Tod E. Elias v. Janet R. Elias (mem. dec.)

MEMORANDUM DECISION
Jul 13 2015, 8:33 am
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 of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Daniel A. Korban Tara K. Tauber
Zamudio Law Professionals, PC Tauber Law Offices
Griffith, Indiana Schererville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tod E. Elias, July 13, 2015
Appellant-Respondent, Court of Appeals Case No.
45A03-1502-DR-46
v. Appeal from the
Lake Superior Court
Janet R. Elias, The Honorable Elizabeth F. Tavitas,
Judge
Appellee-Petitioner. The Honorable Nanette K. Raduenz,
Magistrate
Cause No. 45D03-1406-DR-418
Kirsch, Judge.
[1] Tod E. Elias (“Husband”) appeals the trial court’s division of marital property
in the dissolution of his marriage to Janet R. Elias (“Wife”). On appeal he
raises three issues, which we consolidate and restate as:
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I. Whether the trial court abused its discretion when it valued and
divided the marital assets, specifically the manner in which it
determined the value of some savings bonds, excluded other savings
bonds from the marital estate, and awarded Wife the majority of the
liquid, post-tax assets; and
II. Whether the trial court abused its discretion in denying Husband’s
request for a post-division credit on his pension value.
[2] We affirm.
Facts and Procedural History
[3] Husband and Wife were married on May 23, 1992, and Wife filed for
dissolution of marriage on June 6, 2014. During their twenty-two-year
marriage, the couple did not have any children.
[4] At the time Wife filed for dissolution, she earned $27,450.00 per year in wages.
Husband earned $30,295.00 per year, not including his pension payments, and
approximately $165.00 per week from officiating local sports. Together, they
had accumulated a marital estate worth over $1.5 million, which included:
Wife’s Public Employee Retirement Fund (“PERF”) pension valued at
$224,778.93; an unencumbered home worth $190,000.00; numerous certificates
of deposit (“CD”) worth well over $200,000.00; stocks, insurance policies, two
vehicles, savings bonds, and personal property, the latter two of which were of
disputed value. The largest single asset in the estate was Husband’s PERF
pension, which an expert valued “at $466,000.00.” Tr. at 4. By the time Wife
filed for dissolution, Husband’s PERF had fully vested, and he was receiving a
monthly gross payout of $2,058.50.
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[5] Following a hearing, the trial court entered a Provisional Order dated July 22,
2014, which provided in pertinent part: (1) Wife shall be awarded sole and
exclusive temporary use and possession of the marital residence; (2) Husband
shall have until August 2, 2014 to remove himself from the marital residence;
(3) the parties shall equally split a savings account worth $36,000.00, in order to
effectuate Husband’s move; (4) the balance of the parties’ financial accounts
shall not be touched without joint agreement of the parties; (5) Husband shall
be entitled to maintain his PERF payments during the pendency of the action;
and (6) each party shall be responsible for the expenses associated with their
respective residences. Appellant’s App. at 18-19. Husband was allowed to
remove personal property from the marital residence only to the extent the
parties could agree; the remainder of the property was to remain at the marital
residence. Id. at 18.
[6] On August 19, 2014, the parties, each represented by counsel, participated in a
mediation session and entered into a Partial Mediated Settlement Agreement
(“mediated agreement”). While the parties could not agree on everything, the
mediated agreement reflects they agreed to value Husband’s PERF account at
$455,871.00, and that Husband would retain the entire PERF account but
would give Wife 45% of its value. Id. at 35. They also agreed that the
remainder of the marital assets would be divided evenly. Id.
[7] The parties appeared in court for a final hearing on December 11, 2014, and
filed the mediated agreement with the trial court. Evidence was presented by
summary presentations of counsel and affirmed by each party. Both parties
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presented exhibits reflecting lists of assets (the parties had no debt) to be
included in the marital pot.1 Of the numerous assets listed, both parties
assigned each asset the identical value except for the U.S. Savings Bonds.2
Wife, who believed only twenty-four of the bonds should be marital assets,
valued the bonds at $2,074.52, while Husband, who believed that more bonds
should be included plus an appreciation of 73.4% interest, valued the bonds at
$8,323.20. Id. at 58, 64-65.
[8] The parties also presented exhibits with a proposed division of assets that
comported with the terms of the mediated agreement, i.e. equal division of
all marital property except Husband’s PERF, of which Wife was to receive
45% of its value, which amounted to an additional $205,141.95 to Wife. 3 Id. at
58, 64-65. Both parties proposed that Wife receive eight out of twelve CDs
worth about $144,000.00 and that Husband receive the remaining four CDs
worth about $109,000.00 and a savings account worth around $25,000.00. The
parties also agreed that Wife would keep her PERF pension worth around
$224,000.00, that Wife would get more than $31,500.00 in stock, savings, and
1
Husband included two assets on his list that were not included on Wife’s list—a Christmas club account
valued at $340 and a $400.00 check that he had received for services rendered as an umpire. By agreement of
the parties during the final hearing, the trial court awarded those assets to Husband and excluded them from
the marital pot. Appellant’s App. at 12.
2
Husband and Wife also disagreed about the value of personal property, which Husband valued as being
worth $30,480.00 more than Wife. However, Husband does not appeal the trial court’s determination
regarding the personal property.
3
Because Husband’s PERF cannot be divided via Qualified Domestic Relations Order, Wife had to receive
additional marital assets that would amount to the value of 45% of Husband’s PERF. Tr. at 35.
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checking accounts, and that each party would keep his or her own vehicle. Id.
at 58, 64.
[9] The parties’ proposed division differed in a couple of respects. Husband
wanted Wife to get his life insurance policies worth over $273,000.00, while
Wife wanted those policies to be counted among Husband’s assets. Id. at 58,
64. Additionally, Husband proposed that Wife’s assets should include
$30,480.00 of personal property and $8,323.20 worth of savings bonds.4 Id. at
58, 64. Each party stated a desire to keep the marital residence.
[10] Husband also maintained that, because the provisional order allowed him to
keep PERF payments that he had received during the provisional period, worth
$9,740.88, it was improper for the trial court to divide the PERF using the value
of $455,871.00 and not give him credit for $9,740.88. Appellant’s Br. at 20.
Husband asserted that this credit would allow him to retain his income during
the provisional period, just as Wife had retained her income. Tr. at 37. Wife
countered that no credit should be issued to Husband because the mediation
agreement, which was entered into after the provisional order, set forth that
while Husband would retain his PERF, Wife was entitled to 45% of the present
value of Husband’s PERF, an amount both agreed was $455,871.00. Appellee’s
Br. at 24, 25.
4
Husband valued the personal property as being $30,480.00 more than Wife did, and he valued the savings
bonds as being $6,248.68 more than Wife’s valuation.
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[11] On January 15, 2015, the trial court entered a Decree of Dissolution of
Marriage and attached, as Exhibit A, the division of assets. Appellant’s App. at
11-16. As to the issues about which the parties disagreed, the trial court made
the following pertinent findings. The trial court rejected Husband’s proposed
valuation of the savings bonds at $8,323.20; instead, finding that the value Wife
placed on the savings bonds, $2,074.52, more accurately reflected their value for
purposes of the marital estate. Id. at 12, 16. The trial court also found that the
value of the marital estate, excluding Husband’s pension, was $1,104,694.66;
therefore, each party was entitled to $552,347.33 in assets. 5 Id. Husband’s
pension was valued at $455,871.00; therefore, Wife’s 45% share was valued at
$205,141.95 and Husband’s share was valued at $250,729.05. Id. Pursuant to
the mediation agreement: Husband’s share of the whole marital estate was
$803,076.38, and was distributed in the form of his full pension of $455,871.00
plus $347,205.38 of the listed assets; and Wife’s share of the marital estate was
$757,489.28, which included the unencumbered home, her PERF account, plus
other assets.
[12] After setting forth the distribution of assets, the trial court specifically stated:
14. The parties do not agree on how the assets listed in Exhibit A
should be distributed. The Court has considered the parties’ respective
5
This number did not include Husband’s estimate that the personal property was worth $30,480.00, a
number that the trial court found to be speculative and could not be relied on as a fair value of the property.
Appellant’s App. at 13. Instead, the trial court concluded that, unless the parties otherwise agreed, the personal
property would be divided equally, with the parties selecting, in alternating turns, an item of personal
property. Id.
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arguments, the parties’ concerns regarding the pre-tax investments,
and the fact that each party wants the martial residence. In order to
effectuate the division of assets within the confines of the parties’
stipulations and agreements, the Court finds that division of the assets
set forth on Exhibit A is a fair and reasonable division of the marital
assets.
....
16. The Court has considered the resources of the parties, their
economic condition, the ability of the parties to engage in gainful
employment and to earn adequate income, and such factors that bear
on the reasonableness of the award of attorney fees. The Court finds
that each party has adequate assets and income, and the financial
ability to pay for his or her own attorney fees6. The Court finds that
there has been no misconduct on the part of one party which has
caused the other party to directly incur additional fees.
Appellant’s App. at 13.
[13] Husband now appeals and, pursuant to his request, the enforcement of the
Divorce Decree has been stayed pending appeal.
Discussion and Decision
[14] In its Decree of Dissolution, the trial court sua sponte issued specific findings of
fact and conclusions thereon. Accordingly, on appeal, our court will “not set
aside the findings or judgment unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the
witnesses.” Ind. Trial Rule 52(A). In determining whether the findings or
judgment are clearly erroneous, we first consider whether the record supports
6
We note that the parties agreed in the mediated agreement to pay their own attorney fees. Appellant’s App.
at 35.
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the findings and, second, whether those findings support the judgment. Crider v.
Crider, 26 N.E.3d 1045, 1047 (Ind. Ct. App. 2015); Granzow v. Granzow, 855
N.E.2d 680, 683 (Ind. Ct. App. 2006). Findings are clearly erroneous if there
are no facts in the record to support them either directly or by inference, and a
judgment is clearly erroneous if the wrong legal standard is applied to properly
found facts. Birkhimer v. Birkhimer, 981 N.E.2d 111, 118 (Ind. Ct. App. 2012).
We will reverse only where the record leaves us firmly convinced that a mistake
has been made. Crider, 26 N.E.3d at 1047.
I. Marital Assets
[15] Husband maintains that the trial court abused its discretion when it did not
divide the parties’ marital assets in a just and reasonable manner. Specifically,
he contends that the trial court should have: included more of the savings
bonds in the marital pot; used his estimate for the value of the savings bonds,
and considered tax implications and future economic circumstances when it
granted Wife the majority of the liquid, post-tax assets.
[16] In a dissolution proceeding, the trial court’s division of the marital estate is a
two-step process. Estudillo v. Estudillo, 956 N.E.2d 1084, 1090 (Ind. Ct. App.
2011). First, the trial court determines what property must be included in the
marital estate, and second, the trial court must divide the marital property
under the presumption that an equal split is just and reasonable. Id. (citing Ind.
Code § 31-15-7-4, -5). It is well established that all marital property goes into
the marital pot for division, whether it was owned by either spouse before the
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marriage, acquired by either spouse after the marriage and before final
separation of the parties, or acquired by their joint efforts. Id. (citing Ind. Code
§ 31-15-7-4(a)). “This ‘one-pot’ theory ensures that all assets are subject to the
trial court’s power to divide and award.” Id. (citing Thompson v. Thompson, 811
N.E.2d 888, 912 (Ind. Ct. App. 2004), trans. denied).
A. Assets
[17] Here, with the exception of certain savings bonds, the parties were in agreement
as to what property to include in the marital pot. Wife, who had worked
extensively in the banking industry, had purchased numerous savings bonds for
herself, her Husband, and relatives on both sides of the family. On the date she
filed for dissolution, seventy-nine savings bonds were in her possession. These
bonds were introduced during the final dissolution hearing. Each savings bond
bore, at most, two names. One of the savings bonds listed only the name of
Wife, and twenty-three others listed the names of both Husband and Wife.
Appellee’s App. at 1-5, 15-19.7 The remaining savings bonds either bore the
names of Husband or Wife and a family member or exclusively the names of
two family members. Id. at 5-14, 20-30. Wife represented that the parties
routinely purchased bonds for family members, held them until they increased
7
On pages 106-35 of the Appellant’s Appendix, Husband has included overly dark copies of the savings
bonds. It is difficult, if not impossible, to read the names on these savings bonds or the social security
numbers associated with the savings bonds. Wife resubmitted those same savings bonds in a lighter form to
aid legibility. Appellee’s App. at 1-31. Therefore, when referring to the savings bonds, we will cite to the
Appellee’s Appendix.
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in value, and then gave them to those named family members as gifts on special
occasions. Tr. at 10-11.
[18] In addition to the savings bonds, Wife introduced U.S. Department of Treasury
spreadsheets, which listed, among other things, the serial number of each bond,
the issue date, interest rate, and the Treasury Department’s valuation of the
savings bonds, if redeemed in August 2014.8 Pet’r’s Ex. 3. Wife maintained that
since many of the savings bonds were purchased in the names of relatives, and
used the social security numbers of those relatives, those bonds would be given
to the named family member at the time of dissolution, and should not be
considered part of the marital estate. Tr. at 11. Thus, while Wife’s
spreadsheets included the value of all of the bonds, she asserted that the value of
the bonds to be included in the marital pot was only $2,074.52 – representing
those twenty-four bonds that were owned exclusively by Wife or by both
Husband and Wife.
[19] Husband disagreed, arguing that each savings bond bearing either Husband’s or
Wife’s name was part of the marital assets,9 and therefore, Wife’s valuation of
the savings bonds was incorrect. Husband argued that the trial court should
8
During the hearing, Husband stated that he had received a copy of the bonds, but that he had not seen a
valuation of any of the bonds other than the ones owned by the parties jointly. We note that while there is no
explanation about why these bonds were not valued as of the date that Wife filed her petition for dissolution
of the marriage, Husband does not question the August 2014 valuation date for the twenty-four savings
bonds.
9
Husband conceded that the savings bonds that bore neither Husband’s nor Wife’s name were appropriately
excluded from the marital pot. Tr. at 28.
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take the face value of the pertinent bonds and add 73.4%, the sum of which
Husband calculated as $8,323.20. Id. at 29. This prompted the following
discussion between Husband’s counsel and the court:
THE COURT: So why did you multiply it times 73.4%?
MR. KORBAN: Because the problem stems from the fact that this
value that they gave me only includes bonds that are in both of their
names, and not bonds that are in [Husband’s] name individually, or
[Wife’s] name individually,10 which should be included in part of the
marital assets.
So, in order to find out the value of all those bonds together, I looked
at the increase percentage of this exhibit that was given to me, which
over the period of time that they owned these bonds, there’s an
increase in value of 73.4%.
THE COURT: I don’t know how you got that. What I got in this first
one, series number ending 4988. It was a $50.00 bond, interest was
$68.32, which interest rate is 4.5 - - 4.50%. How is it you’re up to
73%?
MR. KORBAN: . . . So, we’re running on the assumption that,
roughly speaking, if you take all of the bonds into consideration that
should be considered part of the marital asset, based on the
information that I was given, and we don’t have access to these
valuations, that the totality would be an increase of 73.4%, from the
face value.
THE COURT: Did you take into consideration the ones that are
$100.00 face value and right now they’re only $68.00?
MR. KORBAN: That’s why we averaged them out. That’s why we
didn’t do it in an individual level. Because some went up, some went
down, but as you can see, the majority of them went up, just based on
this document - -
10
When Husband refers to a bond being in either Husband or Wife’s name individually, it appears he is
referring to those bonds that bore either Husband or Wife’s name plus the name of a family member.
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THE COURT: Only if they’re older than 1995. So, the ones that you
are averaging, they’re older than 1995?
MR. KORBAN: I would have to check.
Id. at 30-31.
[20] After hearing the evidence, the trial court ruled that Wife’s valuation of the
savings bonds at $2,074.52, which was based on the Treasury Department’s
printout, was the more accurate value. This conclusion reflected the trial
court’s determination that only the twenty-four savings bonds – those owned
exclusively by one or both of the parties – should be included in the marital pot.
Husband contends that the trial court abused its discretion when it excluded
from the marital pot additional savings bonds that bore the name of Husband or
Wife plus a family member. We disagree.
[21] The evidence supports the trial court’s conclusion to include in the marital
assets only the twenty-four savings bonds owned exclusively by the parties. The
trial court clearly believed that the remaining bonds had been purchased for
family members as a gift, were being held by the parties until the bonds
increased in value, and would be given to those family members to mark a
special occasion. We cannot say that the trial court abused its discretion when
it excluded from the marital pot savings bonds that had been purchased as gifts
for the parties’ family members.
[22] The parties do not dispute that the twenty-four savings bonds were valued at
$2,074.52. Therefore, our conclusion that the trial court did not abuse its
discretion by including only those twenty-four bonds in the marital estate also
supports the trial court’s determination that, for purposes of the marital estate,
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the bonds had a value of $2,074.52. That being said, we note that, even if
additional bonds had been included in the marital assets, the evidence before
the trial court did not support Husband’s contention that the interest on those
savings bonds should have been calculated at a rate of 73.4%. Husband arrived
at the 73.4% by improperly relying on the appreciation of older savings bonds,
many of which had been purchased before 1995. Most of the remaining savings
bonds, however, had been purchased after 2000 and, in some cases, had not yet
attained their face value, let alone increase by 73.4%. Appellant’s App. at 59-63.11
The trial court did not abuse its discretion in rejecting Husband’s claim that the
savings bonds increased in value by more than 73%. It was eminently
reasonable of the trial court to adopt Wife’s valuation, which was based on a
spread sheet of values established by the Treasury Department. We find no
abuse of discretion in the trial court’s valuation of the savings bonds.
B. Division
[23] After determining what constitutes marital property, the trial court must then
divide the marital property under the presumption that an equal split is just and
reasonable. Estudillo, 956 N.E.2d at 1090 (citing Ind. Code § 31-15-7-5). Again,
we review whether the trial court abused its discretion. In re Marriage of Fisher,
24 N.E.3d 429, 432 (Ind. Ct. App. 2014). An abuse of discretion occurs where
11
We note that Husband claims he could not properly value the savings bonds; however, Wife valued the
savings bonds using a public Treasury Department website (http://treasurydirect.gov), which was also
available to Husband.
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the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before the court. Id.[24] Indiana law outlines that a trial court shall divide the property in a just and
reasonable manner by, among other things: dividing the property in kind;
setting the property or parts of the property over to one of the spouses and
requiring either spouse to pay an amount, either in gross or in installments, that
is just and proper; or ordering the sale of the property under such conditions as
the court prescribes and dividing the proceeds of the sale. Ind. Code § 31-15-7-
4(b). Husband contends that the trial court abused its discretion when it “failed
to properly consider tax consequences,” and “failed to consider the current and
future economic circumstances of the parties. Appellant’s Br. at 11, 13.
[25] Indiana Code section 31-15-7-7 provides, “The court, in determining what is
just and reasonable in dividing property under this chapter, shall consider the tax
consequences of the property disposition with respect to the present and future
economic circumstances of each party.” (Emphasis added). This statute, however,
requires the trial court to consider only the direct or inherent and necessarily
incurred tax consequences of the property disposition. Knotts v. Knotts, 693
N.E.2d 962, 968 (Ind. Ct. App. 1998) (citations omitted), trans. denied.
Husband contends that the tax consequences to him of being given the PERF
account are not speculative, but instead, are a direct and inherent result of the
trial court’s division of assets. Appellant’s Br. at 13. Specifically, he asserts for
the first time on appeal that 17.93% of his PERF account is consumed in taxes,
which over his life will equal $81,727.98. Id.Court of Appeals of Indiana | Memorandum Decision 45A03-1502-DR-46 |July 13, 2015 Page 14 of 20
[26] Wife argues that Husband waived this argument by not raising the issue in the
trial court. In fact, Wife was the one who raised this issue saying:
Judge, I anticipated it and I was right. They want her to take the pre-
tax money. Dr. Furdek [the expert] didn’t says it’s $466,000.00 pre-
tax. He said it’s $466,000.00 in real dollars that you would need to
invest today to throw off a $2,000.00 a month benefit to [Husband].
They want her to take all pre-tax money. That’s not fair. Your honor
has to consider the tax implications of a division of assets. And
thankfully, these people have lots of liquid cash.
Tr. at 46. A party may not advance an argument for the first time on appeal.
See Birkhimer, 981 N.E.2d at 120 (citing Grathwohl v. Garrity, 871 N.E.2d 297,
302 (Ind. Ct. App. 2007) (“If a party does not present an issue or argument to
the trial court, appellate review of the issue or argument is waived.”)). Thus,
we agree with Wife that Husband waived his argument that the trial court
abused its discretion by failing to consider the tax consequences of giving
Husband his entire PERF account. That being said, as we note below, the trial
court specifically stated that it had considered concerns regarding pre-tax
investments. Appellant’s App. at 13.
[27] Husband also maintains that, in its division of the assets, the trial court failed to
consider the parties’ present and future economic circumstances. Wife listed
her gross yearly salary as $27,450.00, resulting in a gross monthly income of
$2,287.50. Appellant’s App. at 141. Husband listed his gross weekly earnings as
$582.60 from salary, $478.72 from pension and retirement, and $165.00 from
officiating, resulting in a combined monthly gross income of $5,314.05.
Husband’s monthly income was more than twice that of Wife’s. While it is true
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that Husband was awarded his pre-tax PERF account, Wife was awarded her
pre-tax PERF account, as well as a portion of one of Husband’s pre-tax
retirement accounts. The accounts awarded to Wife totaled about $250,000.00.
[28] In its Decree of Dissolution, the trial court followed the parties’ mediated
agreement. It was the parties’ joint determination that Husband’s PERF
account, which Wife’s expert valued at $466,000.00, would be valued for
purposes of the marital estate at about $10,000.00 less, or $455,871.00. Tr. at 4.
The parties also agreed that Husband would get his entire PERF account and
that Wife would get 45% of its value. This meant that Wife’s share was about
$205,000.00, and Husband’s share was about $250,000.00. Had Wife insisted
on both including the extra $10,000.00 in value and dividing the PERF account
equally, her share would have been around $233,000.00, i.e. $28,000.00 more
than she received. In the Decree of Dissolution, Wife’s distributive share of the
assets was $757,489.28, and Husband’s share was $803,076.38. The trial court
specifically stated that it had “considered the parties’ respective arguments, the
parties’ concerns regarding pre-tax investments, and the fact that each party
wants the marital residence,” as well as “the resources of the parties, their
economic condition, [and] the ability of the parties to engage in gainful
employment and to earn adequate income.” Appellant’s App. at 13. The trial
court did not abuse its discretion by following the parties’ mediated agreement
and, after considering tax consequences and each party’s present and future
economic circumstances, dividing the assets as it did.
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II. Reimbursement of PERF Payments to Husband
[29] Lastly, Husband asserts that the trial court abused its discretion by dividing his
PERF account worth $455,871.00, but denying his request for reimbursement
of the $9,740.88 paid from PERF during the provisional period. A provisional
order is temporary in nature and terminates when the final dissolution decree is
entered or the petition for dissolution is dismissed. Mosley v. Mosley, 906 N.E.2d
928, 929-30 (Ind. Ct. App. 2009) (citing Ind. Code § 31-15-4-14). “The
determination of temporary orders in a dissolution proceeding is committed to
the sound discretion of the trial court, and it can issue orders for temporary
maintenance or support in amounts it deems just and proper.” Id. at 930 (citing
Ind. Code § 31-15-4-8). On appeal, we will consider only the evidence most
favorable to the trial court’s decision. Id. We will reverse only where the
decision is clearly against the logic and effect of the facts and circumstances
before the court. Id.[30] Under Indiana law, the issuance of a provisional order is without prejudice to
the rights of the parties as adjudicated at the final hearing in the proceeding.
Ind. Code § 31-15-4-13. “Unlike a final decree[,] which is entered after either a
full hearing on all of the issues or after negotiation and agreement by the
parties, a provisional order is only designed to maintain the status quo of the
parties.” Fitzgerald v. Travelers Ins. Co., 567 N.E.2d 159, 162 (Ind. Ct. App.
1991), trans. denied.
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[31] Paragraph 7 of the Provisional Order Dated July 22, 2014, provided, “Husband
shall be entitled to maintain his pension payments during the pendency of this
action.” Id. at 19. The parties agreed that the total value of Husband’s PERF
was $455,817.00. Husband contends that this amount included the benefits to
be paid to Husband from the date the dissolution was filed, forward.
Specifically, he contends that this value included payments made to him during
the provisional period. Husband’s PERF benefit was $2087.32 per month.
During the provisional period, which lasted four months and twenty days,
Husband was paid $9,740.88. Husband contends that, “when the trial court
divided the assets, it did not consider that $9,740.88 of the total PERF value
had already been awarded to Husband.” Appellant’s App. at 20. Accordingly,
Husband insists that “in splitting the PERF by percentages based on the
$455,817.00 figure, the trial court failed to give Husband credit for the portion
of the PERF that it had already given him,” an amount to which he had a right
under the provisional order. Appellant’s App. at 20. Husband maintains the trial
court should have either reduced the amount of the PERF account by $9,740.88
prior to its division with Wife or should have given him a credit in that amount
after the division. We disagree.
[32] We find nothing in the terms of the July 2014 provisional order setting forth
Husband’s right to a credit of any kind at the final division of property.
Appellant’s App. at 18-19. The trial court ordered the parties to “split the
$36,000.00 savings account equally” to effectuate Husband’s move from the
martial residence. Id. at 18. Other than that, all of the parties’ assets were
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ordered frozen by the trial court. Id. at 19. Because one of the parties’ assets –
Husband’s PERF – was already being distributed to Husband on a monthly
basis at the time of the provisional hearing, it stands to reason that the trial
court specifically delineated that asset in Paragraph 7 of the provisional order
and allowed Husband to “maintain” those payments, rather than require him to
put them into an account somewhere with the rest of the parties’ assets. This
allowed the parties to maintain the status quo.
[33] Second, and more importantly, the parties entered into the mediated agreement
after the issuance of the provisional order. It was in the mediated agreement
that the parties agreed: (1) that Husband’s PERF would be valued at
$455,871.00, which was about $10,000.00 lower than the value stated by Wife’s
expert, Dr. Furdek; and (2) that the value of the PERF account would be
divided 45% for Wife and 55% for Husband. Tr. at 4, 17; Appellant’s App. at 35.
Like the provisional order, the mediated agreement contained no mention of
any credit that Husband should receive or wanted to receive regarding his
monthly PERF payments. Appellant’s App. at 34-36. All aspects of the PERF
account were dealt with in the mediated agreement; the PERF account was not
even included in the list of assets attached to the Decree of Dissolution.
[34] Moreover, beyond the compromised value of the PERF, the 55%-45%
division of the value of Husband’s PERF, and the equal division of
the remaining property, in Paragraph 8 of the mediated agreement, the parties
released, waived, and forever relinquished all other claims, rights of
dower, inheritance, descent and distribution, and all other right, title,
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claim, interest and estate existing by reason of their former
relationship as Husband and Wife. Id. at 36. Pursuant to the mediated
agreement, both parties were released from any additional claims against
the property, including the credit that Husband now claims. Based on the
evidence most favorable to the trial court’s decision, the trial court’s failure to
provide Husband with his proposed credit for his PERF payments during
the provisional period was not clearly against the logic and effect of the facts
and circumstances before the court.
[35] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
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