the earrings were a wedding gift to the parties’ daughter.
While Husband disputes this, he presented testimony at the final hearing that he
does not know “what happened to those earrings[,]” and has no “idea whose
possession those earrings are in[.]” Tr. Vol. 2, p. 207.
[49] The evidence presented at trial indicates that neither party is in possession of
the earrings. As such, the trial court did not abuse its discretion in excluding
them from the marital pot. However, regarding the engagement ring, the
evidence indicates that the ring was purchased during the marriage and that
Wife is in possession of the ring. Although the trial court may have wished to
allow Wife to keep the ring, the value of the ring should have been included in
the marital estate and considered by the trial court in fashioning the equitable
division of the property. See Thompson, 811 N.E.2d 888, 912 (trial court may
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1778 | October 22, 2019 Page 26 of 31
ultimately determine that a particular asset should be awarded solely to one
spouse, but must first include asset in its consideration of the marital estate to
be divided). Thus, we remand for inclusion of the value of the engagement ring
in the marital estate and recalculation, if necessary, of the distribution of the
marital property.
Attorney Fees and Valuation Expenses
[50] Finally, Husband contends that the trial court abused its discretion by requiring
him to “be responsible for $10,000.00” of Wife’s attorney fees and the
outstanding balance that Wife owed to Blue & Co. Appellant’s App. Vol. 2, p.
18. Husband argues that Wife should not be awarded attorney fees and
valuation expenses for a number of reasons. According to Husband, “[t]he trial
court’s finding of income disparity to justify fee awards was unreasonable and
contrary to the evidence that neither party enjoyed a superior position from
which to afford fees.” Appellant’s Br. p. 46. Husband also argues that none of
his conduct during the dissolution proceedings amounted to a level of
misconduct sufficient “to justify the fee awards and did not cause Wife to incur
additional attorney or valuator fees.” Id. at 47. Husband maintains that
between 2012 and 2015, his businesses, in total, averaged $12,010.00 of annual
income before taxes. According to Husband, “[e]ven adding these
undistributed, pre-tax profits to [his $45,000.00] salary, he still earned less than
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1778 | October 22, 2019 Page 27 of 31
6
Wife’s salary [($45,000 + $12,010) = $57,010; $57,010 < $60,000].” Id. at 44.
Husband notes that Wife’s salary is earned for thirty-nine weeks of work per
year, and his salary is earned for fifty-two weeks of work per year. He argues
that, contrary to Wife’s testimony, the income from the businesses was not used
to purchase the parties’ personal vehicles; and that, while business income was
used for personal expenses related to cell phones, vehicles, gas, food, and
earned rewards points, the amount of money that was put toward these things
was so insignificant that it cannot be used to justify a finding that Husband’s
salary exceeded Wife’s. He further argues that the attorney fees award is not
properly reflected on the marital balance sheet and that the trial court’s award
of the valuation expenses is ambiguous, and thus improper, because it fails to
state the amount that Husband owes to Blue & Co.
[51] Indiana statutory law pertaining to dissolution proceedings authorizes a court
to order a party to pay the attorney fees of the other party:
The court periodically may order a party to pay a reasonable
amount for the cost to the other party of maintaining or
defending any proceeding under this article and for attorney’s
fees and mediation services, including amounts for legal services
provided and costs incurred before the commencement of the
proceedings or after entry of judgment.
6
Husband argued at the final hearing that Wife earned a salary of between $58,000.00 and $60,000.00 per
year.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1778 | October 22, 2019 Page 28 of 31
Ind. Code § 31-15-10-1(a) (1997). The legislative purpose of this statute is to
provide access to an attorney to a party in a dissolution proceeding who would
not otherwise be able to afford one. Balicki, 837 N.E.2d at 543. We review a
trial court’s award of attorney fees in connection with a dissolution decree for
an abuse of discretion. Hartley v. Hartley, 862 N.E.2d 274 (Ind. Ct. App. 2007).
Reversal is proper only where the trial court’s award is clearly against the logic
and effect of the facts and circumstances before the court. Bessolo v. Rosario, 966
N.E.2d 725, 733 (Ind. Ct. App. 2012), trans. denied. In assessing attorney’s fees,
the trial court may consider such factors as the resources of the parties, the
relative earning ability of the parties, and other factors bearing on the
reasonableness of the award. Id. In addition, any misconduct on the part of a
party that directly results in the other party incurring additional fees may be
taken into consideration. Id. “Further, the trial court need not give its reasons
for its decision to award attorney’s fees.” Id. (quoting Thompson, 811 N.E.2d at
928).
[52] Here, we find that the trial court’s award of attorney fees to Wife is supported
by the record. At the final hearing, Wife testified that her salary from her
elementary school teaching position was $58,000.00 a year. Husband testified
that he is self-employed; his “paycheck comes from [BES]”; and he earns a
salary of $45,000.00 a year. Tr. Vol. 2, p. 108. Although the trial court was not
required to give reasons for its decision to award attorney’s fees, it noted in its
findings its skepticism regarding Husband’s stated salary and ultimately
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1778 | October 22, 2019 Page 29 of 31
determined that there was a disparity in income between the parties and that
Husband earned more than Wife. Specifically, the court found as follows:
While Husband testified he believes he makes less than Wife, the
Court finds this suspicious. Husband is in controls [sic] of what
salary, expenses, costs, and income the business provides. The
parties have acquired substantial assets and little debt during the
marriage. This was clearly not accomplished on a teacher’s
salary alone.
Appellant’s App. Vol. 2, p. 17. This evidence alone supports the trial court’s
award of attorney fees to Wife and there was no abuse of discretion. Likewise,
the trial court was within its discretion to require Husband to pay the
outstanding valuation expenses that Wife owed to Blue & Co. See I.C. § 31-15-
10-1(a) (“court periodically may order a party to pay a reasonable amount for
the cost to the other party of maintaining or defending any proceeding under
this article”). Furthermore, the trial court’s award of attorney fees and
valuation expenses was not improperly reflected on the marital balance sheet,
as the award does not constitute marital property and is not eligible for
inclusion in the marital estate.
[53] Finally, we disagree with Husband’s assertion that the trial court’s requirement
that he pay the outstanding valuation expenses amounts to an order to “write a
blank check to Blue [& Co.]” Appellant’s Br. p. 48. To the contrary, when
Wife testified that she had an outstanding balance with Blue & Co. for business
valuation services and requested that the trial court require Husband to pay the
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1778 | October 22, 2019 Page 30 of 31
balance, she introduced into evidence an invoice that listed the amount due as
$9,244.37.
[54] Based on the foregoing, we conclude that the trial court did not abuse its
discretion or commit clear error when valuing and distributing the marital
property of the parties and awarding Wife attorney fees and valuation expenses,
except that the trial court erred when it (1) counted the $29,250.00 in fire
insurance proceeds as an asset attributable to Husband, (2) failed to include in
the marital pot the debt associated with the HHR vehicle, and (3) failed to
include in the marital pot the value of the engagement ring that Husband
purchased for Wife. Thus, we reverse the dissolution decree to that extent and
remand for the trial court to correct these errors and adjust its split of the
marital property accordingly.
[55] The judgment of the trial court is affirmed in part and reversed in part, and we
remand for further proceedings with instructions.
Najam, J., and Bradford, J., concur.
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