MEMORANDUM DECISION                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                   May 12 2017, 8:02 am

this Memorandum Decision shall not be                                         CLERK
                                                                          Indiana Supreme Court
regarded as precedent or cited before any                                    Court of Appeals
                                                                               and Tax Court
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
Nathaniel Lee                                           Mark Small
Lee & Fairman, LLP                                      Indianapolis, Indiana
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re The Marriage of:                                  May 12, 2017

Teasha J. (Harris) Young,                               Court of Appeals Case No.
                                                        49A02-1606-DR-1218
Appellant-Petitioner,
                                                        Appeal from the Marion Superior
        and                                             Court
                                                        The Honorable John F. Hanley,
Anthony J. Harris,                                      Judge
                                                        Trial Court Cause No.
Appellee-Respondent.
                                                        49D11-0809-DR-41630



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1606-DR-1218 | May 12, 2017               Page 1 of 14
                               Case Summary and Issues
[1]   The trial court entered a judgment on March 8, 2016, settling certain issues in

      the dissolution of the marriage of Anthony Harris (“Husband”) and Teasha

      (Harris) Young (“Wife”). Wife appeals, raising several issues for our review,

      which we restate as: 1) whether the trial court erred in failing to award her

      spousal maintenance; 2) whether the trial court erred in its distribution of the

      marital estate; and 3) whether the trial court erred in ordering Husband to pay

      some but not all of Wife’s attorney fees. Concluding the trial court did not err

      in any respect, we affirm.



                            Facts and Procedural History
[2]           Husband and Wife were married in 1995 in Watertown, New
              York. They have one daughter . . . born in 1996. In 2005, Wife
              separated from Husband and moved to Indiana. In 2008, Wife
              filed a petition for dissolution of marriage in Marion County,
              seeking primary custody . . . and a distribution of the marital
              property. At that time, Husband was a resident of North
              Carolina, and, as a member of our armed forces, was stationed in
              Germany.


      Harris v. Harris, 31 N.E.3d 991, 993 (Ind. Ct. App. 2015) (“Harris II”). In 2009,

      the trial court held a hearing which Wife attended but Husband did not. The

      trial court thereafter issued a decree of dissolution of marriage, awarded

      custody of the parties’ child to Wife, ordered Husband to pay child support and

      spousal maintenance, and divided the marital property. Husband appealed the

      trial court’s decree, arguing the trial court lacked personal jurisdiction over him.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-DR-1218 | May 12, 2017   Page 2 of 14
      We held the trial court did not err in dissolving the marriage, as changing the

      parties’ status from married to unmarried was an in rem proceeding that did not

      require personal jurisdiction over both parties. Harris v. Harris, 922 N.E.2d 626,

      634-35 (Ind. Ct. App. 2010) (“Harris I”). We also held, however, that in order

      for the trial court to have jurisdiction over the incidences of marriage, it must

      have in personam jurisdiction over both parties. Id. at 635. Because the trial

      court did not have personal jurisdiction over Husband, we reversed the

      remainder of the trial court’s judgment. Id. at 635-38.


[3]   Following Harris I, Husband and Wife filed in 2011 an agreed entry regarding

      custody and child support issues. Wife also filed a petition for equitable

      distribution of the marital property and for spousal maintenance. Three years

      later, the parties gathered for a hearing on pending motions, including several

      motions filed by Husband. The trial court’s ensuing order noted the Indiana

      Court of Appeals’ decision in Harris I that it lacked personal jurisdiction over

      Husband was res judicata, but that Husband had subsequently submitted to the

      jurisdiction of the court with respect to custody and support issues only.

      Therefore, the trial court terminated Husband’s child support obligation and

      denied Wife’s other requests, including a division of Husband’s military

      pension, spousal maintenance, title to a vehicle, and attorney fees. Wife

      appealed. We first determined Harris I did not prevent Husband from

      subsequently establishing sufficient contacts with Indiana and that his request

      for the trial court to approve an agreed entry in 2011 consented to the trial

      court’s exercise of jurisdiction over him as to all issues necessary to dispose of

      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-DR-1218 | May 12, 2017   Page 3 of 14
      the cause. Harris II, 31 N.E.3d at 995-96. As for the remainder of the issues,

      we concluded:

              The judgment of the trial court as to Husband’s child support
              obligation and military pension is affirmed. The judgment of the
              trial court as to its jurisdiction over Husband is reversed and
              remanded. On remand, Wife may petition for an equitable
              division of marital assets and spousal maintenance.


      Id. at 998.


[4]   The trial court held hearings on January 20, 2016, and February 5, 2016,

      following Harris II. On March 8, 2016, the trial court issued its Findings of

      Fact, Conclusions of Law and Judgment, ordering:


              1. The Dissolution of Marriage of the parties was previously
              affirmed and granted on February 2, 2009.
              2. The only child of the parties has been emancipated.
              3. Each party shall receive the personal property that was in his
              or her possession at the time of the filing of the Dissolution of
              Marriage Petition and at the time the Dissolution of Marriage
              was granted.
              4. Each party shall receive all bank accounts that were in his or
              her possession at the time of the filing of the Dissolution of
              Marriage Petition and at the time of the granting of the
              Dissolution of Marriage.
              5. All debts of the parties’ marriage have previously been paid.
              6. [Wife’s] request for spousal maintenance is hereby Denied.
              7. Husband shall pay $5,000.00 to Wife’s counsel . . . . Wife
              shall pay the balance due and owing to her attorney above and
              beyond this amount.
              8. Husband shall pay his own attorney fees.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-DR-1218 | May 12, 2017   Page 4 of 14
      Appellant’s Appendix, Volume II at 38-39. Wife appeals, bringing this case

      before us for a third time.



                                Discussion and Decision
                                     I. Standard of Review
[5]   Wife requested the trial court make findings of fact and conclusions thereon

      pursuant to Indiana Trial Rule 52. Therefore, we apply a two-tiered standard of

      review: first, we determine whether the evidence supports the findings, and

      second, whether the findings support the judgment. Quinn v. Quinn, 62 N.E.3d

      1212, 1220 (Ind. Ct. App. 2016). The trial court’s findings are controlling

      unless there is no evidence in the record to support them directly or by

      inference, but we review legal conclusions de novo. Id. We “shall 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). “Clear error occurs when our review of the evidence

      most favorable to the judgment leaves us firmly convinced that a mistake has

      been made.” Maddux v. Maddux, 40 N.E.3d 971, 974-75 (Ind. Ct. App. 2015).


                                  II. Spousal Maintenance
[6]   Wife first claims the trial court clearly erred in denying her request for spousal

      maintenance. The trial court has broad discretion to make an award of spousal

      maintenance, and we will reverse only for an abuse of that discretion. Bizik v.

      Bizik, 753 N.E.2d 762, 768-69 (Ind. Ct. App. 2001), trans. denied. We will find


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-DR-1218 | May 12, 2017   Page 5 of 14
      the trial court has abused its discretion only where the decision is clearly against

      the logic and effect of the facts and circumstances before the court. Pala v.

      Loubser, 943 N.E.2d 400, 405 (Ind. Ct. App. 2011), trans. denied. Indiana Code

      section 31-15-7-2(1) provides that if the court finds a spouse to be incapacitated

      “to the extent that the ability of the incapacitated spouse to support himself or

      herself is materially affected,” the court may award spousal maintenance during

      the period of incapacity. Because such an award is designed to help provide for

      an incapacitated spouse’s support, the essential inquiry is whether the spouse

      has the ability to support himself or herself. Matzat v. Matzat, 854 N.E.2d 918,

      920 (Ind. Ct. App. 2006). However, even if a trial court finds that a spouse’s

      incapacity materially affects his or her ability to be self-supporting, a

      maintenance award is not mandatory. Bizik, 753 N.E.2d at 769.


[7]   Here, after hearing the parties’ testimony, viewing their courtroom demeanor,

      and receiving evidence relevant to the matter, the trial court determined Wife

      had not sustained her burden of showing she is entitled to spousal maintenance.

      Specifically, the trial court found Wife was injured in a car accident in 2007,

      suffers from headaches that leave her bed-ridden several days each month, and

      receives $719 per month in Social Security disability payments. Wife received a

      personal injury settlement of at least $40,000 as a result of the accident, a

      settlement of which Husband was not informed at the time. The court further

      found that although Wife’s expert, a doctor who treated her twice after her

      injury, once in 2009 and once in 2015, testified Wife is disabled, “his diagnosis

      is based largely on subjective symptoms reported to him by [Wife,]” and Wife


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-DR-1218 | May 12, 2017   Page 6 of 14
      submitted no other testimony or medical records regarding her medical

      condition. Appellant’s App., Vol. II at 30.1 Finally, the trial court found that

      for at least three years after her accident, Wife had cared for foster children,

      sometimes more than two at a time, which indicates she could perform some

      type of work despite her disability; that she had purchased a Cadillac Escalade

      and a Harley Davidson motorcycle since beginning to receive disability and

      uses both, indicating she has some financial means and is not house-bound; and

      that she pays no rent, utilities, or living expenses while living in a house owned

      by her father. Thus, Wife had failed to show the court “any potential financial

      need [she] may have.” Id. at 31.


[8]   In Alexander v. Alexander, 980 N.E.2d 878, 881-82 (Ind. Ct. App. 2012), this

      court affirmed a trial court’s judgment denying spousal maintenance where

      there was evidence the wife had suffered past injuries, had present medical

      conditions, and received disability payments, but there was also evidence she

      was college-educated as an accountant, that her limitations would not preclude

      sedentary work, and she had recently provided child care for pay. Further, the

      trial court acknowledged expert testimony that the wife’s ability to support

      herself was materially impaired, but did not adopt that opinion. We concluded

      the trial court’s denial of the wife’s request for spousal maintenance was not

      clearly erroneous. Id. at 882; see also Cannon v. Cannon, 758 N.E.2d 524, 526-27



      1
       Husband testified that Wife was diagnosed in 2001 with bipolar disorder and suffered from “mental
      conditions of depression and things like that” during the marriage, transcript, volume I at 127-28, but Wife
      never offered any evidence of these diagnoses.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-DR-1218 | May 12, 2017               Page 7 of 14
       (Ind. 2001) (affirming trial court’s conclusion that wife was not entitled to

       spousal maintenance because the trial court’s findings that the evidence that

       wife was disabled such that her ability to support herself was materially

       impaired was inconclusive and that wife had been able to earn some income

       through conducting garage sales were not clearly erroneous). So, too, in this

       case: neither the trial court’s finding that Wife’s medical issues do not

       materially affect her ability to support herself nor its judgment that she failed to

       demonstrate she was entitled to spousal maintenance are clearly erroneous.

       Therefore, Wife’s claim of error fails.


                               III. Division of Marital Assets
[9]    Wife next claims the trial court erred in its division of the marital estate by

       failing to make an equitable distribution. The division of marital assets is a

       matter within the trial court’s sound discretion, and we will reverse only for an

       abuse of that discretion. Crider v. Crider, 26 N.E.3d 1045, 1047 (Ind. Ct. App.

       2015). We neither reweigh evidence nor judge the credibility of the witnesses,

       and we consider only the evidence that is favorable to the trial court’s

       disposition. Id. The party challenging the trial court’s division of property

       bears the burden of overcoming a strong presumption that the trial court

       considered and complied with the applicable law. Id.


[10]   Indiana recognizes a “one-pot” method of calculating and distributing marital

       property: all property is included in the marital pot and is subject to division.

       Ind. Code § 31-15-7-4(a). The trial court is required to divide the marital


       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-DR-1218 | May 12, 2017   Page 8 of 14
property in a “just and reasonable manner[,]” Ind. Code § 31-15-7-4(b), and

there is a rebuttable presumption that an equal division of the property is just

and reasonable, Ind. Code § 31-15-7-5. Here, the trial court made the following

findings regarding the parties’ marital property:


        29. Wife alleged that they had approximately $35,000 in
        household goods and furniture at the time of the dissolution.
        30. Husband testified that the personal property of the parties
        consisted of a dining room set for which they paid approximately
        $5,000.00 in 2003, a bedroom set for which they paid
        approximately $2,500.00 in 2003, and a living room set which
        they purchased in Georgia in 1997. Husband estimated that the
        values he assigned to these assets at the time of the dissolution of
        marriage were: living room set - $400.00; bedroom set - $500.00;
        and dining room set - $1,500.00.
        31. Husband further testified that he has the dining room set but
        that he gave the living room set and the bedroom set to the
        parties’ daughter.
        32. Neither party submitted appraisals of their personal property.
        The only values placed on any items of personal property were
        estimates made by the parties themselves.
        33. The Court finds that, given that the personal property was
        between five and ten years old at the time of the dissolution of
        marriage, the more reasonable valuation is that of Husband.
        However, even if the Court agreed with Wife’s valuation of
        $35,000.00, the Court would note that awarding the personal
        property at issue to Husband would be more than offset by the
        personal injury settlement obtained by Wife which was a marital
        asset and which she testified was approximately $40,000.00 to
        $50,000.00.
        34. The Court finds that the parties had no joint debts at the time
        of the filing of the original Dissolution of Marriage, and the debt
        on the 2004 Jeep that Wife received was paid by Husband. The
        Court finds that the 2004 Jeep was the only vehicle still owned by
        the parties at the time of their dissolution of marriage. Any

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-DR-1218 | May 12, 2017   Page 9 of 14
               individual debts owed by either party shall be the responsibility of
               that party . . . .


       Appellant’s App., Vol. II at 31-32. Based on the foregoing findings, the trial

       court concluded:

               16. Neither party brought substantial assets into the marriage.
               17. The Court does not find any dissipation of marital property
               by either party.
               18. Both parties made valuable contributions to the marriage.
               19. Neither party received any substantial gift or inheritance
               during the marriage.
               20. The present and future earning ability of the parties is
               approximately equal.
               ***
               22. After considering all of the above Findings of Fact and
               Conclusions of Law, no evidence was presented that would make
               an equal division of the marital property and debts unreasonable
               in this instance.


       Id. at 38. Accordingly, the trial court determined each party would receive the

       personal property, including bank accounts, in his or her possession at the time

       the dissolution was granted.


[11]   Wife claims the trial court “failed to make any equitable division of marital

       property acquired during the course of the marriage and improperly considered

       her personal injury settlement in the distribution of marital property.” Brief of




       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-DR-1218 | May 12, 2017   Page 10 of 14
       Appellant at 9.2 She asserts she “received none of the marital property or

       assets.” Id. at 24. As for the marital property, the parties identified only certain

       items of furniture and cars. At the time of separation, Husband had the

       furniture and several cars; Wife also had a vehicle. By the time of dissolution,

       Husband had just one car. There was also at least one bank account that Wife

       claimed had a balance of $50,000. Husband claimed the account never had a

       balance that high and had a balance of no more than $200 at separation.

       Neither party offered any evidence of value other than their own opinions. If

       the trial court’s valuation is within the range of values supported by the

       evidence, there is no abuse of discretion, Balicki v. Balicki, 837 N.E.2d 532, 536

       (Ind. Ct. App. 2005), trans. denied, and here, the trial court valued the property

       at Husband’s figures. It was not an abuse of discretion for the trial court to do

       so.


[12]   As for Wife’s assertion the trial court erred in considering her personal injury

       settlement when dividing the marital property, we note the trial court did not

       actually do so. The trial court valued the parties’ marital property at Husband’s

       figures, and merely noted that even if it had chosen to use Wife’s values, leaving

       each party with the property he or she had would still be equitable. Because the

       trial court did not credit Wife’s values, this statement was superfluous and does




       2
         To the extent Wife makes any claim regarding Husband’s military pension, we have previously determined
       the pension was not a marital asset. Harris II, 31 N.E.3d at 997.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-DR-1218 | May 12, 2017         Page 11 of 14
       not show the trial court committed any error with respect to its treatment of

       Wife’s settlement proceeds.


[13]   Finally, the trial court determined an equal division was just and reasonable

       and that such a division would be achieved by allotting to each party the

       personal property he or she had in their possession at the time of dissolution—

       approximately seven years prior. Based on the poor record made by the parties

       in the trial court, we cannot say Wife has rebutted the presumption the trial

       court made a just and reasonable distribution or otherwise abused its discretion

       in dividing the marital estate.


                                         IV. Attorney Fees
[14]   Finally, Wife claims the trial court abused its discretion in ordering Husband to

       pay only $5,000 of her fees, leaving an outstanding balance in excess of

       $48,000. Pursuant to Indiana Code section 31-15-10-1, a trial court may order a

       party in a dissolution proceeding to pay a reasonable amount of the other

       party’s attorney fees after considering the parties’ resources, their economic

       condition, their ability to engage in gainful employment and earn income, and

       other factors bearing on the reasonableness of the award. Ahls v. Ahls, 52

       N.E.3d 797, 803 (Ind. Ct. App. 2016). When one party is in a superior position

       over the other to pay fees, an award of attorney fees is proper. Troyer v. Troyer,

       987 N.E.2d 1130, 1143 (Ind. Ct. App. 2013), trans. denied. A trial court’s

       decision regarding an award of attorney fees in a dissolution action is reviewed

       for an abuse of discretion. Id. at 1142.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-DR-1218 | May 12, 2017   Page 12 of 14
[15]   Wife bases her assertion of trial court error on the premise that Husband is “the

       more financially superior party.” Brief of Appellant at 35. As for the parties’

       resources and their relative earning abilities, the trial court found the parties

       came into the marriage with few assets, and they did not accumulate substantial

       assets while married. Wife receives disability benefits but also lives rent-free

       and pays no utilities or other living expenses besides her car payment; Husband

       is now retired from the United States Army and is 100% disabled and unable to

       work. Husband’s monthly benefits are greater than Wife’s but the trial court

       concluded the “present and future earning ability of the parties is approximately

       equal.” Appellant’s App., Vol. II at 38. The trial court found no misconduct

       on the part of either party that resulted in additional litigation expenses. See

       Barton v. Barton, 47 N.E.3d 368, 377 (Ind. Ct. App. 2015) (“Misconduct that

       directly results in additional litigation expenses may properly be taken into

       account in the trial court’s decision to award attorney’s fees.”), trans. denied.

       Under these circumstances, we cannot say the trial court abused its discretion in

       determining that an award of attorney fees to Wife was appropriate, although in

       a limited amount.



                                              Conclusion
[16]   The trial court did not err in denying Wife’s request for spousal maintenance, in

       dividing the marital property, or in awarding some, but not all, of Wife’s

       requested attorney fees. The judgment of the trial court is affirmed.


[17]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-DR-1218 | May 12, 2017   Page 13 of 14
Vaidik, C.J., and Bailey, J., concur.




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