MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Jul 07 2016, 8:32 am

regarded as precedent or cited before any                            CLERK
                                                                 Indiana Supreme Court
court except for the purpose of establishing                        Court of Appeals
                                                                      and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Jill Doggett                                             Katharine Vanost Jones
Hart Bell, LLC                                           Evansville, Indiana
Vincennes, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard K. Ray,                                          July 7, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         42A01-1508-DR-1255
        v.                                               Appeal from the Knox Superior
                                                         Court
Ellyn E. Ray,                                            The Honorable Ryan
Appellee-Respondent.                                     Johanningsmeier, Judge
                                                         Trial Court Cause No.
                                                         42D02-0301-DR-23



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016       Page 1 of 20
                               Case Summary and Issues
[1]   Richard and Ellyn Ray’s twenty-nine-year marriage was dissolved in July 2003.

      Provisions were made in the parties’ Settlement Agreement and in two

      subsequent court orders for division of Richard’s retirement accounts due to his

      employment at Vincennes University. After Richard retired from Vincennes

      University in 2014, Ellyn filed with the trial court a Motion to Correct

      Erroneous Court Order and Enforcement of Marital Settlement Agreement.

      The trial court granted the motion and crafted a remedy requiring Richard to

      pay certain sums to Ellyn. Richard now appeals, raising several issues which

      we consolidate and restate as: 1) whether the trial court erred in valuing his

      pension benefit; and 2) whether the trial court erred in its distribution of those

      accounts. Concluding the trial court did not err in valuing the accounts, but

      used an incorrect coverture fraction to determine the appropriate amount of

      distribution to Ellyn, we affirm in part and reverse and remand in part.



                            Facts and Procedural History
[2]   Richard and Ellyn were married in June 1974. Richard began working at

      Vincennes University in August 1975, and worked there continuously

      thereafter. As part of his employment, Richard earned certain retirement

      benefits. Specifically, he had a Teachers Insurance and Annuity Association-

      College Retirement Equities Fund (“TIAA-CREF”) account and an Indiana

      State Teachers Retirement Fund (“TERF”) account. The TERF account has

      two components: a monthly pension benefit (determined by salary history,

      Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 2 of 20
      years of service, age, and selected retirement benefit) and an annuity savings

      account (funded by investments made with voluntary and mandatory

      contributions).


[3]   Richard and Ellyn were divorced pursuant to a Settlement Agreement and

      order dated July 1, 2013. The Settlement Agreement provided the following

      with respect to Richard’s retirement benefits:


              [Ellyn] has no pension, and [Richard] has pension rights through
              Vincennes University which are fluctuating with the last known
              valuations as follows: TIAA and CREF as of 12-31-02 at
              $240,703.32; Indiana State Teachers Retirement Fund as of 03-
              31-03 at $45,085.86. These accounts shall be equally divided
              between the parties with [Richard’s] attorney preparing a
              Qualified Domestic Relations Order [(“QDRO”)].


      Appellant’s Appendix at 26. It is undisputed that the $45,085.86 value stated

      for the TERF account reflected only the value of Richard’s annuity savings

      account and not the value of his pension benefit.


[4]   After the parties signed and submitted the Settlement Agreement (but before the

      trial court signed it on July 1, 2003), Richard’s counsel submitted a

      Supplemental Court Order which was also signed by the trial court on July 1,

      2003. The Supplemental Court Order provided, in relevant part:


              Comes now counsel for [Richard] and advises the Court that the
              Settlement Agreement of the parties, paragraph six (6) entitled
              Pension Accounts, included therein an account . . . with a March
              31, 2003 balance of $45,085.86. . . .


      Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 3 of 20
        Counsel for [Richard] now informs the Court that [TERF] does
        not accept [QDROs], and that in order to carry out the terms of
        the parties’ Settlement Agreement, it is required that the order of
        division of the [TERF account] be placed upon [Richard] and not
        [TERF].


        ***


        1. That in accordance with the Settlement Agreement of the
        parties dated June 20, 2003, paragraph six (6) thereof, entitled
        “Pension Accounts,” the following orders are placed upon
        [Richard]:


                 A. That at such time as [Richard] commences receiving
                 his monthly payments from [TERF] Defined Benefit
                 Pension Annuity, he shall, on receipt of his monthly
                 payment, immediately pay over to [Ellyn] a sum equal to
                 one-half (1/2) of the monthly payments received;


                 B. That with reference to [TERF] Defined Contribution
                 Benefit Pension Fund, at such time as [Richard] is ordered
                 to receive his Fund balance, he shall, immediately upon
                 receipt of same, pay over to [Ellyn] a sum equal to one-
                 half (1/2) of the then lump sum received.


        2. That each party shall be responsible for paying the taxes on
        the sums which they, themselves, receive for their own use.


        3. This Court reserves jurisdiction to issue further orders as
        needed to execute this Order.




Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 4 of 20
Id. at 27-28.1 On August 4, 2003, the trial court signed an Amended

Supplemental Court Order which amended the Supplemental Court Order to

state:

         Comes now counsel for [Richard] and advises the Court that the
         Settlement Agreement of the parties, paragraph six (6) entitled
         Pension Accounts, included therein an account . . . with a July 1,
         2003 beginning balance of $51,541.93. . . .


                 A. That at such time as [Richard] commences receiving
                 his monthly payments from [TERF] Defined Benefit
                 Pension Annuity, he shall, on receipt of his monthly
                 payment, immediately pay over to [Ellyn] a sum equal to
                 one-half (1/2) of the monthly payments received until he
                 has paid to [Ellyn] the sum of $25,770.96 which is one-half (1/2)
                 the total sum in said account on July 1, 2003;


                 B. That with reference to [TERF] Defined Contribution
                 Benefit Pension Fund, at such time as [Richard] is ordered
                 to receive his Fund balance, he shall, immediately upon
                 receipt of same, pay over to [Ellyn] a sum equal to one-
                 half (1/2) of the then lump sum received but not exceeding
                 $25,770.96 which is one-half (1/2) of the total sum in said
                 account on July 1, 2003.


         ***


         3. This Court reserves jurisdiction to issue further orders as
         needed to execute this Order. Additionally, this Amended




1
 The trial court also signed the QDRO directed to TIAA-CREF on July 1, 2003. Division of that account is
not at issue in this appeal.

Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016           Page 5 of 20
                Supplemental Court Order replaces and supplants the Supplemental
                Court Order dated July 1, 2003.


      Id. at 32-33 (emphasis added to show amendments). A letter dated August 8,

      2003 (dictated August 4, 2003), from Richard’s counsel to Ellyn’s counsel

      states:

                Enclosed please find Amended Supplemental Order which refers
                to [TERF].


                My original Order was drafted in error and failed to set forth the
                particular language that Ellyn was to receive one-half (1/2) of the
                account as established on July 1, 2003, the date of the Final
                Decree.


                Sorry for the inconvenience and confusion.


      Id. at 34.


[5]   Richard retired from Vincennes University in July 2014. On June 2, 2014,

      Richard sent a letter to Ellyn explaining he was due to begin receiving checks

      from TERF by the end of August, but separate from his monthly benefit, he

      was able to withdraw a lump sum of $5,361.19 on which taxes had already been

      paid and he would forward her half ($2,680.60) as soon as he received it. The

      letter also noted that he would be sending her one-half of his monthly check

      until the remaining balance of $23,091.36 had been paid.


[6]   On November 7, 2014, Ellyn filed a Motion to Correct Erroneous Court Order

      and Enforce Marital Settlement Agreement. This motion does not appear in

      Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 6 of 20
the record provided to us, but it is apparent that Ellyn was seeking relief from

the Amended Supplemental Court Order which purported to fix the amount of

Richard’s TERF account as of the date of the divorce and did so wrongly by

including only the value of the annuity savings account and failing to reflect the

value of the pension benefit at that time. Following a hearing, the trial court

issued the following order:


                                        Findings of Fact


        ***


        5. At the time of [Richard’s] retirement, he had approximately
        38 years of service credit towards his TERF pension.
        Approximately 29 of these years of service credit were earned
        during the marriage of the parties.


        ***


        10. Read together, it is clear that the Settlement Agreement
        signed by the parties and the Supplemental Court Order filed by
        [Richard’s] attorney clearly indicate that the parties were to
        equally divide [Richard’s] TERF pension and annuity savings
        account as they existed at the time of the divorce.


        11. Both [Richard] and [Ellyn] testified at a hearing on [Wife’s]
        Motion to Correct Erroneous Court Order and Enforce Marital
        Settlement Agreement on March 20, 2015, that at the time they
        signed the Marital Settlement Agreement which became part of
        the Court’s Summary Dissolution of Marriage Decree, it was
        their agreement that [Richard’s] TERF pension and annuity
        savings account would be equally divided between them.


Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 7 of 20
        ***


        13. The Court, having taken judicial notice of the records of the
        proceedings held in this matter, finds that prior to the execution
        of the Amended Supplemental Court Order, there was no
        motion, petition or other request filed by [Richard] to modify the
        terms of the Summary Dissolution of Marriage Decree or
        Supplemental Court Order . . . .


        14. The Court, having taken judicial notice of the records of the
        proceedings held in this matter, finds that prior to the execution
        of the Amended Supplemental Court Order . . . there was no
        hearing held on [Richard’s] request to alter the terms of the
        Summary Dissolution of Marriage Decree and Supplemental
        Court Order . . . .


        ***


        17. The Amended Supplemental Order . . . does not contain a
        signature of either [Ellyn] or her attorney or any other language
        which would indicate that [Ellyn] and/or her former attorney
        had ever received notice of the filing of the Amended
        Supplemental Court order prior to its execution by the Court or
        had approved or acquiesced to the language contained in the
        Amended Supplemental Court Order.


        18. [Ellyn] testified . . . that she had no notice of the execution of
        the Amended Supplemental Court Order by the Court . . . until
        the Amended Supplemental Court Order was supplied to her
        current attorney in 2014. No evidence was presented by
        [Richard] to refute this testimony.


        ***



Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 8 of 20
        20. [Richard’s attorney’s] letter [of August 8, 2003] clearly
        indicates that [Richard’s] attorney advised [Ellyn’s] attorney of
        the filing of the Amended Supplemental Court Order as a fait
        accompli. This letter does not reflect any communication between
        the attorneys or any agreement of the parties prior to the filing
        and execution of the Amended Supplemental Court Order . . . .


        21. Attached to the Amended Supplemental Court Order is a
        document from TERF which reflects [Richard’s] annuity savings
        account balance as of July 1, 2003. This document shows that as
        of that date, [Richard’s] annuity savings account had a value of
        $51,541.93.


        22. Jerry Peters, a certified public account[ant], who testified as
        an expert in the valuation of [Richard’s] TERF plan testified that
        balance in [Richard’s] TERF annuity savings account as of July
        1, 2003, had no relationship, whatsoever, to the value of
        [Richard’s] TERF pension at that time, because these plans were
        wholly unrelated.


        23. Jerry Peters further testified that as of July 1, 2003, the value
        of [Richard’s] TERF pension was $158,460.68. Peters testified
        that this is in addition to the value of [Richard’s] interest in his
        annuity savings account.


        ***


        25. On November 7, 2014, [Ellyn] filed her Motion to Correct
        Erroneous Court Order and Enforcement of Marital Settlement
        Agreement requesting that the terms of the original Settlement
        Agreement and Supplemental Court Order be enforced such that
        she received one-half of both the value of [Richard’s] annuity
        savings account and pension that were accumulated during the
        marriage of the parties. At a hearing on [Ellyn’s motion],
        [Richard] acknowledged that the TERF account statement filed

Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 9 of 20
        with the Amended Supplemental Court Order . . . reflected only
        the value of his annuity savings account balance as of that date
        and agreed with Jerry Peters’s testimony that as of July 1, 2003,
        the present cash value of his TERF pension was $158,460.68.


        26. [Richard] further testified . . . that the language limiting the
        value of [Ellyn’s] interest in his TERF pension to $25,770.96 was
        a mistake and that one-half of the value of his pension as
        accumulated during the marriage would be substantially greater
        than the amount set forth in the Amended Supplemental Court
        Order.


        27. While acknowledging that the numbers contained in the
        Amended Supplemental Court Order were a mistake, [Richard]
        maintains that [Ellyn’s] interest in his TERF pension should be
        capped at $25,770.96 . . . .


                                      Conclusions of Law


        ***


        6. The terms of the parties’ marital Settlement Agreement . . .
        are clear and unambiguous. [Ellyn] was to receive one-half of
        the value of [Richard’s] TERF annuity savings account and
        pension as of the date of dissolution. This is made clear by both
        the language of the Supplemental Court Order . . . which
        provided a mechanism for the equal division of both [TERF
        accounts] and the testimony of the parties . . . that it was their
        agreement that [Richard’s] TERF retirement plan be divided
        equally between the parties.


        ***




Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 10 of 20
        9. The Amended Supplemental Court Order . . . is void and
        unenforceable for each of the following reasons:


                 a. As a contract between the parties, the terms of the
                 marital Settlement Agreement . . . were not subject to
                 modification in the absence of an agreement between the
                 parties to do so. There is no evidence which would show
                 that [Ellyn] or her attorney was notified of the filing of the
                 Amended Supplemental Court Order prior to its execution
                 by the Court or that [Ellyn] or her attorney consented to a
                 modification . . . .


                 b. The Amended Supplemental Court Order was
                 submitted in an ex parte fashion by [Richard’s] counsel and
                 the Court signed the Order without giving [Ellyn] notice or
                 an opportunity to be heard. . . . [Ellyn] may not be
                 deprived of a property interest, such as her interest in
                 [Richard’s] TERF pension without notice and an
                 opportunity to be heard.


        10. Having concluded that the . . . Amended Supplemental
        Court Order may not alter the terms of the marital Settlement
        Agreement, it is now necessary to craft a remedy:


                 a. With regards to [Richard’s] annuity savings account,
                 the Court finds that this account had a value of $51,541.93
                 as of the date of dissolution. [Ellyn] is entitled to one-half
                 of this value, or $25,770.96. [Ellyn] has already received
                 $2,680.60 of this sum. [Richard] is to continue paying
                 one-half of his net monthly TERF annuity payment to
                 [Ellyn] as he receives these payments, until [Ellyn] has
                 received a total of $25,770.96.


                 b. With regards to [Richard’s] TERF pension, the Court
                 finds that the pension had a present cash value as of the

Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 11 of 20
                       date of dissolution of $158,460.68. [Ellyn] would be
                       entitled to one-half of this value or $79,230.34. In the
                       alternative, [Richard] could pay to [Ellyn] one-half of that
                       part of his net TERF monthly pension payments that was
                       accumulated during the marriage. Because 29 of 38 years
                       of [Richard’s] service credit was accumulated during the
                       marriage of the parties, [Ellyn] would be entitled to one-
                       half of 29/38’s or 76.3% of [Richard’s] net monthly
                       payment. . . .


                       c. With regards to [Richard’s] TERF pension, [Richard] is
                       to make a monthly payment to [Ellyn] equal to 29/38’s or
                       76.3% of his net monthly pension payments for so long as
                       he receives these payments. In the alternative, [Richard]
                       may pay to [Ellyn] the sum of $79,230.34, less the
                       payments that [Ellyn] has already received from [Richard].


      Id. at 6-23. Richard now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[7]   The trial court entered findings of fact and conclusions thereon at the request of

      the parties. In reviewing findings of fact and conclusions of law, we apply “a

      two-tiered standard of review by first determining whether the evidence

      supports the findings and then whether the findings support the judgment.”

      Weigel v. Weigel, 24 N.E.3d 1007, 1010 (Ind. Ct. App. 2015). The trial court’s

      findings and judgment will only be set aside if they are clearly erroneous.

      Barton v. Barton, 47 N.E.3d 368, 373 (Ind. Ct. App. 2015), trans. denied; see also

      Ind. Trial Rule 52(A) (“[T]he court on appeal shall not set aside the findings or
      Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 12 of 20
      judgment unless clearly erroneous, and due regard shall be given to the

      opportunity of the trial court to judge the credibility of the witnesses.”).

      Findings are clearly erroneous when the record contains no facts to support

      them either directly or by inference. Campbell v. Campbell, 993 N.E.2d 205, 209

      (Ind. Ct. App. 2013), trans. denied. A judgment is clearly erroneous if it applies

      the wrong legal standard to properly found facts. Id. To determine that a

      finding or conclusion is clearly erroneous, our review of the evidence must

      leave us with the firm conviction that a mistake has been made. Id.


                              II. Richard’s TERF Accounts
[8]   Richard does not appeal the trial court’s determination that the Amended

      Supplemental Court Order was void and did not alter the terms of the parties’

      Settlement Agreement and Supplemental Court Order. Rather, he contends the

      trial court’s findings regarding the value of his TERF annuity savings account

      and pension benefit are clearly erroneous. He further contends the trial court’s

      determination of how much Ellyn was entitled to receive from those accounts is

      clearly erroneous.


                                              A. Valuation
                                       1. Annuity Savings Account

[9]   The trial court found the value of Richard’s annuity savings account to be

      $51,541.93 on the date of dissolution and based its distribution award on that

      amount. Richard argues that the Amended Supplemental Court Order is the

      only document in which this figure appears, and because it is void and did not

      Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 13 of 20
       alter the terms of the Settlement Agreement, his annuity savings account should

       have been valued at $45,085.86 as reflected in the Settlement Agreement.


[10]   A trial court has broad discretion to determine the date upon which marital

       assets should be valued. McGrath v. McGrath, 948 N.E.2d 1185, 1187 (Ind. Ct.

       App. 2011). For purposes of choosing a date upon which to value marital

       assets, the trial court may select any date between the date of filing the petition

       for dissolution and the date of the final hearing. 2 Id. There is no requirement

       that the valuation date be the same for every asset. Id. In addition, the trial

       court has broad discretion to assign a value to marital assets. Pitcavage v.

       Pitcavage, 11 N.E.3d 547, 563 (Ind. Ct. App. 2014). As long as there is

       sufficient evidence to support the valuation, we will not find the trial court to

       have abused its discretion, even if the circumstances would support a different

       award. Id.


[11]   The Settlement Agreement stated Richard’s annuity savings account was valued

       at $45,085.86 as of March 31, 2003 – the “last known valuation” at the time the

       parties signed the agreement and the value of the account a full three months

       prior to the dissolution. App. at 26. Jerry Peters, Ellyn’s expert witness,

       testified that as of June 30, 2003, the value of the account was $51,541.93. See

       Transcript at 110; Ellyn’s Exhibit 7. Although the Settlement Agreement

       provides for the account to be equally divided between the parties and reflects



       2
         Here, the parties waived a final evidentiary hearing and submitted a settlement agreement which, upon
       signature by the trial court on July 1, 2003, acted as a summary disposition.

       Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016            Page 14 of 20
       the last known value of the account, neither it nor the Supplemental Court

       Order specify the amount to be divided or the date upon which the amount shall

       be fixed for purposes of division, as the Settlement Agreement acknowledges

       the value is “fluctuating.” App. at 26. Richard testified that it was the intent of

       the parties when they signed the Settlement Agreement that his retirement

       accounts be divided equally as of the date of their divorce. See Tr. at 48-49. As

       the trial court may choose any date between the date the petition was filed

       (January 23, 2003) and the date of the final hearing (July 1, 2003) on which to

       value an asset and may assign to an asset any value within the evidence, the

       trial court did not clearly err in choosing the latest date and valuing the annuity

       savings account at $51,541.93.


                                              2. Pension Benefit

[12]   Richard contends the trial court erred in valuing his pension benefit at the time

       of dissolution at $158,460.68 and basing its distribution order on that amount

       for the following reasons: 1) though he had enough credits to be vested in his

       pension, he only qualified for 54% of the regular pension benefit at the time of

       the dissolution; and 2) if he had retired on July 1, 2003, the value of his pension

       benefit on that date would have been $147,889.61. Essentially, Richard

       contends that because he would not have received the full $158,460.68 on the

       date of dissolution, the trial court clearly erred in valuing his pension benefit at

       that amount.


[13]   Indiana Code section 31-9-2-98 defines “property” for the purpose of a

       dissolution action to include a present right to withdraw pension or retirement
       Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 15 of 20
benefits, the right to receive pension or retirement benefits that are vested but

payable after the dissolution of the marriage, and the right to receive disposable

retired or retainer pay acquired during the marriage that is or may be payable

after the dissolution. Pherson v. Lund, 997 N.E.2d 367, 370 (Ind. Ct. App.

2013). In other words, in order for a pension or retirement plan to be included

in the marital estate, it must be vested. In re Marriage of Preston, 704 N.E.2d

1093, 1097 (Ind. Ct. App. 1999). An asset may vest in possession or in interest.

“Vesting in possession connotes an immediate existing right of present

enjoyment, while vesting in interest implies a presently fixed right to future

enjoyment.” Id. There is no question Richard’s pension was vested, properly

included within the marital estate, and subject to division. As to the valuation

of the pension benefit, we recognize that at the time of the divorce, there were

various contingencies that could have impacted the pension benefit ultimately

due Richard. Because the parties did not agree to a value of the pension benefit

at the time of dissolution, however, the trial court was required to value the

pension after Richard’s retirement based upon the evidence presented. None of

the contingencies came to pass, and Richard retired with his full pension

benefit. Because the trial court’s valuation was within the range of the evidence

presented, we cannot say it clearly erred in valuing the pension benefit at the

higher amount.




Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 16 of 20
                                              B. Distribution
                                       1. Credit for Payments Made3

[14]   Richard notes the trial court acknowledged the payment of $2,680.60 he made

       to Ellyn from the lump sum distribution from his annuity savings account, but

       failed to give him credit for the regular monthly payments he had made to Ellyn

       thereafter. We disagree. The trial court’s order states:


               With regards to [Richard’s] annuity savings account, the Court
               finds that this account had a value of $51,541.93 as of the date of
               dissolution. [Ellyn] is entitled to one-half of this value, or
               $25,770.96. [Ellyn] has already received $2,680.60 of this sum.
               [Richard] is to continue paying one-half of his net monthly
               TERF annuity payment to [Ellyn] as he receives these payments,
               until [Ellyn] has received a total of $25,770.96.


       App. at 21. This paragraph states that the total due to Ellyn from the annuity

       savings account is $25,770.96, acknowledges that she has received $2,680.60 as

       a lump sum, and—by stating that Richard is to continue paying Ellyn one-half of

       his net monthly annuity savings account payment until he has paid Ellyn the

       full amount—further acknowledges that Richard has already made some

       monthly payments to Ellyn.




       3
         Richard briefly mentions that he argued at the hearing that he should also receive credit for an alleged
       overpayment Ellyn received from the TIAA-CREF account. See Appellant’s Brief at 12-13. The focus of the
       parties’ disagreement was the TERF accounts and the trial court did not address the TIAA-CREF account in
       its order. Richard does not develop this argument in his brief and we decline to address it.

       Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016           Page 17 of 20
[15]   Richard testified that he paid the appropriate sum to Ellyn every month since he

       began receiving distributions from his annuity savings account. Tr. at 73. Ellyn

       agreed that she had been receiving monthly checks. Id. at 19. There was no

       testimony about the exact amount Richard had been paying to Ellyn every

       month, nor how many months he had been doing so. Rather than attempting

       to do the computation of how much Richard has already paid Ellyn in monthly

       installments when there was no specific evidence thereof, the trial court’s order

       set the parameters of the payment and leaves the computation to the parties.

       Assuming Richard keeps accurate records, he will receive full credit for his

       payments and the trial court did not err.


                                            2. Coverture Fraction

[16]   Richard also contends the trial court erred in determining the amount of his

       pension benefit he was to pay Ellyn by using an incorrect coverture fraction.

       Computing a “coverture fraction” is one method a trial court may use to

       distribute pension or retirement benefits between the parties. In re Marriage of

       Fisher, 24 N.E.3d 429, 433 (Ind. Ct. App. 2014). The value of the benefit is

       multiplied by a fraction, the numerator of which is the period of time during

       which pension benefits accrued while the marriage existed, and the

       denominator of which is the total period of time during which pension rights

       accrued. Id.


[17]   The trial court found Richard had worked at Vincennes University for thirty-

       eight years, that he and Ellyn were married for twenty-nine years, and utilized a

       coverture fraction based on these figures (29/38 = 76.3%). Richard contends
       Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 18 of 20
       this is in error, as he had accumulated thirty-nine years of service with

       Vincennes University, and that although he and Ellyn were married for twenty-

       nine years total, he only worked for Vincennes University for twenty-eight of

       those years. He argues the correct coverture fraction should be 28/39, or

       71.8%. Ellyn agrees the trial court’s coverture fraction is incorrect based on the

       evidence. See Brief of Appellee at 14. We also agree the coverture fraction

       should be 28/39, and remand to the trial court to amend its order to so reflect.


[18]   In addition, we note the trial court’s order states with respect to Richard’s

       obligation to pay Ellyn part of his pension benefit:


                        b. With regards to [Richard’s] TERF pension, the Court
                        finds that the pension had a present cash value as of the
                        date of dissolution of $158,460.68. [Ellyn] would be
                        entitled to one-half of this value or $79,230.34. In the
                        alternative, [Richard] could pay to [Ellyn] one-half of that
                        part of his net TERF monthly pension payments that was
                        accumulated during the marriage. Because 29 of 38 years
                        of [Richard’s] service credit was accumulated during the
                        marriage of the parties, [Ellyn] would be entitled to one-half of
                        29/38’s or 76.3% of [Richard’s] net monthly payment . . . . In
                        this case, [Richard] was accruing service credit during the
                        29 years of the parties’ marriage and he retired with 38
                        total years of service credits. Accordingly, the coverture
                        fraction would be 29/38’s or 76.3%.


                        c. With regards to [Richard’s] TERF pension, [Richard] is
                        to make a monthly payment to [Ellyn] equal to 29/38’s or 76.3%
                        of his net monthly pension payments for so long as he receives
                        these payments. In the alternative, [Richard] may pay to
                        [Ellyn] the sum of $79,230.34, less the payments that
                        [Ellyn] has already received from [Richard].

       Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 19 of 20
       App. at 21-22 (emphasis added). Paragraph 10.b. correctly notes that Ellyn is

       entitled to one-half of the coverture fraction amount of Richard’s monthly

       pension benefit, but paragraph 10.c. does not similarly include the one-half

       limitation. To avoid any confusion, we also direct the trial court on remand to

       amend paragraph 10.c. of its order to reflect that Richard may either pay Ellyn

       the total amount she is due in a lump sum or one-half of the correct coverture

       fraction amount (71.8%) of his monthly pension benefit.



                                               Conclusion
[19]   The trial court did not clearly err in determining the value of Richard’s annuity

       savings account or pension benefit on the date of dissolution, as its

       determination was within the range of evidence presented. Further, the trial

       court’s order does not fail to give Richard full credit for sums he has already

       paid Ellyn. The trial court’s order does, however, use an incorrect coverture

       fraction, and we therefore reverse that portion of the trial court’s order and

       remand for further proceedings consistent with this opinion.


[20]   Affirmed in part and reversed and remanded in part.




       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 42A01-1508-DR-1255| July 7, 2016   Page 20 of 20
