MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                              Sep 28 2017, 10:14 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Amy O. Carson                                            Bruce M. Pennamped
Massillamany & Jeter LLP                                 Cross Pennamped Woolsey
Fishers, Indiana                                         & Glazier, P.C.
                                                         Carmel, Indiana
Matthew Strzynski
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William L. Koss,                                         September 28, 2017
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         29A02-1611-DR-2455
        v.                                               Appeal from the Hamilton
                                                         Superior Court
Karen J. Koss,                                           The Honorable William J. Hughes,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         29D03-1406-DR-6306



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017        Page 1 of 38
[1]   William Koss (“Husband”) appeals the Hamilton Superior Court’s decree

      dissolving his marriage to Karen Koss (“Wife”). Husband raises several issues,

      which we consolidate and restate as:


          1.     Whether Koss established that the trial court was biased against him;
          2.     Whether the trial court abused its discretion in calculating the value of
                 certain martial assets;
          3.     Whether the trial court properly considered the inheritances and gifts
                 from Husband’s family when it divided the martial estate;
          4.     Whether the trial court abused its discretion when it considered a
                 failed business as dissipation of marital assets; and,
          5.     Whether the trial court abused its discretion when it ordered Husband
                 to pay the bulk of Wife’s attorney fees and expenses.

[2]   We affirm in part, reverse in part, and remand for correction of the judgment

      accordingly.


                                 Facts and Procedural History
[3]   Husband and Wife were married in 1984 and have five emancipated children.

      The parties separated on June 30, 2014. The marital estate consists of

      businesses, real estate, and significant personal property. The trial court’s

      division of the marital estate was complicated by differing valuations for the

      assets, assets obtained through inheritance or gift, Husband’s dissipation of

      assets, and Husband’s failure to disclose certain assets prior to the final hearing.


[4]   Husband was, to be generous, an extremely difficult litigant both during the

      discovery process and during the dissolution hearing. Husband consistently

      attempted to frustrate Wife’s attempts in discovery to obtain information about

      their marital assets and debts. In addition, the court had to exert its authority to

      Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017   Page 2 of 38
      remedy Husband’s decision to try and hide assets two or three times before the

      final hearing. Tr. Vol. 2, p. 122.


[5]   Almost two years after Wife filed her petition for dissolution, the final

      dissolution hearing was held. On July 19, 2016, the trial court issued detailed

      findings concerning the valuation of the parties’ assets. Certain findings are

      reproduced below to demonstrate the complicated nature of this dissolution and

      the trial court’s thoughtful approach to its division of the marital estate:


              9. At the time of the marriage and thereafter, frequent and
              substantial gifts were given to the [Husband] and [Wife] by the
              [Husband]’s parents. In addition, substantial inheritances were
              received upon the death of the Husband’s Father and the
              subsequent death of Husband’s Mother. It is unclear from the
              record herein whether the inheritances and gifts were always
              directed solely to the [Husband] or made jointly to the parties or
              if both circumstances occurred. The manner in which the
              inheritances and gifts were received are of little consequence
              because the inheritances were used jointly by the parties and the
              funds received were commingled with other marital funds and
              properties.

              10. [Wife] worked for the first two years of the marriage, and
              then she came home to raise the five children. She home
              schooled the children and took care of the home front until the
              two youngest children were in the 7 th and 8th grade. At that time
              the youngest children entered public schools, and the [Wife]
              returned to teaching. She has been a full-time teacher at Tipton
              High School for the past 8 years. She earns an annual salary of
              about $49,000 per year. The Court finds that she is fully and
              appropriately employed.

              11. [Husband] has been engaged in a variety of business ventures
              during the marriage. His primary employment has been with

      Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017   Page 3 of 38
        Capital Machine, a company begun by [Husband]’s family and
        later conveyed to Husband by gift and through inheritance. This
        company is now owned 51.5625% by [Husband] and 48.4375%
        by the parties’ son Peter. Peter acquired his interest in Capital
        Machine by way of gift from the parties. In addition, the
        [Husband], [Wife] and Peter own Indiana Forge, LLC with
        [Husband] owning 10%, [Wife] owning 45% and Peter owning
        45%. Peter also acquired his interest in this entity as a gift from
        the parties. Both of these businesses are related to the veneer
        manufacturing industry. Capital makes large machines used to
        make veneer. Indiana Forge owns real estate upon which Capital
        is located and real estate with some timber associated with it in
        Parke County Indiana. Some years ago, Husband began a veneer
        manufacturing company, hereinafter frequently referred to as the
        veneer mill, which proved unsuccessful and ended in bankruptcy.
        This business failure devastated the financial net worth of the
        parties, and as of the date of the final hearing this marital estate
        has yet to fully recover from this event. In order to meet the
        substantial obligations of the parties resulting business failure,
        assets of the marriage were liquidated and substantial sums
        received in inheritance at the death of [Husband]’s Mother were
        applied to clear title to joint marital assets, specifically the marital
        residence . . . The marital estate is in general comprised of items
        left after this financial devastation.

        12. [Wife] was opposed to the veneer mill venture, but the
        [Husband] proceeded anyway. [Wife] acquiesced and executed
        many documents necessary to fund this startup operation. [Wife]
        to this date is unable to describe exactly how the funds for this
        venture were raised, but it appears that nearly everything the
        parties owned was put at risk. The business failed in part due to
        the effects the advent of a global economy has had upon the
        veneer industry, but the decision to risk the entire marital estate
        of the parties to fund this venture was solely the decision of the
        [Husband].




Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017   Page 4 of 38
        13. Most of the estate was lost in the failed business venture and
        most of what is left for division herein w[as] the direct result of
        substantial gifts made to the parties by the [Husband]’s parents
        during the years of the marriage, and the hard work of both
        parties. (emphasis in original). While [Wife] did not bring
        substantial dollars to the marriage, she brought substantial
        services in the rearing and home schooling of five children and
        providing a comfortable and welcoming home for the parties and
        their children.

        14. The identification of the contents of the marital estate and the
        value to be properly assigned to these items has been very
        complicated herein. A review of the CCS will indicate a number
        of hearings before this Court to enforce discovery. It is
        abundantly clear that from the day this action was filed, the
        [Husband] has engaged in a game of hide the football to
        obfuscate and frustrate the division of this estate. On each day of
        trial, a new instance of the willful and intentional attempt to
        conceal assets was revealed. These revelations ranged from the
        discovery of in excess $275,000 in cash and gold coins in an
        office desk drawer on the first day of trial, to the wooden box
        containing a coin collection worth thousands of dollars
        discovered locked in the master bedroom closet; to the removal
        of a zero-turn radius mower from the residence to the business
        premises where it was conveniently not appraised. The boldness
        of the [Husband] is displayed by his willingness to perjure himself
        in Court in order to hide marital assets from proper division in
        this action to dissolve his marriage of over 30 years. That
        boldness is breathtaking, the result of this conduct is that the
        Court finds the testimony of the [Husband] to be wholly
        unworthy of credibility. The Court also finds that the primary
        reason for the substantial fees incurred by both parties was the
        result of [Husband] apparent intentional plan to cheat the [Wife]
        of her fair share of the estate. Husband spent thousands hiring
        experts who would overlook the obvious and low ball the value
        and accept his less than credible word as to the contents of the


Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017   Page 5 of 38
        estate while Wife was forced to spend thousands to identify and
        quantify the assets still owned by the parties.

                                                ***

        17. [The marital residence] was completely renovated by the
        parties’ [sic] during the marriage in a process for which no
        expense was spared. The residence was held free and clear before
        the veneer mill bankruptcy. This residence was nearly lost in the
        business failure because a mortgage had been taken on the
        residence to partially fund that venture. The Residence was saved
        from foreclosure only when the mortgage taken out on the
        residence to fund the mill was paid after the [Husband] received
        his inheritance from his mother. The Court finds that this
        residence should be set over to the Wife. It was paid for the first
        time, at least in part, from joint efforts of the parties, and while it
        was paid for the second time from the Husband’s inheritance,
        which was only because of Husband’s ill-advised decision to risk
        the family estate to fund the failed veneer mill.

        18. An adjacent 42.07 acre parcel is owned as tenants in common
        by [Wife], [Husband] and three of their Children, Mary, Sarah
        and Ruth. It was conveyed to these five individuals by Jack Koss,
        [Husband]’s Father on January 4, 1993. Each of the five
        individuals owns an undivided 1/5 th interest as tenants in
        common. The value found herein was based upon the appraisal
        of Jeffrey Juday. Mr. Juday opined that the entire parcel was
        valued at $841,400 but this total value should be discounted by
        $126,210 due to marketability concerns. This resulted in a value
        of the 2/5 interest which is part of the marital estate at
        $286,076.00. At trial, but only at trial, [Husband] consented to
        the underlying value of the real estate but continued to object to
        the marketability discount as evidenced by his proposed findings.
        The Court finds that the value opined by Mr. Juday with a
        discount for marketability is the value of this asset.

        19. The parties own a 20 acre parcel of real estate described as
        Section 17, Township 18, Range 3. This parcel was valued at

Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017   Page 6 of 38
        $440,000 by Mr. Juday. At trial, but only at trial, [Husband]
        consented to this value being used. The Court finds that the value
        agreed by the parties is the appropriate value for this item of
        property.

        20. A parcel of vacant land was sold by the parties on May 11,
        2015 for which the parties received net proceeds of $92,600.00.
        The Court finds the value of this property disposed of in the
        course of the dissolution was $92,600.

        21. On or about March 6, 2014, the parties sold a parcel of real
        estate to Kurt and Carol Homan for $500,000. Carol Homan is
        the sister of [Husband]. The transaction was for the sale of about
        35 acres immediately contiguous and abutting the marital
        residence on two sides. The proceeds of this sale were used to
        resolve a portion of the debt on the marital property arising from
        the failed veneer mill. . . .

                                                ***

        24. Personal property in the residence of the parties was valued
        by Robert J. Brown in a written appraisal dated March 16, 2016.
        Mr. Brown is a personal property appraiser well known to the
        Court by way of his written reports. This is the first case in which
        Robert J. Brown has ever personally testified in Hamilton
        Superior Court 3 although his reports have frequently been relied
        upon by the Court in division of marital estates. The Court finds
        Robert J. Brown to be knowledgeable, credible and wholly
        believable on the issue of personal property valuation.

                                                ***

        29. On December 8, 2014, Robert J. Brown appeared at the
        residence to inventory and appraise equipment at the machinery
        shed located at the Residence, now on the Homan property. He
        appraised the following items 1974 John Deer Tractor with
        loader, Bush Hog SBX84, two Fuel tanks on stands, John Deere
        709 Rotary Cutter, John Deere Model 31a post hole digger, John
        Deer weights on stands, Snyder 3 point hitch rear mount tank,
Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017   Page 7 of 38
        19563 McCormick Farmall Super M, 1944 McCormick Farmall
        H tractor, three hay wagons, wooden outhouse, Reynolds
        Lowther tree planter, Tree cage, John Deere 36” roller, 1997
        Corn Pro trailer with ramps, Troybilt rototiller, Wood Miser
        Model LT40H024, three “Hit and Miss” engines, one lot of hand
        tools specifically described in Brown written report found at Ex.
        42 herein. The Court finds Mr. Brown’s appraisal of $24,350.00
        to be a true and credible fair market value of these items.

        30. Whether the items listed in paragraph 29 above should be
        valued in the marital estate is contested. There are three bills of
        sale at issue in this case in which [Husband] has purported to sell
        to third parties martial assets. One bill of sale dated May 16, 2013
        purports to convey ownership to the items listed above, along
        with several other items not listed in the inventory completed by
        Brown, to Garett Shoffner. See Exhibit 5. Apparently, most of
        these items remain in the machinery shed adjacent to the marital
        residence to upon which the [Husband] has a 20 year license to
        store equipment. According to the bill of sale, Shoffner had three
        years of free storage for these items at the machinery shed. Some
        of the items are listed in a bill of sale from [Husband] to Garett
        Shoffner dated May 16, 2013 were not located in the shed at the
        time of the Brown Appraisal including at least a manure spreader
        and horse shoeing stock. According to this bill of sale the items
        listed above and at least three other categories of items,
        generators, Scag 72” mower, and pressure washer were sold for a
        total of $2,200.00. [Husband] claims to have retained a right of
        first refusal to purchase any of these items back if Mr. Shoffner
        receives a bona fide offer to purchase them in writing. As of the
        last day of the final hearing, the items listed in that bill of sale
        remain either at the machinery shed or are stored at the Capital
        Machine Business premises except for the horse shoeing stock
        and the manure spreader. The items sold to Shoffner in the first
        bill of sale dated March 16, 2013 are not marital assets and the
        Court has not included them in the Marital Estate. However,
        [Husband] received $2,000 for these items of property which had
        a much higher value. The Court finds that this transaction was

Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017   Page 8 of 38
        made prior to the date of filing and the final separation of the
        parties, but after the physical separation of the parties and during
        the period of their estrangement. This transaction constitutes
        dissipation of the marital estate by the [Husband] which shall be
        considered in the equitable division of the marital estate.

        31. The Court finds that there is more than sufficient evidence to
        believe that this first bill of sale to Shoffner may have been yet
        another effort to hide assets from the [Wife] and may in fact be a
        sham transaction. Because Garett Shoffner is not before the
        Court the Court cannot undo the transaction, however, in this
        transaction [Husband] reserved a right of first refusal to
        repurchase the items from Shoffner in the event of a bona fide
        offer from a third party. The Court finds that this is a marital
        asset, an intangible chose in action, subject to division which has
        not been valued by the parties and which cannot be valued by the
        Court from the evidence in this record. The Court finds that this
        chose in action should be divided in kind.

        32. A second bill of sale to Shoffner dated June 7, 2014 is also at
        issue. This sale was for items discussed in the appraisal done by
        Mr. Brown on the first day of trial, and specifically, the guns and
        wood working tools discovered at Capital Machine during that
        appraisal. Although these items have been found not to be
        marital assets, the right of first refusal is an asset. This asset has
        not been valued because the record herein does not permit its
        value. This asset will be divided in kind. The Court finds that
        there is more than sufficient evidence to believe that this second
        bill of sale to Shoffner may have been yet another effort to hide
        assets from the [Wife] and may in fact be a sham transaction in
        the very least it is dissipation of marital assets.

        33. A third bill of sale is in existence for a purported sale to
        Bobby Deckard on May 25, 2014. This bill of sale did not retain a
        right of first refusal, and the sale having occurred prior to the date
        of filing the items sold are martial assets subject to division
        herein. There is more than sufficient evidence in this to result in a
        belief that this sale may be a sham transaction and at the very
Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017   Page 9 of 38
        least was a dissipation of the martial estate by the [Husband]. It is
        unclear from the record what the effect of that dissipation might
        be.

                                                ***

        36. On April 8, 2016, Robert J. Brown submitted a written report
        of assets he appraised after the commencement of trial. On the
        first day of trial, [Wife] presented evidence that there were
        several items of property at the Capital Machine offices which
        had not previously been inventoried or valued, specifically gold
        coins, cash and certain items of personal property alleged to have
        been sold in May 2013 and June 2014. Prior to being confronted
        with documentary evidence during trial, [Husband] had denied
        that any of these items existed. The first category is 13 listed
        firearms and ammunition located at Capital Machine. These
        items are inventoried at second and third page of [Wife]’s Exhibit
        43. Mr. Brown was assisted in the valuation of the firearms and
        ammunition listed here by Mr. Higginbotham. These items have
        a value of $13,300.00. [Husband] claims to have sold these items
        to Garrett Shoffner along with certain wood working tools for
        $2,000 on June 7, 2014 as evidenced by the bill of sale admitted
        as [Wife]’s Exhibit 7. This record is replete with evidence that
        this bill of sale may have been a sham intended to hide marital
        assets from the [Wife]; however, the bill of sale is dated on June
        7. 2014, 23 days prior to the date of final separation. This Court
        cannot undo the transaction represented by the bill of sale.
        However, the Court notes that the transaction is clearly below
        market value and considers this transaction to be a dissipation of
        assets. The Court concludes that his dissipation is worth at least
        $12,300.00.

        37. The next item valued by Robert J Brown in his April 8, 2016
        report is identified as the “Lie Nielsen Tool Works Inc.” with a
        value of $1225.00. These items were also located at Capital
        Machine and were not valued in the valuation of Capital Machine
        equipment. They constitute wood working tools as per the
        inventory of this item appearing at the 20th page of Exhibit 43.
Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 10 of 38
        [Wife]’s Exhibit 7, the June 7 2014 Bill of Sale to Shoffner
        indicates that [Husband] was conveying to Shoffner his wood
        working equipment as part of the overall transaction for which he
        received a total of $2,000.00. The record is replete with evidence
        that this bill of sale may have been a sham intended to hide
        marital assets from the [Wife]; however, the bill of sale is dated
        on June 7, 2014, 23 days prior to the date of final separation
        although during a period of the parties’ estrangement and their
        physical separation. This Court cannot undo the transaction
        represented by the bill of sale. However, the Court notes that the
        transaction is clearly below market value and considers this
        transaction to be a dissipation of assets which the Court
        concludes in valued at $225.00.

                                                ***

        39. The next item valued by Mr. Robert J. Brown on April 8,
        2016 is the most troubling for this Court. On the first day of trial,
        [Wife] provided evidence to the Court that on the day preceding
        trial there were a number of gold and other coins along with a
        substantial sum of cash located at the Capital Machine premises
        in the desk drawer of the desk used by [Husband]. [Husband] had
        just denied that these items existed, and specifically testified that
        only petty cash was maintained at the premises and never in a
        sum in excess of about $1,000 to $1,500. As a result of this
        apparent inconsistency, the Court interrupted the proceedings
        and ordered several things to occur. First, the Court ordered that
        Robert J Brown be granted access to the business premises to
        inventory property and specifically gold coins and cash located in
        the desk drawer of [Husband] but also to search for guns,
        woodworking equipment and other “missing items of personal
        property.” Second, the Court detained [Husband] while this
        inspection occurred, and ordered that [Husband] remain under
        the watchful eye of the Hamilton County Sheriff pending a
        Direct Contempt of Court hearing to be held later that afternoon.
        The Court ordered that [Husband]’s attorney, Arvin Foland, was
        permitted to travel to the Capital Machine premises to be present

Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 11 of 38
        during the Brown inventory and appraisal. Third, legal counsel
        was appointed for [Husband] to represent him at the direct
        contempt hearing. Fourth, a written order to show cause was
        entered by the Court. Fifth, a summary trial was conducted at
        which [Husband] was permitted to show cause why he should
        not be held in direct contempt of court for lying during his
        testimony before the Court. Sixth at the summary contempt
        proceedings, [Husband] was found not to be in contempt of
        Court as charged because of a technicality. That technicality was
        that at the time of [Husband]’s false testimony regarding the
        presence of gold coins and cash, he had inadvertently not been
        placed under oath. Trial was recessed and set to recommence the
        following morning.

        40. Mr. Brown in his appraisal at Capital Machine premises
        discovered and inventoried a substantial quantity of gold and
        other coins as detailed in his April 8, 2016 report at pages 3
        through 14. The value ascribed to these gold and other coins was
        $231,660.00. Discovered with these coins were certain trading
        documents, which by and large, indicate that a substantial
        number of the gold coins had been purchased by Jack Koss or by
        [Husband] with a direct reference to Capital Machines. There is
        one notable exception that being a lot of 200 American Eagle one
        ounce silver dollars purchased on May 2, 1999 by a check on the
        joint account of the parties and an invoice for the same
        transaction in the name of [Husband] at [address of marital
        residence omitted] with a ship to address of [Husband], c/o
        Capital Machine Co. 2801 Roosevelt Avenue, Indianapolis
        Indiana. Brown inventoried 23 total American Eagle One Ounce
        Silver Dollars, 20 were issued in 1999 and three were issued in
        2008.

        41. An issue exists as to the ownership of the coins described in
        paragraph 40 above. These coins are not reflected on the books or
        records of Capital Machine. They were not inventoried nor
        valued by any of the business valuation experts who opined on
        the value of Capital Machines. At least 20 of the silver Eagles

Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 12 of 38
        were found with documents indicating they were purchased from
        the joint funds of the parties, but all other purchase documents
        found for the coins lists either Jack Koss or [Husband] on behalf
        of Capital Machines as the buyer. The Court finds that these
        coins except for the 20 Silver Eagles dated 1999 with a value of
        $340.00 are property of Capital Machine and part of the marital
        estate only because Capital Machine is part of the marital estate.
        The Court finds that [Husband] used his position as the Chief
        Operating Officer of Capital Machine to attempt to conceal and
        hide this significant asset in order to deflate the value of the
        marital estate and to cheat his spouse from receiving a full
        consideration of the value of the marital estate. While such
        conduct is unacceptable, it does not change reality as to the
        ownership of the coins at issue. It does substantially reduce, if not
        eliminate any credibility of the [Husband]’s testimony herein and
        all other testimony which is dependent upon the statements of
        [Husband].

        42. The next category inventoried and valued on the April 2016
        appraisal report is a substantial sum of cash. The cash found by
        Mr. Brown in his inspection of the [Husband]’s office has a face
        value of $43,248.00. [Husband] claims after the discovery that
        this is cash that belongs to Capital Machine and which had been
        squirrelled away for a rainy day. [Husband] claims it is an asset
        of Capital Machine and not a martial asset. Prior to its discovery,
        [Husband] had denied that there was any cash at all at Capital
        Machine except for a file containing petty cash, never more than
        $1000 to $1500 at any given time. Unlike the gold and other
        coins, listed above, this cash has no provenance or
        documentation of ownership. This cash does not appear on the
        books and records of Capital Machine. This cash was not
        considered in the valuation of the business by either of the
        business evaluation experts presented by the parties. The only
        evidence that this cash has a connection to Capital Machine is
        the unsupported testimony of [Husband]. That testimony is
        without a scintilla of believability. This cash which was found in


Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 13 of 38
        the residential quarters of [Husband], albeit his office at Capital
        Machine, is a marital asset to be divided separately herein.

        43. On the Third Day of Trial, [Wife] appeared at trial with a bag
        of coins in hand which was marked as Exhibit 35. This Exhibit
        was later replaced by Exhibit 36 which is 22 pictures of the bag
        and its contents admitted as Exhibit 35. Exhibit 35 was then
        released to the [Wife] so that it could be appraised. Robert J
        Brown conducted an inventory and appraisal of these items as
        detailed in pages 21-23 of his April 2016 appraisal report. These
        items were found in a locked box on the dresser of [Husband] in
        the closet of the master bedroom. [Husband] had on prior
        occasions, before being confronted with exhibit 35, denied that
        he had any collections not previously disclosed. When
        confronted with Exhibit 35, [Husband] finally admitted that the
        coins contained therein were his personal coin collection. These
        items were valued at $4,765.99 by Mr. Brown. These items were
        owned prior to the date of final separation as evidenced by the
        fact the box in which they were found was locked and on the
        dresser in the master bedroom of the martial residence on the
        date of the filing of this dissolution and at all times thereafter
        until the evening of the second day of trial herein. As a marital
        asset these items are required to be divided herein. The court has
        rounded the value of this item to the next whole dollar and finds
        the value to be $4,766.

        44. In his April appraisal report, Mr. Brown also inventoried
        certain lawn equipment located at Capital Machine that was not
        included on the business equipment inventory of Capital
        Machine. This equipment has been secreted at Capital Machine
        during the pendency of this matter by the [Husband]. This
        equipment is noted at page 24 of the April 2016 report and has a
        value of $4,700.00. These items of equipment are found to be
        marital assets belonging to the parties but stored at Capital
        Machines. The items have a value of $4,700.00.

                                                ***


Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 14 of 38
        53. The Court has valued the parties’ 51.625% interest in Capital
        Machine at $931,589.00. This value has been calculated from the
        valuation report of Bret Brewer by adding the sum of $231,320 to
        the December 31 indication of value found on page 7 of Mr.
        Brewer’s Report and the same number to the December 31, 2014
        indication of value on the same page of the report and then
        completing the balance of the calculations on that page. This
        recalculation results in a sum of $831,588.87 for the parties’
        interest in Capital Machine which the Court has rounded to the
        next whole number, $831,589.00.

        54. The Court finds that the values submitted for the Capital
        Machine entity by Lighthouse Advisors to be wholly without
        credibility because that value is based solely upon information
        supplied by [Husband] or information from third party appraisers
        whose values are based upon information derived solely from the
        [Husband]. As noted above, the [Husband] is without credibility.
        Because the Lighthouse report is based upon information from a
        non-credible source the resulting report is not entitled to
        credibility.

        55. The Court has valued the Parties’ 55% interest in Indiana
        Forge at $208,500. This value is the value assigned by Bret
        Brewer in his valuation report. The Court has not made
        adjustments to that value herein because there were no later
        discovered assets of Indiana Forge.

        56. The Court finds the values submitted for the Indiana Forge
        entity by Lighthouse Advisors to be wholly incredible because
        they are based solely upon information supplied by [Husband] or
        information from third party appraisers whose values are based
        upon information derived solely from the [Husband]. As noted
        above, the [Husband] is without credibility. Because the
        Lighthouse report is based upon information from a non-credible
        source the resulting report is not entitled to credibility. The Court
        notes that Lighthouse assigned a value to this interest that
        exceeds that of Mr. Brewer by the sum of $3,500.00.


Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 15 of 38
      Appellant’s App. Vol. II pp. 33–55.


[6]   Based on these findings, the trial court ordered a slightly unequal division of the

      marital estate awarding 52.37% of the marital estate to Wife and 47.63% to

      Husband. The significant assets awarded to Husband were the two businesses,

      the value of which had been vehemently contested by the parties. The court also

      ordered Husband to pay $79,000 of Wife’s attorney fees and expenses.


                                Alleged Bias of the Trial Judge
[7]   It is well settled that adjudication by an impartial tribunal is one of the

      fundamental requirements of due process imposed on the courts of this state by

      the Fourteenth Amendment to the federal constitution. Tumey v. Ohio, 273 U.S.

      510, 535 (1927); Blanche v. State, 690 N.E.2d 709, 714 (Ind. 1998). Judges are

      presumed impartial and unbiased. Garland v. State, 788 N.E.2d 425, 433 (Ind.

      2003). “[T]he law will not suppose a possibility of bias or favour in a judge,

      who is already sworn to administer impartial justice, and whose authority

      greatly depends upon that presumption and idea.” 3 William Blackstone,

      Commentaries 361.


[8]   The Canons of Judicial Conduct require a judge to “act at all times in a manner

      that promotes public confidence in the independence, integrity, and impartiality

      of the judiciary.” Ind. Code of Judicial Conduct, Canon 1, Rule 1.2. In

      addition, “a judge shall uphold and apply the law, and shall perform all duties

      of judicial office fairly and impartially.” Jud. Cond. R. 2.2. And “[r]ecognizing

      the well-settled due process right to an impartial court as necessary to a fair

      Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 16 of 38
       proceeding,” our supreme court has “found fundamental error when trial

       judge’s comments, demeanor, or conduct indicated bias.” In re J.K., 30 N.E.3d

       695, 700. See also Hewitt v. Westfield Washington Sch. Corp., 46 N.E.3d 425, 435

       (Ind. 2015) (stating that a “biased decisionmaker [is] constitutionally

       unacceptable [and] our system of law has always endeavored to prevent even

       the probability of unfairness”) (citation omitted).


[9]    Because the law presumes that the trial court is unbiased, “the party asserting

       bias must establish that the trial judge has a personal prejudice for or against the

       party. . . . Adverse rulings and findings by the trial judge do not constitute bias

       per se.” Richardson v. Richardson, 34 N.E.3d 696, 703 (Ind. Ct. App. 2015). “[A]

       party must show that the trial judge’s action and demeanor crossed the barrier

       of impartiality and prejudiced that party’s case.” Id. at 703–04.


[10]   Importantly, a trial judge is also afforded wide


               “latitude to run the courtroom and maintain discipline and
               control of the trial.” Particularly in bench trials, courts have
               considerable discretion to question witnesses sua sponte “to aid
               in the fact-finding process as long as it is done in an impartial
               manner.” We even tolerate a “crusty” demeanor towards
               litigants so long as it is applied even-handedly. Yet judges at all
               times “must maintain an impartial manner and refrain from
               acting as an advocate for either party,” –because a “trial before
               an impartial judge is an essential element of due process[.]”


       In re J.K., 30 N.E.3d at 698–99 (internal citations omitted and emphasis added).




       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 17 of 38
[11]   In this case, on the first day of the final dissolution hearing, Wife presented

       evidence obtained eleven days prior to the final hearing that Husband retained

       possession of assets allegedly sold to a third party and had failed to disclose

       marital assets to Wife. Wife presented photographs to the trial court to establish

       that those assets were located at Husband’s place of business. Wife did not list

       the newly discovered assets on her financial declaration of the marital estate. In

       prior deposition testimony, Husband testified that certain items shown in the

       photographs had been sold to Garrett Shoffner prior to the parties’ separation.

       The terms of the sale required Husband to allow the third party to store the

       items in a shed at his residence for free. Wife alleged that Husband retained

       ownership of the items that were allegedly sold to Shoffner. Other items shown

       in the photographs, including cash and numerous gold coins, were not listed on

       Husband’s financial declaration or in his discovery responses.


[12]   The trial court decided that Wife’s appraiser and Husband’s counsel would

       meet at Husband’s office to inventory and appraise the non-disclosed assets and

       the dissolution hearing would resume the next morning. The trial court

       determined that Husband would be held in the Hamilton County Jail until a

       direct contempt hearing could be held later in the day and stated:


               [Husband], you have sworn on an oath before this Court to tell
               the truth, the whole truth, and nothing but the truth during the
               course of your testimony today. I am giving you instructions that
               I believe you have violated your oath before this Court, and that
               you have testified in a manner that is less than honest. I therefore
               am giving you the opportunity at 3:30 today to stand before this
               Court and explain why you should not be held in contempt of

       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 18 of 38
               this Court for your willful violation of that order by lying under
               oath.

               In the meantime, I am ordering that you be incarcerated by the
               sheriff of Hamilton County pending your reappearance in this
               court at 3:30 today for the purpose of answering why you should
               not be held in contempt of court.


       Tr. Vol. 2, p. 124. The court then appointed counsel to represent Husband at

       the contempt hearing. Husband asked if he could “give an explanation” to the

       court, and the court denied his request. Id. at 124–25.


[13]   At the beginning of the direct contempt hearing, the trial court detailed the

       events and testimony that had occurred that morning and noted the time of

       each event down to the second. For example, the court noted that Husband’s

       deposition was admitted at 10:37:30 a.m. Tr. Vol. 2, p. 128. We can infer from

       the trial court’s thorough review of the hearing and its later statement, which is

       quoted below, that while Husband was in custody, the court became aware that

       Husband had not been sworn in before testifying that morning.


[14]   Continuing with the direct contempt hearing, the trial court alleged that during

       the final dissolution hearing under direct examination,


               [Husband] identified a financial declaration signed by himself in
               December 2014 under penalties for perjury. The examination
               continued at approximately 11:31:16 a.m. [Wife]’s Exhibit 11
               was displayed to the [Husband]. Exhibit 11 was a series of seven
               pictures. These were identified as pictures taken at Capital
               Machine of items sold to Shoffner[.]



       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 19 of 38
       Id. at 129.


[15]   After listing the items in the pictures, the court continued with the allegation

       and stated: “In his testimony before this court on this date, [Husband] testified

       that none of the items listed in Exhibit 5 were stored at Capital Machine.” Id.

       The trial court noted that it had granted Wife’s request for a recess so that she

       could have the items stored at Capital Machine appraised and


               [t]he Court then ordered the sheriff of Hamilton County to take
               into custody [Husband] to be held pending a hearing set today at
               3:30 on the issue of direct contempt; specifically, [Husband] is
               charged with having engaged in false testimony before this Court
               today regarding the disposition of property of the marital estate
               and its current location.


       Id. at 130


[16]   Over thirty years ago, our supreme court held that giving false testimony in a

       judicial proceeding does not constitute direct contempt. See e.g. In re Marriage of

       Neiswinger, 477 N.E.2d 257, 260 (Ind. 1985); In re Guardianship of C.M.W., 755

       N.E.2d 644, 651 (Ind. Ct. App. 2001). Direct contempt “includes those actions

       occurring near the court, interfering with the business of the court, of which the

       judge has personal knowledge .” In re Haigh, 7 N.E.3d 980, 989 (Ind. 2014); see

       also In re A.S., 9 N.E.3d 129, 132 (Ind. 2014) (stating contempt “is direct when it

       involves “acts which are committed in the presence of the court or in such close

       proximity to it so as to disrupt its proceedings while in session”) (citation




       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 20 of 38
       omitted). Therefore, the trial court improperly alleged that Husband was in

       direct contempt of court for making false statements.1


[17]   However, this determination was an error of law, the type of error that judges,

       as imperfect human beings, make from time to time. It is for this reason that

       judges are not held personally or ethically accountable for such errors of law.

       See Sims v. Beamer, 757 N.E.2d 1021, 1025 (Ind. Ct. App. 2001) (citing Stump v.

       Sparkman, 435 U.S. 349, 355-56 (1978)); Jud. Cond. Rule 2.2, cmt. 3.


[18]   As a direct result of this error of law, Husband was jailed for nearly four hours.

       Upon a careful review of the transcript and further review of the trial court’s

       careful and thoughtful consideration of the evidence in this complex

       dissolution, we cannot conclude that this error of law and Husband’s resultant

       jailing establish that the trial court was biased or lacked impartiality. However,

       the trial court’s decision to hold a direct contempt hearing after realizing that

       Husband was not sworn in before testifying that morning is more problematic.


[19]   Husband was appointed counsel for the direct contempt hearing, but when

       Husband’s appointed counsel argued that he had not had time to prepare for the

       hearing or review Husband’s testimony, the trial court replied, “[Husband] has

       the right to prepare; you do not.” Tr. Vol. 2, p. 131. And we may reasonably

       infer that Husband was in handcuffs for the length of the hearing. See Id. at 149–




       1
        Husband’s false testimony cannot be considered indirect contempt either. Indirect contempt involves acts
       committed outside the presence of the court “which nevertheless tend to interrupt, obstruct, embarrass or
       prevent the due administration of justice.” In re A.S., 9 N.E.3d at 132 (citations omitted).

       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 21 of 38
       50 (After the hearing was concluded, the court stated, “I told you to get those

       shackles off of [Husband] before. Why are they still on him? He has handcuffs

       on . . . Take it off now and he’s released.”)


[20]   Husband and Wife’s counsel testified about Husband’s prior deposition

       testimony and testimony earlier that morning regarding the current location of

       the items that were allegedly sold to Shoffner. Both were examined by

       Husband’s appointed counsel and the trial court.


[21]   Immediately upon concluding the forty-minute hearing, the trial court entered

       an “adjudication of acquittal on the direct contempt” because


               [a]s indicated in the statement of direct contempt, [Husband] was
               never sworn as a witness today. [Husband] took the stand. Before
               he could reach the stand, his deposition was offered. Counsel
               then engaged in argument about the admission of his deposition.
               His deposition was admitted and Mr. Pennamped immediately
               began questioning [Husband], at which time Mr. Foland made
               an objection to his examination, which was overruled because he
               was asked, “What is your name? Objection.” That was
               overruled. No further objections were made, nor was an
               objection ever made that the witness was not sworn.

               While technically it is correct that a person may not make a false
               statement before a Court, whether a witness or not a witness, and
               where this Court has no question in its mind whatsoever based
               upon the totality of the testimony today that [Husband] was not
               forthcoming with this Court or with his opposing counsel, I don’t
               believe that the Court has established beyond a reasonable doubt,
               and I think that’s the standard I should impose in this case, the
               allegations of criminal contempt.



       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 22 of 38
       Id. at 144–45 (emphasis added).


[22]   The trial judge’s error of law was clearly compounded by Husband’s

       incarceration. And the judge’s misunderstanding of the law was made even

       clearer by his comments at the contempt hearing. Husband’s false statements as

       a witness would understandably anger any judge, but they did not constitute

       contempt, whether direct or indirect. Rather, the proper use of these statements

       was the reduction of Husband’s credibility throughout, and the trial court did

       so.


[23]   Because of this error of law and what proceeded from it, we can understand

       Husband’s belief that the trial court was attempting to intimidate him and was

       biased against him. However, the trial court’s error of law during the final

       hearing in extremely contentious dissolution proceedings, when considered

       with its subsequent findings and conclusions, do not indicate any such

       intimidation or bias. Therefore, Husband has not established that the trial

       court’s alleged bias prejudiced his case.


[24]   Husband also points to the trial court’s remarks in its findings about his (lack

       of) credibility. We believe that Husband’s consistently contentious demeanor

       and lack of truthfulness in this case over a two-year period had understandable

       and legally proper consequences. Under the unique facts and circumstances of

       this case, Husband has not established bias on the part of the trial judge.

       Moreover, the trial court’s minor and mostly mathematical errors, which are

       discussed below, do not raise the specter of bias or a lack of impartiality.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 23 of 38
                                 Division of the Marital Estate
[25]   Because the trial court entered special findings of fact and conclusions thereon

       pursuant to Indiana Trial Rule 52, our standard of review is two-tiered: first, we

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

       findings support the judgment. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964

       N.E.2d 213, 216 (Ind. 2012). We view the evidence in the light most favorable

       to the judgment and defer to the court’s findings if they are supported by the

       evidence or any legitimate inferences flowing therefrom. Id. at 216–17. Legal

       conclusions, on the other hand, are reviewed de novo. Id. at 217.


[26]   The disposition of marital assets is within the dissolution court’s sound

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

       849 N.E.2d 698, 701 (Ind. Ct. App. 2006). We consider only the evidence most

       favorable to the trial court’s decision, without reweighing the evidence or

       assessing the credibility of witnesses. Id. The court abuses its discretion if its

       decision is clearly against the logic and effect of the facts and circumstances

       before the court, or if it has misinterpreted the law or disregards evidence of

       factors listed in the controlling statute. Id.


[27]   Indiana Code section 31-15-7-5 provides that the trial court must divide the

       marital estate in a just and reasonable manner. An equal division is presumed

       just and reasonable, but a party may rebut this presumption by presenting

       evidence that an equitable division would not be just and reasonable, including

       evidence concerning the following factors:


       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 24 of 38
               (1) The contribution of each spouse to the acquisition of the
               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, including the
               desirability of awarding the family residence or the right to dwell
               in the family residence for such periods as the court considers just
               to the spouse having custody of any children.

               (4) The conduct of the parties during the marriage as related to
               the disposition or dissipation of their property.

               (5) The earnings or earning ability of the parties as related to:

                        (A) a final division of property; and

                        (B) a final determination of the property rights of the
                        parties.

       Id.


[28]   A party challenging the trial court’s division of marital property must overcome

       a strong presumption that the dissolution court “‘considered and complied with

       the applicable statute, and that presumption is one of the strongest

       presumptions applicable to our consideration on appeal.’” McCord v. McCord,

       852 N.E.2d 35, 44 (Ind. Ct. App. 2006) (quoting DeSalle v. Gentry, 818 N.E.2d

       40, 44 (Ind. Ct. App. 2004)), trans. denied. Accordingly, we will reverse a

       property distribution only if there is no rational basis for the award, and

       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 25 of 38
       although the circumstances may have justified a different property distribution,

       we may not substitute our judgment for that of the dissolution court. Augspurger

       v. Hudson, 802 N.E.2d 503, 512 (Ind. Ct. App. 2004).


                                   A. Stipulated Value of 42.07 Acres

[29]   Husband argues that the trial court abused its discretion when it assigned a

       lower value than the stipulated value to a parcel of land owned partially by the

       parties. We review the court’s valuation of a marital asset for an abuse of

       discretion. Weigel v. Weigel, 24 N.E.3d 1007, 1010 (Ind. Ct. App. 2015). The

       trial court acts within its discretion where sufficient evidence and reasonable

       inferences support the court’s valuation. Id. at 1011.


[30]   Relying on an appraisal, the parties stipulated that the value of the 42.07-acre

       real estate was $841,400. Once parties enter into a stipulation and the court

       approves it, the stipulation is binding upon all involved. Ehle v. Ehle, 737

       N.E.2d 429, 433–34 (Ind. Ct. App. 2000).


[31]   On her “Marital Balance Sheet and Proposed Distribution,” Wife listed the

       value of the 42.07-acre property as $841,400” less $126,210. Ex. Vol. 6,

       Petitioner’s Ex. 2. Husband did not object to the exhibit or Wife’s inclusion of

       the marketability discount. The trial court properly included the discount

       because the parties are unable to sell the real estate without the agreement of

       the three other owners of the property.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 26 of 38
                                         B. Assets Sold to Shoffner

[32]   Next, Husband argues that the trial court abused its discretion when it credited

       certain property to him that the trial court specifically found were not marital

       assets. Specifically, in finding numbers 29 and 30, the trial court found that

       items that Husband sold to Shoffner in a bill of sale dated March 16, 2013 are

       not marital assets and would not be included in the martial estate. Appellant’s

       App. Vol. 2, pp. 44–45. The court also found that Husband sold the items listed

       in the bill of sale for a significantly lower price than their market value, and by

       doing so, Husband dissipated martial assets. The trial court concluded that it

       was possibly a “sham transaction.” Id. at 46.


[33]   The trial court later assigned a value of $24,350 to the items the trial court

       found were not marital assets in finding numbers 29 and 30, and awarded the

       equipment to Husband. Husband maintains that these are the items sold to

       Shoffner, and therefore, the trial court erred when it awarded non-marital assets

       to Husband in the dissolution decree. Wife does not dispute Husband’s claim

       that the property valued at $24,350 and awarded to Husband was the property

       allegedly sold to Shoffner for $2,000 in 2013. However, Wife argues that the

       “Court included the stated number, $24,350.00, to account for” Husband’s

       dissipation of the martial estate as a deviation factor. Appellee’s Br. at 30.


[34]   In Pitman v. Pitman, 721 N.E.2d 260 (Ind. Ct. App. 1999), trans. denied, our

       court observed that “a party’s dissipation of martial assets only affects the

       distribution of the martial property in which the parties possess a present vested

       interest at the time of dissolution.” Id. at 266 (citing In re Marriage of McNanama,
       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 27 of 38
       272 Ind. 482, 487, 339 N.E.2d 371, 373 (1980)). In Pitman, the husband

       acquired shares of stock during the marriage but sold them to his sister prior to

       filing the petition for divorce so that his wife would not realize any gain from

       the shares. Our court concluded that the shares of stock “were not part of the

       martial estate at the time the petition was filed, and their value was not subject

       to distribution as marital assets.” Id. Therefore, the trial court erred when it

       awarded a monetary judgment to the wife to compensate her for the loss of the

       shares of stock because the judgment “disregards the principle that ‘a trial court

       may not compensate a party for pre-separation dissipation[.]’”2 Id. at 267 (citing

       In re Marriage of Sloss, 526 N.E.2d 1036, 1040 (Ind. Ct. App. 1988)). See also

       Armstrong v. Armstrong, 181 Ind. App. 343, 346–47, 391 N.E.2d 855, 857 (1979)

       (stating that “while evidence of dissipation of the marital assets is a [f]actor in

       dividing the marital property[,] I.C. 31-1-11.5-11(d) (Burns Code Ed.

       Supp.1978), it does not, standing alone, allow the trial court to enlarge the

       marital estate beyond that property in which the parties maintain a present

       vested interest”).


[35]   The trial court properly considered the sale of the assets sold to Shoffner as

       evidence of dissipation. However, the trial court entered conflicting findings as




       2
         A trial court may consider evidence of pre- or post- separation dissipation to determine whether a party has
       dissipated assets. Layne v. Layne, 77 N.E.3d 1254, 1263 (Ind. Ct. App. 2017). To the extent our court implied
       otherwise in Pitman, it was incorrect. Id. A trial court “may compensate a spouse for pre-separation
       dissipation of martial assets as long as such compensation comes from martial assets in which the parties
       have a vested present interest at dissolution and not, for instance, from a spouse’s future income.” Id. at 1264
       (citing In re McManama, 272 Ind. at 487, 399 N.E.2d at 373).

       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 28 of 38
       to whether the assets should not be included in the marital estate (because they

       were sold before the parties’ separation) or should be included because the sale

       was a fraudulent transaction. We therefore remand to the trial court with

       instructions to resolve the conflict in these findings and modify its division of

       the marital estate if necessary.


                                       C. Value of Capital Machine

[36]   Third, Husband argues that the trial court abused its discretion by relying on

       Wife’s expert’s testimony in its valuation of Capital Machine. We will affirm a

       trial court’s valuation of marital assets as long as evidence is sufficient and

       reasonable inferences support the valuation. Morey v. Morey, 49 N.E.3d 1065,

       1069 (Ind. Ct. App. 2016). We will not reweigh the evidence and will consider

       the evidence in the light most favorable to the judgment. Id. Although the facts

       and reasonable inferences might allow for a different conclusion, we will not

       substitute our judgment for that of the trial court. Id.


[37]   Husband argues that Wife’s expert used “book values” to calculate the value of

       Capital Machine’s inventory instead of fair market value. Book value, an

       accounting term, refers to the historical cost of an item. Tr. Vol. 2, p. 241.

       Husband’s expert testified that “book value has no fundamental basis in

       business valuation.” Tr. Vol. 3, p. 139. Wife’s expert believed that the inventory

       report he used for his valuation listed the fair market value of Capital Machine’s

       inventory. Id. at 60–61. Husband’s testimony was the only evidence admitted to

       support Husband’s claim that the inventory report contained “book value” for

       the company’s inventory.
       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 29 of 38
[38]   Wife argues that her expert properly relied on Capital Machine’s income tax

       returns and the value of the inventory reported to the Internal Revenue Service

       to calculate the business’s value. And Wife observes that her expert properly

       applied a marketability discount to his overall valuation of Capital Machine.


[39]   To arrive at a value for Capital Machine, Wife’s expert reviewed the company’s

       tax returns from 2009 through 2014, its internal financial statements, inventory

       valuation sheets, inventory calculation reports, real estate appraisals, and

       Husband’s expert’s reports. Id. at 2. Wife’s expert explained that he used “the

       net asset approach” to calculate Capital Machine’s value as of June 30, 2014.

       Id. at 4–5. He primarily used the company’s 2013 and 2014 tax returns to do so

       because “tax return numbers are indicative of fair market value of inventory.”

       Id. at 7–8. The expert also believed that the tax returns contained the most

       reliable data available to him to calculate the company’s value. Id. at 10.


[40]   Wife’s expert admitted that he did not appraise the company’s inventory

       because he is not a qualified appraiser. He testified that he had to rely on

       information Husband supplied to him to determine the value of Capital

       Machine’s inventory. Id. at 30. Husband’s own expert testified that Capital

       Machine’s financial reporting was “just dismal.” Id. at 83–84. And both experts

       used the net asset approach to calculate Capital Machine’s value.


[41]   The trial court was tasked with weighing the testimony of the parties’ experts to

       determine the value of Capital Machine. And we do not agree with Husband’s

       argument that Wife’s expert and the trial court were confused about whether


       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 30 of 38
       the values listed on the company’s inventory were book value or fair market

       value. The only evidence that the values were book values was Husband’s

       testimony, and it was within the discretion of the trial court to discredit that

       testimony. For all of these reasons, we conclude that the trial court properly

       relied on Wife’s expert’s testimony to value Capital Machine.


                                           D. Mathematical Error

[42]   Husband also argues that even if our court accepts the trial court’s method for

       valuing Capital Machine, the trial court made a mathematical error and

       overstated the value of his 51.5625 share of the company by $77,674.00. Wife

       agrees that the trial court’s error “may require correction of the judgment to

       reflect the value the trial court intended to utilize[.]” Appellee’s Br. at 36.


[43]   Throughout its findings, the trial court mistakenly overstated Husband’s share

       of Capital Machine as 51.625%, when his share is actually 51.5625%. Also, the

       trial court calculated the value of Capital Machine as $831,589 in finding

       number 53. But in its division of the marital assets and calculation of the

       marital estate, the trial court listed the value as $931,589, which appears to be a

       scrivener’s error. In his brief, Husband applied the same calculation of Capital

       Machine that the trial court described in finding number 53, and calculated a

       value of $853,915, which calculation appears to be correct. Because the trial

       court’s findings are inconsistent concerning the value of Capital Machine, on

       remand, we direct the trial court to recalculate the value of Capital Machine

       and modify its judgment if necessary.



       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 31 of 38
                                              E. Wife’s Cadillac

[44]   Because we are remanding this case, we also instruct the trial court to correct its

       judgment to reflect that Wife sold her Cadillac for $11,000, and not $10,300 as

       reported in finding number 48. Tr. Vol. 2, p. 25. The $700 difference is de

       minimis considering the value of the marital estate, but on remand, it should be

       corrected.


                          F. Inheritance and Gifts from Husband’s Family

[45]   Husband also argues that the trial court abused its discretion by refusing “to

       give any consideration to the significant gifts and inheritance” totaling over

       $4,000,000 received from Husband’s family during the marriage. Appellant’s

       Br. at 39. Contrary to Husband’s argument, the trial court did consider the

       substantial gifts Husband’s family made to the parties throughout their

       marriage. The trial court found:


               At the time of the marriage and thereafter, frequent and
               substantial gifts were given to the Respondent and Petitioner by
               the Respondent’s parents. In addition, substantial inheritances
               were received upon the death of the Husband’s Father and the
               subsequent death of Husband’s Mother. It is unclear from the
               record herein whether the inheritances and gifts were always
               directed solely to the Respondent or made jointly to the parties or
               if both circumstances occurred. The manner in which the
               inheritances and gifts were received are of little consequence
               because the inheritances were used jointly by the parties and the
               funds received were commingled with other martial funds and
               properties.


       Appellant’s App. Vol. 2, pp. 35–36.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 32 of 38
[46]   Husband invested significant sums he inherited from his family in the failed

       business ventures and to pay the debt on the marital residence. The debt on the

       marital residence was incurred in part to fund the parties’ businesses.

       Furthermore, the trial court weighed the fact that the parties’ received

       substantial assets from Husband’s family against Husband’s dissipation of

       marital assets and attempt to hide certain assets from Wife and the trial court.

       The trial court properly considered all of these circumstances when it divided

       the marital estate.


                                             G. The Veneer Mill

[47]   Husband also argues that the trial court abused its discretion when it considered

       his failed business venture to constitute dissipation of marital assets.

       Dissolution courts may consider evidence of either pre- or post-separation

       dissipation. Kondamuri v. Kondamuri, 852 N.E.2d 939, 952 (Ind. Ct. App. 2006).

       Dissipation generally involves the use or diminution of the marital estate for a

       purpose unrelated to the marriage and does not include the use of marital

       property to meet routine financial obligations. Balicki v. Balicki, 837 N.E.2d 532,

       540 (Ind. Ct. App. 2005), trans. denied; Coyle v. Coyle, 671 N.E.2d 938, 943 (Ind.

       Ct. App. 1996).


[48]   Dissipation of marital assets may also include the frivolous and unjustified

       spending of marital assets. Grathwohl v. Garrity, 871 N.E.2d 297, 303 (Ind. Ct.

       App. 2007). “‘The test for dissipation is whether the assets were actually wasted

       or misused.’” Id. (quoting Balicki, 837 N.E.2d at 540)). To determine whether

       dissipation has occurred, we consider the following factors:
       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 33 of 38
           1. Whether the expenditure benefited the marriage or was made for a
              purpose entirely unrelated to the marriage;
           2. The timing of the transaction;
           3. Whether the expenditure was excessive or de minimis; and
           4. Whether the dissipating party intended to hide, deplete, or divert the
               marital asset.

       Kondamuri, 852 N.E.2d at 952 (Ind. Ct. App. 2006) (citing Coyle, 671 N.E.2d at

       943).


[49]   The trial court found in pertinent part:


               12. [Wife] opposed the veneer mill venture, but [Husband]
               proceeded anyway. [Wife] acquiesced and executed many
               documents necessary to fund this startup operation. [Wife] to this
               date in [sic] unable to describe exactly how the funds for this
               venture were raised, but it appears that nearly everything the
               parties owned was put at risk. The business failed in part due to
               the effects the advent of a global economy has had upon the
               veneer industry, but the decision to risk the entire marital estate
               of the parties to fund this venture was solely the decision of
               [Husband].

               17. The Shelborne Road house . . . was held free and clear before
               the veneer mill bankruptcy. This residence was nearly lost in the
               business failure because a mortgage had been taken on the
               residence to partially fund that venture. The Residence was saved
               from foreclosure only when the mortgage taken out on the
               residence to fund the mill was paid after [Husband] received his
               inheritance from his mother. The Court finds that this residence
               should be set over to the Wife. It was paid for the first time, at
               least in part, from joint efforts of the parties, and while it was
               paid for the second time from the Husband’s inheritance, which
               was only because of Husband’s ill-advised decision to risk the
               family estate to fund the failed veneer mill.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 34 of 38
       Appellant’s App. Vol. 2, pp. 37, 40. The trial court considered the “[l]oss of

       most of the net worth of this martial estate in the failed veneer mill which was

       done over the objection of [Wife]” as one of the many reasons justifying

       deviation from the presumption of an equal division of the marital estate. Id. at

       62.


[50]   The trial court did not consider the fact that the business failed as dissipation of

       marital assets. And we conclude that the trial court acted within its discretion

       when it considered Husband’s decision, importantly over Wife’s objections, to

       put most of the marital assets at risk to fund the veneer mill as misconduct.


                                               Attorney Fees
[51]   Finally, Husband argues that the trial court abused its discretion when it “failed

       to consider the parties’ resources and their relative economic circumstance

       when ordering Husband to pay” $60,000 of Wife’s attorney fees and $19,000 of

       her expenses. Appellant’s Br. at 41. Under Indiana Code section 31-15-10-1, a

       dissolution court has broad discretion to impose attorney's fees on either party

       to a dissolution proceeding. Barton v. Barton, 47 N.E.3d 368, 377 (Ind. Ct. App.

       2015), trans. denied. An attorney fee award will be reversed only if it is clearly

       against the logic and effect of the facts and circumstances before the court.

       Brown v. Brown, 776 N.E.2d 394, 397 (Ind. Ct. App. 2002), trans. denied.


[52]   To determine whether to award attorney fees, “a trial court must consider the

       resources of the parties, their economic condition, the ability of the parties to

       engage in gainful employment and to earn adequate income, and such other

       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 35 of 38
       factors as bear on the reasonableness of the award.” Allen v. Proksch, 832 N.E.2d

       1080, 1102 (Ind. Ct. App. 2005) (citations and internal quotation marks

       omitted). The court may also take into account any misconduct by one party

       that causes the other party to directly incur additional fees. Id. When one party

       is in a superior position over the other to pay fees, an award of attorney fees is

       proper. Troyer v. Troyer, 987 N.E.2d 1130, 1143 (Ind. Ct. App. 2013), trans.

       denied.


[53]   To support its award of attorney fees to Wife, the trial court made the following

       findings:


                 76. [Wife] has incurred attorney fees of in excess of $70,000 as of
                 the close of the third day of trial. After the preparation and
                 submission of Exhibit 4 there was a fourth day of trial and at
                 least one post trial filing. The court finds these fees to be wholly
                 reasonable given the nature of this case and specifically the
                 apparent concerted effort by [Husband] to do anything necessary
                 to preclude an orderly division of this marital estate based upon
                 law and equity. Repeatedly, efforts were made to compel
                 discovery and in each instance [Husband] was found to be
                 delinquent. Repeated hearings were held herein for the advance
                 distribution of maritall assets, generally by [Husband], based
                 upon a need for cash to maintain the marital estate and business
                 at the time the business and [Husband] had access to in excess of
                 a quarter of a million dollars to meet necessary expenses. Last
                 but not least a good deal of time was spent investigating the
                 extent of the marital estate and proving, without a doubt, that
                 [Husband] has intentionally and deliberately hidden assets and
                 then made false statements about his conduct.

                 77. [Wife] has incurred litigation expenses herein including title
                 search fees, Appraisal Fees before trial, business valuation,
                 Depositions and nonparty discovery costs in excess of $14,700.
       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 36 of 38
               In addition, other costs were incurred during trial for testimony
               of experts and the unusual property valuation on the first day of
               trial totaling $4,650. The total of these expenses documented by
               invoice in the record exceeds $19,000. This specifically does not
               include any expert fees paid by the Petitioner for Testimony at
               trial.


       Appellant’s App. Vol. 2, pp. 63–64.


[54]   Neither party has significantly more resources at its disposal than the other

       following the dissolution of their marriage. But Husband has a substantial tax

       benefit, i.e. a net operating loss carryover of more than $4,500,000, which

       allows him to receive ordinary income during the life of the carryover without

       paying federal income taxes thereon. Id. at 62. More importantly, Husband’s

       misconduct during the dissolution proceedings was well documented by the

       trial court in its findings of fact. Without question, Wife’s expenses and

       attorney fees increased due to Husband’s misconduct. For this reason, we

       conclude that the trial court acted within its discretion when it ordered

       Husband to pay a portion of Wife’s attorney fees and her expenses.


                                                 Conclusion
[55]   The record clearly establishes that Husband was a consistently recalcitrant,

       untruthful and devious litigant throughout two years of the dissolution

       proceedings. This conduct led to strong, albeit erroneous, legal conclusions by

       the trial judge, with attendant consequences. However, Husband has not

       established that alleged bias on the part of the trial judge prejudiced his case.



       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 37 of 38
[56]   Concerning the division of the marital estate, the trial court entered inconsistent

       findings concerning whether the items sold to Shoffner were marital assets, and

       therefore, we remand this case to resolve that inconsistency and to correct the

       mathematical error in the trial court’s calculation of its value of Capital

       Machine. In all other respects, we affirm the trial court’s judgment.


[57]   Affirmed in part, reversed in part and remanded for correction of the findings

       and conclusions entered by the trial court consistent with this opinion.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1611-DR-2455 | September 28, 2017 Page 38 of 38
