Paul D. Schoolman v. Tamzen L. Schoolman

Pursuant to Ind.Appellate Rule 65(D), 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. Dec 12 2013, 10:14 am
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
PATRICK J. ROBERTS THOMAS J. HILLIGOSS
Roberts Law Firm McIntyre Hilligoss Vent & Welke
Peru, Indiana Kokomo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
PAUL D. SCHOOLMAN, )
)
Appellant, )
)
vs. ) No. 52A02-1304-DR-344
)
TAMZEN L. SCHOOLMAN, )
)
Appellee. )
APPEAL FROM THE MIAMI SUPERIOR COURT
The Honorable Daniel C. Banina, Judge
Cause No. 52D02-1202-DR-48
December 12, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Paul Schoolman appeals the trial court’s distribution of property in the dissolution
of his marriage to Tamzen Schoolman. We affirm.
Issues
Paul raises two issues, which we consolidate and restate as whether the trial court
properly divided the marital estate.
Facts
Paul and Tamzen were married in 1985 and had one child who is now an adult.
Paul was a farmer until he went to college in his forties and became a school teacher. He
was a teacher until he retired at sixty-seven years of age. At the time of their marriage,
Tamzen had completed a bachelor’s degree in nursing and was studying to become a
nurse practitioner. Tamzen did not complete her nurse practitioner training after her
marriage. She stayed at home with their son and helped with the farming. After their son
went to school, Tamzen was a substitute teacher for a couple of years and then became a
school nurse making $32,000 per year.
In 1983, prior to their marriage, Paul inherited a significant amount of property.
He also owned a farm that was subject to a mortgage. During their marriage, Paul sold
much of the inherited property, earning more than one million dollars. Paul always put
the proceeds of the sales into joint accounts with Tamzen. In February 2010, Paul also
entered into a real estate contract to sell property to J.B. Ladd for $179,253.75. The
contract included a down payment of $26,888.06 and yearly payments of $16,026 plus
interest for ten or eleven years.
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In February 2012, Paul filed a petition for dissolution of marriage, and a hearing
was held in January 2013. At the time of the hearing, Paul was sixty-nine years old and
worked occasionally as a real estate agent. However, he did not sell any properties in
2012. Tamzen was fifty-nine years old at the time of the hearing and was still employed
as a school nurse. Paul asked that the remaining Ladd contract proceeds be excluded
from the marital estate.
The trial court entered findings of fact and conclusions thereon. The trial court
included the Ladd contract in the marital estate. The trial court ordered that “[t]he net
marital estate, not including the marital residence, should be divided as equally as
possible, so that Paul receives $313,153.56 and Tamzen receives $313,153.55.”
Appellant’s App. p. 18. The trial court ordered that the marital residence be sold and that
the net proceeds of the sale be shared equally by the parties. Paul now appeals.
Analysis
The trial court here entered sua sponte findings of fact and conclusions thereon.
Sua sponte findings control only as to the issues they cover, and a general judgment will
control as to the issues upon which there are no findings. Yanoff v. Muncy, 688 N.E.2d
1259, 1262 (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.3
Findings will only be set aside if they are clearly erroneous. Id. “Findings are
clearly erroneous only when the record contains no facts to support them either directly
or by inference.” Id. A judgment is clearly erroneous if it applies the wrong legal
standard to properly found facts. Id. In order to determine that a finding or conclusion is
clearly erroneous, an appellate court’s review of the evidence must leave it with the firm
conviction that a mistake has been made.1 Id. We neither reweigh the evidence nor
assess the credibility of witnesses, but consider only the evidence most favorable to the
judgment. Fowler v. Perry, 830 N.E.2d 97, 102 (Ind. Ct. App. 2005).
A. Findings
Paul begins by arguing that several findings were erroneous. Many of these
findings merely restate Tamzen’s testimony. To the extent the findings are not merely
restatements of the testimony, our review of the record reveals conflicting evidence on
many of the findings. Paul’s arguments regarding Findings 10, 14, 16, 17, 19, 24, 27,
28B, 43, 44, 51, and 52 are requests that we reweigh the evidence or judge the credibility
of the witnesses, which we cannot do. We decline to address those findings.
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Paul argues that the trial court erred by adopting verbatim portions of Tamzen’s proposed findings of
fact and conclusions thereon. Although a trial court is discouraged from adopting a party’s proposed
findings verbatim, this practice is not prohibited. CBR Event Decorators, Inc. v. Gates, 962 N.E.2d 1276,
1281 (Ind. Ct. App. 2012), trans. denied. The adoption of Tamzen’s proposed findings was not in and of
itself improper. “However, the wholesale adoption of one party’s findings results in an ‘inevitable
erosion of the confidence of an appellate court that the findings reflect the considered judgment of the
trial court.’” Id. (quoting Prowell v. State, 741 N.E.2d 704, 709 (Ind. 2001)). Paul concedes that “there
has never been a case overturned because of [this] method.” Appellant’s Br. p. 6. However, he argues
that “the due process afforded by the U.S. Constitution and the Indiana Constitution require a fair trial.”
Id. Paul does not explain how his due process rights were violated or how his right to a fair trial was
violated. Consequently, Paul has waived this argument.
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Paul is correct that Finding 6 erroneously states Paul’s age as sixty-five, but the
evidence showed that he was sixty-nine years old at the time of the hearing. However,
“even an erroneous finding is not fatal to a trial court’s judgment if the remaining valid
findings and conclusions support the judgment, rendering the erroneous finding
superfluous and harmless as a matter of law.” Curley v. Lake Cnty. Bd. of Elections &
Registration, 896 N.E.2d 24, 32 (Ind. Ct. App. 2008), trans. denied. We conclude that
this minor error was not fatal to the trial court’s judgment, and the error was harmless.
Paul also argues that Finding 9 is erroneous because it states that he was employed
by Maconaquah Schools. This finding is supported by the evidence. Exhibit I concerns
Paul’s school retirement records and indicates that he was employed by Maconaquah
Schools, along with other school corporations during his teaching career. The trial
court’s finding is not clearly erroneous.
B. Ladd Land Contract
Next, Paul argues that several of the findings concerning the Ladd land contract
are clearly erroneous. Paul argues that the property should not have been included as a
marital asset and that the trial court’s valuation of the property is erroneous.
Paul argues that the remaining proceeds from the Ladd contract should not be
included in the marital estate because they involve future proceeds of the contract.
However, “[u]nder a typical conditional land contract, the vendor retains legal title until
the total contract price is paid by the vendee.” Skendzel v. Marshall, 261 Ind. 226, 234,
301 N.E.2d 641, 646 (1973), cert. denied. The Ladd contract is a typical land contract
with legal title in the property remaining with Paul until the total contract price is paid.
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See Ex. 4. It is well established that all marital property goes into the marital estate 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. Ind. Code § 31-15-7-4(a); Estudillo v. Estudillo, 956 N.E.2d 1084, 1090
(Ind. Ct. App. 2011). Consequently, the trial court properly held that the property subject
to the land contract was part of the marital estate.
Paul also argues that the trial court’s valuation of the property is erroneous. The
trial court valued the land contract at $145,689.79. Tamzen presented evidence that the
land contract was valued at $145,689.79 as of the February 29, 2012. Paul argued that
the land contract was valued at $137,879.53 as of February 29, 2012. The differences in
their valuations are based on differences in the payment schedule and the due dates of the
payments. Tamzen entered into evidence a contract and payment schedule provided by
Paul during discovery. Paul entered into evidence a revised contract with handwritten
changes and a revised payment schedule. The trial court noted that the revised
documents were “advantageous to Paul” and adopted a value based on the original
contract and payment schedule. Appellant’s App. at 10. On appeal, we cannot reweigh
the evidence or judge the parties’ credibility. Given the conflicting evidence, we cannot
say that the trial court’s valuation is clearly erroneous.
C. Property Division
Paul argues that the trial court abused its discretion when it divided the marital
estate. “This case turns on whether the trial court’s division of the marital property was
just and reasonable.” Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002). “Although
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this is in some sense an issue of law, it is highly fact sensitive and is subject to an abuse
of discretion standard.” Id. We will not reweigh evidence, and we will consider the
evidence in a light most favorable to the judgment. Id.In an action for dissolution of marriage, the trial court is required to divide the
marital property in a “just and reasonable manner.” I.C. § 31-15-7-4(b). Indiana Code
Section 31-15-7-5 provides:
The court shall presume that an equal division of the marital
property between the parties is just and reasonable. However,
this presumption may be rebutted by a party who presents
relevant evidence, including evidence concerning the
following factors, that an equal division would not be just and
reasonable:
(1) The contribution of each spouse to the acquisition of
the property, regardless of whether the contribution
was income producing.
(2) The extent to which the property was acquired by each
spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the
time the disposition of the property is to become
effective, including the desirability of awarding the
family residence or the right to dwell in the family
residence for such periods as the court considers just to
the spouse having custody of any children.
(4) The conduct of the parties during the marriage as
related to the disposition or dissipation of their
property.
(5) The earnings or earning ability of the parties as related
to:
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(A) a final division of property; and
(B) a final determination of the property rights of
the parties.
A party seeking to rebut the presumption of equal division of marital property bears the
burden of proof in doing so. Beckley v. Beckley, 822 N.E.2d 158, 163 (Ind. 2005); I.C. §
31-15-7-5.
The division of marital assets is a matter within the sound discretion of the trial
court. Estudillo v. Estudillo, 956 N.E.2d 1084, 1090 (Ind. Ct. App. 2011). When a party
challenges the trial court’s division of marital property, he or she must overcome a strong
presumption that the court considered and complied with the applicable statute. Id.When we review a claim that the trial court improperly divided marital property, we must
decide whether the trial court’s decision constitutes an abuse of discretion, considering
only the evidence most favorable to the court’s disposition of the property, without
reweighing the evidence or assessing the credibility of witnesses. Id. at 1090-91.
The trial court here ordered an equal distribution of the marital assets. Paul seems
to argue that he rebutted the presumption of an equal distribution. He argues that his
economic circumstances as compared to Tamzen’s economic circumstances justify a
deviation. We address each of the relevant statutory factors.
First, both parties contributed “to the acquisition of the property” during their
twenty-seven-year marriage. I.C. § 31-15-7-5(1). Paul worked as a farmer, went to
college, and became a teacher. Tamzen cared for their child, helped on the farm, and
later became a school nurse. As to the extent to which the property was acquired by each
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spouse before the marriage or through inheritance or gift, the evidence demonstrated that
Tamzen brought $18,000 to the marriage. On the other hand, Paul brought more than one
million dollars in property that he inherited shortly before the marriage and a farm subject
to a mortgage. During the marriage, Paul sold the properties and comingled the proceeds
in joint accounts with Tamzen.
As for the “conduct of the parties during the marriage as related to the disposition
or dissipation of their property,” Tamzen testified that some guns that were in Paul’s
possession are missing and that there were substantial empty spaces in the outbuilding
during the appraisal. I.C. § 31-15-7-5(4). In May 2011, Tamzen withdrew $185,916.15
from various joint certificates of deposit and accounts and deposited the money into
accounts in her name. In March 2012, Tamzen withdrew $20,000 from a joint account
and deposited it into a joint account with her sister. Paul then withdrew the remaining
$107,058.95 from the account and deposited it into an account in his name.
Finally, as for the economic circumstances and earning abilities of each party, at
the time of the hearing, Tamzen was fifty-nine years old and Paul was sixty-nine years
old. Paul was retired, was attempting to sell real estate, without much success, and had
some health problems. Tamzen was still working as a school nurse. Although Paul
argues that Tamzen could make more money working in a hospital, Tamzen testified that
she would need significant retraining to do so, and her job prospects were limited given
her age and time away from hospital nursing. She also testified that, at Paul’s request,
she did not continue her education to become a nurse practitioner, which would have
allowed her to earn significantly more money.
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We simply cannot say that Paul has overcome the statutory presumption in favor
of an equal distribution of the marital property. Given the parties’ lengthy marriage,
comingling of funds, significant remaining assets, and current situations, the trial court
did not abuse its discretion by ordering an equal division. See, e.g., Fobar, 771 N.E.2d at
60 (holding that “the trial court was within its discretion in dividing the property 50-50,
and was not required to alter its virtually equal division of the marital property to reflect
[the wife’s] interest in the inherited . . . property”).
Conclusion
The trial court’s division of marital property was not clearly erroneous. We
affirm.
Affirmed.
CRONE, J., and PYLE, J., concur.
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