W. Aaron Robertson v. Christy (Robertson) Porter (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any May 15 2020, 9:12 am
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
Earl R.C. Singleton
Community Legal Clinic
Indiana University
Maurer School of Law
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
W. Aaron Robertson, May 15, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-DC-2074
v. Appeal from the
Monroe Circuit Court
Christy (Robertson) Porter, The Honorable
Appellee-Petitioner. Catherine B. Stafford, Judge
Trial Court Cause No.
53C04-1710-DC-489
Kirsch, Judge.
[1] Following a decree of dissolution, W. Aaron Robertson (“Husband”) appeals
the trial court’s order (“the Order”) that settled remaining issues in the
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dissolution proceedings between Husband and Christy (Robertson) Porter
(“Wife”). Husband raises the following restated issues on appeal:
I. Whether the trial court abused its discretion when it
determined that Husband’s contributions and the interest
thereon to his non-vested firemen pension fund constituted
marital property subject to distribution; and
II. Whether the trial court abused its discretion when it
calculated his child support obligation because on the child
support worksheet the trial court included as subsequently
adopted children two children Wife had not yet formally
adopted on the date of the order.
[2] We affirm.
Facts and Procedural History
[3] Husband and Wife were married on June 22, 1996, and two children were born
during the marriage. Appellant’s App. Vol. 2 at 114. At the time of the
dissolution proceedings, only the youngest child was still a minor and subject to
the custody, visitation, and support provisions. Id. at 115, 145. On October 19,
2017, Wife filed her Petition for Dissolution of Marriage. Id. at 3, 12-14. On
November 14, 2017, the trial court entered a provisional order, granting Wife
physical custody of the minor child and ordering Husband to pay $162.00 per
week for child support, along with $300.00 a month in spousal maintenance
due to Wife’s disability and inability to find employment. Id. at 27-28. On
October 30, 2018, after the parties participated in mediation, the trial court
entered a partial mediated settlement agreement and a decree of dissolution. Id.
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at 114-19. Under the agreement, the parties shared legal custody of the minor
child, with Wife receiving primary physical custody, subject to parenting time
by Husband. Id. at 115-16. Husband agreed to pay Wife $153.00 a week in
child support and to provide healthcare insurance for the minor child. Id. at
117. All issues not resolved by the agreement were set for resolution at a final
hearing. Id. at 118. On December 15, 2018, the minor child began residing
with Husband full time, with the approval of Wife. Id. at 144; Tr. at 93, 101-02.
[4] At the time of the dissolution proceedings, Husband was employed as a
firefighter for the Monroe Fire Department and had worked as a firefighter for
almost twenty years at the time of the filing of petition for dissolution. Tr. at
120. As of October 19, 2017, he had been contributing to a retirement account
through the 1977 Police Officers’ and Firefighters’ Retirement Fund for
approximately eighteen years but had not yet been fully vested in the account.
Id. at 120-21; Appellant’s App. Vol. 2 at 145. Although not vested as of the date
of the filing of the petition for dissolution, Husband had a balance of $56,303.20
in the Annuity Savings Account (“ASA”). Appellant’s App. Vol. 2 at 145.
Husband could access the funds stored in the ASA; however, by accessing such
funds before retirement he would forfeit his pension benefits. Id.; Tr. at 122,
138.
[5] On February 19, 2019, Husband filed a brief arguing that his 1977 Police
Officers’ and Firefighters’ Retirement Fund did not satisfy the definition of
“property” under the Indiana Code because he did not have the present right to
withdraw pension benefits and was not vested and would forfeit the benefits on
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any termination of his employment. Appellant’s App. Vol. 2 at 123-25. Wife
filed a response, arguing that regardless of any benefits received upon
retirement, the current balance of the ASA constituted marital property that
should be considered marital property and be subject to division. Id. at 141-42.
[6] On April 9, 2019, the trial court issued an order resolving the remaining issues
in the dissolution. Id. at 143-52. In the order, the trial court agreed with
Husband that the pension itself was not marital property but found that
Husband had a present right to the ASA and that the ASA portion of the
pension fund in the amount of $56,303.20 constituted marital property. Id. at
148. Husband retained primary custody of the minor child, and the trial court
ordered Husband to pay $11.00 per week in child support. Id. at 145-46. In
calculating this child support amount, the trial court included a subsequent
child credit for Wife on the child support worksheet, which represented two
nieces that Wife was in the process of adopting during the dissolution
proceedings. Id. at 144, 152. The two girls were daughters of Wife’s
grandniece and were placed in her care by the Department of Child Services.
Id. at 144. Although the adoption was not final on the date of the final order, it
became final on April 30, 2019. Id. at 180. The trial court also ordered
Husband to make a property equalization payment of $28,917.10. Id. at 150.
Husband filed a motion to correct error, specifically challenging the division of
the ASA portion of his pension and the amount of child support he was ordered
to pay because the amount was calculated using the subsequent child credit but
the children were not yet adopted at the time of the final order. Id. at 153-57.
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The motion to correct error was deemed denied on August 7, 2019. Husband
now appeals.
Discussion and Decision
[7] We begin by noting that Wife has not filed an appellee’s brief. When an
appellee fails to file a brief, we need not undertake the burden of developing an
argument on appellee’s behalf. C.V. v. C.R., 64 N.E.3d 850, 852 (Ind. Ct. App.
2016). Instead, applying a less stringent standard of review, we may reverse the
trial court’ s judgment if the appellant can prove a case of prima facie error. Id.
“Prima facie error in this context is defined as, ‘at first sight, on first appearance,
or on the face of it.’” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.
2006) (quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999)).
I. Marital Property
[8] The division of marital property is within the sound discretion of the trial court,
and we will reverse only for an abuse of discretion. Love v. Love, 10 N.E.3d
1005, 1012 (Ind. Ct. App. 2014). We will reverse a trial court’s division of
marital property only if the result is clearly against the logic and effect of the
facts and circumstances, including the reasonable inferences to be drawn
therefrom. Luttrell v. Luttrell, 994 N.E.2d 298, 301 (Ind. Ct. App. 2013), trans.
denied. When we review a claim that the trial court improperly divided marital
property, we consider only the evidence most favorable to the trial court’s
disposition of the property without reweighing evidence or assessing witness
credibility. In re the Marriage of Marek, 47 N.E.3d 1283, 1288-89 (Ind. Ct. App.
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2016), trans. denied. “Although the facts and reasonable inferences might allow
for a conclusion different from that reached by the trial court, we will not
substitute our judgment for that of the trial court.” Id. at 1289.
[9] Husband argues that the trial court abused its discretion when it determined
that the ASA portion of his retirement fund was marital property subject to
division. Husband contends that the ASA did not constitute property under
Indiana Code section 31-9-2-98(b) because he did not have a present right to
withdraw his pension benefits, and because he had not yet reached twenty years
of service during the marriage, he had not acquired the right to the benefit of the
pension during the marriage. He further claims that the ASA could not be
considered to be property because his benefits under his retirement fund were
not vested at the time of dissolution because he had no present or future right to
the benefits and he had no future right to earn benefits that would not be
forfeited upon termination. Essentially, Husband asserts that, because his
benefits under his retirement fund were not vested at the time of dissolution, the
ASA could not be considered marital property.
[10] The property to be included in the marital estate for dissolution of marriage
purposes is defined by statute. The statute provides, in pertinent part:
“Property,” for purposes of [Indiana Code] 31-15 [disposition of
property in dissolution proceedings,] . . . means all the assets of
either party or both parties, including:
(1) a present right to withdraw pension or retirement benefits;
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(2) the right to receive pension or retirement benefits that are not
forfeited upon termination of employment or that are vested (as
defined in Section 411 of the Internal Revenue Code) but that are
payable after the dissolution of marriage; and
(3) the right to receive disposable retired or retainer pay (as
defined in 10 U.S.C. 1408(a)) acquired during the marriage that
is or may be payable after the dissolution of marriage.
Ind. Code § 31-9-2-98(b). In order to include pension benefits as marital
property, the benefits must not be forfeited at the termination of employment or
the benefits must be vested and payable either before or after the dissolution.
Tracy v. Tracy, 717 N.E.2d 183, 185 (Ind. Ct. App. 1999) (citing Hodowal v.
Hodowal, 627 N.E.2d 869, 873 (Ind. Ct. App. 1994), trans. denied).
[11] Husband relies on several cases to support his contention that, because his
retirement fund benefits had not yet vested, it was an abuse of discretion for the
trial court to determine that the ASA portion of his retirement fund, which
consisted of his contributions and the interest thereon at the time of dissolution,
could be considered marital property. However, all of these cases dealt with the
issue of whether pensions or future retirement benefits were properly considered
to be marital property. See Kirkman v. Kirkman, 555 N.E.2d 1293, 1294 (Ind.
1990) (finding that husband’s pension should have been excluded from the
property division because his right to pension benefits was neither vested nor
had it become “not forfeited upon termination” prior to the entry of the
dissolution decree); In re the Marriage of Adams, 535 N.E.2d 124, 125-26 (Ind.
1989) (pension benefits should have been included in marital property because,
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although not yet retired, husband had completed twenty years of service and his
pension benefits were no longer forfeitable upon termination); Hill v. Hill, 863
N.E.2d 456, 461 (Ind. Ct. App. 2007) (finding that husband’s pension was
marital property subject to division because he was currently receiving
payments from his pension plan at the time of dissolution and clearly has “a
present right to withdraw pension or retirement benefits”); Bizik v. Bizik, 753
N.E.2d 762, 768 (Ind. Ct. App. 2001) (concluding that the trial court
improperly included husband’s Executive Supplemental Plan as an asset in the
marital pot for division because it was not a pension or retirement plan that he
has a present vested right from which to withdraw benefits at the time of
dissolution), trans. denied; In re the Marriage of Preston, 704 N.E.2d 1093, 1097-98
(Ind. Ct. App. 1999) (finding that husband’s retirement plan was properly
considered as marital property subject to division because his retirement
benefits had vested at the time of dissolution and his right to receive benefits
was “not forfeitable upon termination” of his contract); Skirvin v. Skirvin, 560
N.E.2d 1263, 1265 (Ind. Ct. App. 1990) (trial court correctly excluded
husband’s pension from the marital pot because it was not expected to vest until
after the decree of dissolution was entered), trans. denied.
[12] The present case is instead on all fours with Tracy v. Tracy, 717 N.E.2d 183
(Ind. Ct. App. 1999). In that case, the issue was whether the trial court abused
its discretion when it included and valued as marital assets husband’s
contributions and the interest thereon within his non-vested police pension
fund. Id. at 185. This court found that the evidence supported the trial court’s
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finding that, while the entire plan was not vested, husband would not forfeit his
contributions or the interest on his contributions even if he left his employment
prior to the time the plan would become vested in its entirety. Id. In coming to
this conclusion, this court cited to the version of Indiana Code section 36-8-8-8
effective at the time, which stated “[i]f a fund member ends his employment
other than by death or disability before he completes twenty (20) years of active
service, the PERF Board shall return to him in a lump sum his contributions
plus interest . . . .” Ind. Code § 36-8-8-8(b) (West 1997). Because the evidence
supported the trial court’s finding that the husband had a present right to
receive his contributions and the interest thereon at any time he terminated his
employment, we held that there was no abuse of discretion by including his
contributions and interest as marital assets. Tracy, 717 N.E.2d at 186.
[13] In the present case, the trial court determined Husband’s ASA portion of his
retirement fund, which included his contributions and interest thereon, to be
marital property subject to division. The trial court did not find that Husband’s
pension and future retirement benefits were marital property; instead, the trial
court made the same determination as the trial court in Tracy, which was found
not to be an abuse of discretion. The current version of Indiana Code section
36-8-8-8, which has not been modified in any significant manner, states, “if a
fund member ends the fund member’s employment other than by death or
disability before the fund member completes twenty (20) years of active service,
the system board shall return to the fund member in a lump sum the fund
member’s contributions plus interest . . . .” Ind. Code § 36-8-8-8(c). Therefore,
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here, as in Tracy, although Husband’s entire retirement fund had not vested, the
evidence showed that Husband would not forfeit his contributions or the
interest on his contributions even if he left his employment prior to the time the
retirement fund would become vested in its entirety. The trial court did not
abuse its discretion when it determined that the ASA portion of Husband’s
retirement fund was marital property and subject to division.
II. Child Support
[14] A trial court’s calculation of child support is presumptively valid. Bogner v.
Bogner, 29 N.E.3d 733, 738 (Ind. 2015). We review decisions regarding child
support for an abuse of discretion. Mitten v. Mitten, 44 N.E.3d 695, 699 (Ind.
Ct. App. 2015). An abuse of discretion occurs when a trial court’s decision is
against the logic and effect of the facts and circumstances before the court or if
the court has misinterpreted the law. Id. When reviewing a decision for an
abuse of discretion, we consider only the evidence and reasonable inferences
favorable to the judgment. Id.
[15] Husband argues that the trial court abused its discretion in its calculation of his
child support amount because it erroneously included a credit for the two
children that Wife was in the process of adopting. Husband asserts that this
credit for subsequently adopted children should not have been given to Wife
because, at the time of the April 9, 2019 order, the adoption of the two children
was not final. Because the adoption was not final as of the date of the order,
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Husband asserts that Wife did not have a court-sanctioned legal duty to care for
the two children, and the credit should not have been applied.
[16] Pursuant to Indiana Child Support Guideline 3(C), after weekly gross income is
determined for each parent, certain reductions are allowed in computing weekly
adjusted income, which is the amount upon which child support is based.
Pursuant to Child Support Guideline 3(C)(1), “[t]here shall be an adjustment to
Weekly Gross Income of parents who have a legal duty or court order to
support children (1) born or legally adopted subsequent to the birthdate(s) of the
child(ren) subject of the child support order and (2) that parent is actually
meeting or paying that obligation.” Husband maintains that Wife did not have
a court-sanctioned legal duty to care for the two subsequently adopted children
and should not have been given the credit to her weekly gross income.
[17] The commentary in Indiana Child Support Guideline 3(C) provides a two-step
process in computing weekly adjusted income. The first step is to determine the
number of subsequent born or adopted children and the parent seeking the
adjustment has the burden to prove that support is actually paid. See Child.
Supp. G. 3(C)(1) cmt. 1. The second step is to calculate the subsequent child
credit by multiplying the parent’s weekly gross income by the use of a multiplier
that reduces the parent’s weekly gross income. Id. The multiplier varies by the
number of subsequent children; here, the trial court used 0.097, the multiplier
for two subsequent children. Id.
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[18] In the present case, while the dissolution proceedings were pending, Wife was
in the process of adopting the daughters of her grand-niece after the two
children had been placed in her care by the Department of Child Services.
There is no dispute that the two children were legally adopted subsequent to the
birthdate of the child who was the subject of the child support order and that
Wife is actually supporting the two children. Although Husband asserts that
there was not a court-sanctioned legal duty to care for the two children, there is
no dispute that, at all times relevant to the proceedings, Wife was caring for the
two children, the two children were living with her, and the two children had
been placed in her care by the Department of Child Services. Further, even
though on April 9, 2019, the date that the trial court’s order establishing child
support was entered, the adoption was not yet final, the adoption proceedings
were pending, and the adoption became final on April 30, 2019, only three
weeks after the ordered was entered. We conclude that Husband has not
proven that the trial court abused its discretion in applying the credit on the
child support worksheet and in determining child support.
[19] Affirmed.
Najam, J., and Brown, J., concur.
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