Pursuant to Ind.Appellate Rule 65(D),                                        Nov 26 2013, 5:31 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:

DAVID W. STONE IV
Stone Law Office and Legal Research
Anderson, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF                              )
SCOTT ROLL and CAROL ROLL,                         )
                                                   )
CAROL ROLL,                                        )
                                                   )
       Appellant-Respondent,                       )
                                                   )
               vs.                                 )       No. 27A02-1303-DR-247
                                                   )
SCOTT ROLL,                                        )
                                                   )
       Appellee-Petitioner.                        )


                      APPEAL FROM THE GRANT SUPERIOR COURT
                           The Honorable Jeffrey D. Todd, Judge
                             Cause No. 27D01-1108-DR-832

                                       November 26, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
       Carol Roll (Wife) appeals the terms of the dissolution of her marriage to Scott Roll

(Husband). She presents three issues for our consideration:

       1.     Whether the trial court abused its discretion when it did not consider

              Husband’s Veteran’s Administration Disability Benefits to be marital property;

       2.     Whether the trial court abused its discretion when it included Wife’s health

              savings account as marital property; and

       3.     Whether the trial court was required to assign values to the assets awarded to

              each party, in order to demonstrate the unequal distribution of property.

 We affirm in part, and remand.

                       FACTS AND PROCEDURAL HISTORY

       Husband and Wife married on August 30, 1980. Husband filed for dissolution on

August 16, 2011. On September 10, 2012, the trial court held a final hearing to divide the

assets and debts of the parties. Both parties presented evidence regarding the value of

various items. On October 2, the trial court entered a decree of dissolution, indicating the

property distribution between the parties was unequal due to Wife’s less favorable economic

circumstances. The trial court issued an amended decree on October 5.

       On October 31, Wife filed a motion to clarify the property division, to account for

assets not included in the original decree, and to require Husband to divulge additional assets

Wife claimed he possessed. Wife filed amended motions on November 2. On February 13,

2013, the trial court issued an order conveying certain property to Husband, providing for

division of a coin collection, and ordering Wife to pay certain expenses as ordered in earlier

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Provisional Orders. As part of its order on Wife’s motion to clarify and motion to correct

error, the trial court issued a second amended decree of dissolution, which included the assets

not included in the earlier decree and corrected the clerical errors Wife asserted in her motion

to clarify.

                             DISCUSSION AND DECISION

       Husband did not file an appellee’s brief. When an appellee does not submit a brief,

we do not undertake the burden of developing arguments for that party. Thurman v.

Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Instead, we apply a less stringent standard

of review and may reverse if the appellant establishes prima facie error. Id. Prima facie

error is “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van

Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).

       A trial court has broad discretion in ruling on a motion to correct error. Volunteers of

Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 658 (Ind. Ct. App. 2001). We will

reverse only for an abuse of that discretion. Id. An abuse of discretion occurs if the decision

was against the logic and effect of the facts and circumstances before the court or if the court

misapplied the law. Id.

       Indiana subscribes to the “one-pot” theory of marital possessions, Fobar v.

Vonderahe, 771 N.E.2d 57, 58 (Ind. 2002), and thus the marital estate is presumed to include

all property owned by either spouse prior to marriage, acquired by either spouse in his or her

own right after the marriage and prior to final separation of the parties, or acquired by their

joint efforts. Ind. Code § 31-15-7-4(a). When dividing marital assets, an equal distribution

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is presumed just and reasonable, unless the presumption is rebutted by evidence regarding:

       (1) The contribution of each spouse to the acquisition of property, regardless
       of whether the contribution was income producing.
       (2) The extent to which the property was acquired by each spouse:
              (A) before the marriage; or
              (B) through inheritance or gift.
       (3) The economic circumstances of each spouse at the time the disposition of
       the property is to become effective[.]

Ind. Code § 31-15-7-5. The division of marital assets is within the sound discretion of the

trial court, and we will reverse only upon an abuse of that discretion. DeSalle v. Gentry, 818

N.E.2d 40, 44 (Ind. Ct. App. 2004).

       1.      Husband’s Veteran’s Administration isability Benefits

       Wife argues the trial court abused its discretion when it did not consider Husband’s

Veteran’s Administration (VA) Disability Benefits as an “economic circumstance” relevant

to whether the marital pot should be distributed unequally pursuant to Ind. Code § 31-15-7-5.

However, the record indicates the court, in fact, did consider the disparity in the parties’

incomes when dividing the estate.

       During the evidentiary hearing, the following exchange occurred between Wife and

her counsel:

       [Counsel]:    . . . We’re asking the Court to make a different consideration
                     due to the economic circumstances. Is that right?
       [Wife]:       Correct.
       [Counsel]:    Okay. Um, your husband is receiving each month in excess of
                     three thousand [dollars] [in VA Disability Benefits] as opposed
                     to your eight hundred [dollars] [in retirement pension]. Is that
                     right?
       [Wife]:       Correct.
       [Counsel]:    So you’re asking the court to take that into consideration when
                     dividing up the marital assets and marital debts. Is that correct?
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       [Wife]:       Correct.

(Tr. at 82 - 3.) In its Decree of Dissolution of Marriage, the trial court found:

       Based upon the evidence and the statutory factors to be considered by the
       Court, there should be a slightly unequal distribution of the marital estate in
       favor of Wife due to the less favorable economic circumstances Wife will
       experience at the time the disposition of the property will become effective.

(App. at 26.) As it appears the trial court considered Wife’s economic circumstances,

including the disparity between the amount she received per month from her retirement

account and the amount Husband received from his VA Disability Benefits, when unequally

dividing the marital pot, Wife has not demonstrated an abuse of discretion.

       2.     Wife’s Health Savings Account

       Wife argues the trial court abused its discretion when it included in the marital pot her

Marion Community Schools Health Savings Plan, which she received as a retirement benefit.

She contends the account is not marital property because she may access those benefits only

in the event of a medical need. We disagree.

       Pursuant to Ind. Code § 31-9-2-98(h), property, for the purposes of dissolution, is:

       all assets of either party or both parties, including:
       (1) a present right to withdraw pension or retirement benefits;
       (2) the right to receive pension or retirement benefits that are not forfeited
       upon termination of employment or that are vested (as defined in Section 411
       of the Internal Revenue Code) but that are payable after the dissolution of
       marriage; and
       (3) the right to receive disposable retired or retainer pay (as defined in 10
       U.S.C. § 1408(a)) acquired during the marriage that is or may be payable after
       the dissolution of marriage.

Our Indiana Supreme Court discussed how heath care benefits fit into this statute in Bingley


                                               5
v. Bingley, 935 N.E.2d 152 (Ind. 2010). There, the husband argued his health benefits, which

were a part of his retirement benefits, were not marital assets because he could not “transfer

or alienate them[,]” id. at 156, and thus he could not “dispose of his health insurance benefits

to generate cash to pay [Wife] in order to achieve a just and proper distribution [of marital

assets].” Id. at 156-57. The Court determined the illiquidity of an asset is irrelevant to its

inclusion in the marital pot, though it is relevant to the value of the asset. The Court went on

to hold the health insurance benefits were assets of the marriage, pursuant to Ind. Code § 31-

9-2-98(b), because the husband

       has a right to the medical services his health insurance will cover for the rest of
       his life. Because [employer] has assumed a monthly liability that [husband]
       would otherwise have had to bear, [husband’s] health insurance benefits more
       closely resemble a right to future pension payments, which the Court of
       Appeals described as an intangible asset in [In re Marriage of] Preston, 704
       N.E.2d [1093,] 1097 [(Ind. Ct. App. 1999)].

Id. at 156.

       The same rationale applies in the instant case. Wife’s health savings account was a

marital asset similar to a future pension payment, and thus the trial court did not abuse its

discretion when it included it as part of the marital property. However, as we will explain

below, the trial court did err when it did not attach a value to the account.

              3.      Valuation of Assets in Final Decree

       Wife argues the trial court was obliged to assign values to the items in the marital pot

in order to demonstrate unequal division of the marital pot. We agree. In Montgomery v.

Faust, 910 N.E.2d 234 (Ind. Ct. App. 2009), the trial court’s order indicated the property


                                               6
distribution was unequal, but the court had not assigned values to the assets and debts. We

held:

        In short, knowing the numerical split of the entire estate might alter the trial
        court’s view of the appropriateness of its property division. Having the trial
        court determine the total value of the marital estate also facilitates appellate
        review of the trial court’s property division. Appellate courts are ill-equipped
        to determine the value of specific assets or of the total marital estate in the first
        instance, so it is vital to our review to have the trial court do so.

Id. at 238. Such is the case here.

        In its order dividing the Rolls’ marital property, the trial court stated: “Conflicting

evidence was presented with regard to the extent and value of the marital estate.” (App. at

26.) The court assigned items to Wife and Husband without assigning a value to those items.

However, the parties had attributed different values to a number of those items, which leaves

us unable to determine whether or to what extent the trial court divided the marital estate

unequally. Further, in its order regarding Wife’s motion to correct error, which requested

inclusion of items not listed in the original decree, the court again did not explain the extent

to which the division of the marital pot was unequal.

        As we are unable to ascertain from the court’s order the valuation of the marital estate

and the extent to which its distribution is unequal, Wife has demonstrated prima facie error,

and we remand for more specific findings. See Montgomery, 910 N.E.2d at 238 (failure to

include property values in final decree was prima facie error requiring remand for additional

findings).




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                                     CONCLUSION

       The trial court considered Husband’s VA Disability Benefits, and did not abuse its

discretion when it included Wife’s health savings account as marital property. However, the

trial court did err when it did not attach specific values to the assets and debts awarded to

each party in its unequal distribution. Accordingly, we affirm in part, and remand for more

specific findings.

       Affirmed in part, remanded.

BAILEY, J., and BRADFORD, J., concur.




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