      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                FILED
      this Memorandum Decision shall not be
                                                                       Dec 29 2016, 9:17 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                          CLERK
                                                                        Indiana Supreme Court
      the defense of res judicata, collateral                              Court of Appeals
                                                                             and Tax Court

      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT
      Steven M. Bush
      Christopher W. Kimbrough
      Millbranth & Bush, LLC
      Valparaiso, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Brian E. Lewis,                                         December 29, 2016
      Appellant-Petitioner,                                   Court of Appeals Case No.
                                                              66A04-1607-DR-1540
              v.                                              Appeal from the Pulaski Superior
                                                              Court
      Bray Lewis,                                             The Honorable Patrick
      Appellee-Respondent.                                    Blankenship, Judge
                                                              Trial Court Cause No.
                                                              66D01-1408-DR-43



      Najam, Judge.


                                       Statement of the Case
[1]   Brian Lewis (“Husband”) appeals the dissolution court’s final decree, which

      ended his marriage to Bray Lewis (“Wife”). Husband presents two issues for

      Court of Appeals of Indiana | Memorandum Decision 66A04-1607-DR-1540 | December 29, 2016   Page 1 of 10
      our review, which we consolidate and restate as whether the dissolution court

      erred when it awarded Wife $45,000 to compensate her for her share of the

      $90,000 in marital assets the parties had spent on improvements to a residence

      they leased from Husband’s son. We affirm.


                                    Facts and Procedural History
[2]   Husband and Wife married in June 2005, and there were no children born of

      the marriage. At that time, Husband owned a home in Monterey, Indiana

      (“the marital residence”), and the parties lived there together. After a couple of

      years, however, Husband “lost” the marital residence when he filed for

      bankruptcy.1 Tr. at 17. Husband’s son Brandon Lewis ended up buying the

      house, and Husband and Wife continued to live there. The parties paid

      monthly rent to Brandon, but there was no written lease agreement.


[3]   During the time the parties lived in the marital residence, they made

      improvements to the real property that cost approximately $90,000. While

      there was no written lease agreement, Wife understood that Brandon would sell

      the house back to Husband and Wife when Husband was done paying off his

      bankruptcy debt. Accordingly, Wife believed that she and Husband would

      ultimately own the house, including the value of the improvements they had

      made.




      1
          Husband’s bankruptcy stemmed from the dissolution of his previous marriage.


      Court of Appeals of Indiana | Memorandum Decision 66A04-1607-DR-1540 | December 29, 2016   Page 2 of 10
[4]   During the parties’ marriage, Husband was the sole owner of an S corporation

      called AgTrans, Inc. (“AgTrans”), a trucking company. AgTrans had no assets

      in 2004 or 2005. After Husband married Wife, the two of them worked out of

      the marital residence for a period of time to run AgTrans with no other

      employees. Initially, Wife was not paid a salary, but after some time passed

      Wife was paid a nominal salary. Over the course of a few years, AgTrans

      accumulated new assets, and as of 2013 AgTrans reported to the Internal

      Revenue Service assets worth almost $300,000.


[5]   In August 2014, Husband filed a petition for dissolution of the marriage. At the

      final hearing, Husband testified in relevant part that he and Wife did not have a

      lease-to-own agreement with Brandon but, rather, a regular lease agreement,

      which was not in writing. And Husband testified that he and Wife had spent

      approximately $70,000 over ten years in making improvements to the marital

      residence. Wife testified that she and Husband had a lease agreement with

      Brandon “with an option to buy the home” when Husband’s “bankruptcy was

      over.” Id. at 49. Wife also testified that she and Husband had spent

      approximately $90,000 over five years on improvements to the home. The

      parties generally agreed on the division of personal property between them, but

      Wife requested that the dissolution court


              divide the business assets listed on the 2013 tax return [totaling
              almost $300,000], to divide the retained earnings [of over
              $100,000], and to award her . . . an amount from what was paid
              with regard to [Husband’s] bankruptcy judgment and for the
              upgrades to the house that [Husband] continues to live in.


      Court of Appeals of Indiana | Memorandum Decision 66A04-1607-DR-1540 | December 29, 2016   Page 3 of 10
      Id. at 60.


[6]   On June 4, 2015, the dissolution court entered findings and conclusions in

      support of the dissolution decree as follows:

              1) That during the time of their marriage, [Husband] was the
              owner of a fully furnished home, vehicles, and the sole
              shareholder of a Sub S Corporation known as AgTrans, Inc., a
              trucking company.

              2) [Wife] had no real estate and had a small amount of personal
              property that she brought into the marriage.

              3) During the course of the marriage, [Husband] continued to
              operate the business known as AgTrans, Inc. and employed
              [Wife] from time to time to assist him in the operations of the
              office.

              4) [Wife] was not a part of the corporate structure nor did she
              receive any stock.

              5) The parties acquired some personal property[,] specifically, a
              Harley Davidson motorcycle with a value of $18,991.00; a 2011
              Polaris with a value of $9,090.00; a 2005 Ford Taurus with a fair
              market value of $2,714.00; a 2009 Saturn with a fair market value
              of $9,233.00; and a camper with a fair market value of $8,000.00.

              6) That at the time of the final hearing, the only non-business
              debt was the debt attached to the Harley Davidson motorcycle
              through the Harley Davidson Finance Company in the amount
              of $12,073.00.

              7) That during the term of the marriage, [Husband] went
              through a personal and business bankruptcy as a result of a prior
              dissolution.


      Court of Appeals of Indiana | Memorandum Decision 66A04-1607-DR-1540 | December 29, 2016   Page 4 of 10
        8) That as part of that bankruptcy proceeding, [Husband] was
        required to make monthly payments to the bankruptcy trustee in
        the amount of $1,500.00 for a period of approximately two years.

        9) That as a result of the bankruptcy, [Husband] was required to
        loose [sic] possession and property interest in his residence.

        10) That[,] during the marriage, the parties entered into an
        alleged lease for the current marital real estate in which they
        resided during the term of their marriage.

        11) The alleged lease was entered into between [Husband] and
        [Wife] and [Husband]’s adult son. That although no lease was
        presented to the Court, both parties testified that they made
        improvements to the leased property in the amount of
        $90,000.00.

        12) That the $90,000.00 at the time that it was expended on the
        leased marital property were marital assets.

        13) The failure of [Husband] to submit as evidence a written lease
        regarding the marital property strongly suggests that this was a sham
        business enterprise between [Husband] and his adult son in order to avoid
        having to put any real estate in [Husband]’s name or [Wife]’s name for
        the sole purpose of avoiding having to divide the property in the event of a
        dissolution. That neither party, and in particular, [Husband], was able
        to explain with any credibility the financial benefit of investing
        $90,000.00 in a leased residence.

        14) [Husband] shall receive as his sole and separate property the
        following: Harley Davidson motorcycle, 2011 Polaris, and all
        the stock and interest in AgTrans, Inc. [Husband] shall hold
        [Wife] harmless to any outstanding debt owed to Harley
        Davidson Finance Company. [Husband] shall also receive all
        personal property in his possession and accounts in his name.



Court of Appeals of Indiana | Memorandum Decision 66A04-1607-DR-1540 | December 29, 2016   Page 5 of 10
              15) [Wife] shall receive as her sole and separate property the
              following: 2005 Ford Taurus, 2009 Saturn, the camper, and an
              amount of monies [sic] equal to one-half of the parties’ investment in the
              marital property in making marital property improvements in the
              amount of $45,000.00. [Wife] shall also receive all property in her
              possession and accounts in her name.

              16) The parties shall be responsible and pay any indebtedness
              incurred in their own individual name both before and after the
              date of the filing of the Petition for Dissolution of Marriage and
              hold one another harmless from the payment thereof.

              17) The parties shall each pay their own attorney’s fees and
              costs.


      Appellant’s App. at 39-41 (emphases added).2 This appeal ensued.


                                       Discussion and Decision
[7]   Initially, we note that Wife has not filed an appellee’s brief. Accordingly, we

      will reverse the trial court’s judgment if the appellant presents a case of prima

      facie error. Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct. App. 2010). Prima

      facie error is error at first sight, on first appearance, or on the face of it. Id.

      Where an appellant does not meet this burden, we will affirm. Id.


[8]   The trial court here entered findings and conclusions sua sponte to accompany

      its dissolution decree. Accordingly, the specific factual findings control only the

      issues that they cover, while a general judgment standard applies to issues upon



      2
        By the agreement of the parties, the dissolution court subsequently amended the dissolution decree and
      awarded the camper to Husband.

      Court of Appeals of Indiana | Memorandum Decision 66A04-1607-DR-1540 | December 29, 2016        Page 6 of 10
      which there are no findings. Fetters v. Fetters, 26 N.E.3d 1016, 1019 (Ind. Ct.

      App. 2015), trans. denied. Not every finding needs to be correct, and even if one

      or more findings are clearly erroneous, we may affirm the judgment if it is

      supported by other findings or is otherwise supported by the record. Id. We

      may affirm a general judgment with sua sponte findings upon any legal theory

      supported by the evidence introduced at trial. Id. at 1019-20. Sua sponte

      findings control as to the issues upon which the court has found, but do not

      otherwise affect our general judgment standard of review, and we may look

      both to other findings and beyond the findings to the evidence of record to

      determine if the result is against the facts and circumstances before the court.

      Id. at 1020.


[9]   We apply a strict standard of review to a court’s distribution of property upon

      dissolution. Smith v. Smith, 854 N.E.2d 1, 5 (Ind. Ct. App. 2006). The division

      of marital assets is a matter within the sound discretion of the trial court. Id.

      The party challenging the trial court’s property division bears the burden of

      proof. Id. That party must overcome a strong presumption that the court

      complied with the statute and considered the evidence on each of the statutory

      factors. Id. at 5-6. The presumption that a dissolution court correctly followed

      the law and made all the proper considerations when dividing the property is

      one of the strongest presumptions applicable to our consideration on appeal.

      Id. at 6. Thus, we will reverse a property distribution only if there is no rational

      basis for the award. Id.




      Court of Appeals of Indiana | Memorandum Decision 66A04-1607-DR-1540 | December 29, 2016   Page 7 of 10
[10]   Husband’s sole contention on appeal is that the dissolution court abused its

       discretion when it awarded $45,000 to Wife. In support of that contention,

       Husband maintains that, to the extent the court based the award to Wife on the

       parties’ interest in real property and the improvements made thereto, that was

       error. Husband is correct that “[o]nly property [in which one or both parties

       have] 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). Further, “‘an

       equitable interest in real property titled in a third-party, although claimed by

       one or both of the divorcing parties, should not be included in the marital

       estate.’” Id. (quoting In re Marriage of Dall, 681 N.E.2d 718, 722 (Ind. Ct. App.

       1997)). However, to the extent Husband contends that the dissolution court

       included the parties’ interest in the marital residence in the marital estate,

       Husband is incorrect.3


[11]   In the final decree, the dissolution court awarded Wife “an amount of monies

       [sic] equal to one-half of the parties’ investment in the marital property in making

       . . . improvements in the amount of $45,000.00.” Appellant’s App. at 41

       (emphases added). Thus, contrary to Husband’s characterization of the award,

       the dissolution court did not award Wife an interest in real property. Rather,

       the dissolution court awarded Wife one-half of the amount of money the parties

       had spent on the improvements to the marital residence. Neither party



       3
         Because we hold that the dissolution court did not premise its award to Wife on any interest, equitable or
       legal, in real property titled in a third party, we need not address Husband’s contention that the court erred
       when it concluded that his lease agreement with Brandon was a sham.

       Court of Appeals of Indiana | Memorandum Decision 66A04-1607-DR-1540 | December 29, 2016           Page 8 of 10
       introduced into evidence the current value of those improvements, but the

       undisputed evidence showed that Husband continued to reside in the marital

       residence and continued to enjoy the use and benefit of those improvements.


[12]   It is well settled that, although a dissolution court may not award property

       which is not owned by either of the parties, the court may consider a present

       possessory interest in distributing divisible assets. Hacker v. Hacker, 659 N.E.2d

       1104, 1111 (Ind. Ct. App. 1995). Here, with respect to Husband’s possessory

       interest in the marital residence, Husband testified as follows:


               A I rent from [Brandon]. I rent the house from him.

               Q Is the rent a long term rental agreement?

               A It’s, I guess we have never really, as father and son, we
               have never really set up an agreement. I have just been paying
               it every month, and I am living there.

               Q So there are really no terms to this agreement?

               A No.


       Tr. at 21. Thus, the terms and value of Husband’s possessory interest are

       indefinite. As we held in Hacker, while “there are no guarantees [Husband] will

       be granted continued residence” at the marital residence, “he may also be

       allowed to live there . . . for the remainder of his life.” 659 N.E.2d at 1111.

       “The fact that the [improved] property is available for Husband’s continued use

       and occupancy at [an undisclosed] rent is relevant under Indiana Code section

       31-15-7-5(c) as an economic circumstance of the parties and the trial court did

       Court of Appeals of Indiana | Memorandum Decision 66A04-1607-DR-1540 | December 29, 2016   Page 9 of 10
       not abuse its discretion in considering this interest in dividing the marital

       estate.” See England v. England, 865 N.E.2d 644, 650 (Ind. Ct. App. 2007).


[13]   Again, we will affirm the dissolution court’s judgment on any theory supported

       by the evidence. Fetters, 26 N.E.3d at 1019-20. The dissolution court heard the

       evidence that Husband continues to enjoy the use and benefit from the

       improvements the parties made to the marital residence, and we will not

       substitute our judgment for that of the dissolution court. Hacker, 659 N.E.2d at

       1111. The dissolution court did not err when it awarded Wife $45,000.


[14]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 66A04-1607-DR-1540 | December 29, 2016 Page 10 of 10
