In Re the Marriage of: Alexander Nikolayev v. Natalia Nikolayev

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
FILED
May 31 2012, 8:34 am
of establishing the defense of res
judicata, collateral estoppel, or the law CLERK
of the supreme court,
of the case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JAIMIE L. CAIRNS DEBORAH M. AGARD
Ruppert & Schaefer, P.C. Law Office of Deborah M. Agard
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF: )
)
ALEXANDER NIKOLAYEV, )
)
Appellant-Respondent, )
)
vs. ) No. 49A05-1108-DR-393
)
NATALIA NIKOLAYEV, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cynthia Ayres, Judge
The Honorable Deborah Shook, Master Commissioner
Cause No. 49D04-0901-DR-2720
May 31, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Alexander Nikolayev appeals the trial court’s child support and property division
order in the dissolution of his marriage to Natalia Nikolayev. We affirm in part, reverse
in part, and remand.
Issues
Alexander raises a total of ten issues and Natalia raises one issue on cross-appeal,
which we combine and restate as the following:
I. whether the trial court’s dissolution order constituted
an appealable final judgment;
II. whether the trial court erred in its calculation of the
child support obligation Alexander owes Natalia; and
III. whether the trial court erred in its division of the
marital property.
Facts
Alexander and Natalia were married in November 2001, and they had one child
during the marriage, V.N., who was born in 2003. Alexander, who has a Master’s
Degree in science from the former Soviet Union, immigrated to the United States from
Russia in 1992. He began working for a pharmaceutical company within a few months of
arriving in America. In 2002, he secured employment with Eli Lilly & Company
(“Lilly”) and currently earns over $100,000 per year, including bonuses.
Natalia has degrees from Russia in art restoration and art history. Before coming
to America, Natalia worked as a conservator at the prestigious Russian Museum in St.
2
Petersburg, where she earned the equivalent of $200 per month. During the marriage,
Natalia worked for six months at McDonalds but never had any other regular, full-time
employment. She has attempted, unsuccessfully, to obtain employment at the
Indianapolis Museum of Art. Currently, Natalia is attempting to establish an art
restoration business in Indianapolis.
Alexander and Natalia met through a website for foreign brides. Shortly before
Natalia came to America and married Alexander, she purchased a 1/6th interest in a one-
room (not one-bedroom) flat in St. Petersburg for $16,000. The remaining 5/6th interests
were owned by Natalia’s son from a previous marriage and her sister. Natalia still retains
that interest, which she valued at $8,333 in July 2010. Natalia had no other significant
assets at the time of the marriage. Alexander, meanwhile, utilized funds that he brought
into the marriage for a down payment of $37,200 on the marital residence.
At the end of 2008, Natalia moved out of the marital residence. She used $7,000
to $8,000 she had received from recent art restoration work she had done, along with
some funds received from her older son and sister, to establish a separate household,
including renting an apartment and buying furniture, utensils, and linens. Natalia also
used some of the money to pay a consultation and retainer fee to an attorney for divorcing
Alexander.
It appears that one of the primary motivations Natalia had for leaving Alexander
was her belief that he was too controlling with respect to finances. For example, between
2002 and 2008, Alexander consistently received raises and bonuses from Lilly to the
3
point where he was earning over $100,000 annually. However, the available income to
the Nikolayev family remained constant during this time, because Alexander directed that
any additional amount earned through raises be saved and/or diverted to his voluntary
401(k) account through Lilly, and the money was not spent on current family expenses.
By 2010, Alexander was contributing over $1,700 per month to his 401(k). The net
effect of these 401(k) and savings contributions was that the amount available for current
family expenses remained constant at approximately $51,000 per year throughout the
marriage.
Alexander did not allow Natalia to have a credit card until near the end of the
marriage, and even then he would review every expense she charged to it and would take
the card away if he did not approve of it. According to Natalia, the marital home was
sparsely furnished, they slept on a thin mattress on the floor for about a year after buying
the home, and they had no cell phones, cable TV, or a washing machine; Natalia had to
do laundry at a nearby apartment complex. Natalia indicated that Alexander had a
“[S]oviet . . . mentality” towards finances that she did not believe was in V.N.’s best
interests and said that Alexander’s reluctance to spend any money on things like ice
cream at the zoo or going out to eat made things “miserable.” Tr. p. 243-44.
On January 20, 2009, Natalia filed her petition for dissolution. On February 6,
2009, the parties filed an agreed entry regarding provisional child custody and support.
The agreement provided for joint physical and legal custody of V.N. Regarding child
support, the agreement provided:
4
Husband will continue to pay child support voluntarily in the
amount of $500.00 per month as he has started to do on
December 19, 2008 . . . . He shall continue to pay all child
care costs and carry health insurance on the child through his
employer, Eli Lilly and Company. Further, he shall pay
100% of all out of pocket medical expenses and 100% of all
educational expenses in public schools of Lawrence
Township, Sunday Russian School tuition, books, and private
lessons of Russian language. Further, he shall pay 75% of the
cost of all clothing for the child. In the event that Husband
receives an annual bonus from his employer he shall pay 20%
of the net amount of the bonus into an educational fund
established for the child.
App. p. 30.
The trial court conducted the first of two hearings on the dissolution on July 21,
2010. Alexander represented himself at this hearing. At the outset, the parties stipulated
that joint physical and legal custody of V.N. should be continued. The parties also
stipulated that as of the date of separation, Alexander had a Lilly pension currently worth
$80,373 and that his 401(k) account was worth $82,920.1 During this hearing, Natalia
requested that Alexander be required to pay $198 per week in child support and that she
be named the custodial parent of V.N. for purposes of controlled expenses and
assignment of the parenting time credit. However, Natalia did not submit a child support
worksheet into evidence at this hearing. Natalia also submitted a proposed division of
assets that valued her interest in the St. Petersburg flat at $8,333 but set aside that
property solely to her, with the remaining marital assets to be divided 60/40 in her favor.
1
On appeal, Natalia asserts that the Lilly pension was expected to pay Alexander $6,954.12 per month
when he retired, based on its value at the time of separation. It is clear, after reviewing the documentation
for this pension, that it would pay $6,954.12 per year, not per month.
5
The parties failed to complete their presentation of evidence at this hearing, with the trial
court strongly advising Alexander to obtain counsel before the next hearing.
Before the next hearing was held, Natalia moved to modify the provisional order
regarding custody and support of V.N. so that she would have primary custody of him,
largely because of Alexander’s alleged failure to communicate regarding V.N.’s care.
However, Natalia later dismissed this motion because she believed that communication
had improved.
The trial court conducted a second hearing on the dissolution on February 17,
2011, with Alexander now represented by counsel. During the hearing, Alexander
attempted to present evidence regarding what his child support obligation would have
been in the provisional order if it had been calculated in accordance with the Child
Support Guidelines. The trial court did not allow Alexander to present any such
evidence, stating, “we’re not going to relitigate what went on in 2009.” Tr. p. 155.
Alexander also argued that his current support obligation should not be based on
any bonus income he may receive, and also that his income should be calculated only
after deducting the 401(k) contributions he had been regularly making throughout the
marriage. Alexander calculated his current income, less his contributions to his 401(k), at
$1,595 per week. He also assigned income to Natalia of $484 per week. He reached this
figure by assuming income of $35 per hour at seven hours per week as an art
conservator/restorer, and thirty-three hours per week at minimum wage, or $7.25 per
hour. He also wished to be named the custodial parent for purposes of controlled
6
expenses; the end result of Alexander’s proposed child support worksheet was a weekly
support obligation of $86.
Regarding property division, Alexander requested that the property be divided
54.6% to him, 45.7% to Natalia. He also attempted to admit into evidence a Russian
document, translated into English, purporting to appraise the total value of the St.
Petersburg flat at $146,000 in US dollars, but the trial court sustained Natalia’s hearsay
objection to the document. The trial court did permit Alexander to testify as to his belief
that the flat was worth approximately $146,000, with Natalia’s 1/6th interest being worth
$24,433.
On rebuttal, Natalia submitted a child support worksheet proposing that Alexander
pay $210 per week in support, based on a weekly income of $2,268 for Alexander and
$148 for Natalia and with Natalia being named the custodial parent in charge of
controlled expenses. She testified as to the difficulty she was having in the current
economy getting her business started, and stated that it would be difficult to hold a part-
time job while also doing the work necessary to start a business. She also testified that
her job allows her to take V.N. to appointments and the like, and that she should be in
charge of controlled expenses for V.N. because of Alexander’s over-reluctance to spend
money.
On July 8, 2011, the trial court entered its dissolution order, with accompanying
findings and conclusions per Alexander’s request. For child support purposes, the trial
court set Alexander’s weekly income at $2,268, which included bonuses that the trial
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court found he had “regularly received . . . each year.” App. p. 12. For Natalia, it
imputed income of $290 per week, or forty hours per week at minimum wage. It also
named Natalia the custodial parent in charge of controlled expenses and assigned the
parenting time credit to Alexander, resulting in a weekly support obligation of $186 per
week. However, it also made this support obligation effective July 21, 2010, the date of
the first dissolution hearing, which necessarily resulted in an arrearage in Alexander’s
obligation because he had been paying the provisional order’s support obligation of $500
per month, plus expenses as delineated in that order. The trial court ordered Alexander to
pay an additional $34 per week towards this arrearage, and directed that “Wife’s attorney
will calculate the arrearage effective the date of this Decree.” Id. at 13.
Regarding the property division, it assigned a value to Natalia’s interest in the St.
Petersburg flat of $8,333, per her request. It also found that Alexander had household
goods worth $1,000 and Natalia had such goods worth $300 at the time of separation. It
concluded that based upon the disparate earning ability of the parties, it would award
Natalia 60% of the martial estate and Alexander 40%. However, in its financial figures
of the parties’ assets subject to division, it excluded Natalia’s $8,333 interest in the St.
Petersburg flat before calculating the 60/40 split. Excluding the flat, the trial court found
the net value of the marital estate to be $266,889.30, with Natalia to receive $160,133.58
total in assets and Alexander $106,755.72. With respect to the retirement accounts and as
part of the total assets, the trial court awarded Alexander the full amount of his Lilly
pension that he is due to receive upon retirement and awarded Natalia the value of the
8
401(k) at the time of separation, or $82,920. In order to effect the 60/40 split, the trial
court ordered Alexander to make an equalization payment of $56,056,84. It also ordered
him to pay $12,000 towards Natalia’s attorney fees. Alexander now appeals.
Analysis
At Alexander’s written request pursuant to Indiana Trial Rule 52(A), the trial court
here entered findings of fact and conclusions thereon. Therefore, we must first determine
whether the evidence supports the findings and second, whether the findings support the
judgment. Carmichael v. Siegel, 754 N.E.2d 619, 625 (Ind. Ct. App. 2001). We defer to
the trial court’s proximity to the issues and will disturb a judgment only where there is no
evidence supporting the findings or the findings fail to support the judgment. Id. “We do
not reweigh the evidence, but consider only the evidence favorable to the trial court’s
judgment.” Id. A party challenging a trial court’s findings must establish that they are
clearly erroneous. Id. Findings are clearly erroneous only when a review of the record
leaves us firmly convinced a mistake has been made. Id. “However, while we defer
substantially to findings of fact, we do not do so to conclusions of law.” Id. A judgment
also is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal
standard. Id. “We evaluate questions of law de novo and owe no deference to a trial
court’s determination of such questions.” Id.
We also note that we “give considerable deference to the findings of the trial
court in family law matters . . . .” MacLafferty v. MacLafferty, 829 N.E.2d 938, 940
(Ind. 2005). Whether reviewing a case for “clear error” or “abuse of discretion,” this
9
appellate deference is, first and foremost, a reflection that the trial court is in the best
position to judge the facts, ascertain family dynamics, and judge witness credibility and
the like. Id. at 940-41. “Secondly, appeals that change the results below are especially
disruptive in the family law setting.” Id. at 940. “But to the extent a ruling is based on
an error of law or is not supported by the evidence, it is reversible, and the trial court has
no discretion to reach the wrong result.” Id. at 941.
I. Final Judgment
Before turning to the merits of this appeal, we must first address Natalia’s cross-
appeal claim that the trial court’s dissolution order was not a final appealable order,
because it did not definitively resolve the amount of any child support arrearage that
Alexander owed by virtue of the trial court making its support order retroactive. In
Finding 16, the trial court found that Alexander had a support arrearage and stated,
“Wife’s attorney will calculate the arrearage effective the date of this Decree.” App. p.
13. In Conclusion 9, the trial court stated, “Wife’s attorney shall prepare an updated
arrearage calculation effective the first Friday after this Decree.” Id. at 20.
A “final judgment” is one that “disposes of all claims as to all parties[.]” Ind.
Appellate R. 2(H)(1). Whether an order is a final judgment affects this court’s subject
matter jurisdiction. R.R.F. v. L.L.F., 956 N.E.2d 1135, 1139 (Ind. Ct. App. 2011). A
lack of appellate subject matter jurisdiction may be raised at any time and if the parties do
not raise the issue, this court may consider it sua sponte. Id.
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Despite Natalia’s claim to the contrary, we believe this case is indistinguishable
from R.R.F. for all practical purposes. There, a trial court entered an order with respect
to tax credits for post-secondary education expenses directing “Father to reimburse
Mother 35.93% of any tax credit subsidy he receives and Mother to reimburse Father
64.07% of any tax credit subsidy she receives.” R.R.F., 956 N.E.2d at 1138. On appeal,
the State as intervenor claimed this order was not final because it left for future
determination the specific dollar amount payable by either Mother or Father. We rejected
this argument, noting that “the parties are ordered to undertake this course of action
independently, without further intervention of the court.” Id. at 1139. Thus, the trial
court’s order left nothing for future determination by it, making it an appealable final
judgment. Id.
Here, likewise, the trial court’s order leaves it solely within the province of
Natalia’s attorney to calculate the amount of arrearage that Alexander owed. There is no
language in the order directing Natalia’s attorney to submit the arrearage calculation to
the trial court for approval.2 As such, just as in R.R.F., the trial court’s dissolution order
left nothing for it to resolve, and the parties were ordered to resolve the arrearage
calculation without further intervention of the court. The trial court’s dissolution order
was a final appealable judgment, and we have subject matter jurisdiction to entertain this
appeal.
2
Alexander asserts that this delegation of the arrearage calculation to Natalia’s attorney was, by itself,
error. We need not address that issue, given our resolution regarding the retroactive date of the support
order.
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II. Child Support
A. Retroactivity of Order
We first address Alexander’s argument that the trial court erred in making the
effective date of the dissolution decree’s $186 per week child support obligation July 21,
2010, rather than the date of the decree itself, or July 8, 2011. Although we can imagine
that issues similar to this may often arise in divorce actions, there is surprisingly little
guidance in the statutes or case law that address when a trial court can make a support
obligation effective in a final dissolution decree. Nevertheless, we conclude the trial
court erred here.
First, Indiana Code Section 31-15-4-8(a) permits a trial court to “issue an order
for temporary . . . support in such amounts and on such terms that are just and proper.”
Under Indiana Code Section 31-15-4-14, a provisional child support order terminates
when “the final decree is entered subject to right of appeal . . . .” In Trent v. Trent, 829
N.E.2d 81, 85-86 (Ind. Ct. App. 2005), this court held that a provisional child support
order merges into the support order of a final dissolution decree and, furthermore, that a
parent cannot seek to recover an arrearage under the provisional order unless the final
dissolution decree specifically addresses such arrearage. Here, although the trial court
found there to be an “arrearage,” there was no finding that Alexander had actually failed
to comply with the provisional agreed entry regarding child support.
Natalia cites no authority for the proposition that a child support order in a
dissolution decree can be made effective before the date of the decree itself, especially
12
when there was a provisional support decree that was already in effect. Nonetheless,
Natalia contends that the trial court in fact modified the provisional support decree,
effective July 21, 2010. Indiana Code Section 31-15-4-15 provides, “The terms of a
provisional order may be revoked or modified before the final decree on a showing of the
facts appropriate to revocation or modification.” A request to modify a provisional
support order need not be in writing and may be made orally. See L.D.H. v. K.A.H., 665
N.E.2d 43, 49 (Ind. Ct. App. 1996), abrogated on other grounds by Russell v. Russell,
682 N.E.2d 513 (Ind. 1997). In the context of final support orders, they may be modified
retroactively to the date of the filing of a modification petition or any date thereafter. See
Becker v. Becker, 902 N.E.2d 818, 820 (Ind. 2009). Still, we see no request in the record
from Natalia, either orally or in writing, that the provisional agreed entry regarding child
support be modified, or that the new child support order be made effective on a date prior
to the final dissolution decree.3
Natalia contends that a modification of the provisional support order was
impliedly litigated by the parties, because she presented evidence that that support order
had been inadequate to meet her and V.N.’s needs. She notes that this court has held that
even a final child support order may be modified in the absence of an explicit request that
it be modified, if “the issue has actually been litigated (i.e., by introducing evidence in
that regard) . . . .” O’Campo v. O’Campo, 597 N.E.2d 1314, 1316 (Ind. Ct. App. 1992).
Regardless, it appears to us that the parties were at all times litigating the question of
3
Natalia filed a motion to modify provisional custody of V.N., and with it a necessary change in support,
but she withdrew that motion.
13
what the final child support order should be, not whether the provisional support order
should be modified. Most importantly, the trial court expressly denied Alexander the
opportunity to present evidence on what he believed should have been his temporary
support obligation if it had been calculated in accordance with the Child Support
Guidelines; it said, “we’re not going to relitigate what went on in 2009.” Tr. p. 155.
Clearly, there are important public policy considerations in ensuring that children
are adequately provided for by their parents, but there also must be equitable
considerations regarding notice and an opportunity to present evidence on the question of
child support. Moreover, we are concerned that parties may be discouraged from
entering into agreements regarding provisional child support if they are faced with the
prospect of those agreements later being effectively over-ridden by a final dissolution
decree and being held to be in arrears in support, in particular where no party made a
request to modify the provisional support amount and there had been full compliance
with the provisional order. Under the circumstances, we conclude there was no proper
basis upon which the trial court could make Alexander’s increased child support
obligation retroactive to a date before the final dissolution decree was entered. We
reverse the trial court’s July 21, 2010 effective date of the final child support order,
vacate the finding that Alexander owed a child support arrearage because of that effective
date, and direct that the effective date of the final support obligation be July 8, 2011.
B. Natalia’s Income
14
Next, Alexander contends the trial court erred in assigning a weekly income of
$290 to Natalia. Alexander claims her potential income is considerably higher than that.
Although Natalia does not owe Alexander child support, an increase in her income likely
would result in a net reduction in Alexander’s support obligation after application of the
Child Support Guidelines. “The starting point in determining the child support obligation
of a parent is to calculate the weekly gross income for both parents.” Meredith v.
Meredith, 854 N.E.2d 942, 947 (Ind. Ct. App. 2006) (citing Ind. Child Support Guideline
3(A), cmt. 2). If a parent has no income or only means-tested income, potential income
may be assigned to that parent if he or she is capable of earning an income, or more
income than he or she is currently earning. Child Supp. G. 3(A), cmt. 2(c). The amount
of potential income to be used is determined by considering the parent’s potential and
probable earnings level based on the his or her work history, occupational qualifications,
prevailing job opportunities, and earnings levels in the community. Meredith, 854
N.E.2d at 947 (citing Child Supp. G. 3(A)(3)). “[C]hild support orders cannot be used to
force parents to work to their full economic potential or make their career decisions based
strictly upon the size of potential paychecks.”4 Id.
4
We note that there are usually two reasons cited for attributing potential income to a parent when
making a child support calculation: (1) to discourage a parent from taking a lower paying job to avoid the
payment of a significant amount of support, and (2) to fairly allocate the support obligation when one
parent remarries and chooses not to be employed, because of the new spouse’s income. Meredith, 854
N.E.2d at 947 (quoting Child Supp. G. 3, cmt. 2(c)). Neither of those factors is present here because
Natalia is not paying support to Alexander and she has not remarried. Regardless, Natalia does not argue
that it is entirely improper to assign potential income to her.
15
On appeal, Alexander argues three reasons why the amount of income the trial
court attributed to Natalia is erroneous, but he presented only one of these three income
calculations to the trial court. All of Alexander’s proposed child support worksheets that
he presented to the trial court, several of them, attributed income to Natalia of $484 per
week; this figure was based on her working seven hours per week as a conservator at $35
per hour, and thirty-three hours per week at minimum wage of $7.25 per hour. Because
the $484 figure is the only one Alexander argued to the trial court, he has waived his
appellate arguments with respect to the other figures. See Heaphy v. Ogle, 896 N.E.2d
551, 557 (Ind. Ct. App. 2008) (noting general rule that failure to raise an issue before trial
court results in waiver of that issue). We will address only the trial court’s rejection of
the $484 figure.
The trial court entered the following finding with respect to Natalia’s income:
Wife is highly trained and educated as a painting
conservationist and works full time in that field. Wife’s
business is very slow right now, but she hopes to expand it
after distribution of the property settlement following the
entry of the dissolution decree. Wife contends her income at
the present time is $148.00 per week. The Court attributes
potential income to Wife as she is capable of earning $290.00
(or minimum wage) per week.
App. p. 12. This finding is supported by the evidence. The trial court obviously
attempted to reach an equitable “middle road” between Alexander and Natalia’s proposed
income figures for her. We cannot say it clearly erred in doing so.
16
Natalia testified that she has attempted to secure a full-time art conservator
position in Indianapolis but has been unable to do so. She stated that her Russian degrees
are not well-regarded in the United States. Thus, although Natalia is indeed highly
educated and skilled, that education and skill is in a field with very limited job
opportunities, especially in this area. Natalia has worked very little since coming to the
United States, with her work history until very recently consisting of a brief stint at
McDonalds. Natalia also testified that her attempt to start her own art conservation
business has been going slowly, at least in part because of the current economic climate.
She also noted that it is difficult to put the time into starting her business, which may not
pay very well at the moment, and also be asked to work another job in addition to her
business. This is evidence that even if Natalia effectively works full-time at her business,
she is not necessarily making a full-time income. She also observed that her current
employment is flexible and allows her to take V.N. to appointments and such as needed.
This evidence reflects upon Natalia’s potential and probable earnings level based
on her work history, her occupational qualifications, the prevailing job opportunities in
her field in the Indianapolis area, and earnings levels in the community. Such evidence
also justifies the trial court’s decision to settle upon an income figure for Natalia that is
roughly halfway between the proposed incomes submitted by Alexander and Natalia. We
also observe that the traditional reasons for assigning potential income to a parent are not
present here. The trial court’s determination of the amount of potential income to assign
to Natalia is not clearly erroneous. If in fact Natalia’s art restoration business later
17
becomes more successful and she begins earning substantially more income, Alexander
may petition for a modification of child support.
C. Treatment of Alexander’s 401(k) Contributions
We now acknowledge Alexander’s argument that the trial court apparently
calculated his weekly income as including the large amounts he contributes to his 401(k)
account at Lilly. At the second hearing below, Alexander presented substantial
testimony, evidence, and argument that the trial court should exclude those 401(k)
contributions from a calculation of his income for child support purposes because he
made such contributions throughout the course of the marriage. He bases his argument
on the general principle that a child support order should, at least in part, reflect “the
standard of living the child would have enjoyed if . . . the marriage had not been
dissolved . . . .” I.C. § 31-16-6-1(a)(2)(A). He also relies upon Saalfrank v. Saalfrank,
899 N.E.2d 671 (Ind. Ct. App. 2008), a case which he cited to the trial court. In that case,
we listed a number of factors that a trial court should consider in determining whether to
exclude retirement contributions from a parent’s income for purposes of calculating a
child support obligation, including:
(1) a parent’s control of whether or in what amount a
retirement contribution is made;
(2) the parents’ established course of conduct in retirement
planning (prior to and after the dissolution);
(3) the amount of the contribution (from nominal to a
large amount that could suggest the inappropriate sheltering
of income);
18
(4) whether and to what extent there are incentives for the
contribution;
(5) whether the contribution qualifies for favorable tax
treatment;
(6) whether continuing the contribution, in whole or in
part, would otherwise reduce the amount that a child in the
intact home could expect to receive; and
(7) any other relevant evidence.
Saalfrank, 899 N.E.2d at 680. Natalia argues that application of these factors, as well as
public policy considerations, justify including Alexander’s 401(k) contributions as part of
his income for child support purposes.
Unfortunately, however, the trial court entered no findings whatsoever as to
Alexander’s 401(k) contributions. It would appear it decided to include them as part of
Alexander’s income, but there are no findings as to why it did so. “The purpose of
special findings is to provide the parties and the reviewing court with the theory upon
which the trial judge decided the case in order that the right of review for error may be
effectively preserved.” Carmichael v. Siegel, 670 N.E.2d 890, 891 (Ind. 1996). “When
properly requested, a trial court is required to make complete special findings sufficient
to disclose a valid basis under the issues for the legal result reached in the judgment.”
Fobar v. Vonderahe, 756 N.E.2d 512, 518 (Ind. Ct. App. 2001), summarily aff’d in
relevant part, 771 N.E.2d 57, 60 (Ind. 2002). Given that Alexander requested special
findings and that he also vigorously argued the issue of his 401(k) contributions to the
19
trial court, that court’s silence on the issue is insufficient to meet the Trial Rule 52
standard. We must remand for the trial court to further consider this issue based on the
current record and to enter findings that specifically address it. See id.
D. Treatment of Alexander’s Bonuses
Alexander also contends that the trial court erred in including bonuses he receives
from Lilly in its calculation of his weekly gross income. Child Support Guideline
3(A)(1) states that “Weekly Gross Income” of a parent “includes income from any source
. . . and includes, but is not limited to, income from salaries, wages, commissions,
bonuses . . . .” The Commentary to this Guideline acknowledges that “irregular or
nonguaranteed” income, including bonuses, may “cause difficulty in accurately
determining the gross income of a party.” Child Supp. G. 3, cmt. 2(b). Bonuses are
“includable in the total income approach taken by the Guidelines,” but its inclusion “is
also very fact-sensitive.” Id. “Care should be taken to set support based upon
dependable income, while at the same time providing children with the support to which
they are entitled.” Id.
In considering this commentary, this court has held “that the decision to exclude
overtime or bonus income centers around the dependability of such income. It is also
clear that if the income is dependable, it should not be excluded without proper
consideration.” Thompson v. Thompson, 696 N.E.2d 80, 83 (Ind. Ct. App. 1998).
Generally, “the trial court’s discretion in excluding overtime and bonus income is
grounded in a determination that the income is not dependable or would place a hardship
20
on a parent to maintain.” Id. at 84. We also observe that although it generally is best to
follow principles announced in the commentary to the Child Support Guidelines, it is the
Guidelines themselves that are binding and not the commentary. See Matter of Paternity
of T.W.C., 645 N.E.2d 1128, 1130 (Ind. Ct. App. 1995). The Guidelines clearly place
bonuses within the general definition of “Weekly Gross Income.”
Here, the trial court calculated Alexander’s weekly gross income at $2,268, which
also was the figure on Natalia’s proposed child support worksheet. It is clear that this
figure was based on a paystub for Alexander from November 30, 2010, which listed his
year-to-date income as $108,886.06, which included a “Corporate Bonus Plan” payment
of $15,629.16. Ex. I. Division of $108,886.06 by forty-eight weeks (through the end of
November) results in $2,268.46. Although there is no evidence of the precise amount of
any bonus that Alexander received in 2009, there was evidence that he reported income
of $103,284, which necessarily must have included a sizable bonus. A paystub from
2008 revealed that he received a “Corporate Bonus Plan” payment of $21,136.24 that
year. For 2008, Alexander’s base salary appears to have been $88,451 (or $3,685.46 paid
semi-monthly); by 2010, it was $102,912 (or $4,288.04 paid semi-monthly). In fact,
Alexander’s income increased steadily and substantially during the entire marriage and
his employment by Lilly.
The trial court found that Alexander’s bonuses would be included as part of his
income “as they are a regular part of his income at Eli Lilly and Company from year to
year.” App. p. 12. Alexander does not directly argue that this is a clearly erroneous
21
finding, and we cannot say that it is. He notes that the bonuses are not guaranteed, and
claims on appeal that Lilly “has, at best, rough waters before it.” Appellant’s Br. p. 27.
This is mere speculation, however. There was no evidence presented before the trial
court of any such “rough waters” or of a danger in Lilly suspending or significantly
reducing the “Corporate Bonus Plan” that had contributed substantially to Alexander’s
income in 2008 through 2010, during which time his base salary also increased
substantially. It would be entirely inappropriate for this court on appeal to attempt to
determine Lilly’s future financial strength.
As for the bonuses not being guaranteed, we also observe that no job or salary ever
is guaranteed. Alexander’s bonuses have been a substantial part of his income for several
years. As such, it was “dependable” income and the trial court did not err in including it
as part of his income, as based upon his most recent paystub. We also note that, given
Alexander’s steadily and significantly increasing income over the years, it was entirely
appropriate for the trial court to base its calculation of his income on his most recent
paystub, rather than an average of the past several years. See Schaeffer v. Schaeffer, 717
N.E.2d 915, 917-18 (Ind. Ct. App. 1999) (holding trial court abused its discretion in
calculating father’s income based on average of past five years, rather than most recent
income, where income had been steadily and substantially increasing over those five
years, despite father’s argument that his income “fluctuates with the economy”).
Alexander also argues that even if his bonus income should be considered for
child support purposes, the trial court should have ordered that a fixed percentage of
22
whatever bonus he receives be contributed to a post-secondary educational fund set up
for V.N., rather than including his bonus as part of his weekly gross income for purposes
of calculating his weekly support obligation. In the past, Alexander had (and under the
provisional support agreed entry) been contributing twenty percent of any bonus he
received to this fund. Alexander directs us to another part of the commentary
accompanying Child Support Guideline 3, which states:
When the court determines that it is appropriate to include
irregular income, an equitable method of treating such income
may be to require the obligor to pay a fixed percentage of
overtime, bonuses, etc., in child support on a periodic but
predetermined basis (weekly, bi-weekly, monthly, quarterly)
rather than by the process of determining the average of the
irregular income by past history and including it in the
obligor’s gross income calculation.
Child Supp. G. 3, cmt. 2(b).
We reiterate that the commentary to the Guidelines is not binding. Even if it was,
the fact that the commentary says a trial court “may” treat irregular income such as
bonuses in this way indicates that a court has discretion to do so, not that it must do so.
See Turner v. Franklin County Four Wheelers, Inc., 889 N.E.2d 903, 906 (Ind. Ct. App.
2008) (holding that the word “may” in a procedural rule indicates a permissive condition
and discretion). Indeed, we have previously held that it is incorrect to assert “that income
averaging cannot be used when an obligor’s income, other than from self-employment, is
subject to fluctuation.” In re Paternity of G.R.G., 829 N.E.2d 114, 119 (Ind. Ct. App.
2005).
23
The bottom line is that a trial court has broad discretion in calculating a child
support obligation, so long as it acts consistently with the Child Support Guidelines. See
Quinn v. Threlkel, 858 N.E.2d 665, 670 (Ind. Ct. App. 2006). The trial court here did so
act. Moreover, when two parents divorce, a court is the ultimate arbiter of their financial
decisions regarding child support. Natalia believes now that it is more important that
Alexander’s bonuses be contributed towards current child support, not future post-
secondary education. It was within the trial court’s discretion under the Guidelines to
side with Natalia on this issue and to include Alexander’s bonuses for purposes of
calculating his current child support obligation, rather than continuing the past practice of
contributing a percentage of those bonuses to a college education fund. Whatever
Alexander desired to do in the past is not controlling on the trial court when it comes to
calculating his child support obligation. The trial court did not clearly err in its treatment
of Alexander’s bonus income.
E. Assignment of Controlled Expenses
The final issue Alexander raises with respect to the child support order is the trial
court’s decision to name Natalia the custodial parent of V.N. for purposes of the
assignment of controlled expenses to her and of the parenting time credit to Alexander.
Commentary to the Guidelines explains:
Controlled expenses are items like clothing, education, school
books and supplies, ordinary uninsured health care and
personal care. . . . The custodial parent controls this type of
expense. . . . The parenting time credit is based on the more
time the parents share, the more expenses are duplicated and
24
transferred. The controlled expenses are not shared and
remain with the parent that does not get the parenting time
credit. Controlled expenses are generally not a consideration
unless there is equal parenting time. These categories of
expenses are not pertinent for litigation. They are presented
only to explain the factors used in developing the parenting
time credit formula.
Child Supp. G. 6, cmt. (emphasis added).
Alexander contends the trial court failed to issue any findings indicating it
followed this commentary regarding controlled expenses in a joint custody situation:
When both parents equally share parenting time, the
court must determine which parent will pay the controlled
expenses. If, for example, father is the parent paying
controlled expenses, the parenting time credit will be awarded
to the mother.
Factors courts should use in assigning the controlled
expenses to a particular parent include the following areas of
inquiry:
--Which parent has traditionally paid these expenses.
--Which parent is more likely to be able to readily pay
the controlled expenses.
--Which parent more frequently takes the child to the
health care provider.
--Which parent has traditionally been more involved in
the child’s school activities (since much of the controlled
expenses concern school costs, such as clothes, fees, supplies,
and books).
Id. Alexander contends that consideration of these factors should have led to him being
assigned the parent to pay controlled expenses for V.N.
Missing from Alexander’s brief, however, is any discussion of how the trial
court’s assignment of controlled expenses negatively affected him or the calculation of
his child support obligation. We will not undertake to speculate what such an effect
25
might be or presume that Alexander was prejudiced. See Knotts v. Knotts, 693 N.E.2d
962, 967 (Ind. Ct. App. 1998) (declining to find error in child support calculation where
parent failed to argue how alleged discrepancy in income figures impacted her support
obligation), trans. denied. In other words, we are not going to attempt to recalculate
Alexander’s child support obligation for him and determine the impact of switching of
the controlled expenses. It is axiomatic that in order to prevail on appeal, a party must
make a showing of prejudice. Cox v. Anderson, 801 N.E.2d 775, 779 (Ind. Ct. App.
2004). Additionally, the commentary to the Guidelines clearly state that controlled
expenses should not be a subject for litigation. Indeed, Alexander does not cite, nor has
our research uncovered, any reported Indiana case that has ever discussed alleged error in
the assignment of controlled expenses. In the absence of any allegation of prejudice on
this issue, we decline to reverse the trial court’s assignment of controlled expenses to
Natalia.
III. Property Division
A. St. Petersburg Flat
Turning now to the division of the parties’ property, we first address Alexander’s
contention that the trial court erred in excluding Natalia’s interest in the St. Petersburg
flat from the marital estate subject to division. Indiana Code Section 31-15-7-4(a)
provides:
(a) In an action for dissolution of marriage under IC 31-
15-2-2, the court shall divide the property of the parties,
whether:
26
(1) owned by either spouse before the marriage;
(2) acquired by either spouse in his or her own right:
(A) after the marriage; and
(B) before final separation of the parties; or
(3) acquired by their joint efforts.
Additionally, the value of a spouse’s interest in property owned jointly with unrelated
third parties must also be included in the marital pot subject to division, as long as the
spouse has a present interest of possessory value in the asset. See Grathwohl v. Garrity,
871 N.E.2d 297, 301 (Ind. Ct. App. 2007).
The trial court entered the following finding regarding the St. Petersburg flat:
Wife owned her interest in the flat in St. Petersburg prior to
the marriage of the parties. The evidence reflected that Wife
retained her one sixth ownership in the flat throughout the
marriage in her separate name. Husband did nothing to either
enhance or diminish the value of said flat. Both Husband and
Wife agree that some value of Wife’s interest in the flat
should be set over to Wife as a deviation from an equal
division of marital property. Wife proposes that the full value
of her one sixth interest of $8,333.00 be given to her as a
deviation from an equal division of marital property.
App. pp. 13-14. In its detailed finding listing all of the parties’ assets and their current
values, the trial court subtracted the $8,333 value it assigned to the flat before totaling the
“NET ASSETS SUBJECT TO DIVISION.” Id. at 17. Of those assets, it awarded
Natalia sixty percent of their total value and Alexander forty percent.
27
The trial court should not have set off the value of the flat before making its final
calculation of the marital pot. However, this does not necessarily result in reversible
error or require a remand to the trial court for further consideration. We faced a similar
situation in Maxwell v. Maxwell, 850 N.E.2d 969, 973-74 (Ind. Ct. App. 2006), trans.
denied, where the trial court valued property inherited by the husband and erroneously set
off that property separately to the husband before making a final calculation of the
marital pot, but we affirmed because the court had also entered findings, supported by the
evidence, valuing the property and supporting a deviation from an equal division of the
property in favor of the husband.
Here, likewise, the trial court entered a finding with respect to the flat explaining
why it was appropriate to deviate from an equal division of property to effectively set
aside the value of the flat to Natalia. That finding is supported by the evidence. Natalia
purchased her interest in the flat before the marriage, it was never commingled with any
jointly-acquired marital assets, the parties never lived there, and Alexander did nothing to
contribute to any possible increase in or maintenance of the flat’s value. See Castaneda
v. Castaneda, 615 N.E.2d 467, 470-71 (Ind. Ct. App. 1993) (holding trial court did not
abuse its discretion in setting aside entire value of inheritance wife received during
marriage to her where money was kept separately in wife’s name, it was never treated as
or commingled with marital property, and husband did nothing to contribute to
accumulation in value of the funds). If the trial court had included the assigned value of
the flat in the marital estate, as it should have done, the “setting aside” of the flat to
28
Natalia results in a division of marital property 63%-37% in favor of her, not 60%-40%
as the trial court found. Still, because the trial court adequately explained its reasoning
for this three percent deviation with respect to the flat, separate and apart from its
explanation for the 60/40 split (which we address later), there is no reversible error on
this point.
Alexander also challenges the value the trial court assigned to the Natalia’s
interest in the flat. He claims the trial court should have accepted his testimony
approximating the value of the flat at $146,000, with 1/6th of that value being $24,333
that should have been assigned to Natalia. By contrast, although Natalia did not orally
state an opinion as to the current value of the flat, she submitted documentary evidence
assigning the value of her interest in it at $8,333. There also was evidence as to an
original purchase price for the flat of $16,000, although it is unfortunately unclear from
Natalia’s testimony whether that was the total purchase price or 1/6th of the purchase
price.
A trial court has broad discretion in ascertaining the value of property in a
dissolution action. O’Connell v. O’Connell, 889 N.E.2d 1, 13 (Ind. Ct. App. 2008).
There is no abuse of discretion if the trial court’s decision is supported by sufficient
evidence and reasonable inferences therefrom. Id. An abuse of discretion will be found
if there is no evidence in the record supporting a trial court’s decision to assign a
particular value to a marital asset. Id. at 13-14. Generally, “A valuation submitted by
one of the parties is competent evidence of the value of property in a dissolution action
29
and may alone support the trial court’s determination in that regard.” Houchens v.
Boschert,758 N.E.2d 585, 590 (Ind. Ct. App. 2001), trans. denied.
There was no requirement here that the trial court accept Alexander’s proposed
valuation over Natalia’s. Alexander seems to suggest that his figure was better supported
by evidence regarding current market conditions in St. Petersburg and the like. It was for
the trial court, however, to choose between the different valuations put before it.
We would also note that even if Alexander’s estimate that the flat as a whole was
worth $146,000 is somewhat accurate, that is not the same thing as saying that Natalia’s
1/6th interest in the flat was worth 1/6th of its total value, or $24,333. When valuing
property, “[f]air market value is the price at which property would change hands between
a willing buyer and seller, neither being under any compulsion to consummate the sale.”
City of Carmel v. Leeper Elec. Services, Inc., 805 N.E.2d 389, 395 (Ind. Ct. App. 2004),
trans. denied. Although things may work very differently in Russia than in Indiana, we
think it is fair to assume that a 1/6th interest in a one-room flat is less marketable than an
interest in the entire flat or, at the least, a 1/6th interest in a flat that is subdivided into
different habitable spaces so that multiple unrelated persons could live there. It is
reasonable to think that even if the flat as a whole was worth $146,000, it would be very
difficult for Natalia to sell her 1/6th interest in it, which she shared with relatives, to an
unknown person for 1/6th of the total value of the flat, or $24,333. Certainly, Alexander
presented no evidence that Natalia reasonably could be expected to do so. Under the
30
circumstances, we cannot say the trial court abused its discretion in valuing Natalia’s
1/6th interest in the flat at $8,333.
B. Personal Property
Alexander’s next argument with respect to the division of property is that the trial
court erroneously failed to consider several thousand dollars in household goods and
personal property Natalia allegedly acquired shortly before she petitioned for dissolution
and the parties were legally separated. Indiana Code Section 31-15-7-4(a)(2)(B) requires
the trial court to divide any property “acquired by either spouse in his or her own right . .
. before final separation of the parties . . . .” “Final separation” occurs when a petition for
dissolution is filed. I.C. § 31-9-2-46.5 Here, that date was January 20, 2009. Natalia had
physically moved out of the marital residence approximately two months earlier.
The trial court entered the following finding regarding the parties’ household
goods: “25. The parties agree and the Court finds that Husband had household goods
with a value of $1,000.00 and Wife had household goods with a value of $300.00 at the
time of separation.” App. p. 14. This finding is clearly erroneous. First, Alexander did
not agree that Natalia owned $300 in household goods at the time of separation. The
finding regarding $300 was based upon Natalia’s testimony regarding what she took from
the marital residence when she moved out. It does not establish the value of personal
property or household goods that she owned on the later date of final separation.
5
“Final separation” may occur earlier if the parties had filed a petition for legal separation. See I.C. 31-9-
2-46(1) & (2). No such petition was filed in this case.
31
Moreover, Alexander has consistently questioned Natalia’s assertion that she only
had $300 in household goods or personal property at the time of final separation. To that
end, he submitted bank statements from accounts owned by Natalia showing deposits and
expenditures of approximately $8,100 in the two to three months before she filed for
divorce, although her accounts had only about $700 in them when the dissolution petition
was filed.6 A number of the purchases are for several hundred dollars from stores such as
Kohl’s, Tjmaxx, Value City, and other furniture stores. Natalia also testified that after
moving out of the marital residence, she had to purchase a number of items including
linens, furniture, and other household items in order to establish a new home. She also
had to spend money on things such as food and renting an apartment.
In sum, we conclude that remand is required for the trial court to reconsider
clearly erroneous finding number 25. It does appear that Natalia clearly purchased a
significant amount of personal property in the month or two leading up the filing of the
dissolution petition, well in excess of $300 worth. On the other hand, the trial court is not
required to blindly accept Alexander’s assertion of how much personal
property/household goods Natalia purchased before the filing of the petition. 7 It is,
however, required to consider purchases Natalia made after she moved out of the marital
residence but before the date of final separation, to include that property as marital
6
Natalia testified that these funds came from business projects, plus some small payments from her sister
and older son.
7
For example, in addition to fungible items such as food or gas, money spent to rent an apartment would
not constitute a household good or personal property.
32
property, and recalculate the total value of the marital estate. Such recalculation may
result in a reduction of the cash equalization payment that Alexander owes to Natalia.
C. Pension and 401(k)
Next, Alexander argues that the trial court erred in setting aside his defined
pension entirely to him and the 401(k) account, as valued at the time of separation,
entirely to Natalia. He contends the trial court violated Indiana Code Section 31-15-7-7,
which requires a trial court, when dividing marital property, to “consider the tax
consequences of the property disposition with respect to the present and future economic
circumstances of each party.” Under this statute, “only tax consequences necessarily
arising from the plan of distribution are to be taken into account.” Granger v. Granger,
579 N.E.2d 1319, 1320 (Ind. Ct. App. 1991), trans. denied. “A taxable event must occur
as a direct result of the court-ordered disposition of the marital estate for the resulting tax
to reduce the value of the marital estate.” Id. at 1321. Alexander also claims that by
awarding the pension to him and the 401(k) to Natalia, he “alone bears the risk of the
actuarial assumptions, underfunding, and the stability of the company . . . .” Appellant’s
Br. p. 45. Instead, he asserts that the trial court should have divided each retirement
account 60-40, as it did with the marital estate as a whole.
We agree with Natalia that Alexander has waived his claims of error with respect
to this issue. First, Alexander presented absolutely no evidence regarding any negative
tax consequences that could arise with respect to distribution of these retirement plans.
Thus, we cannot see how the trial court erred in failing to address an issue upon which
33
Alexander presented no evidence. Second, although Alexander proposed to the trial court
that Natalia receive a percentage of his pension payments upon his retirement through a
QDRO, he also assigned the entire 401(k) account solely to himself. Thus, Alexander
sought to preclude Natalia from receiving any of the 401(k) account funds that
accumulated during the marriage. The trial court rejected that attempt and instead sought
to equitably divide the property by granting the 401(k) to Natalia and the pension to
Alexander, which had roughly equivalent values at the time of separation. Alexander’s
argument on appeal that the trial court should have divided the accounts differently is a
much different argument than he made below. He also made no arguments regarding
“actuarial risk” associated with the pension. “Failure to raise an issue before the trial
court will result in waiver of that issue.” Heaphy, 896 N.E.2d at 555. We will not further
address this issue.
D. 60/40 Division of Marital Estate
The final issue we address in this appeal is whether the trial court erred in
deviating from an equal division of the marital property to award Natalia 60% of the
marital estate and Alexander 40%. Indiana Code Section 31-15-7-5 states:
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:
34
(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:
(A) a final division of property; and
(B) a final determination of the property rights of
the parties.
When a party challenges a 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, and we will reverse a division of marital assets only for an abuse of
discretion. Estudillo v. Estudillo, 956 N.E.2d 1084, 1090 (Ind. Ct. App. 2011). We will
consider 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.
35
When deciding whether to deviate from an equal division of property, the trial court must
consider all of the factors in Section 31-15-7-5 together. Eye v. Eye, 849 N.E.2d 698,
701 (Ind. Ct. App. 2006).
The trial court’s findings here indicate that it considered all of the statutory factors
before deviating from an equal division of property and awarding Natalia 60%, or
actually 63%, of the marital estate. As discussed earlier, it found that Natalia’s St.
Petersburg flat was an asset Natalia brought into the marriage that should be effectively
set aside to her. Conversely, it found that the funds Alexander brought into the marriage
and that were used as a down payment on the marital residence—apparently $37,200—
should not be set aside separately to him. It found no evidence of dissipation by either
party, nor that either of them inherited property or received significant gifts. It also found
that the parties made essentially equal contributions to the marriage, Alexander primarily
through his income and Natalia primarily through household management and child
rearing. Ultimately, it found that deviation was necessitated by the disparate earning
abilities of the parties.
First, Alexander challenges the trial court’s decision not to consider the $37,200 of
pre-marital funds he brought into the marriage as either a justification for deviation in his
favor, or setting aside separately to him as it did Natalia’s interest in the St. Petersburg
flat. However, those funds were treated by the parties much differently than the flat.
Specifically, the funds were entirely commingled with marital assets and arguably the
most important marital asset, i.e., the marital residence. Natalia as a homemaker
36
contributed to maintenance of the residence’s value during the marriage. Under the
circumstances, we cannot say the trial court clearly erred or abused its discretion in
declining to treat Alexander’s pre-marital funds as property that should effectively be set
aside to him. Cf. Castaneda, 615 N.E.2d at 470-71 (again, holding trial court did not
abuse its discretion in setting aside entire value of inheritance wife received during
marriage to her where money was kept separately in wife’s name, it was never treated as
or commingled with marital property, and husband did nothing to contribute to
accumulation in value of the funds).
Second, Alexander contends the trial court erred in determining that the disparity
in the parties’ earning capacities warranted a 60/40 deviation in favor of Natalia. He
argues that because he is set to retire in about ten years, while Natalia could work for
twenty or more years, their respective total incomes before retirement will actually be
$1.5 million for Natalia and $1 million for Alexander. Alexander’s calculations are
based upon the assumption that Natalia will work full-time for over twenty years at an
average of $35 per hour as an art conservator.
However, as we already discussed in the context of child support, Natalia’s future
earning ability is highly speculative, based on the nature of the work she does and her
background and training. Alexander, meanwhile, works as a scientist for a Fortune 500
company and has worked in the pharmaceutical field in the United States for
approximately twenty years. His income has increased substantially every year since
beginning to work for Lilly in 2002. Also, as the evidence demonstrated, Lilly provides
37
Alexander with a defined benefit pension, a 401(k) plan, and a health insurance plan.
Natalia, being self-employed, has no such plans and must provide entirely for her
retirement and health care. Alexander’s income estimates for Natalia also seem to fail to
consider business overhead costs that she would have in being self-employed, while he
has no such costs. Again, we cannot say the trial court clearly erred or abused its
discretion in finding that the parties had vastly disparate earning potentials and that, with
the other statutory factors being equal, a deviation from 50/50 division of the marital
property in favor of Natalia because of that disparity was warranted.
Conclusion
We reverse the trial court’s decision to make Alexander’s new child support
obligation effective July 21, 2010, as opposed to July 8, 2011. We also remand for the
trial court to enter appropriate findings regarding treatment of Alexander’s 401(k)
contributions for purposes of calculating his available child support income and to
recalculate his support obligation if it determines to exclude some portion of his 401(k)
contributions from his income. In all other respects we affirm the child support order.
Regarding property division, we remand for recalculation of the amount of household
goods/personal property Natalia possessed on the date of final separation and for
inclusion of that amount in the marital estate. In all other respects we affirm the division
of the marital property.
Affirmed in part, reversed in part, and remanded with instructions.
FRIEDLANDER, J., and MAY, J., concur.
38