Ronald E. Summers, III v. Richard Evans as Personal Representative of Mary E. Summers and Richard Evans (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Oct 30 2020, 11:20 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 ATTORNEY FOR APPELLEE
David W. Stone Scott A. Norrick
Anderson, Indiana Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronald E. Summers, III, October 30, 2020
Appellant-Respondent, Court of Appeals Case No.
20A-DR-288
v. Appeal from the Madison Circuit
Court
Richard Evans as Personal The Honorable Andrew R.
Representative of Mary E. Hopper, Judge
Summers and Richard Evans, The Honorable Christopher Cage,
Appellee-Petitioner. Master Commissioner
Trial Court Cause No.
48C03-1611-DR-705
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, Ronald Summers III (Husband), appeals the trial
court’s Order dividing the marital estate.
[2] Affirmed in part, reversed in part, and remanded with instructions.
ISSUES
[3] Husband presents us with two issues, which we restate as the following:
(1) Whether the trial court’s failure to divide certain assets was
clearly erroneous; and
(2) Whether the trial court’s order that Husband make an
equalization payment was clearly erroneous.
FACTS AND PROCEDURAL HISTORY
[4] Prior to their marriage, Husband and Mary Evans (Wife) executed the
Prenuptial Agreement which stipulated that it would also function as a
dissolution agreement in the event the marriage was terminated by any other
reason than the death of Husband or Wife. Under the terms of the Prenuptial
Agreement, real and personal property separately owned before marriage was
to remain the individual property of that party. Jointly owned real and personal
property was to be divided equally. A list of property owned by each party was
appended to the Prenuptial Agreement that showed that Husband had
approximately $58,000 in premarital net assets, while Wife had $682,500 listed
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as net assets. The residence located at 2306 East US 36, Markleville, Indiana,
(Wife’s home), and family farmland with a farmhouse (the farmhouse) nearby
was specifically reserved to Wife as premarital property. Husband and Wife
married June 3, 1995. The parties each had children from previous marriages,
but no children were born of their marriage.
[5] The parties resided in Wife’s home during the marriage. On May 28, 2001, the
parties took out a second mortgage (the Home Equity Loan) on Wife’s home
and used the funds to renovate Wife’s home, to renovate the farmhouse, and to
purchase rental homes and real estate as investment properties. Husband
performed the labor necessary to construct two additions to Wife’s home and to
add a rental unit to the farmhouse. During the marriage, the parties purchased
ten rental properties in Madison County, six of which were purchased after the
Home Equity Loan was procured. The parties also purchased a number of
timeshares. Husband and Wife accumulated personal property during the
marriage and jointly purchased some heavy machinery, including a backhoe
that they used in a joint business venture.
[6] The parties separated on November 22, 2016. On November 30, 2016, Wife
filed a petition for dissolution. On November 30, 2016, Wife also revoked
Husband’s power of attorney.
[7] On January 5, 2017, the trial court held a provisional hearing. On January 20,
2017, the trial court issued its Provisional Orders, pursuant to which Husband
would have access to Wife’s home all day every Saturday and Sunday during
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January 2017 to remove his property. From the couple’s stock of farm
machinery, Husband was allowed to take “certain implements” recently
acquired by the couple. (Appellant’s App. Vol. II, p. 38). Any disputed
household item was not to be removed from Wife’s home but could be
identified or photographed for future litigation. Husband was to provide Wife
with a list of his personal property requests for her to consider. According to
the terms of the Prenuptial Agreement, Wife’s home was provisionally set over
to Wife. The trial court ordered Husband to provisionally make the Home
Equity Loan payment. Husband was also to be responsible for maintaining and
operating the parties’ rental properties with a monthly accounting to be
rendered to Wife. The trial court noted that it had heard evidence that, near or
at the time of the filing of the petition for dissolution, Husband had withdrawn
approximately $35,346 from the parties’ joint bank account, after which Wife
withdrew the remaining balance of approximately $11,000. In light of this
evidence, the trial court provisionally ordered the parties’ timeshares to be set
over to Husband and ordered him to make the timeshare payments, including
the payment on the Blue/Green timeshare, pending the final hearing when the
subject could be further addressed. Husband was also granted limited access to
the parties’ office to procure documents to render an accounting to Wife of how
he had exercised Wife’s power of attorney before she revoked it.
[8] On May 4, 2017, Wife filed a motion for summary disposition pursuant to the
Prenuptial Agreement. On May 8, 2017, Husband filed a notice of affirmative
defense to the dissolution petition in which he asserted that Wife was
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incompetent at the time she executed the petition for dissolution and that
Wife’s son, Richard Evans (Richard), had asserted undue influence over Wife
to execute the petition for dissolution. Husband sought a stay in the dissolution
proceedings until Wife’s competency could be established. In July 2017,
Richard was appointed guardian over the person and estate of Wife. On July
13, 2017, Richard filed a motion to intervene in the instant litigation, which the
trial court granted. On July 24, 2018, the parties filed a stipulated agreement to
summarily dissolve the marriage while reserving the issues of property division
for later resolution. On July 26, 2018, the trial court entered an order dissolving
the parties’ marriage.
[9] On February 20, 2019, Wife died prior to the division of the parties’ joint assets.
Richard continued to intervene in the dissolution proceedings in his capacity as
the personal representative of Wife’s estate. The parties stipulated that, because
the trial court dissolved the marriage prior to Wife’s death, the trial court still
had jurisdiction to divide the parties’ property.
[10] On April 2, 2019, and August 20, 2019, the trial court held the final hearing.
Evidence was admitted regarding the parties’ disputed personal property,
including a collection of dishes (Fiestaware), some of which was for everyday
use and some of which was more valuable and collectible. Richard’s wife, Lana
Evans (Evans), indicated that Wife had a collection of Fiestaware prior to the
marriage and that Wife collected the dishes, while Husband preferred to collect
clocks. During the marriage a portion of the Fiestaware collection had been
distributed among Husband’s and Wife’s family members. According to Evans,
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the Fiestaware that remained in Wife’s home belonged to Wife. Evans also
testified that a set of silverware belonging to Husband’s mother was not in
Wife’s home and that Husband could have the ceramic molds, windmill, radial
saw, and wood splitter that he requested.
[11] Wife’s estate presented evidence through home inspector Jeffrey Upton (Upton)
that the additions Husband had completed to Wife’s home were “very
amateurish,” and resulted in safety issues and code violations due to poor
construction and improper materials being used. (Transcript Vol. I, p. 13).
Upton cited improper deck construction, a poorly constructed foundation,
multiple issues with the installation of water, drain, and ventilation lines, and
poorly constructed floors as major issues with the additions. It was Upton’s
opinion that Husband’s remodeling of Wife’s home added no value to the real
estate and that repairs and demolition of the additions were needed.
[12] Husband acknowledged at the final hearing that he had exited the marriage
with a far greater net worth than he had at its inception and that Wife’s finances
had declined during the same period. Husband testified that he did not know
what remained of the Fiestaware collection and that the parties had mixed their
Fiestaware such that it was difficult to discern who owned individual pieces.
Husband requested the backhoe and believed that the backhoe had already been
distributed to him under the Provisional Orders. Husband related that he had
withdrawn the majority of the parties’ joint bank account balance because he
believed it was his and that he had stopped making the Home Equity Loan
payments in January 2019 because he felt he had paid his half of the loan. The
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payments on the Home Equity Loan for January through April 2019 were later
made by Wife’s estate when the loan was put into foreclosure. Husband had
not provided any income from the parties’ rental properties to Wife during the
provisional period. The gross income from the rentals was in excess of
$115,000 from 2016 through 2018. As to the work he did on Wife’s home,
Husband stated that he performed the work knowing that he would not receive
any of the value of it and that he did the work anyway because he cared about
Wife and she wanted it. Husband felt that the value of the labor he performed
on Wife’s home and the farmhouse should balance the equalization payment
proposed by Wife.
[13] Neither party requested that the trial court enter special findings and
conclusions thereon, but the parties did submit a list of requests to the trial
court. Husband requested a “fair division” of the marital estate and specifically
requested that the rentals and half of the Fiestaware, among other things, be
awarded to him. (Appellant’s App. Vol. II, p. 86). Husband also requested that
the parties’ interest in the Blue/Green timeshare be sold and that the net
proceeds be divided equally. Wife’s estate requested the Fiestaware that
remained at her home and the backhoe, among other personal property.
[14] On January 8, 2020, the trial court issued its Order dividing the marital estate
and entered the following relevant findings and conclusions:
5. That a valid prenuptial agreement was executed by the parties
on April 28, 1995.
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6. That pursuant to said prenuptial agreement, [Wife’s home]
belonged to Wife as her sole property and is not considered
marital property subject to division herein.
7. The [c]ourt issued a provisional order requiring Husband to
make payments on the Home Equity [Loan]; and said funds were
used in part to buy rental properties for which Husband collected
rents during the provisional period.
8. A citation alleging Husband’s failure to comply with said
provisional order was filed on behalf of Wife.
9. That the issue is moot as Husband has been ordered to assume
the full responsibility for said debt in the final division.
****
12. Evidence was presented to show that Husband put some
“sweat” equity into the [farmhouse] and also [Wife’s home].
13. Evidence was also presented that some of the work was not
up to code and detracted from the value of the home.
14. The [c]ourt finds that the value of the work done is cancelled
out by the portions of the work that detract from the value:
accordingly, the [c]ourt finds that neither party shall be awarded
any sums therein.
15. The evidence demonstrated that despite the prenuptial
agreement; the parties nonetheless at some points over the course
of a long marriage, [] com[m]ingled their assets.
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16. This com[m]ingling and lack of documentation presented at
trial make it impossible for the [c]ourt to differentiate separate
property from joint property except as otherwise stated herein.
****
G. All personal property has already been divided to the
satisfaction of the parties except that Husband shall be entitled to
receive the windmill, and paintings from his mother . . . Any
other personal property requested by either party at [the] final
hearing is found to be of negligible value and shall remain in the
possession of the party having that item at the time of filing.
(Appellant’s App. Vol. II, pp. 13-16). The trial court awarded Husband seven
of the parties’ nine rental properties and the Club Crown Point timeshare. The
trial court ordered the parties’ other timeshares, including the Blue/Green
timeshare, to be sold and the net proceeds to be equally divided. Husband was
assigned the balance of the Home Equity Loan. The parties’ other joint assets
and liabilities were distributed, resulting in the trial court requiring Husband to
make an equalization payment to Wife of $102,229 in order to achieve an equal
distribution.
[15] Husband now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[16] Husband challenges the trial court’s Order dividing the marital estate. Because
the trial court issued findings and conclusions, we apply a two-tiered standard
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of review. Quinn v. Quinn, 62 N.E.3d 1212, 1220 (Ind. Ct. App. 2016). “First,
we determine whether the evidence supports the findings, and second, whether
the findings support the judgment.” Id. The trial court’s findings control unless
there are no facts in the record to support them, either directly or by inference.
Id. We will set aside a trial court’s judgment only if it is clearly erroneous, and
a judgment is ‘clearly erroneous’ if, after review of the evidence most favorable
to it, we are firmly convinced that a mistake has been made. Id. “[A] general
judgment will control as to the issues upon which there are no findings,” and
we will affirm a general judgment if it can be sustained on any legal theory
supported by the evidence. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997).
[17] In addition, the parties executed the Prenuptial Agreement, and its validity was
not contested at trial. Such agreements are considered contracts, and standard
principles regarding contract interpretation apply. Fetters v. Fetters, 26 N.E.3d
1016, 1020 (Ind. Ct. App. 2015), trans. denied. Inasmuch as our review entails
interpretation of the Prenuptial Agreement, these are questions of law that we
review de novo. Carmer v. Carmer, 45 N.E.3d 512, 518 n.1 (Ind. Ct. App. 2015).
In undertaking our review, we must apply the provisions of a prenuptial
agreement according to their plain and ordinary meaning. Daugherty v.
Daugherty, 816 N.E.2d 1180, 1183 (Ind. Ct. App. 2004). If the language of a
premarital agreement is unambiguous, the intent of the parties must be
determined from its four corners. Id. at 1183-84. Premarital agreements “are
favored by the law and will be liberally construed to realize the parties’
intentions.” Id. at 1184.
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II. Division of Marital Estate
[18] Husband contends that the trial court erred when it failed to divide certain
tangible personal property and when it ordered him to pay Wife an equalization
payment. We address each of these contentions in turn.
A. Tangible Personal Property
[19] Husband contends that the trial court should be directed to award half the
Fiestaware, his mother’s silverware set, a 4-wheeler, a log-splitter, ceramic
molds, a radial saw, and the parties’ backhoe to him. Article IV of the
Prenuptial Agreement, entitled “Termination of Marriage Other Than by
Death”, provided the following:
All items of tangible personal property, including artwork, shall
be divided as follows:
(i) All items of tangible personal property belonging to [Wife]
prior to the marriage shall be and remain her property.
(ii) All items of tangible personal property belonging to
[Husband] prior to the marriage shall be and remain his property.
(iii) All other items of tangible personal property acquired after
their marriage shall be appraised and be divided equally between
the parties.
(Appellant’s App. Vol. II, p. 24). Section 8.2, entitled “Amendments”,
provided in relevant part that
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[t]he parties agree that the separate property of either party shall
not be converted into marital property, community or quasi-
community property, or the separate property of the other party,
and that a commingling of the separate property of a party with
the separate property of the other will not result in such
property’s conversion from separate to marital, community,
quasi-community or separate property of the other party, except
as may be done by an instrument in writing signed by both
parties or as may be a gift to the other party[.]
(Appellant’s App. Vol. II, pp. 26-27). Thus, according to the terms of the
Prenuptial Agreement, the timing of the acquisition of tangible personal
property determined its disposition upon dissolution, and, therefore, any party
asserting a claim over a certain piece of tangible personal property was required
to establish that it had been acquired before the marriage. If the party
established that the tangible piece of personal property was acquired after the
marriage, he or she would be entitled to half of it.
i. Fiestaware
[20] Ownership of the remaining Fiestaware was contested. Evidence was admitted
at trial that Wife and Husband each owned some Fiestaware prior to marriage
and that some had been acquired after marriage. The parties mixed their
Fiestaware pieces and did not keep an inventory or accounting of the collection.
Some of the collection was distributed to Husband’s and Wife’s family
members during Wife’s lifetime. Under the Provisional Orders, Husband was
to retrieve his separate property from Wife’s home in January 2017 and
document any contested items for later resolution. Husband had access to the
Fiestaware in January 2017 to inventory the collection and identify any
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disputed pieces, but he did not do so. Husband did not know if any of his
separate Fiestaware pieces remained at Wife’s home. Evans testified that the
remaining Fiestaware pieces belonged to Wife. Neither party had the disputed
items appraised for trial or presented any evidence of their current value.
[21] The trial court concluded that the parties’ commingling of assets and the
paucity of evidence regarding ownership rendered it, in some instances,
“impossible for the [c]ourt to differentiate separate property from joint property
except as otherwise stated herein.” (Appellant’s App. Vol. II, p. 15). We
conclude that this finding, as it pertained to the Fiestaware, was supported by
the evidence, and, therefore, was not clearly erroneous. See Quinn, 62 N.E.3d at
1220. The trial court made specific findings regarding the ownership of some of
the parties’ tangible personal property, but not the Fiestaware. The trial court
found that any items upon which it had not entered specific findings of
ownership had negligible value and would remain the property of the person
currently in possession of it. Because Husband failed to demonstrate at trial
that any of the remaining Fiestaware was either acquired by him before the
marriage or jointly after marriage, he failed to establish under the terms of the
Prenuptial Agreement that he was entitled to any part of it. Therefore, we are
not “firmly convinced” that the trial court erred when it awarded the remaining
Fiestaware to the party currently in possession of it, namely, Wife’s estate. See
id.
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ii. Silverware Set
[22] The trial court did not enter any findings or conclusions thereon regarding
Husband’s mother’s silverware set. Wife did not contest that the silver set was
separate property to be set over to Husband under the terms of the Prenuptial
Agreement, but she did dispute that the set was currently in the possession of
Wife’s estate. Husband had access to Wife’s home in January 2017 to retrieve
the set if it had been in the home. Husband did not testify at trial that he had
observed the silverware set was in Wife’s home at that time. According to
Evans, the silverware set at issue was not at Wife’s home, and there was no
other evidence presented at trial that it was still in existence. Because there was
no evidence in the record that the silverware set still existed, we are not “firmly
convinced” that the trial court erred by not awarding the asset to Husband. See
id.
iii. 4-Wheeler
[23] Our review of the record indicates that, although the 4-wheeler was listed on
Husband’s financial declaration prepared for the instant litigation, it was not
mentioned by either party at trial or in the specific property demands submitted
to the trial court by the parties. No evidence was presented at trial regarding
when the 4-wheeler was acquired or even if it was still part of the marital estate.
Given this lack of evidence regarding the 4-wheeler, we conclude that Husband
has failed to establish that the trial court clearly erred by failing to specifically
award it to him. See id.
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iv. Log-Splitter, Ceramic Molds, Radial Saw
[24] At trial Evans and Richard conceded ownership to Husband of the log-splitter,
ceramic molds, and radial saw he requested. “[A] clear and unequivocal
admission of fact, or a formal stipulation that concedes any element of a claim
or defense, is a binding judicial admission.” Bandini v. Bandini, 935 N.E.2d
253, 265 (Ind. Ct. App. 2010). The trial court did not specifically address these
conceded items in its Order, but it did find that “[a]ll personal property has
already been divided to the satisfaction of the parties except” some items that it
specifically addressed. (Appellant’s App. Vol. II, p. 16). We conclude that this
finding sufficiently encompassed the conceded items.
v. Backhoe
[25] Ownership of the backhoe was contested. Although Husband asserted at trial
that the backhoe had been provisionally awarded to him, the trial court’s
Provisional Order only mentioned “certain implements,” and, because the
transcript of the provisional hearing is not before us, we cannot further assess
that claim. (Appellant’s App. Vol. II, p. 38). However, the only evidence
presented at trial was that the backhoe was jointly purchased by the parties for
use in their business during the marriage. Thus, the backhoe was not one of the
assets which “com[m]ingling and lack of documentation presented at trial”
made it impossible to determine if it was separate or joint property.
(Appellant’s App. Vol. II, p. 15). Under Article IV, Section (iii), of the
Prenuptial Agreement, this was a joint asset subject to equal division upon
dissolution. Therefore, we conclude that the trial court’s failure to divide the
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backhoe under the terms of the Prenuptial Agreement upon dissolution was
clearly erroneous, and we remand for valuation and equal division of this asset.
B. Equalization Payment
[26] Husband also challenges the trial court’s Order directing him to pay an
equalization payment of $102,229 to Wife. Husband essentially argues that his
provisional payment of the Blue/Green timeshare payments, the assignment to
Wife of her home and the farmhouse which had been remodeled with funds
from the Home Equity Loan, his work on the farmhouse, and the hardship
resulting to him from the equalization payment should have resulted in a lesser
or no equalization payment to Wife. We address each of these arguments in
turn.
i. Timeshare Payments
[27] The trial court ordered the parties’ interests in the Blue/Green timeshares to be
sold and the net profits to be split equally. The Prenuptial Agreement
contained the following relevant provision:
Any joint savings account, joint checking account, joint
certificate of deposit or joint investment, including, but not
limited to real estate, stocks and bonds, shall be divided equally
between the parties.
(Appellant’s App. Vol. II, p. 24). The evidence at trial was that the timeshares
were acquired in both parties’ names after the marriage. The trial court’s Order
divided the net value of the timeshare equally between the parties and gave
effect to the unambiguous intention of the parties in entering into the Prenuptial
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Agreement. Therefore, we conclude that the trial court’s division of this joint
asset was not clearly erroneous. See Quinn, 62 N.E.3d at 1220.
[28] Husband argues that the trial court’s division of this asset unjustly enriches
Wife because he made the Blue/Green timeshare payments under the
provisional orders, which he contends amounted to $9,000. Because the trial
court ordered the timeshares to be sold and the net profits to be split equally,
Husband contends that Wife received an equal share of the benefit of the asset
without sharing equally in the burden attached to it. However, Husband
withdrew over $35,000 from the parties’ joint bank account on the day Wife
filed the petition for dissolution. The trial court noted that fact in the
Provisional Orders and directed Husband to make the timeshare payments. At
the final hearing, Husband acknowledged that the joint bank account was a
joint asset that was subject to division by the trial court. Husband does not
contend that the trial court abused its discretion when it ordered him to
extinguish the timeshare payments using what he conceded at trial was a joint
asset, more than half of which he had already reserved to himself. We do not
find the cases relied upon by Husband, namely Bojrab v. Bojrab, 786 N.E.2d 713(Ind. Ct. App. 2003), partially vacated on other grounds, and Grimes v. Grimes, 722
N.E.2d 374 (Ind. Ct. App. 2000), trans. denied, to be persuasive because neither
entailed circumstances similar to those at hand wherein a spouse had already
withdrawn a substantial sum of money from a joint bank account.
Accordingly, we find no merit in Husband’s argument that Wife was unjustly
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enriched by the trial court’s Order dividing the net profits of the sale of the
timeshares equally between the parties.
ii. Home Equity Loan
[29] Husband further contends that Wife was unjustly enriched by the trial court’s
assignment of the entirety of the Home Equity Loan to him. The Prenuptial
Agreement contained the following relevant provision:
In the event of dissolution or separation, [Wife] shall assume
responsibility for her separate debts and liabilities; [Husband]
shall assume responsibility for his separate debts and liabilities;
and the joint debts shall be divided according to the benefit each received
from the use of the borrowed funds.
(Appellant’s App. Vol. II, p. 24) (emphasis added). Citing this provision in the
Prenuptial Agreement, Husband’s argument on this point is that some of the
Home Equity Loan was used to remodel Wife’s home and the farmhouse which
were set over to her under the terms of the Prenuptial Agreement, and, thus,
Wife should have been assigned some of the debt incurred.
[30] We find this argument to be unavailing for at least three reasons. First, any
funds from the Home Equity Loan used to remodel Wife’s home did not result
in any value being added to her property, so she was not enriched, unjustly or
otherwise, by any proceeds of the Home Equity Loan used for remodeling her
home. Second, according to the terms of the Prenuptial Agreement, Wife’s
home and the farmhouse were to be set over to Wife upon dissolution, yet
Husband knowingly allowed funds from the Home Equity Loan to be used for
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their remodeling. Lastly, the parties used some of the proceeds of the Home
Equity Loan to purchase six rental properties, all of which were assigned by the
trial court to Husband. Husband contends that two rentals were awarded to
Wife, one at 6885 S 200 E and another adjacent to it at 6931 S 200 E, and that
“[t]here is nothing in the record to show that those properties were not acquired
with funds from the home equity line of credit.” (Appellant’s Br. p. 19).
However, Husband’s own summary of the parties’ rental acquisitions admitted
at trial showed those two rentals were acquired in 1999, before the Home
Equity Loan was taken out by the parties. In short, we cannot conclude that
the trial court’s failure to assign Wife some of the Home Equity Loan debt
resulted in unjust enrichment to her or rendered the equalization payment
clearly erroneous.
iii. Husband’s Sweat Equity in the Farmhouse
[31] Husband argued at trial that his labor on Wife’s home and the farmhouse
should cancel out any equalization payment from him to Wife. The trial court
found that evidence had been presented that Husband’s labor on Wife’s home
had been of poor quality and had detracted from its value. The trial court,
therefore, declined to assign either party any value for that work. Husband
argues to us that, since there was no evidence presented at trial that his work on
the farmhouse had been of similar shoddy quality, he was entitled to some
credit for it.
[32] In assessing this claim, we note that, although Husband claimed at trial that the
value of his labor on Wife’s home and the farmhouse had a value of $100,000,
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he offered no other evidence to support that claim, nor did he testify how much
of that value could be ascribed solely to his work on the farmhouse. The trial
court was not obligated to believe Husband’s claim of the value of his labor,
and we cannot say that the trial court committed clear error by failing to ascribe
some unspecified value to the labor performed by Husband on the farmhouse.
In addition, as noted above, Husband knew when he performed work on the
farmhouse that, in the event of dissolution, it was real estate that would be set
over to Wife under the provisions of the Prenuptial Agreement, yet he
knowingly did the work anyway. The Prenuptial Agreement allowed for gifting
between the parties and provided that it “shall be presumed that any property
which either party received from the other is a gift, unless there is a written
document signed by the donor to the contrary.” (Appellant’s App. Vol. II, p.
25). We conclude that Husband gifted his labor on the farmhouse to Wife and
the trial court, therefore, did not commit clear error by failing to ascribe a credit
to him.
iv. Hardship
[33] Husband also argues that we should vacate the equalization payment because it
results in hardship to him. Husband contends that he will be forced to liquidate
or mortgage assets in order to make the equalization payment and that “[s]ince
[W]ife is deceased she has no economic needs.” (Appellant’s Br. p. 13).
Husband also contends that liquidation of his investment accounts might add to
his taxable income, increase his tax burden, and, therefore, decrease his assets.
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[34] Husband presented no evidence to the trial court regarding transaction costs of
accessing funds to meet an equalization payment. In addition, Husband’s
arguments regarding his increased tax burden are speculative at best, as many
factors such as other income and losses may impact Husband’s effective tax rate
apart from income attributable to the liquidation of investments necessary to
produce the equalization payment. In addition, Husband agreed to a bifurcated
proceeding that resulted in the Prenuptial Agreement being applicable to this
case, regardless of the fact that Wife died during the proceedings. Wife’s estate
had a valid claim to her property and assets under the Prenuptial Agreement,
and Husband presents us with no legal authority for disregarding the terms of
the Prenuptial Agreement which required that all joint assets be divided
equally.
CONCLUSION
[35] Based on the foregoing, we conclude that the trial court’s Order dividing the
marital estate pursuant to the terms of the Prenuptial Agreement was not clearly
erroneous except for its failure to divide the parties’ backhoe. Therefore, we
remand so that the trial court may value and equally divide that joint asset.
[36] Affirmed in part, reversed in part, and remanded with instructions.
[37] May, J. and Altice, J. concur
Court of Appeals of Indiana | Memorandum Decision 20A-DR-288 | October 30, 2020 Page 21 of 21