Rebecca Stormer v. David Zander (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), this Sep 26 2017, 7:06 am
Memorandum Decision shall not be regarded as CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Mark A. Bates Shana D. Levinson
Schererville, Indiana Levinson & Levinson
Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rebecca Stormer, September 26, 2017
Appellant-Respondent, Court of Appeals Case No.
45A05-1701-DR-114
v. Appeal from the Lake Circuit Court
The Hon. Thomas W. Webber, Sr.,
David Zander, Judge
Appellee-Petitioner. The Hon. Michael A. Sarafin,
Magistrate
Trial Court Cause No.
45C01-1206-DR-485
Bradford, Judge.
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Case Summary
[1] Appellant-Respondent Rebecca Stormer (“Wife”) and Appellee-Petitioner
David Zander (“Husband”) were married in January of 2009, and Husband
petitioned for dissolution of the marriage in June of 2012. Before the marriage,
Husband owned an unencumbered farmhouse and several tractors, other motor
vehicles, and tools. For her part, Wife owned a condominium and a log house
encumbered by a mortgage, a property-tax lien, and IRS debt. At some point,
Wife declared bankruptcy, and, as part of the proceeding, the trustee sold
Wife’s log house and distributed $8000 of the proceeds to Husband with Wife’s
consent.
[2] At a hearing on the division of the marital estate, the trial court heard evidence
that Wife had contributed very little to the marital estate during the marriage
and had, in fact, dissipated it by losing large amounts of money gambling. The
trial court also heard evidence that Wife had disposed of several pieces of
Husband’s personal property post-separation. Following the hearing, the trial
court issued its order, in which it awarded Husband 80% of the marital estate.
Wife contends that the trial court abused its discretion in ordering an unequal
division of the marital estate and in not ordering that Husband return the $8000
he received from the sale of the log house in Wife’s bankruptcy proceeding.
Because we disagree, we affirm.
Facts and Procedural History
[3] Husband and Wife were married on January 23, 2009. Prior to the marriage,
Husband owned an unencumbered farmhouse worth approximately $330,000,
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which he had owned since 1977. Husband also owned thirty-eight tractors,
several four-wheelers and quads, and various tools. Prior to the marriage, Wife
owned a log house valued at $350,000 that was encumbered by a fifty-thousand-
dollar mortgage, a property-tax lien, and IRS debt. Wife also owned a
condominium in Park Forest, Illinois. Additionally, Wife had received her
previous husband’s 401K and pension, some furniture, and some dishes. Wife
had owned a condominium in Lowell, Indiana, but sold it before the marriage
for $129,000.
[4] At the beginning of the marriage, the parties lived in Wife’s log house but
moved into Husband’s farmhouse in 2010. Wife made no contributions to the
maintenance of the farmhouse or to the acquisition of any of the personal
property therein. The $129,000 Wife obtained from the sale of her Lowell
condominium was never used during the marriage by the couple; Husband
testified that he suspects that it was “[h]igh time at the [casino] boat” or she
gave it to her mother. Tr. p. 75. While living in the farmhouse with Husband,
Wife rented out her log house for $1500 per month but did not apply the rent to
the log house mortgage loan or pay property taxes with it.
[5] Husband, aged sixty-seven, received $5000 per month during the marriage in
veteran’s disability and social security. Wife testified that she earned $500 per
week from the VFW for managing the poker slot machines plus $5 per hour
(plus tips) for working the bar and running bingo games. Wife also received
$750 per month in disability payments and received weekly child support from
her previous husband. At some point, Husband bought Wife a brand-new hot
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dog stand that she operated for a time as “Becky’s Hot Dogs” in a Lowell park,
but she did not want to work after “a little while” so the machine sat in
Husband’s barn. Tr. p. 92.
[6] At some point during the marriage, Husband received a telephone call from a
person telling him that an uncle had died in China and left him some money.
The person informed Husband that he was to inherit $3,000,000.00, but
apparently required $49,000.00 to release it to Husband. Husband and Wife
discussed the situation and visited Husband’s banker together before Husband
flew to China to complete the transaction. As it happened, the transaction was
fraudulent and Husband ended up losing approximately $13,000.00.
[7] Husband and Wife both gambled during the marriage. Wife showed losses at
AmeriStar Casino from 2010-2012 of approximately $48,000. Husband testified
that his gambling losses approximately equaled his winnings. The only
financial contributions made by Wife during the marriage were some gutters for
her log house and some tickets to Great America Amusement Park. In January
of 2012, Husband discovered that Wife had made several undisclosed
withdrawals from his account and, without his permission, forged his name to
checks. At some point, Wife filed for bankruptcy due to her pre-marital debt,
and the bankruptcy trustee sold her log home to satisfy her creditors. Upon
advice of counsel, Wife agreed that both she and Husband should receive $8000
from that initial distribution, leaving proceeds in the amount of $68,604.58,
ultimately distributed to Wife.
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[8] Husband petitioned to dissolve the marriage on June 20, 2012. Afterwards,
Wife had temporary and exclusive possession of the farmhouse. During the
summer of 2013, in anticipation of moving out, Wife sold several items out of
the house. Wife convinced a male friend to come to the house and help her
clear it out, telling him that everything in the house belonged to her and her
son. According to the friend’s testimony, he and Wife removed several of
Husband’s tractors, tools, come-a-longs, drills, and wrenches worth thousands
of dollars and a transom worth $3500. Wife and the friend dismantled a
camper that was on the property, stripped the wires, and sold it for scrap.
Wife’s son took some of Husband’s farm equipment, namely, a Farmall 561
and three John Deere tractors and three or four of Husband’s four-wheelers and
quads.
[9] The trial court dissolved the marriage on September 21, 2015. The distribution
of the marital estate was delayed because of Wife’s pending bankruptcy
petition. The trial court held the distribution hearing on October 17, 2016, and
heard evidence concerning the parties’ marriage. On December 16, 2016, the
trial court issued its order dividing the marital estate, which provides, in part, as
follows:
14. With regard to the marital estate, the Court finds and
Orders that the estate consists of the property in Lowell known as
the “farm house”, the condominium in Illinois, the contents of
the barn which include collections of various tractors, trailers,
and weapons as well as the vast majority of the personal
property, the proceeds from the log house and additional
personal property that the Wife left at the farm house. The Court
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has considered all of the statutory factors in I.C. §31-15-7-5 and
has determined that a deviation is necessary in this case.
15. In addition, the Court has considered the fact that this
was only a three (3) year marriage, that the disputes should have
never risen to the level that it did and the fact that the parties
have both been through divorces in the past and should have
known better. In this case, it is easier to determine the status of
the parties prior to the marriage and the Court is able to know
what each party had because the parties’ assets stem from prior
dissolutions.
16. There is no doubt that Mr. Zander had all of his
personal property prior to the marriage as he was awarded those
assets in his first divorce.
17. The Court is considering dissipation both pre and post
filing by the Wife and disposition of the property by the
Husband.
18. There appears to have been dissipation both Pre and
Post Decree by the Wife and disposition of property by the
Husband.
19. The credible values of the property are as follows:
a. Farm House $335,000.00
b. Log House $68,604.58
c. Condominium $15,000.00
20. There is no credible evidence before the Court of the
value of the property in the barn or the other personal property.
As indicated, the Court believes that a deviation from the
presumptive 50/50 is just and reasonable in this case and finds
that Husband should receive the Farm House and all of the
contents in the barn in its entirety.
21. The Wife is awarded the proceeds from the Log House
sale as well as the Condominium in Illinois.
22. The Court acknowledges that this is a substantial
deviation from the presumptive 50/50 division of assets but the
Court believes it is justified not only on the statutory factors but
also the short duration of this marriage.
23. Wife is awarded the items that are in the breeze way or
porch at the Farm House as well as the storage unit located at the
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Farm House. Each party is awarded any vehicles that existed at
the time of the marriage that are currently in their care and
custody.
24. Other than as indicated above, Husband is awarded all
of the contents at the Farm House.
25. Each party shall pay any debts in their individual
names and any debts incurred after the date of the filing of this
action.
Order pp. 4–6. Wife contends that the trial court abused its discretion in
ordering an unequal division of the marital estate and in failing to order
Husband to return the $8000 he received from the proceeds of the sale of the log
house in Wife’s bankruptcy proceeding.
Discussion and Decision
I. Whether the Trial Court Abused its
Discretion in Dividing the Marital Estate
[10] Wife contends that the trial court abused its discretion in awarding
approximately 80% of the marital estate to Husband. Indiana Code section 31-
15-7-5 provides as follows:
The court shall presume that an equal division of the marital
property between the parties is just and reasonable. However,
this presumption may be rebutted by a party who presents
relevant evidence, including evidence concerning the following
factors, that an equal division would not be just and reasonable:
(1) The contribution of each spouse to the acquisition of the
property, regardless of whether the contribution was income
producing.
(2) The extent to which the property was acquired by each
spouse:
(A) before the marriage; or
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(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.
[11] “Subject to the statutory presumption that an equal distribution of marital
property is just and reasonable, the disposition of marital assets is committed to
the sound discretion of the trial court.” Augspurger v. Hudson, 802 N.E.2d 503,
512 (Ind. Ct. App. 2004).
An abuse of discretion occurs if the trial court’s decision is clearly
against the logic and effect of the facts and circumstances, or the
reasonable, probable, and actual deductions to be drawn
therefrom. An abuse of discretion also occurs when the trial
court misinterprets the law or disregards evidence of factors listed
in the controlling statute. The presumption that a dissolution
court correctly followed the law and made all the proper
considerations in crafting its property distribution is one of the
strongest presumptions applicable to our consideration on
appeal. Thus, we will reverse a property distribution only if there
is no rational basis for the award and, although the circumstances
may have justified a different property distribution, we may not
substitute our judgment for that of the dissolution court.
Id. (citations, quotation marks, and brackets omitted). “When ordering an
unequal division, the trial court must consider all of the factors set forth in the
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statute.” Love v. Love, 10 N.E.3d 1005, 1012 (Ind. Ct. App. 2014) (citing Eye v.
Eye, 849 N.E.2d 698, 701 (Ind. Ct. App. 2006)). “While a trial court abuses its
discretion in considering a factor in isolation from the other four factors, the
court is not required to explicitly address each factor.” Id. (citing Eye, 849
N.E.2d at 702). “However, a court on review must be able to infer from the
trial court’s findings that all the statutory factors were considered.” Id. (citing
Eye, 849 N.E.2d at 703).
[12] Wife concedes that the trial court’s identification and valuation of the marital
assets was appropriate, namely the farm house ($335,000), the proceeds from
the sale of the log house ($68,604.58), the Illinois condominium ($15,000), the
contents of the barn at the farm house, and personal property Wife left at the
farmhouse. Wife, however, contends that the trial court abused its discretion in
essentially awarding her and Husband the property they individually owned
before getting married. Wife argues that Husband did not overcome the
presumption of an equal division of the marital estate in light of the parties’
comingling of assets, dissipation and disposition of property during the
marriage, and alleged contributions to marital finances.
A. Comingling of Assets During Marriage
[13] Wife contends that the parties significantly comingled their assets, pointing to
evidence that they put each other’s names on titles to real estate, moved into
Wife’s log house at the beginning of their marriage, and that mortgage
payments were made out of a joint checking account. We do not believe that
these facts necessarily support an equal division of the marital estate in this
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case. While it is true that the parties put each other’s names on real properties
they individually owned before marriage, it is not clear that this indicated any
significant comingling. For example, while Husband’s name was on the title of
the log house, there is no evidence that Husband or the marital estate benefitted
from Wife renting it out after moving into the farmhouse with Husband. Also,
there does not seem to be much that can be made of the fact that the parties
initially lived in the log house when they ultimately moved into the farmhouse
and lived there for the majority of the marriage. Finally, the mere existence of a
joint checking account does not necessarily mean that Wife made any
significant contribution to it. Wife has not established that comingling of assets
favors an equal division of the marital estate.
B. Dissipation and Disposition
[14] Wife also contends that evidence of dissipation and dispositions of marital
assets by both parties supports an equal division of the marital estate. The
evidence in favor of the trial court’s judgment, notably evidence of post-
separation dissipation of personal property by Wife, supports a division
favoring Husband. There is evidence to support the trial court’s finding that
there were “unusual dispositions also by to a certain extent husband[,]”
specifically the inheritance scam that cost the parties approximately $13,000.
Tr. p. 191. There is, however, evidence that Wife dissipated significantly more
than Husband, pre- and post-separation. Evidence was admitted that prior to
separation Wife lost approximately $48,000 gambling over a three-year period
and made unauthorized withdrawals from Husband’s account by forging his
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name. The trial court also heard evidence that post-separation, Wife disposed
of significant amounts of Husband’s personal property from the Farmhouse,
including tractors, tools, come-a-longs, drills, wrenches worth thousands of
dollars, a transom worth $3500, a camper sold for scrap, a Farmall 561, three
John Deere tractors, and three or four of Husband’s four-wheelers and quads.
The trial court noted that this was “clearly dissipation under the divorce
statute” and noted that it had made it clear in previous orders that property was
to be preserved. Tr. p. 192. In summary, the evidence touching on dissipation
and disposition of marital assets favors an unequal division of the marital estate
in Husband’s favor.
C. Contributions of Each Party
[15] Wife argues that the respective contributions by the parties to the marriage
support an equal division of the marital estate. Husband, however, testified
that Wife made no contributions to the maintenance of the farmhouse or to the
acquisition of any of the personal property therein and that the only financial
contribution made by Wife during the marriage was some gutters for her log
house and some tickets to Great America Amusement Park. Although Wife
points to some evidence to indicate that she did contribute to the marriage, the
trial court was under no obligation to credit it. The evidence most favorable to
the trial court’s judgment supports an unequal division of the marital estate
based on the parties’ respective contributions. In the end, Wife’s arguments
regarding the trial court’s unequal division of the marital estate are nothing
more than invitations to reweigh the evidence, which we will not do.
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II. The $8000 Awarded to Husband
[16] Wife contends that even if the trial court did not abuse its discretion in
unequally dividing the marital estate, it improperly allowed Husband to keep
$8000 from the proceeds of the sale of the log house, which occurred during
Wife’s bankruptcy proceeding. Our review of the record does not reveal that
Wife ever requested that the trial court order the return of the $8000 in
question, so Wife is making this argument for the first time on appeal.
It has long been the general rule in Indiana that an argument or
issue presented for the first time on appeal is waived for purposes
of appellate review. See, e.g., Plank v. Cmty. Hospitals of Ind., Inc.,
981 N.E.2d 49, 53 (Ind. 2013) (“[A]ppellate review presupposes
that a litigant’s arguments have been raised and considered in the
trial court.”); Ind. Dep’t of Envtl. Mgmt. v. Raybestos Prods. Co., 897
N.E.2d 469, 474 (Ind. 2008) (“Generally, an appellate court will
not review an issue that was not presented to the trial court.”),
corrected on reh’g, 903 N.E.2d 471 (Ind. 2009); Troxel v. Troxel, 737
N.E.2d 745, 752 (Ind. 2000) (“A party may not raise an issue for
the first time in a motion to correct error or on appeal.”); Franklin
Bank & Trust Co. v. Mithoefer, 563 N.E.2d 551, 553 (Ind. 1990)
(“A party cannot change its theory and on appeal argue an issue
which was not properly presented to the trial court.”);
Indianapolis Newspapers, Inc. v. Fields, 254 Ind. 219, 260, 259
N.E.2d 651, 670 (1970) (“We do not review issues presented for
the first time on appeal except to avoid grave injustice.”).
Ind. Bureau of Motor Vehicles v. Gurtner, 27 N.E.3d 306, 311 (Ind. Ct. App. 2015).
Because Wife makes this specific argument for the first time on appeal, she has
waived it for appellate review.
Conclusion
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[17] We conclude that Wife has failed to establish that the trial court abused its
discretion in ordering an unequal division of the marital estate or in not
ordering that Husband return the $8000 he received from the sale of Wife’s log
house. Consequently, we affirm the trial court’s order disposing of the marital
estate.
[18] The judgment of the trial court is affirmed.
Brown, J., and Pyle, J., concur.
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