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                             FILED
establishing the defense of res judicata,                    Dec 07 2012, 9:28 am
collateral estoppel, or the law of the
case.                                                                CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                          ATTORNEY FOR APPELLEE:

DIANE M. MILLER                                  LATRIEALLE WHEAT
Albion, Indiana                                  Angola, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF LISA L. SHISLER            )
and NED L. SHISLER,                              )
                                                 )
NED L. SHISLER,                                  )
                                                 )
        Appellant-Respondent,                    )
                                                 )
               vs.                               )       No. 57A03-1109-DR-450
                                                 )
LISA L. SHISLER,                                 )
                                                 )
        Appellee-Petitioner.                     )


                      APPEAL FROM THE NOBLE CIRCUIT COURT
                          The Honorable G. David Laur, Judge
                            Cause No. 57C01-1008-DR-185

                                      December 7, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
      Ned L. Shisler (“Husband”) appeals the distribution of the marital estate pursuant

to his divorce from Lisa L. Shisler (“Wife”).      Husband challenges the trial court’s

valuation of some assets and exclusion of other assets from the marital estate. The court

erred in excluding multiple unvalued assets from the marital estate while simultaneously

finding neither party had rebutted the presumption of equal division of marital assets.

We accordingly reverse and remand.

                      FACTS AND PROCEDURAL HISTORY

      The trial court’s order indicated:

      [Wife] and [Husband] have previously divided and distributed between
      them to their mutual satisfaction all of their personal property marital items
      and each of them believes the distribution is fair and equitable and each is
      hereby declared to be the sole owner free and clear of any claim thereto by
      the other, of any and all such personal property marital items presently in
      their respective possessions.

      The Court finds, pursuant to Indiana Code 31-15-7-5, that an equal division
      and distribution of the marital property and marital debts between [Wife]
      and [Husband] is fair, just, and reasonable and that neither of them have
      rebutted that statutory presumption and it is the intent of the Court to make
      an equal division and distribution of the marital estate so far as possible
      based upon the evidence presented to the Court.

(Appellee’s App. at 5.) The court then set over to Wife assets to which the court assigned

a value of $55,894.562 and debts of $8,200.00. The court set over to Husband assets

worth $118,060.00 and debts of $51,970.13. Because the difference in the net value

assigned to the parties was $18,395.25, the court ordered Husband to pay Wife $9,197.63.

      Husband filed a motion to correct error and Wife responded. The court granted

Husband’s motion to the extent the original judgment “did omit [Wife’s] agreement to

give the Honda Generator, house key and military nametag, if located[,] to [Husband].”

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(Id. at 13.) The court denied the remainder of Husband’s motion.

                           DISCUSSION AND DECISION

      We review the denial of a motion to correct error for an abuse of discretion.

Wortkoetter v. Wortkoetter, 971 N.E.2d 685, 687 (Ind. Ct. App. 2012). An abuse of

discretion occurs if the decision was against the logic and effect of the facts and

circumstances before the court. Id.

      In an action for dissolution of marriage, a court is to divide all of the parties’

property, without regard to whether the property was:

      (1) owned by either spouse before the marriage;
      (2) acquired by either spouse in his or her own right:
             (A) after the marriage; and
             (B) before final separation of the parties; or
      (3) acquired by their joint efforts.

Ind. Code § 31-15-7-4(a). The court is to divide that property “in a just and reasonable

manner,” Ind. Code § 31-15-7-4(b), and the court is to “presume that an equal division of

the marital property between the parties is just and reasonable.” Ind. Code § 31-15-7-5.

That presumption of equal division may be rebutted, however, if one of the parties

      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 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.
      (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

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       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.

Id.

       The party challenging a division of assets “must overcome a strong presumption

that the court complied with [the] controlling statute[s].” Jendreas v. Jendreas, 664

N.E.2d 367, 370 (Ind. Ct. App. 1996), trans. denied. We reverse only for an abuse of

discretion and consider only the evidence favorable to the judgment. Id. We neither

reweigh the evidence nor assess the credibility of the witnesses. O’Connell v. O’Connell,

889 N.E.2d 1, 10 (Ind. Ct. App. 2008). We may not set aside the findings or judgment

unless they are clearly erroneous. Wortkoetter, 971 N.E.2d at 688.

       On appeal, as in his motion to correct error, Husband asserts the court erroneously

excluded some assets from the marital pot.

       [A]ll marital property, including property owned by either spouse prior to
       marriage, goes into the marital pot for division. This ‘one-pot’ theory
       insures that all assets are subject to the trial court’s power to divide and
       award. While the trial court may ultimately determine that a particular
       asset should be awarded solely to one spouse, it must first include the asset
       in its consideration of the marital estate to be divided.

O’Connell, 889 N.E.2d at 11 (internal quotations and citations omitted).

       In dividing the marital assets, the court excluded a number of assets from the

Shislers’ marital pot based on the premise the parties brought those assets to the marriage.

For example, the court listed a “MONY” account as an asset assigned to Wife, but

assigned that account a value of “$0.00” and indicated “(prior).” (Appellee’s App. at 5.).

It also assigned a value of $80,500 to the marital real estate because it excluded

                                              4
“$16,000.00 for pre-marital asset contribution.” (Id.) However, at the same time, the

court indicated its intent to divide the marital estate equally because neither party had

“rebutted that statutory presumption.” (Id.) By excluding premarital assets while also

purporting to divide the marital estate equally, the court committed reversible error. See

O’Connell, 889 N.E.2d at 11-12 (court violated the one-pot theory when it did not

consider and divide property owned before marriage).

       Accordingly, we must reverse for the court to 1) include all marital assets in the

marital pot for division or 2) enter a finding under Ind. Code § 31-15-7-5 that could

support unequal division and setting aside of the pre-marital assets. Some assets the

court should value and include in the marital pot, if the court finds the assets existed, are:

Wife’s MONY account, the life insurance proceeds Husband received upon the death of

his father, the $16,000 Husband placed as a down payment on the marital residence,

savings bonds Husband alleges his mother gave him, any additional vested pension plans,

and any additional personal property with sufficient value to justify assigning a value.

       Although we must reverse for the court to enter a new order distributing the

marital estate, we address two other arguments raised on appeal because similar

arguments are likely to arise on remand. First, as the court determines on remand which

pension plans and annuities are to be included in the marital pot, we remind the court that

“[a]lthough for purposes of dissolution all assets of the parties are considered property to

be divided, a party must have a present interest of possessory value for the property to be

subject to distribution.” Jendreas, 664 N.E.2d at 372. Thus, if a pension is not vested, its

value is not to be included in the marital estate.

                                               5
          Second, Husband asserts the court should have awarded him half of the money in

Wife’s Hartford Pension Plan and in her Valic Account. While it is true that the court

assigned the full value of those accounts to Wife, we cannot find error. A court is not

required to give each spouse half of each specific asset; rather, the court must divide the

total marital estate in a just and reasonable manner. See Eye v. Eye, 849 N.E.2d 698, 701

(Ind. Ct. App. 2006) (we review the trial court’s disposition of the marital estate as a

whole, not item by item).

          We reverse and remand for the court to enter a new order dividing the marital

estate between Husband and Wife in a manner that accounts for all assets in the marital

estate.

          Reversed and remanded.

FRIEDLANDER, J., and BARNES, J., concur.




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