MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D), this                           Jun 23 2017, 8:47 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                         CLERK
                                                                       Indiana Supreme Court
purpose of establishing the defense of res judicata,                      Court of Appeals
                                                                            and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Dylan A. Vigh                                            Paul J. Watts
Law Offices of Dylan A. Vigh, LLC                        Watts Law Office, P.C.
Indianapolis, Indiana                                    Spencer, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Adrianne R. Helton,                                      June 23, 2017

Appellant-Respondent,                                    Court of Appeals Case No.
                                                         60A05-1609-DR-2202
        v.                                               Appeal from the Owen Circuit Court
                                                         The Honorable Kelsey B. Hanlon,
Timothy Joseph Helton,                                   Special Judge
                                                         Trial Court Cause No.
Appellee-Petitioner.
                                                         60C02-1401-DR-5




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 60A05-1609-DR-2202 | June 23, 2017           Page 1 of 7
                                          Case Summary
[1]   In 2002, Appellant-Respondent Adrianne Helton (“Wife”) and Appellee-

      Petitioner Timothy Helton (“Husband”) married and, in 2007 and 2008, built

      the marital residence (“the House”) on land that they believed was owned by

      Husband’s father. In 2010, the parties learned that the land on which the

      House was built actually belonged to a neighbor. In 2014, Husband petitioned

      for dissolution of the marriage, and the parties’ marriage was dissolved in 2016.

      In dividing the marital estate, the trial court, inter alia, found that the parties had

      no present ownership interest in the House and therefore did not include it in

      the marital estate. Wife contends that the trial court abused its discretion in

      failing to account for Husband’s continued use and occupation of the House.

      Because Wife did not make this argument in the trial court, she has waived it

      for our consideration, and we affirm.



                            Facts and Procedural History
[2]   Husband and Wife were married on June 22, 2002. In late 2007, the couple

      decided to build the House on land they believed to be owned by Husband’s

      father. The couple executed a land contract with Husband’s father for

      approximately $35,000.00, and Husband built the House as funds became

      available over the course of three to six months. In 2010, Husband discovered

      that the land upon which the House had been built was not, in fact, owned by

      his father, but by a neighbor. At that point, Husband and Wife ceased making

      payments on the land contract. Husband and Wife separated in November of


      Court of Appeals of Indiana | Memorandum Decision 60A05-1609-DR-2202 | June 23, 2017   Page 2 of 7
      2013, and, on January 21, 2014, Husband petitioned for dissolution of the

      parties’ marriage. On May 23, 2016, the trial court held a hearing at which the

      division of the marital estate was the main issue. Husband testified, inter alia,

      that he continued to live in the House, pay property tax, pay for improvements,

      and pay for insurance.


[3]   On August 30, 2016, the trial court issued its order on the division of marital

      property. The order provides, in part, as follows:


                                         FINDINGS OF FACT
              ….
              6.     The [House] is located at 1549 Quincy Road, Quincy,
              Indiana 47456. In 2007, the parties entered into an agreement
              with [Husband’s] father to build that residence and purchase the
              property on contract. Sometime in 2010 it came to the parties’
              attention that the land upon which the residence is located is not
              owned by [Husband’s] father but by a neighbor. Upon learning
              of the mistake, the parties quit making payments on the land
              purchase contract and that contract is no longer in effect. The
              parties have no present ownership interest in the property and the
              statutory time period to establish adverse possession has not yet
              elapsed.
              ….
                                   CONCLUSIONS OF LAW
              ….
               6.    An established foundation of Indiana family law and
               martial property distribution is that only property with a vested
               interest at the time of dissolution may be divided as a marital
               asset. Vadas v. Vadas, 762 N.E.2d 1234, 1235 (Ind. 2002), citing
               Mullins v. Matlock, 638 N.E.2d 854, 856 (Ind. Ct. App. 1994). A
               vested interest is defined as an interest for which the right to its
               enjoyment, either present or future, is not subject to the
               happening of a condition precedent. Interest, Black’s Law


      Court of Appeals of Indiana | Memorandum Decision 60A05-1609-DR-2202 | June 23, 2017   Page 3 of 7
               Dictionary (10th ed. 2014). This line of reasoning helps promote
               predictability, consistency and efficiency by excluding remote
               and speculative interests from the marital estate. Vadas, 762
               N.E.2d at 1235. The parties have no vested interest in the
               Quincy residence or real estate.

      Appellant’s App. Vol. II pp. 13-16. Wife contends that the trial court abused its

      discretion in declining to consider the value of Husband’s continued use and

      occupation of the House in dividing the marital estate.


                                 Discussion and Decision
[4]   The trial court entered findings of fact and conclusions of law pursuant to

      Indiana Trial Rule 52.

              When a court has made special findings of fact, an appellate
              court reviews sufficiency of the evidence using a two-step
              process. “First, it must determine whether the evidence supports
              the trial court’s findings of fact; second, it must determine
              whether those findings of fact support the trial court’s
              conclusions of law.” Estate of Reasor v. Putnam County, 635
              N.E.2d 153, 158 (Ind. 1994) (citation omitted). Findings will
              only be set aside if they are clearly erroneous. Id. “Findings are
              clearly erroneous only when the record contains no facts to
              support them either directly or by inference.” Id. (citation
              omitted). A judgment is clearly erroneous if it applies the wrong
              legal standard to properly found facts. State v. Van Cleave, 674
              N.E.2d 1293, 1296 (Ind. 1996), reh’g granted in part, 681 N.E.2d
              181 (Ind. 1997). In order to determine that a finding or
              conclusion is clearly erroneous, an appellate court’s review of the
              evidence must leave it with the firm conviction that a mistake has
              been made. Id. at 1295.




      Court of Appeals of Indiana | Memorandum Decision 60A05-1609-DR-2202 | June 23, 2017   Page 4 of 7
      Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). “On appellate review,

      however, a trial court judgment may be affirmed if sustainable on any basis in

      the record, even though not on a theory used by the trial court.” Benham v.

      State, 637 N.E.2d 133, 138 (Ind. 1994).


                               Division of the Marital Estate
[5]   Mother contends that the trial court abused its discretion in failing to consider

      Husband’s continued use and occupation of the House in dividing the marital

      estate. Our standard of review for a division of a marital estate is deferential:

              We apply a strict standard of review to a dissolution court’s
              distribution of property. Wallace v. Wallace, 714 N.E.2d 774, 781
              (Ind. Ct. App. 1999), trans. denied. The party challenging the
              property division must overcome a strong presumption that the
              court complied with the statute and considered the evidence on
              each of the statutory factors. Id. 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. Id.
              We will reverse a property distribution only if there is no rational
              basis for the award; that is, if the result reached is clearly against
              the logic and effect of the facts and circumstances before the
              court, including the reasonable inferences to be drawn therefrom.
              Id. at 781-82. In so determining, we cannot reweigh the
              evidence, and consider only the evidence favorable to the
              dissolution court’s decision. Cowden v. Cowden, 661 N.E.2d 894,
              895 (Ind. Ct. App. 1996). We will also reverse where the trial
              court has misinterpreted the law or has disregarded evidence of
              statutory factors. Wallace, 714 N.E.2d at 782. However, that the
              same circumstances may have justified a different property



      Court of Appeals of Indiana | Memorandum Decision 60A05-1609-DR-2202 | June 23, 2017   Page 5 of 7
              distribution will not permit us to substitute our judgment for that
              of the divorce court. Id.
      Wilson v. Wilson, 732 N.E.2d 841, 844 (Ind. Ct. App. 2000), trans. denied.


[6]   The trial court excluded the House from the marital estate because it concluded

      that neither party had any vested interest in it. There is sufficient evidence to

      support this conclusion, which, indeed, Wife does not contest on appeal.


[7]   Quite apart from the question of ownership of the House, Wife’s specific

      contention on appeal is that the trial court abused its discretion in failing to

      consider Husband’s continued use and occupancy of the House in dividing the

      marital estate. Wife, however, did not make this argument in the trial court,

      nor was there any evidence presented by either party touching on the value of

      Husband’s use and occupancy of the House. Wife may not now raise this issue

      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


      Court of Appeals of Indiana | Memorandum Decision 60A05-1609-DR-2202 | June 23, 2017   Page 6 of 7
              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).


[8]   Wife has waived her only claim on appeal for our review. Therefore, the

      judgment of the trial court is affirmed.


[9]   Najam, J., and Riley, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 60A05-1609-DR-2202 | June 23, 2017   Page 7 of 7
