Jeffrey T. Boring v. Lisa K. Boring (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Feb 04 2016, 5:57 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Leeman Jacob D. Winkler
Leeman Law Offices Katherine J. Noel
Logansport, Indiana Noel Law
Kokomo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffrey T. Boring, February 4, 2016
Appellant-Respondent, Court of Appeals Case No.
34A02-1507-DR-875
v. Appeal from the Howard Superior
Court 4
Lisa K. Boring, The Honorable George A.
Appellee-Petitioner Hopkins, Judge
Trial Court Cause No.
34D04-1304-DR-278
Bailey, Judge.
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Case Summary
[1] Appellant-Respondent Jeffrey T. Boring (“Husband”) and Appellee-Petitioner
Lisa K. Boring (“Wife”) were divorced and each filed a post-dissolution
motion. Following a hearing at which the parties agreed on a corrected child
support amount but disagreed on aspects of the property distribution order,1 and
the dissolution court declined to hear new evidence due to the limitations of the
motion to correct error, Husband appeals. We affirm.
Issues
[2] Husband presents two issues for review:
I. Whether the dissolution court abused its discretion by
including in the marital pot the date-of-petition values of
certain bank accounts; and
II. Whether the dissolution court abused its discretion by
equally dividing an income tax refund.
1
Husband’s motion to correct error raised a single issue, pertaining to child support. At the outset of the
consolidated hearing to address the motion to correct error and Wife’s motion for proceedings supplemental,
the parties advised the dissolution court of their agreement to correct scrivener error as to child support.
Husband testified and attempted to challenge the inclusion of certain sums in the property distribution. The
dissolution court, observing that the motion to correct error had concerned only child support, declined to re-
visit the issue of property distribution.
Nonetheless, Husband is not precluded from challenging the property distribution on appeal. “Under the
appellate rules, a party filing a motion to correct error need not raise every issue in the motion that will be
raised on appeal.” Chapo v. Jefferson Cnty. Plan Comm’n, 926 N.E.2d 504, 509 n.3 (Ind. Ct. App. 2010).
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Facts and Procedural History
[3] Husband and Wife were married on July 25, 1992. They had two children,
born in 1998 and 2001. On April 2, 2013, Wife filed a petition to dissolve the
marriage. For some months after the filing of the petition, the children
remained in the marital residence and the parents rotated days in the residence
with the children.
[4] The spouses had acquired substantial assets and had relatively little debt.
Around the time of the filing of the dissolution petition, they had several bank
accounts. Husband took control of the larger accounts and deposited funds into
a new account. On at least one of the accounts, both spouses were authorized
to write checks and did so. By agreement, they paid off one vehicle and two
charge cards.
[5] Pursuant to an agreement of the parties, a provisional order was entered on
September 11, 2014. Wife was to have the physical custody of the younger
child and Husband and Wife were to alternate the physical custody of their
older child. No child support was ordered at that time. Husband agreed to be
responsible for the expenses associated with the marital residence. At some
point, Husband advanced to Wife $10,000.00.
[6] A final hearing commenced on February 23, 2015. Ultimately, the parties
agreed to a division of personal property, retirement funds, and to valuation of
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the marital residence at $193,000.00.2 They testified that marital funds had
been used, post-separation, to pay off their debt and that Husband had
advanced Wife $10,000.00 for which he should receive a credit. However, they
disagreed as to the appropriate valuation of Harris Bank accounts from which
payments had been made for attorney fees, residential expenses, and the
children’s expenses.
[7] Wife requested one-half of an account that had a date-of-petition balance of
$45,709.78 and one-half of the remainder of the account used to pay off the debt
(purportedly $19,673.38). Husband disagreed with Wife’s proposal. He
produced check copies and contended that one account had been depleted by
family expenses and the other had a balance of $13,671.00. He also asserted
that he should have more than one-half of a tax return because he had earned
more of the gross taxable income and had increased his withholding after the
marital separation.
[8] On March 18, 2015, the dissolution court entered a decree dissolving the
parties’ marriage, awarding custody of one child to Wife and custody of one
child to Husband, ordering Husband to pay child support, and dividing the
marital estate. The dissolution court found that an equal distribution of the
marital estate was appropriate. Included in the marital pot for equal division
were the sums of $19,164.00 (attributable to a Harris Bank account after
2
Wife had initially contended that Husband had procured an artificially low appraisal and that the residence
had a value of $241,776.00. (Pet. Ex. 2.)
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deduction for payoffs of vehicular and charge card debt) and $45,709.78
(attributable to a Harris Bank savings account existing at the time Wife
petitioned for dissolution). Husband was ordered to make an equalization
payment to Wife.
[9] Husband filed a motion to correct error, raising an issue with regard to child
support. Wife filed proceedings supplemental motions. Husband’s child
support was adjusted; he was afforded no other relief on motion to correct
error. This appeal ensued.
Standard of Review
[10] The division of marital property involves a two-step process. Thompson v.
Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004), trans. denied. First, the
dissolution court must determine what property is to be included in the marital
estate, or marital pot. Id. Second, the court must divide the marital property
under the presumption that an equal split is just and reasonable. Id. (citing Ind.
Code § 31-15-7-5).
[11] The division of marital assets lies within the sound discretion of the dissolution
court, and we reverse only for an abuse of discretion. Hartley v. Hartley, 862
N.E.2d 274, 284 (Ind. Ct. App. 2007). A party who challenges the division of
marital property must overcome a strong presumption that the court considered
and complied with the applicable statute, and that presumption is one of the
strongest presumptions applicable to our considerations on appeal. Id. We do
not reweigh the evidence or assess the credibility of the witnesses, but consider
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only the evidence most favorable to the dissolution court’s disposition of the
marital property. Id. Finally, we do not substitute our judgment for that of the
dissolution court even where the facts might allow for a different conclusion.
Id.[12] All marital property goes into the marital pot for division, whether it was
owned by either spouse before the marriage, acquired by either spouse after the
marriage and before final separation of the parties, or acquired by their joint
efforts. I.C. § 31-15-7-4(a); Hill v. Hill, 863 N.E.2d 456, 460 (Ind. Ct. App.
2007). Property acquired by a spouse after the final separation date is excluded
from the marital estate. Thompson, 811 N.E.2d at 912. The dissolution court is
also required to divide the marital debt. See Moore v. Moore, 695 N.E.2d 1004,
1010 (Ind. Ct. App. 1998). As for selection of a valuation date, the dissolution
court may use any date between the final separation and the date of dissolution.
In re Marriage of Sloss, 526 N.E.2d 1036, 1038 (Ind. Ct. App. 1988).
Inclusion of Savings Account Funds
[13] Husband contends that the court erred in determining the makeup of the
marital pot. Specifically, Husband contends that, although he moved funds of
$68,181.30, he and Wife jointly expended almost all that amount – $68,144.18
– during the pendency of the dissolution proceedings. According to Husband,
he had control of only $13,671.00 in liquid funds as of the time of the final
hearing.
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[14] Although the dissolution court credited Husband with a $10,000.00 advance to
Wife, and debt payments of $15,346.84 (vehicle), $1,845.38 (charge card), and
$1,950.12 (charge card), Husband believes that he is entitled to full credit for all
expenditures he itemized. More particularly, he argues that Wife received a
“huge windfall” including “double payment” for attorney’s fees. (Appellant’s
Br. at 10.)
[15] Directing our attention to Quillen v. Quillen, 659 N.E.2d 566 (Ind. Ct. App.
1995), adopted in relevant part, 671 N.E.2d 98, 100 (Ind. 1996), Husband asserts
that his voluntary payments made during the pendency of the dissolution
proceedings should have been considered in the dissolution court’s crafting of a
fair and reasonable property distribution. In Quillen, the Court observed: “[i]t
is permissible for the trial court to credit a spouse for voluntary payments of
marital obligations made during the pendency of a dissolution petition.” 659
N.E.2d at 575. The wife had paid educational and healthcare expenses “from
her separate funds” and the husband was appropriately ordered to reimburse
her for a portion of those expenses. Id.[16] Here, Husband did not use his separate funds for the itemized expenditures for
which he sought credit. Succinctly, Husband used marital funds to satisfy his
parental obligation to support his children, maintain the marital residence he
retained, and obviate the need for an attorney’s fees award. Husband earns
approximately $80,000.00 per year and has the potential for bonuses. Wife
earns approximately $40,000.00 per year. Given the disparity of income, it
would have been appropriate for Wife to seek an order for the payment of
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attorney’s fees, payable from Husband’s separate funds.3 Husband’s contention
that Wife has received a double recovery because some attorney’s fees were
paid is not supported by applicable law.
[17] We discern no abuse of discretion in the dissolution court’s selection of a
valuation date. In re Sloss, 526 N.E.2d at 1038. Nor did the dissolution court
abuse its discretion in the application of credits to the original asset value.
2013 Tax Refund
[18] Husband argues that the tax refund should not have been split equally because
it was, in large part, related to his post-separation tax contributions. He
testified that he had increased his withholding in anticipation of filing a separate
return; however, the parties decided to file a joint return.
[19] In Nill v. Nill, 584 N.E.2d 602, 605 (Ind. Ct. App. 1992), a husband made a
similar argument, seeking an unequal division of a joint tax refund because he
was the sole wage earner and had earned most of the underlying wages post-
separation. The Nill Court recognized that there had been “a pecuniary
advantage to the family as a whole” and that the wife had become jointly and
severally liable for payment of any tax owed when she signed the return. Id.According to the Court, the husband was “seek[ing] to enjoy the benefits of
3
Pursuant to Indiana Code Section 31-16-11-1, a dissolution court has broad discretion to impose attorney’s
fees on either parent. Thompson v. Thompson, 868 N.E.2d 862, 870 (Ind. Ct. App. 2007). The court may
properly consider the respective resources of the parties, their financial earning abilities, and “any other
factors that bear on the reasonableness of the award.” Id.Court of Appeals of Indiana | Memorandum Decision 34A02-1507-DR-875 | February 4, 2016 Page 8 of 9
filing jointly, but disclaim the burdens.” Id. This Court concluded that the
dissolution court had acted properly by including the tax refund in property
subject to division. Id. at 606.
[20] Here, the refund was produced by joint efforts. Both Husband and Wife earned
money and paid taxes; each was liable upon signing the return. As Husband
testified, they received a larger return because of the decision to file jointly. We
find the reasoning of Nill to be sound, and we conclude that Husband has
shown no abuse of discretion in the trial court’s decision to divide the tax return
equally.
Conclusion
[21] Husband has not established that the dissolution court abused its discretion in
the division of marital assets.
[22] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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