FOR PUBLICATION




ATTORNEY FOR APPELLANT:                               ATTORNEY FOR APPELLEE:

ADAM G. FORREST                                       THOMAS E. Q. WILLIAMS
Boston Bever Klinge Cross &                           Greenfield, Indiana
Chidester
Richmond, Indiana
                                                                        FILED
                                                                     Jul 05 2012, 9:16 am


                             IN THE                                            CLERK
                                                                             of the supreme court,
                                                                             court of appeals and

                   COURT OF APPEALS OF INDIANA                                      tax court




ANDREW JOSEPH WORTKOETTER,                     )
                                               )
      Appellant-Respondent,                    )
                                               )
             vs.                               )     No. 30A01-1111-DR-548
                                               )
AMY JEAN WORTKOETTER,                          )
                                               )
      Appellee-Petitioner.                     )


                   APPEAL FROM THE HANCOCK CIRCUIT COURT
                        The Honorable Richard D. Culver, Judge
                            Cause No. 30C01-1104-DR-557



                                      July 5, 2012

                              OPINION - FOR PUBLICATION

BAILEY, Judge
                                     Case Summary

       Andrew J. Wortkoetter (“Husband”) appeals from the denial of his motion to correct

error, which disputed the trial court’s property division following the dissolution of his

marriage to Amy J. Wortkoetter (“Wife”).

       We affirm with instruction.

                                          Issues

       Husband raises two issues, which we restate as:

       1.     Whether the trial court abused its discretion when it declined to award
              him his Individual Retirement Account (“IRA”) exclusively and thereby
              deviate from the statutory presumption for an equal division of marital
              property; and

       2.     Whether the trial court’s order of payment from Husband to Wife is
              clearly erroneous.

                             Facts and Procedural History

       The parties were married on July 11, 1991, and had two children. In 1990, before the

marriage, Husband rolled over approximately $2,000 from the State’s Public Employees’

Retirement Fund into an Individual Retirement Account (“IRA”). On March 31, 2011, the

account was worth $28,007.

       On April 5, 2011, Wife filed a Petition for Dissolution of Marriage. Based upon the

parties’ agreements, the trial court entered a provisional order on May 5, 2011. In an order

dated August 29, 2011, the court dissolved the marriage and established child custody and

child support. A final hearing on property distribution was held on September 2, 2011, at

which time Husband and Wife each testified and proffered one exhibit in support of their


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respective settlement positions. Regarding his IRA, Husband asked the court to “set that off

aside as a non-marital asset.” (Tr. at 33.)

       On September 8, 2011, the trial court entered its Order on Property Settlement,

specifically finding that the IRA was part of the marital estate and dividing the marital

property equally. The court prepared an asset and debt ledger to effect a proper equalization

of marital assets and decreed: “Wife shall have a judgment for the equalization sum of

$12,664.” (App. at 14.) The court also ordered Husband to pay the balance of Wife’s

attorney fees in the amount of $1,400.

       Proceeding pro se, Husband filed what was deemed a motion to correct error. Wife,

also pro se, responded. A hearing was held on October 21, 2011, after which the trial court

denied Husband’s motion. Husband now appeals.

                                  Discussion and Decision

                                     Standard of Review

       Husband first challenges the equal division of marital property. Technically, however,

he appeals from the denial of his motion to correct error. This Court reviews a trial court’s

ruling on a motion to correct error under an abuse of discretion standard. Zaremba v.

Nevarez, 898 N.E.2d 459, 463 (Ind. Ct. App. 2008). An abuse of discretion occurs when the

decision is clearly against the logic and effect of the facts and circumstances before the court,

including any reasonable inferences therefrom. Id.

       The motion to correct error addressed the court’s division of marital property, a matter

committed to the sound discretion of the trial court. Wanner v. Hutchcroft, 888 N.E.2d 260,


                                               3
263 (Ind. Ct. App. 2008). A party challenging the trial court’s division of marital property

must overcome a strong presumption that the court considered and complied with the

applicable statute. Id. Even if the facts and reasonable inferences permit a conclusion

different from that reached by the trial court, we will not substitute our judgment for that of

the trial court unless its decision is clearly against the logic and effect of the facts and

circumstances before it. Perkins v. Harding, 836 N.E.2d 295, 299 (Ind. Ct. App. 2005). We

consider only the evidence favorable to the judgment and we do not reweigh the evidence or

reassess witness credibility. Id. In addition, we will not set aside the findings or judgment

unless clearly erroneous. Elkins v. Elkins, 763 N.E.2d 482, 484 (Ind. Ct. App. 2002).

                               Issue One: Property Division

       On appeal, Husband concedes that all property, including his IRA, is part of the

marital estate, but he disputes the court’s decision to equally divide that estate. Indiana Code

§ 31-15-7-5, which governs the division of martial property, provides in relevant part:

       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
              (B) through inheritance or gift.

       *****

       (4) The conduct of the parties during the marriage as related to the disposition
       or dissipation of their property. . . .

                                               4
       Here, Husband insists that he rebutted the statutory presumption for equal division of

marital property. He points out that the IRA was owned by him individually before the

marriage, was acquired without any assistance from Wife, was never commingled with other

marital property, and was never treated as marital property by the parties. Even the ten dollar

annual maintenance fee was deducted from the account itself rather than being paid with

marital funds. Thus, he argues, his IRA should have been allocated exclusively to him, with

the remaining property equally divided between the parties.

       Husband cites to Maxwell v. Maxwell, 850 N.E.2d 969 (Ind. Ct. App. 2006), trans.

denied, where the dissolution court effected an unequal division of marital assets by

awarding the husband stock and an IRA inherited by him after he had moved out of the

marital residence. Thus, the husband was in possession of the inheritance for only a few

months of the parties’ marriage that lasted over thirty years. We held that the court did not

abuse its discretion when it “set aside” the stock and IRA exclusively to the husband. Id. at

974. Husband also relies upon Castaneda v. Castaneda, 615 N.E.2d 467 (Ind. Ct. App.

1993), where this Court concluded that the dissolution court did not abuse its discretion when

it allocated to the wife all of an inheritance that she acquired during the course of her

marriage. In Castaneda, the wife kept the funds in her name alone, husband did nothing to

accumulate the funds, and the account was not treated as marital property or commingled

with other assets. Id. at 470.

       In both Maxwell and Castaneda, however, the trial courts exercised broad discretion

when distributing marital property and, applying our standard of review, we affirmed those


                                              5
decisions. As with the parties challenging the trial courts’ decisions in those cases, Husband

in this case must overcome a strong presumption that the trial court complied with the statute,

considered Husband’s evidence, and still concluded that an equal division of property was

just. See Gaskell v. Gaskell, 900 N.E.2d 13, 19 (Ind. Ct. App. 2009). This is one of the

strongest presumptions applicable to our consideration on appeal. Id.

       Here, although the IRA was established by Husband before the marriage, most of the

appreciation occurred during the marriage. Cf. Wanner, 888 N.E.2d at 263 (observing that,

even where the trial court properly sets aside the value of premarital assets to one spouse, the

appreciation over the course of the marriage is a divisible marital asset). Additionally, the

trial court was not required to set aside to Husband the value of the IRA, even though Wife

made no contribution to its acquisition. See In re Marriage of Nickels, 834 N.E.2d 1091,

1098 (Ind. Ct. App. 2005). Rather, the trial court was required to follow the statutory

presumption absent evidence that an equal division would not be just and reasonable. Doyle

v. Doyle, 756 N.E.2d 576, 578 (Ind. Ct. App. 2001). We conclude that the court acted within

its discretion when, in accordance with the statutory presumption, it declined to award

Husband his IRA exclusively and, instead, equally divided all property of the parties.

                                   Issue Two: Judgment

       Husband also asserts that the trial court’s computation of Wife’s equalization payment

is clearly erroneous. His assertion is based upon the following excerpt from the order on

property settlement:

       Husband’s Net Without Equalization          $20,771
       Wife’s Net Without Equalization              $4557

                                               6
        Disparity is total of nets ($25328) divided by 2 which is $12,664. The
        difference between the equalization netting and Wife’s Net amounts to $8107.
        Thus equalization judgment shall enter for wife in the amount of $12,664[.]
        IT IS THEREFORE ORDERED ADJUDGED AND DECREED that Wife
        shall have a judgment for the equalization sum of $12,664[.]

(App. at 13-14.)

        Here, each party was to receive $12,664 in assets. Husband had in his possession net

assets valued at $20,771; Wife possessed net assets of $4,557, for a total of $25,328. Thus,

Husband owed Wife $12,664 less $4,557, or $8,107. Although Wife contends that there is

no error in the judgment, she agrees that she is owed $8,107 from Husband.1

        Indiana Trial Rule 58(B)(4) requires the judgment to contain “[a] statement in

imperative form which clearly and concisely sets forth the relief granted, any alteration of

status, any right declared, or any act to be done or not done.” Generally, the rights of the

parties are adjudged by the decretal portion of the judgment. Farley v. Farley, 157 Ind. App.

385, 392, 300 N.E.2d 375, 380 (1973). Thus, critical to a money judgment is that it be a

certain and definite statement of the amount due. Henderson v. Sneath Oil Co., 638 N.E.2d

798, 803 (Ind. Ct. App. 1994).

        While properly setting forth the “difference” as $8,147, the order at issue does not

state in imperative form that Husband must pay that amount to Wife. Rather, the order

awards Wife a sum of $12,664. As Wife agrees with the amount owed, in the interest of

judicial economy and in accordance with Indiana Appellate Rule 66(C)(7), we order

1
 To support her position, Wife cites to two unpublished decisions from this Court. We remind counsel for
Wife that, pursuant to Indiana Appellate Rule 65(D), “a not-for-publication memorandum decision shall
not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish
res judicata, collateral estoppel, or law of the case.”

                                                      7
correction of the judgment to show an award of $8,107 in favor of Wife and instruct the trial

court to amend its records accordingly.

                                          Conclusion

       The dissolution court did not abuse its discretion when it included Husband’s IRA in

the marital estate and then equally divided that estate. Likewise, the court did not abuse its

discretion in denying Husband’s motion to correct error on that basis. Because the court’s

order does not clearly state the judgment amount in imperative form, we order correction of

the judgment to show an award of $8,107 in favor of Wife and instruct the trial court to

amend its records accordingly.

       Affirmed with instruction.

ROBB, C.J., and MATHIAS, J., concur.




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