MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                  Jul 28 2020, 9:16 am
court except for the purpose of establishing
                                                                                   CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
estoppel, or the law of the case.                                                   and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Jessie D. Cobb-Dennard                                   Zachary J. Stock
Sallee Law, LLC                                          Indianapolis, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Marriage of:                        July 28, 2020

Ruth Morales,                                            Court of Appeals Case No.
                                                         20A-DN-256
Appellant-Petitioner,
                                                         Appeal from the
        v.                                               Marion Superior Court
                                                         The Honorable
Rolando Morales,                                         Marc T. Rothenberg, Judge
                                                         The Honorable
Appellee-Respondent.                                     Kimberly Dean Mattingly,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D07-1808-DN-33242



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020                           Page 1 of 15
[1]   Ruth Morales (“Wife”) appeals the trial court’s order dissolving her marriage to

      Rolando Morales (“Husband”) and dividing the parties’ marital property. Wife

      raises the following restated issues for our review:


              I.       Whether the trial court violated her right to procedural due
                       process when it determined that she had expended her
                       allotted time and prematurely terminated her case-in-chief
                       and denied her right to cross examine Husband; and


              II.      Whether the trial court abused its discretion in its division
                       of the marital property.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Husband and Wife were married on September 14, 2013. Wife filed a petition

      for the dissolution of the marriage on August 22, 2018. Appellant’s App. Vol. 2 at

      9. During the marriage, Husband worked consistently and earned income. Tr.

      Vol. II at 15-17. While the parties were married, Wife was not always

      employed, but she had worked for many years before the marriage and had

      accumulated retirement savings in the approximate amount of $69,000.00. Id.

      at 19-20, 30-31, 43. Wife also brought proceeds of a prior home sale into the

      marriage that the parties used for the down payment for their marital home in

      the amount of $30,000.00. Appellant’s App. Vol. 2 at 36; Tr. Vol. II at 31.


[4]   During the marriage, Husband and Wife acquired various assets, including the

      marital home, vehicles, bank accounts, and miscellaneous personal property;


      Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020     Page 2 of 15
      they also incurred liabilities, including a mortgage and credit card debt.

      Appellant’s App. Vol. 2 at 9-15; Tr. Vol. II at 2, 8-9, 11-14. The marital home was

      the most significant asset of the marriage with an appraised value of

      $217,000.00. Appellant’s App. Vol. 2 at 9; Tr. Vol. II at 8-9, 32-33; Resp’t’s Ex. A.

      The largest liability of the marriage was the mortgage, which was

      approximately $130,000.00. Appellant’s App. Vol. 2 at 9; Tr. Vol. II at 8, 33.


[5]   On September 27, 2018, an Agreed Provisional Entry was issued, under which

      Wife maintained possession of the marital home while the dissolution was

      pending, and Husband paid “all expenses” related to the home, which included

      the mortgage, utilities, insurance, taxes, and necessary maintenance, upkeep

      and repairs. Appellant’s App. Vol. 2 at 21. While the dissolution was pending,

      Husband made payments totaling approximately $17,000.00 for mortgage,

      insurance, tax, and utility payments. Id. at 10; Tr. Vol. II at 34-35. In the

      Agreed Provisional Entry, Husband was required to pay $200.00 per month in

      maintenance to Wife. Husband made approximately $12,000.00 in

      maintenance payments while the dissolution was pending. Appellant’s App. Vol.

      2 at 11, 23; Tr. Vol. II at 46-47.


[6]   On September 12, 2019, the trial court set the parties’ dissolution for a final

      hearing on November 1, 2019 from 9:00 a.m. to 11:30 a.m. Appellant’s App. Vol.

      2 at 58. On November 1, 2019, the final hearing was held and began at

      approximately 9:00 a.m. Id. at 7; Tr. Vol. II at 2. The record stopped at 9:09

      a.m. and did not resume until 10:25 am., resulting in an approximate seventy-



      Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020   Page 3 of 15
      six minutes missing from the transcript. Tr. Vol. II at 5. At 10:25 a.m., the trial

      court stated:


              We are back on the record after some technical difficulties in
              Case Number 49DO71808DN33242. The things I said when I
              thought the record was running are that: I was able to verify that
              Wife has filed an updated financial declaration. [Wife’s counsel]
              is more appropriately dressed so we’ll proceed. [Husband’s
              counsel] indicated he was not able to update Husband’s financial
              declaration but insists that nothing has in fact changed since his
              [financial declaration] was filed in February. Counsel, there is an
              issue that the record apparently shut down maybe twenty
              minutes before we actually adjourned. Are you uncomfortable
              with that? Do you want to repeat some of Wife’s testimony? I
              have detailed notes. I could state for the record what my notes
              have.


      Id. Both parties agreed to rely upon the trial court’s notes and to proceed. Id.


[7]   From the trial court’s comments, it is clear that Wife had presented some of her

      case-in-chief and had begun testifying before the record had stopped. After the

      record resumed, Wife continued to testify under direct examination. Id. at 5-6;

      Pet’r’s Exs. 1, 2. After a few minutes of testimony and sometime before 11:00

      a.m., the trial court cautioned Wife’s counsel, “The time we lost is assessed to

      you. We still need to hear from [H]usband by the time we adjourn at 11:30.

      So, you need to pickup [sic] your pace.” Tr. Vol. II at 24. A few moments later,

      the trial court again cautioned Wife’s counsel, “[Y]our direct will end at 11:00

      straight up.” Id. at 26. After several more minutes of additional direct

      examination, the trial court interrupted Wife’s counsel and stated, “That


      Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020   Page 4 of 15
      concludes direct. [Husband’s counsel] you may cross.” Id. at 28. Wife’s

      counsel did not make any objection at this time. Id.


[8]   Husband’s attorney then cross-examined Wife and began his case-in-chief by

      questioning Husband. Id. at 28-32. When Husband’s counsel finished his

      direct examination of Husband, he concluded his questioning, and the

      following exchange occurred between the trial court and Wife’s counsel:


              THE COURT: You may step down Sir, thank you.


              [COUNSEL]: Your Honor may I cross?


               THE COURT: No.


              [COUNSEL]: Why not?


              THE COURT: You used thirty minutes this morning on direct of
              your client. Not thirty minutes, we spend probably eight or ten
              working together on stipulations and the lack of [financial
              declarations]. We came back just after ten, you went until 11
              with direct of your client. We were set for two and a half hours
              and you used ninety minutes of that on direct of your client. You
              can’t use more than half the time and then expect to be able to
              use [Husband’s counsel’s] time. We’re now past our allotted
              time....


              [COUNSEL]: I’m entitled to cross-examine the witness, Your
              Honor.


              THE COURT: No Ma’am, you’re not.



      Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020   Page 5 of 15
              [COUNSEL]: I’m not?


              THE COURT: Your time is over. You would have been had
              you saved some of your time. You used more than your half of
              trial time on direct of your client. That was your and your
              client’s choice; strategy, I don’t know, but no. I’m not going to
              stay through a lunch meeting because you didn’t use your trial
              time wisely. That’s not permitted. . . .


      Id. at 51-52. The trial court then requested proposed decrees be submitted, and

      the hearing concluded. Id. at 52-53.


[9]   On January 28, 2020, the trial court issued its decree dissolving the marriage

      between Husband and Wife and dividing the marital property. Appellant’s App.

      Vol. 2 at 9-15. The trial court determined that Husband should keep one

      vehicle, two bank accounts, and various personal property consisting of

      furniture and tools. Id. at 11, 14-15. The trial court awarded Wife one of the

      vehicles and personal property consisting of furniture with a value of

      approximately $8,000.00. Id. at 12, 14. Husband was awarded the marital

      home and the associated mortgage. Id. at 11, 14. The trial court ordered

      Husband to refinance the mortgage on the home and provide Wife with her

      share of the equity in an equalization payment of $40,951.89. Id. at 11. The

      trial court assigned the debt acquired before the petition for dissolution was

      filed, which appears to have been either $17,000.00 or $20,000.00, to be split

      equally between the parties. Id. at 12, 14. The trial court found that, if Wife

      has not paid her share of the debt at the time that Husband closed the refinance

      on the marital home, Husband was to deduct the unpaid amount Wife owed on

      Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020   Page 6 of 15
       the debts as a credit toward her share of the home’s equity. Id. at 12. The debts

       incurred by each party after the petition for dissolution was filed were to be kept

       by the party who incurred the debt. Id. The trial court’s distribution of the

       marital estate resulted in an equal division of the marital property. Id. at 9-15.

       Wife now appeals.


                                      Discussion and Decision

                              I.      Management of the Proceedings
[10]   Wife argues that the trial court violated her due process rights during the final

       hearing. “Provided that a trial court fulfills its duty to conduct trials

       expeditiously and consistent with the orderly administration of justice, a trial

       court has discretion to conduct the proceedings before it in any manner that it

       sees fit.” J.M. v. N.M., 844 N.E.2d 590, 601 (Ind. Ct. App. 2006) (citing Hoang

       v. Jamestown Homes, Inc., 768 N.E.2d 1029, 1035 (Ind. Ct. App. 2002), trans.

       denied), trans. denied. We review the decisions that a trial court makes regarding

       the conduct of the proceedings for an abuse of that discretion. Id.


[11]   Wife argues that the manner in which the trial court conducted the final hearing

       violated her right to procedural due process. Specifically, she contends that she

       was deprived of her right to a full and fair hearing because the trial court

       prematurely terminated her case-in-chief and denied her request for further

       proceedings. Wife also asserts that the trial court denied her procedural due

       process right to cross examine an adverse witness, Husband.




       Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020   Page 7 of 15
[12]   The Fourteenth Amendment of the United States Constitution prohibits any

       state from depriving a person of life, liberty, or property without due process of

       law. Melton v. Ind. Athletic Trainers Bd., 53 N.E.3d 1210, 1215 (Ind. Ct. App.

       2016). The Indiana Constitution states that “[a]ll courts shall be open; and

       every person, for injury done to him in his person, property, or reputation, shall

       have remedy by due course of law. Justice shall be administered freely, and

       without purchase; completely, and without denial; speedily, and without

       delay.” Ind. Const. art. I, § 12. Indiana courts have consistently construed

       Article I, Section 12, also known as the due course of law provision, as

       analogous to the federal due process clause. Melton, 53 N.E.3d at 1215. The

       right to cross-examine witnesses under oath is a fundamental right which

       cannot be denied unless waived. Theobald v. Theobald, 804 N.E.2d 284, 286

       (Ind. Ct. App. 2004). “[T]he right to effectively cross-examine witnesses can be

       waived.” Archem, Inc. v. Simo, 549 N.E.2d 1054, 1060 (Ind. Ct. App. 1990)

       (finding right to cross-examination waived by mere failure to object when trial

       court did not provide opportunity to cross-examine the witness), trans. denied.


[13]   In the present case, Wife was aware that the final hearing was scheduled for

       two and one-half hours. Appellant’s App. Vol. 2 at 58. Once the record resumed

       after the approximate seventy-six minutes time span that it had stopped, direct

       examination of Wife resumed, and sometime before 11:00 a.m., the trial court

       cautioned Wife’s counsel, “[t]he time we lost is assessed to you. We still need

       to hear from [H]usband by the time we adjourn at 11:30. So, you need to

       pickup [sic] your pace.” Tr. Vol. II at 24. A few moments later, the trial court


       Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020   Page 8 of 15
again cautioned Wife’s counsel that her direct examination would end at 11:00

a.m., “straight up.” Id. at 26. Wife did not object to either of the trial court’s

admonishments. Id. at 24, 26. After several more minutes of additional direct

testimony, the trial court interrupted Wife’s counsel and informed her that

direct testimony was concluded. Id. at 28. Wife’s counsel again did not make

any objection. Id. With presumably only thirty minutes left in the hearing,

Husband’s attorney then cross-examined Wife and presented his direct

examination of Husband. Id. at 28-32. When Husband’s counsel finished his

direct examination of Husband, the trial court excused Husband, and Wife’s

counsel asked if she could cross-examine Husband. Id. at 51. When the trial

court told her that she could not, the following exchange occurred:


        [COUNSEL]: Why not?


        THE COURT: You used thirty minutes this morning on direct of
        your client. Not thirty minutes, we spend probably eight or ten
        working together on stipulations and the lack of [financial
        declarations]. We came back just after ten, you went until 11
        with direct of your client. We were set for two and a half hours
        and you used ninety minutes of that on direct of your client. You
        can’t use more than half the time and then expect to be able to
        use [Husband’s counsel’s] time. We’re now past our allotted
        time....


        [COUNSEL]: I’m entitled to cross-examine the witness, Your
        Honor.


        THE COURT: No Ma’am, you’re not.



Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020   Page 9 of 15
               [COUNSEL]: I’m not?


               THE COURT: Your time is over. You would have been had
               you saved some of your time. You used more than your half of
               trial time on direct of your client. That was your and your
               client’s choice; strategy, I don’t know, but no. I’m not going to
               stay through a lunch meeting because you didn’t use your trial
               time wisely. That’s not permitted. . . .


       Id. at 51-52.


       Wife made no formal objection to the procedure employed by the trial court.

       Beyond stating her belief that she was entitled to cross-examine Husband,

       Wife’s counsel did not object to either the trial court cutting short Wife’s direct

       examination or to not allowing cross-examination of Husband.                   Grounds for

       objection must be specific and any grounds not raised in the trial court are not

       available on appeal. Franciose v. Jones, 907 N.E.2d 139, 147 (Ind. Ct. App. 2009

       (citing Grace v. State, 731 N.E.2d 442, 444 (Ind. 2000)), trans. denied. Because

       Wife failed to make a specific objection to the trial court’s actions in limiting

       her direct examination and not providing an opportunity to cross-examination,

       she waived any error. See Archem, 549 N.E.2d at 1060 (finding right to cross-

       examination waived by mere failure to object when trial court did not provide

       opportunity to cross-examine the witness).


                                 II.     Division of Marital Property
[14]   The division of marital property is within the sound discretion of the trial court,

       and we will reverse only for an abuse of discretion. In re Marek, 47 N.E.3d


       Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020       Page 10 of 15
       1283, 1287 (Ind. Ct. App. 2016), trans. denied. “We will reverse a trial court’s

       division of marital property only if there is no rational basis for the award; that

       is, if the result is clearly against the logic and effect of the facts and

       circumstances, including the reasonable inferences to be drawn therefrom.” Id.

       When we review a claim that the trial court improperly divided marital

       property, we consider only the evidence most favorable to the trial court’s

       disposition of the property without reweighing evidence or assessing witness

       credibility. Id. at 1288-89. “Although the facts and reasonable inferences might

       allow for a conclusion different from that reached by the trial court, we will not

       substitute our judgment for that of the trial court.” Id. at 1289. Such a case

       turns on “whether the trial court’s division of the marital property was just and

       reasonable.” Morgal-Henrich v. Henrich, 970 N.E.2d 207, 210-11 (Ind. Ct. App.

       2012).


[15]   Wife argues that the trial court abused its discretion in its division of the marital

       property. She specifically asserts that the trial court abused its discretion when

       it awarded Husband the marital residence and seems to contend that, because

       she contributed to the down payment for the home and substantially

       contributed to its acquisition, she should have received it in the property

       division, which would have resulted in an unequal division. Wife also claims

       that the trial court’s division of property was an abuse of discretion because the

       trial court failed to account for all assets and debts of the marriage and assigned

       values to other assets and debts that were not supported by the evidence. Wife

       further argues that despite the equalization payment, the trial court actually


       Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020   Page 11 of 15
       awarded an unequal portion of the marital property to Husband because the

       equalization payment was subject to credits for certain payments made by

       Husband while the dissolution was pending.


[16]   It is well-settled that in a dissolution action, all marital property, whether

       owned by either spouse before the marriage, acquired by either spouse after the

       marriage and before final separation of the parties, or acquired by their joint

       efforts, goes into the marital pot for division. Ind. Code § 31-15-7-4(a);

       Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind. Ct. App. 2014). For purposes

       of dissolution, property means “all the assets of either party or both parties[.]”

       Ind. Code § 31-9-2-98(b). This “one pot” theory ensures that all assets are

       subject to the trial court’s power to divide and award. Carr v. Carr, 49 N.E.3d

       1086, 1089 (Ind. Ct. App. 2016), trans. denied. Indiana Code section 31-15-7-4

       provides the trial court shall divide the property of the parties in a just and

       reasonable manner, whether that property was owned by either spouse before

       the marriage, acquired by either spouse in his or her own right after the

       marriage and before the final separation, or acquired by their joint efforts. An

       equal division is presumed to be a just and reasonable division. Ind. Code § 31-

       15-7-5. A challenger must overcome a strong presumption that the court

       considered and complied with the applicable statute, and that presumption is

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

       J.M., 844 N.E.2d at 602.


[17]   Here, in dividing the marital property, the trial court determined that Husband

       should keep one vehicle, two bank accounts, and various personal property

       Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020   Page 12 of 15
       consisting of furniture and tools, totaling approximately $23,000.00. Appellant’s

       App. Vol. 2 at 11, 14-15. The trial court awarded Wife one of the vehicles and

       furniture which totaled approximately $8,000.00. Id. at 12, 14. Husband was

       also awarded the marital home and the associated mortgage. Id. at 11, 14. The

       trial court ordered Husband to refinance the mortgage on the home and provide

       Wife with her share of the equity in an equalization payment of $40,951.89. Id.

       at 11. The trial court assigned the debt acquired before the petition for

       dissolution was filed, which appears to have been either $17,000.00 or

       $20,000.00, to be split equally between the parties. Id. at 12, 14. However, the

       trial court found that if Wife has not paid her share of the debt at the time that

       Husband refinanced the mortgage on the marital home, then Husband was to

       deduct the unpaid amount Wife owed on the debts as a credit toward her share

       of the home’s equity. Id. at 12. The debts incurred by each party after the

       petition for dissolution was filed were to be kept by the party who incurred the

       debt. Id. The trial court’s distribution of the marital estate resulted in an equal

       division of the marital property. Id. at 9-15.


[18]   To the extent that Wife is arguing that the trial court erred when it did not

       award her the marital home, we disagree. The evidence showed that Wife

       contributed $30,000.00 to the down payment for the home. It also showed that

       Husband was employed consistently throughout the marriage, that Wife was

       not and that, at least throughout the time the dissolution was pending, Husband

       paid for the mortgage, taxes, insurance, and utilities on the home, which totaled

       at least $13,500.00. Tr. Vol. II at 15-17, 20, 31, 33-34. The trial court did not

       Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020   Page 13 of 15
       abuse its discretion in awarding the home to Husband because the evidence

       showed that both Husband and Wife contributed to the acquisition of the

       marital home.1


[19]   Wife also takes issue with the way that several items were valued and assigned

       by the trial court in the division of marital property. Our Supreme Court has

       held that a trial court’s disposition of marital property is to be considered “‘as a

       whole, not item by item.’” Morgal-Henrich, 970 N.E.2d at 212 (quoting Fobar v.

       Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002)).


                In crafting a just and reasonable property distribution, a trial
                court is required to balance a number of different considerations
                in arriving at an ultimate disposition. The court may allocate
                some items of property or debt to one spouse because of its
                disposition of other items. Similarly, the factors identified by the
                statute as permitting an unequal division in favor of one party or
                the other may cut in different directions. As a result, if the
                appellate court views any one of these in isolation and apart from
                the total mix, it may upset the balance ultimately struck by the
                trial court.


       Fobar, 771 N.E.2d at 59-60.




       1
         To the extent that Wife is contending that the trial court disproportionately awarded the marital property to
       Husband by giving him credit for the expenses he paid toward the marital residence and toward maintenance
       while the dissolution was pending, we do not find this to be true. While the trial court did state in the decree
       that Husband shall receive a credit for those expenses, it did not subtract those sums from the equalization
       payment that Husband is ordered to pay Wife. Appellant’s App. Vol. 2 at 11. Instead, the only sums to be
       subtracted from the equalization payment were any unpaid portion of Wife’s share of the credit card and
       small bank loan, which were ordered to be divided equally between Husband and Wife. Id. at 11-12.

       Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020                      Page 14 of 15
       In crafting its division of the marital property, the trial court’s distribution of the

       marital estate resulted in an equal division of the marital property. There is a

       statutory presumption that “an equal division of the marital property between

       the parties is just and reasonable.” Ind. Code § 31-15-7-5. Wife has not shown

       how the division of marital property should have differed and, if so, whether it

       should still result in an equal division of the marital property. Assuming that

       there should still be an equal division since Wife has not raised any of the

       statutory reasons why her claimed errors would result in an unequal division,

       we find that the trial court did not abuse its discretion in its determinations.

       Wife’s challenges, including the miscalculation of a tax refund, loan balance,

       and asset valuations, are too small to have changed the overall result of the trial

       court’s division of the marital property.2 Wife has not shown that the trial

       court’s division of the marital property was not just and reasonable, and the

       trial court did not abuse its discretion.3


[20]   Affirmed.


       Najam, J., and Brown, J., concur.




       2
         As to the debts, including the Sam’s Club credit card that Wife contends were not included in the decree,
       the evidence showed that the Sam’s Club credit card had a zero balance at the time the dissolution petition
       was filed, and therefore, the outstanding balance at the time of the final hearing was incurred while the
       petition was pending, and the trial court ordered the parties to be responsible for the debt they incurred since
       the petition for dissolution was filed. Tr. Vol. II at 24, 43; Appellant’s App. Vol. 2 at 12.
       3
         We do note that, in her dissolution petition, Wife requested that she be restored to her former name, “Ruth
       Misiuta,” but it appears that the trial court did not address this issue in the dissolution decree. Appellant’s
       App. Vol. 2 at 9-12, 17-19. To the extent that the trial court has not yet done so, we instruct the trial court to
       restore Wife to her former name.

       Court of Appeals of Indiana | Memorandum Decision 20A-DN-256 | July 28, 2020                         Page 15 of 15
