                                                                             Dec 07 2015, 8:28 am



      ATTORNEY FOR APPELLANT
      Bryan L. Ciyou
      Ciyou and Dixon, P.C.
      Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Brad Barton,                                              December 7, 2015
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                32A04-1412-DR-550
              v.                                                Appeal from the Hendricks Circuit
                                                                Court
      Alexandra Barton,                                         The Honorable Jeffrey V. Boles,
      Appellee-Respondent                                       Judge

                                                                The Honorable Daniel F. Zielinski,
                                                                Judge
                                                                Trial Court Cause No.
                                                                32C01-1109-DR-641



      Crone, Judge.


                                              Case Summary
[1]   In a consolidated appeal, Brad Barton (“Husband”) appeals the trial court’s

      decree dissolving his marriage to Alexandra Barton (“Wife”) and the trial

      court’s subsequent order denying his motion for relief from judgment on the

      Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015                    Page 1 of 21
      basis of fraud or misrepresentation. 1 On appeal, Husband contends that each of

      the appealed orders constitutes an abuse of discretion. We conclude that the

      trial court did not abuse its discretion in denying Husband’s motion for relief

      from judgment and we affirm that order in its entirety. Regarding the

      dissolution decree, we conclude that the trial court did not abuse its discretion

      in awarding incapacity spousal maintenance and attorney’s fees to Wife.

      However, we conclude that the trial court erred in dividing the marital estate,

      namely in valuing and dividing Husband’s pension and deferred tax savings

      plan. Therefore, we affirm in part, reverse in part, and remand with

      instructions.


                                    Facts and Procedural History
[2]   Husband and Wife were married on April 12, 2005. No children were born of

      the marriage. Husband filed his petition for dissolution of marriage on

      September 1, 2011, and Wife filed her counter-petition for dissolution on

      October 20, 2011. Following numerous continuances and extensions of time, a

      final dissolution hearing was held on October 2, 2014. The dissolution court

      entered its decree on October 31, 2014. In addition to dividing the marital

      property, which primarily included Husband’s pension and deferred tax savings

      plan, the dissolution court found Wife to be physically incapacitated to the

      extent that her ability to support herself is materially affected. Accordingly, the




      1
       When referring to portions of the trial transcripts, we will cite to the final dissolution hearing transcript as
      “Dissolution Tr.” and the motion for relief from judgment hearing transcript as “60(B) Tr.”

      Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015                            Page 2 of 21
      court ordered Husband to pay spousal maintenance in the amount of $1500 per

      month and to secure COBRA coverage for Wife until she becomes eligible for

      Medicare. 2 The dissolution court also found that Husband caused Wife to

      incur extraordinary attorney’s fees by his failures to comply with discovery,

      switching attorneys, and delaying the case. Thus, the court ordered Husband to

      pay Wife’s attorney’s fees in the amount of $24,364.18.


[3]   Husband filed his notice of appeal on December 1, 2014. Shortly thereafter,

      Husband filed a “Motion to Stay Order on Dissolution Decree” pending

      appeal. Specifically, Husband requested that the dissolution court stay its order

      regarding the award of spousal maintenance and attorney’s fees, as well as the

      division of Husband’s pension and deferred tax savings plan. The dissolution

      court granted the motion to stay regarding the division of Husband’s retirement

      benefits, but denied the motion regarding the award of spousal maintenance

      and attorney’s fees.


[4]   Wife remarried on December 12, 2014. On April 21, 2015, Husband filed his

      petition for leave to file an Indiana Trial Rule 60(B) motion for relief from

      judgment in the dissolution court and requested that we remand his appeal

      pending that ruling. Our motions panel granted Husband’s petition and

      remanded the matter to the dissolution court. Husband subsequently filed his

      Trial Rule 60(B) motion challenging the dissolution court’s award of spousal



      2
        The record indicates that Wife has since rescinded her request for Husband to provide COBRA coverage.
      60(B) Tr. at 65.

      Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015                   Page 3 of 21
      maintenance and attorney’s fees to Wife. Following a hearing, the trial court

      issued its findings of fact, conclusions thereon, and order denying Husband’s

      motion for relief from judgment. Husband then filed his amended notice of

      appeal, and this Court assumed jurisdiction over a consolidated appeal of both

      the dissolution decree and the trial court’s order on the motion for relief from

      judgment. 3


                                       Discussion and Decision
[5]   We begin by noting that Wife did not file an appellee’s brief. When an appellee

      fails to submit a brief, we do not undertake the burden of developing appellee’s

      arguments. K.L. v. E.H., 6 N.E.3d 1021, 1029 (Ind. Ct. App. 2014). Instead,

      we apply a less stringent standard of review and may reverse if the appellant

      establishes prima facie error. Id. “Prima facie error in this context is defined

      as, at first sight, on first appearance, or on the face of it.” Falatovics v. Falatovics,

      15 N.E.3d 108, 110 (Ind. Ct. App. 2014) (citation omitted). With this in mind,

      we will address Husband’s appeal from each order in turn.




      3
        We note that the Honorable Jeffrey V. Boles presided over the dissolution proceedings and we will refer to
      “the dissolution court” when referring to those proceedings. The Honorable Daniel F. Zielinski presided
      over the motion for relief from judgment proceeding and we will refer to “the trial court” when referring to
      that proceeding.

      Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015                       Page 4 of 21
         Section 1 – The trial court did not abuse its discretion in
      denying Husband’s motion for relief from judgment regarding
      the dissolution court’s incapacity spousal maintenance award.
[6]   We first address Husband’s appeal from the trial court’s denial of his motion for

      relief from judgment. Specifically, Husband asserts that the trial court abused

      its discretion in denying his motion for relief from the dissolution court’s award

      to Wife of incapacity spousal maintenance on the basis of fraud or

      misrepresentation. 4 Indiana Trial Rule 60(B) provides in relevant part, “On

      motion and upon such terms as are just the court may relieve a party … from a

      judgment … for the following reasons: … (3) fraud (whether heretofore

      denominated as intrinsic or extrinsic), misrepresentation, or other misconduct

      of an adverse party.” The burden is on the moving party to establish the ground

      for relief under Trial Rule 60(B). In re Paternity of P.S.S., 934 N.E.2d 737, 740

      (Ind. 2010). While we will discuss the actual merits of the incapacity

      maintenance award later in our opinion, Trial Rule 60(B) motions address only

      the procedural, equitable grounds for justifying relief from the legal finality of a

      final judgment, not the legal merits of the judgment. Id.


[7]   We review the trial court’s ruling on a motion for relief from judgment using an

      abuse of discretion standard. Speedway SuperAmerica, LLC v. Holmes, 885




      4
        Based upon Husband’s statement of the issues and the first argument section of his brief, it does not appear
      that he is appealing the trial court’s denial of his motion for relief from judgment regarding the dissolution
      court’s award of attorney’s fees. He does briefly mention his motion for relief coupled with the attorney’s
      fees issue in a subsequent section of his brief, and we will likewise address it later in our opinion as we deem
      appropriate.

      Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015                          Page 5 of 21
      N.E.2d 1265, 1270 (Ind. 2008). An abuse of discretion occurs only when the

      trial court’s action is clearly erroneous, that is, against the logic and effect of the

      facts before it and inferences drawn therefrom. P.S.S., 934 N.E.2d at 741.

      Moreover, where as here, the trial court enters special findings and conclusions

      pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of review.

      Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002). First we determine if the

      evidence supports the findings, and second whether the findings support the

      judgment. Id. The trial court’s findings and conclusions will be set aside only if

      clearly erroneous. Id. We neither reweigh the evidence nor reassess witness

      credibility. Id. Instead, we must accept the ultimate facts as stated by the trial

      court if there is evidence to sustain them. Id.


[8]   “A party making a claim under Trial Rule 60(B)(3) and alleging fraud or

      misrepresentation must demonstrate that: (1) the opposing party knew or

      should have known from the available information that the representation is

      false, and (2) the misrepresentation was made with respect to a material fact

      which would change the trial court’s judgment.” Seleme v. JP Morgan Chase

      Bank, 982 N.E.2d 299, 310-11 (Ind. Ct. App. 2012) (citation and quotation

      marks omitted), trans. denied (2012). In his motion for relief, Husband asserted

      that he had discovered “new material evidence” that during the final dissolution

      hearing, Wife misrepresented her “financial needs,” and that such

      misrepresentation of material fact affected the dissolution court’s judgment

      awarding incapacity spousal maintenance to Wife. Appellant’s App. at 161,




      Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015   Page 6 of 21
      166. 5 Specifically, Husband claimed that Wife was residing with and being

      financially supported by her then-boyfriend (now husband), that she misled the

      dissolution court in stating that she did not intend to marry or continue residing

      with her boyfriend, and that Social Security Disability (“SSDI”) was her only

      source of income. Husband points to Wife’s post-dissolution remarriage to

      support his claim that Wife misled the court.


[9]   During the hearing on the motion for relief from judgment, Wife confirmed her

      earlier testimony that, at the time of the final dissolution hearing, she did not

      intend to marry her boyfriend, that she intended to move out of his residence

      and obtain her own housing, and that SSDI was her only source of income. In

      denying Husband’s motion for relief, the trial court found in relevant part,

               7. While it might be true that [Wife’s] testimony was “artful[,]”
               Court cannot find in the record that [Wife] misrepresented that
               she received any other “income” than that from the Social
               Security Administration.


      Appellant’s App. at 25. It is the trial court’s prerogative to weigh the evidence

      and assess witness credibility, and we will not second-guess that determination




      5
        We note that, at the trial court level, Husband appeared confused as to which subsection of Indiana Trial
      Rule 60(B) applied to his motion for relief. When a request for relief is based on newly discovered evidence
      pursuant to Trial Rule 60(B)(2), the appellant must show, among other things, that evidence could not have
      been discovered before trial by the exercise of due diligence. State Farm Fire & Cas. Co. v. Radcliff, 18 N.E.3d
      1006, 1013 (Ind. Ct. App. 2014), trans. denied (2015). Trial Rule 60(B)(3) motions, on the other hand, are
      based on fraud on the court, so long as it is chargeable to an adverse party and had an adverse effect on the
      moving party. Id. In his motion, Husband referred both to the “new evidence” language of subsection (B)(2)
      and the “fraud” and “misrepresentation” language of subsection (B)(3). However, throughout his brief on
      appeal, he appears to rely solely on the fraud and misrepresentation language of Trial Rule (60)(B)(3).

      Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015                          Page 7 of 21
       on appeal. Stonger, 776 N.E.2d at 358. We agree with the trial court that

       Husband failed to carry his burden of proving that, during the dissolution

       proceedings, Wife misrepresented any material fact to the dissolution court

       regarding her financial resources which would have changed the court’s

       judgment. Indeed, the evidence supports the trial court’s finding that SSDI was

       Wife’s only source of income at the time of dissolution and, in turn, this finding

       supports the trial court’s denial of relief on the basis of fraud or

       misrepresentation.


[10]   While we acknowledge Husband’s frustration with Wife’s remarriage

       approximately six weeks after dissolution, that does not alter what Wife’s (not

       her then-boyfriend’s) financial resources were at the time of dissolution. The

       crux of Husband’s claim can be summarized essentially as this: Wife lied about

       her future intent to remarry, and the dissolution court would not have awarded

       her incapacity spousal maintenance if she had not misrepresented that intent.

       First, the entirety of Husband’s argument is an invitation for this Court to

       reassess Wife’s credibility, which we will not do. Moreover, we note that, as a

       general matter, a claim of actual fraud cannot be based on representations of

       future conduct, on broken promises, or on representations of existing intent that

       are not executed. Wallem v. CLS Indus., Inc., 725 N.E.2d 880, 889 (Ind. Ct.

       App. 2000). These are exactly the types of representations complained about by

       Husband, and such complaint is misplaced in a motion for relief from judgment

       premised upon fraud or misrepresentation.




       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015   Page 8 of 21
[11]   Based upon the record before us, we cannot say that the trial court clearly erred

       in rejecting Husband’s contention that Wife misrepresented any material fact

       regarding her financial resources which would have changed the dissolution

       court’s decision to award incapacity spousal maintenance. Thus, the trial court

       did not abuse its discretion in denying Husband’s motion for relief from

       judgment, and we affirm the trial court’s order.


         Section 2 – The dissolution court did not abuse its discretion
              in awarding Wife incapacity spousal maintenance.
[12]   Turning now to the dissolution decree, Husband contends that the dissolution

       court abused its discretion in awarding Wife incapacity spousal maintenance.

       A trial court’s power to award spousal maintenance is wholly within its

       discretion. Spivey v. Topper, 876 N.E.2d 781, 784 (Ind. Ct. App. 2007). The

       presumption that the court correctly applied the law in making an award of

       spousal maintenance is one of the strongest presumptions applicable to our

       consideration of a case on appeal. Id. We will reverse a trial court’s decision to

       award spousal maintenance only when the decision is clearly against the logic

       and effect of the facts and circumstances of the case. Clokey v. Bosley Clokey, 956

       N.E.2d 714, 718 (Ind. Ct. App. 2011), aff’d on reh’g, 957 N.E.2d 1288.


[13]   Indiana Code Section 31-15-7-1 provides that the trial court may order spousal

       maintenance as part of its disposition of marital property, if the court makes

       certain findings including,

               (1) If the court finds a spouse to be physically or mentally
               incapacitated to the extent that the ability of the incapacitated
       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015   Page 9 of 21
               spouse to support himself or herself is materially affected, the
               court may find that maintenance for the spouse is necessary
               during the period of incapacity, subject to further order of the
               court.


       Ind. Code § 31-15-7-2. With regard to such incapacity maintenance, our

       supreme court has observed,

               Where a trial court finds that a spouse is physically or mentally
               incapacitated to the extent that the ability of that spouse to
               support himself or herself is materially affected, the trial court
               should normally award incapacity maintenance in the absence of
               extenuating circumstances that directly relate to the criteria for
               awarding incapacity maintenance.


       Cannon v. Cannon, 758 N.E.2d 524, 527 (Ind. 2001). Thus, our supreme court

       has made clear that a trial court’s discretion is “limited” regarding whether to

       award incapacity maintenance once the court makes the requisite finding

       regarding incapacity. Coleman v. Atchison, 9 N.E.3d 224, 229 (Ind. Ct. App.

       2014). Once the requisite finding of incapacity has been made, the trial court

       should award incapacity maintenance or identify specific extenuating

       circumstances directly related to the statutory criteria for awarding such

       maintenance that would justify denying the award. Id.


[14]   Here, the evidence indicates that Wife has been diagnosed with “stiff person’s

       syndrome” with the primary symptom of chronic severe muscular pain.

       Dissolution Tr. at 59. Wife complains of muscle spasms and falling spells as a

       result of her condition. To control the pain, Wife must take narcotic

       medications that cause sedation and impaired response. Id. at 61. Wife’s
       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015   Page 10 of 21
       doctor opined that her ability to work is materially affected by her condition.

       Id. at 60. Wife also testified that she applied for and was approved for SSDI

       benefits due to her condition and her resulting inability to work. Based upon

       this evidence, the dissolution court found,


                  [Wife] succeeded in proving, by testimony of Dr. George Elms[ 6]
                  and the approval by the Social Security Disability and Benefits
                  that she is entitled to spousal maintenance.… Clearly from the
                  testimony, [Wife] is physically incapacitated to the extent that
                  her ability to support herself is material[ly] affected.


       Appellant’s App. at 22-23.


[15]   The dissolution court found no extenuating circumstances directly related to the

       statutory criteria for awarding such maintenance that would justify denying the

       award, and there is nothing in the record to convince us that such extenuating

       circumstances existed at the time of dissolution. 7 Although Husband asserts

       that Wife failed to establish that her incapacity actually prevents her from

       working and supporting herself, the dissolution court found to the contrary in

       concluding that the evidence presented established that Wife’s ability to support




       6
           In the transcript, the doctor spells his surname “Elmes.” Dissolution Tr. at 57.
       7
        As stated earlier, the statutory criteria for awarding incapacity maintenance are: (1) the spouse’s physical or
       mental incapacity, (2) which incapacity materially affects the spouse’s self-supporting ability. See Ind. Code §
       31-15-7-2(1).

       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015                        Page 11 of 21
       herself is materially affected. 8 Findings are clearly erroneous only if the record

       is devoid of facts or inferences to support them, or if they do not support the

       judgment. The record here is not so devoid. The dissolution court did not

       abuse its discretion in awarding Wife incapacity spousal maintenance. 9


[16]   Husband further posits that the dissolution court failed to consider his ability to

       pay Wife $1500 per month in incapacity spousal maintenance, and therefore the

       award constitutes an abuse of discretion. We agree that “in determining the

       propriety of a maintenance award, the ‘ability of the husband to pay should also

       be made to appear.’” Clokey, 957 N.E.2d at 1289 (quoting Rooney v. Rooney, 231

       Ind. 443, 445, 109 N.E.2d 93, 94 (1952)), opinion on reh’g. Here, the dissolution

       court made specific findings regarding Husband’s substantial weekly earnings

       ($32.20 per hour for forty hours plus overtime) 10 from his United Parcel Service

       employment. Appellant’s App. at 20. Thus, although the dissolution court did




       8
         As indicated by the dissolution court’s findings, in addition to the medical testimony, Wife’s receipt of
       SSDI benefits strongly suggests that she is “incapacitated” for spousal maintenance purposes. See Pohl v.
       Pohl, 15 N.E.3d 1006, 1011-12 (Ind. 2014) (noting that the standard for SSDI benefits is “far more exacting
       than the incapacity-maintenance standard, which inquires only whether the recipient’s means of self-support
       are ‘materially affected.’”).
       9
         Husband relies heavily on In re Marriage of Gertiser, 24 N.E.3d 521 (Ind. Ct. App. 2015), trans. granted, and
       argues that, at the time of dissolution, Wife had “financial resources available to her” both from SSDI and
       her then-boyfriend (now husband), and therefore she did not then and does not now (due to her remarriage)
       need incapacity maintenance. Appellant’s Br. at 19. This Court’s opinion in Gertiser was recently vacated by
       our supreme court and no longer has any precedential or persuasive value. In re Marriage of Gertiser, No.
       29S02-1511-DR-643, 2015 WL 6941124 (Ind. Nov. 10, 2015); see Ind. Appellate Rule 58 (Except under
       specific circumstances, if transfer is granted, the opinion of the Court of Appeals shall be automatically
       vacated). In any event, Husband’s reliance on Gertiser is misplaced as Gertiser involved a motion to modify
       and revoke an incapacity spousal maintenance award based upon the financial change in circumstances due
       to a remarriage, not the original incapacity maintenance award as is involved here.
       10
          Although the dissolution court found that Husband earns $32.20 per hour plus overtime, Appellant’s App.
       at 20, Husband testified that he gets paid $32.90 per hour plus overtime. Dissolution Tr. at 30, 117.

       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015                        Page 12 of 21
       not state so explicitly, it clearly considered Husband’s ability to pay the

       maintenance award. Husband’s assertion on appeal that he is unable to satisfy

       the maintenance award for various reasons despite his income is merely an

       invitation for us to reweigh the evidence in his favor, and we will not. A

       deferential view of all the evidence presented persuades us that no abuse of

       discretion occurred.


         Section 3 – The dissolution court did not abuse its discretion
                      in awarding Wife attorney’s fees.
[17]   Husband next contends that the dissolution court abused its discretion in

       awarding Wife $24,364.18 in attorney’s fees. 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’s 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. Troyer v. Troyer, 987 N.E.2d 1130, 1142-43 (Ind. Ct. App. 2013),

       trans. denied (2013). 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. Hendricks v. Hendricks, 784 N.E.2d 1024, 1028 (Ind. Ct.

       App. 2003).


[18]   The trial court has broad discretion in awarding attorney’s fees. Bessolo v.

       Rosario, 966 N.E.2d 725, 733 (Ind. Ct. App. 2012). “Reversal is proper only

       where the trial court’s award is clearly against the logic and effect of the facts

       and circumstances before the court.” Id. “Further, ‘the trial court need not give

       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015   Page 13 of 21
       its reasons for its decision to award attorney’s fees.’” Id. (quoting Thompson v.

       Thompson, 811 N.E.2d 888, 905 (Ind. Ct. App. 2004), trans. denied.).


[19]   The dissolution court’s award of attorney’s fees to Wife is supported by the

       record. The basis for the award is partially Husband’s misconduct. The court

       found that Husband caused Wife “to incur extraordinary attorneys’ fees by his

       failures to comply with discovery, switching attorneys, and delaying the case.”

       Appellant’s App. at 23. Husband concedes that some of these things did occur,

       but he claims that Wife was equally if not more responsible for causing any

       delays. We again decline Husband’s invitation for us to reweigh the evidence

       and reassess witness credibility on this issue. Also, as noted above, the

       dissolution court made specific findings regarding the disparity in the parties’

       earning abilities, specifically finding that Husband earns $32.20 per hour for a

       forty-hour work week ($5152/month) and that Wife has been unemployed due

       to her physical incapacity since sometime in 2011. Id. at 21. The court found

       that Wife’s only source of income is SSDI of $1491 per month. Thus,

       Husband’s monthly income is more than three times that of Wife.


[20]   While Husband complains that the dissolution court awarded Wife all of her

       attorney’s fees rather than just a portion, we conclude that the extreme disparity

       in the parties’ earning abilities and financial resources as shown by the evidence

       justifies the award. We cannot say that the dissolution court’s decision to

       award Wife $24,364.18 in attorney’s fees is clearly against the logic and effect of




       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015   Page 14 of 21
       the facts and circumstances before the court. The dissolution court did not

       abuse its discretion. 11


             Section Four – The dissolution court erred in valuing and
            dividing Husband’s pension and deferred tax savings plan.
[21]   As noted by Husband, the dissolution court determined that the only two

       marital assets with value and subject to division were Husband’s pension and

       deferred tax savings plan. 12 Husband asserts that the dissolution court abused

       its discretion in dividing these retirement assets by apparently awarding Wife

       the entire value earned during the marriage of both of these assets. We agree

       with Husband that the dissolution court committed error in valuing and

       dividing the retirement assets, and we reverse that portion of the dissolution

       decree and remand for further proceedings.




       11
          We will not seriously entertain Husband’s repeated assertion that Wife was “gifted” the money to pay her
       attorney’s fees and therefore is in a better economic condition than he is to pay the fees. Appellant’s Br. at
       37. In denying Husband’s motion for relief from judgment on this issue, the trial court found to the contrary,
       stating, “Court cannot find from the record that [W]ife’s attorney fees were ‘gifted’ to her, only that another
       individual, her now current husband, paid a substantial portion of her attorney fees. However, again,
       nothing in the record reflects whether those fees need to be repaid.” Appellant’s App. at 25. Husband has
       failed to demonstrate that this finding is clearly erroneous.
       12
          Husband briefly mentions two additional marital assets/liabilities about which he claims that he needs
       “clarification” as to how they were handled in the dissolution decree. Appellant’s Br. at 41. First, regarding
       an alleged debt of $63,868 owed by the parties to Wife’s mother, the dissolution court made clear in its
       findings that there was insufficient evidence presented regarding this alleged debt, and therefore it is
       assignable to neither party and not included in the marital estate. Regarding the allegedly severely damaged
       Chrysler Pacifica vehicle that was given to Wife pursuant to a provisional agreement, the dissolution court
       made clear that the vehicle was included in the martial pot, but it assigned “no value of the Pacifica to either
       party.” Appellant’s App. at 21. The dissolution decree is sufficiently clear on these issues, and we believe
       that no further clarification in necessary.

       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015                         Page 15 of 21
[22]   We begin our discussion of this issue with a summary of Indiana’s one pot

       theory.

               It is well settled that in a dissolution action, all marital property
               goes into the marital pot for division, whether it was 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. For purposes of dissolution,
               property means all the assets of either party or both parties. The
               requirement that all marital assets be placed in the martial pot is
               meant to insure that the trial court first determines that value
               before endeavoring to divide property. Indiana’s one pot theory
               prohibits the exclusion of any asset in which a party has a vested
               interest from the scope of the trial court’s power to divide and
               award. While the trial court may decide to award a particular
               asset solely to one spouse as part of its just and reasonable
               property division, it must first include the asset in its
               consideration of the marital estate to be divided.


       Falatovics, 15 N.E.3d at 110 (citations and quotation marks omitted).


[23]   After determining what constitutes marital property, the trial court must then

       divide the marital property under the presumption that an equal division is just

       and reasonable. Leever v. Leever, 919 N.E.2d 118, 124 (Ind. Ct. App. 2009).

       This presumption may be rebutted by relevant evidence that an equal division

       would not be just and reasonable. Ind. Code § 31-15-7-5. However, the trial

       court must state its reasons for deviating from the presumption of an equal

       division in its findings and judgment. Hartley v. Hartley, 862 N.E.2d 274, 285

       (Ind. Ct. App. 2007).




       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015   Page 16 of 21
[24]   We note that nowhere in the dissolution court’s findings or judgment does the

       court state reasons for deviating from the presumption of an equal division, so

       we must presume that the dissolution court intended a 50/50 division of marital

       property. In valuing and dividing Husband’s retirement assets, the dissolution

       court found,


               13. [Husband] has a Teamster’s Deferred Tax Savings Plan with
               a value of $22,842.33 and he should pay [Wife] a figure
               computed by a factor of the number of years the parties were
               married, approximately six, divided by the number of years
               [Husband] used to earn the deferred tax savings plan times the
               $22,842.33 and pay that amount to [Wife] within thirty (30)
               days.[ 13]


               14. Also, [Husband] owns a UPS Pension Plan, as of the date of
               filing worth $39,823.9[2] earned during the marriage. The
               multiplier used for the deferred tax savings plan should be used
               regarding the $39,823.9[2] and that amount shall be paid by
               [Husband] to [Wife] as a lien upon the value of the pension plan
               when it begins to pay out to [Husband].[ 14]




       13
         Regarding Husband’s tax savings plan, it is clear that the dissolution court intends Wife to obtain an
       immediate distribution of her share of those benefits. See Kendrick v. Kendrick, No. 49A02-1412-DR-888, 2015
       WL 5562440, at *5 (Ind. Ct. App. Sept. 22, 2015) (citing 2 EQUIT. DISTRIB. OF PROPERTY, 3d §§ 6:30, 6:36
       (2014)) (under the “immediate offset method,” the trial court determines the present value of the retirement
       benefits and awards the nonowning spouse his or her share of the benefits in an immediate lump sum), trans.
       pending.
       14
          Regarding Husband’s pension, it is clear that the dissolution court intends Wife to obtain a deferred
       distribution of her share of those benefits. See Kendrick, 2015 WL 5562440 at *5 (under the “deferred
       distribution method,” the court makes no immediate division of the retirement benefits but determines the
       future benefits to which the nonowning spouse is entitled).

       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015                     Page 17 of 21
       Appellant’s App. at 22. From these findings, it is evident that the dissolution

       court is purporting to use the coverture fraction formula to divide Husband’s

       pension and deferred tax savings plan between the parties.


[25]   This Court has explained,

               The “coverture fraction” formula is one method a trial court may
               use to distribute pension or retirement plan benefits to the
               earning and non-earning spouses. Under this methodology, the
               value of the retirement plan is multiplied by a fraction, the
               numerator of which is the period of time during which the
               marriage existed (while pension rights were accruing) and the
               denominator is the total period of time during which pension
               rights accrued.


       In re Marriage of Fisher, 24 N.E.3d 429, 433 (Ind. Ct. App. 2014) (quoting Hardin

       v. Hardin, 964 N.E.2d 247, 250 (Ind. Ct. App. 2012) (citation omitted)

       (emphasis omitted)). In other words, the coverture fraction formula is applied

       to determine what portion of a retirement asset is subject to division.


[26]   We observe several critical errors in the dissolution court’s findings and

       application of the coverture fraction formula here. We will first explain what

       should have happened, and we will then explain what apparently did happen.

       The dissolution court should have included the entire present value of both the

       pension and the deferred tax savings plan in the marital estate (one pot theory)

       and then applied the coverture fraction formula to determine what portion of

       each asset was earned during the marriage and therefore subject to division.

       The coverture fraction multiplied by the present value of each asset would take


       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015   Page 18 of 21
       into account the six years of marriage divided by the number of years Husband

       spent working during which those retirement benefits accrued. 15 After applying

       the fraction, the dissolution court then should have divided the coverture value

       of these assets equally between the parties, or state reasons why deviation from

       an equal division would be appropriate.


[27]   Regarding Husband’s deferred tax savings plan, the dissolution court properly

       included in the marital estate the entire present value of the plan, $22,842.33.

       However, the dissolution court then stated that the coverture fraction formula

       should be applied to that amount and that Husband should “pay that amount”

       to Wife. Appellant’s App. at 22. Thus, the court appears to have awarded the

       entire coverture portion of the deferred tax savings plan to Wife, rather than

       awarding her one half of the coverture portion of the plan based upon the

       coverture fraction formula. Absent any finding that an equal division of

       property would not be just and reasonable, this is error.


[28]   As for Husband’s pension, the record indicates that the total value of the

       pension at the time of filing was $99,776.33. However, rather than first

       including the entire value of the pension in the marital pot and then applying

       the coverture fraction formula to determine the divisible amount, the

       dissolution court erroneously included what Husband claims is already the




       15
         The dissolution court did not make a specific finding regarding the denominator of the coverture fraction.
       For purposes of clarity, we urge the court to do so on remand. Husband presented evidence that the
       coverture fraction should be 39.9132%, which accounts for 6.3861 years of marriage and 16 years of
       employment (6.3861÷16 =.399132). Petitioner’s Exh. 10.

       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015                      Page 19 of 21
       coverture portion of Husband’s pension, that amount being $39,823.92. 16

       While the dissolution court may ultimately determine that the portion of

       Husband’s pension earned prior to the marriage should be awarded solely to

       him, it must first include the entire asset in the marital pot. See Falatavics, 15

       N.E.3d at 110. The dissolution court then instructed that the coverture fraction

       formula be applied to what was already the coverture portion of the pension

       and, to further compound the problem, awarded Wife the entire value of the

       resultant figure without reference to why an equal division of property would

       not be just and reasonable. Again, this was error.


[29]   Based upon the foregoing, we conclude that Husband has met his burden to

       show prima facie error in the dissolution court’s valuation and division of his

       pension and deferred tax savings plan. Accordingly, we reverse that part of the

       dissolution decree and remand with instructions for the dissolution court to

       include the entire value of each retirement asset in the marital estate, apply the

       coverture fraction formula to determine what portion of each asset is subject to

       division, and then either divide those amounts equally between the parties or

       state reasons why an equal division of marital property would not be just and

       reasonable. The dissolution decree is affirmed in all other respects.




       16
            This number is 39.9132% of $99,776.33. Petitioner’s Exh. 10.


       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015   Page 20 of 21
[30]   Affirmed in part, reversed in part, and remanded.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 32A04-1412-DR-550 | December 7, 2015   Page 21 of 21
