MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                           Apr 14 2016, 8:37 am

this Memorandum Decision shall not be                                CLERK
                                                                 Indiana Supreme Court
regarded as precedent or cited before any                           Court of Appeals
                                                                      and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark S. Lenyo                                             Peter M. Yarbro
South Bend, Indiana                                       Fred R. Hains
                                                          Sara E. Tumbleson
                                                          Hains Law Firm, LLP
                                                          South Bend, Indiana


                                            IN THE
     COURT OF APPEALS OF INDIANA
Robin L. Rajski,                                          April 14, 2016
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          71A03-1505-DR-259
        v.                                                Appeal from the St. Joseph Circuit
                                                          Court
Robert Rajski,                                            The Honorable Michael G.
Appellee-Respondent.                                      Gotsch, Judge
                                                          The Honorable Andre B.
                                                          Gammage, Magistrate
                                                          Trial Court Cause No.
                                                          71C01-1305-DR-273



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016     Page 1 of 16
                                    STATEMENT OF THE CASE

[1]   Appellant/Cross-Appellee-Petitioner, Robin Rajski (Robin), appeals the trial

      court’s Decree of Dissolution, dissolving her marriage to Appellee/Cross-

      Appellant-Respondent, Robert Rajski (Robert).


[2]   We affirm, in part, reverse, in part, and remand.


                                                     ISSUES

[3]   Robin raises six issues on appeal, which we consolidate and restate as:


      (1) Whether the trial court abused its discretion in equally dividing the marital

      estate;


      (2) Whether the trial court abused its discretion by not awarding spousal

      maintenance to Robin; and


      (3) Whether Robin is entitled to attorney’s fees.

      On Cross-Appeal, Robert raises one issue, which we restate as: Whether the

      trial court abused its discretion by finding that he had dissipated marital assets.


                           FACTS AND PROCEDURAL HISTORY

[4]   Robin and Robert were married on June 28, 1996, and one child was born,

      Z.R., in 1998. The parties separated on December 3, 2012. During the

      marriage, Robert was self-employed with Bella Terra Lawn Sprinklers, which

      services lawn sprinklers during the warmer months and plows snow during the


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      winter months. In the calendar year of 2012, Robert had a gross income of

      $51,743.00. Robin acted as the office manager for Bella Terra until the

      separation, and her responsibilities included handling the books and the

      accounts, mailing information to customers, and setting up appointments. She

      worked twenty to sixty hours per week, at a rate of fifteen dollars per hour.


[5]   Robin has an Associate’s Degree in Medical Assisting from Ivy Tech. While

      attending Ivy Tech, Robin took out a student loan, which is currently in default,

      with a balance of $1,286.44. She is also a Certified Medical Assistant and is

      certified as a mortgage broker. On two occasions, most recently in 2012, she

      worked at Memorial Hospital in South Bend. In connection with a position she

      held previously at Notre Dame, Robin had a TIAA-CREF retirement account.

      As of February 22, 2005, the account had a balance of $2,030.51. At the time

      of the dissolution hearing, Robin was unemployed, had no income, and was

      seeking disability benefits from the Social Security Administration. She has

      already been denied benefits after a full agency application process, including

      appeals. At the time of the appellate briefs, Robin has a pending lawsuit in

      federal district court for judicial review of the agency’s determination.


[6]   Robin reports to suffer from several auto immune disorders. She asserts to have

      lupus, fibromyalgia, gastroparesis, lazy bowel syndrome, and arthritis of all

      joints. In a deposition admitted at trial, Dr. James Harris (Dr. Harris), Robin’s

      physician, testified that “several of [Robin’s] problems limit her from being able

      to work or be an effective employee in any position.” (Petitioner’s Ex. 1, p. 15).

      Dr. Harris did not “anticipate she will improve to the point where she can work

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      again.” (Petitioner’s Ex. 1, p. 17). Although he confirmed that Robin is still

      able to drive and can maintain her house, Dr. Harris concluded that Robin is

      “disabled,” which he defined as an “inability to hold gainful employment.”

      (Petitioner’s Ex. 1, p. 38). He clarified

              [a]s far as I can tell, her ability to use her hands as a medical
              transcriptionist is intact. I don’t see any problems with her hands
              or arms or ability to type or any of those things. The problem is
              her ability to function on a regular basis in any role to
              consistently attend work, to be able to be fully functional on a
              daily basis. I think her diseases collectively cause her a great
              number of days where she can’t function, where regardless of
              what her employment task might be, she wouldn’t be able to
              perform those in an effective way that would be satisfactory to an
              employer. For example, driving, yes, there are days she could do
              that maybe on a p.r.n. basis, you know. But to be consistently
              employed, that would be very difficult because of frequent
              illnesses, relapses, whatever.


                     A medical transcriptionist, she has the ability to be trained
              in that. She could - - I think she could mentally and physically
              do the work at a point in time, but I think on a regular basis, I
              think would be virtually impossible for her.


      (Petitioner’s Ex. 1, pp. 40-41). However, Dr. Harris nuanced that it could be

      “possible” for Robin to “work from home in some capacity.” (Petitioner’s Ex.

      1, p. 43).


[7]   Between May 2 and May 18, 2013, after the parties had separated but before

      Robin had filed her petition for dissolution, Robert made five withdrawals from




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      the parties’ joint bank account, for a total amount of $4,666, without Robin’s

      knowledge.


[8]   On May 29, 2013, Robin filed a petition for dissolution of marriage. During the

      hearing on December 3, 2013, the trial court affirmed the parties’ agreement for

      joint legal and physical custody of Z.R. On December 1, 2014, the trial court

      conducted a hearing on the petition for dissolution. On March 31, 2015, the

      trial court entered its findings of fact and conclusions thereon, equally dividing

      the marital estate. The trial court determined each party to be responsible for its

      own attorney fees. On April 20, 2015, the trial court amended its order,

      denying Robin’s request for spousal maintenance because she had “not

      established that she is incapacitated, or that the party’s daughter, [Z.R.], is

      incapacitated to the extent that [Robin] has to forego working to care for the

      daughter.” (Appellant’s App. p. 62). On April 30, 2015, Robert filed a motion

      to correct error, which was granted in part1 and denied in part by the trial court

      on June 8, 2015.

[9]   Robin now appeals and Robert cross-appeals. Additional facts will be provided

      as necessary.


                                    DISCUSSION AND DECISION

                                                       APPEAL




      1
       In its order, the trial court granted a downward revision in the amount of Robert’s weekly child support
      payments and clarified the tax exemptions. These issues are not before this court.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016              Page 5 of 16
                                        I. Division of the Marital Estate


[10]   Robin contends that the trial court’s equal division of the marital estate was not

       just and reasonable in light of her medical history, current condition, and

       economic circumstances. The division of marital assets lies within the sound

       discretion of the trial court. Bertholet v. Bertholet, 725 N.E.2d 487, 494 (Ind. Ct.

       App. 2000). Thus, we will reverse only if that discretion is abused. Id. “An

       abuse of discretion occurs if the trial court’s decision is clearly against the logic

       and effect of the facts and circumstances before the court, or the reasonable,

       probable, and actual deductions to be drawn therefrom.” Id. (citing Wells v.

       Collins, 679 N.E.2d 915, 916 (Ind. Ct. App. 1997)). As a reviewing court, we

       may not reweigh the evidence or assess the credibility of witnesses, and we

       consider only the evidence most favorable to the trial court’s disposition of

       marital property. Id.

[11]   Here, the trial court made findings of fact and conclusions of law thereon

       pursuant to Ind. Trial Rule 52(A) in its dissolution decree and its amendment

       thereof. Our standard of review is therefore two-tiered. “We first determine

       whether the evidence supports the findings and then whether those findings

       support the judgment.” Bertholet, 725 N.E.2d at 495. On review, we do not set

       aside the trial court’s findings or judgment unless clearly erroneous. T.R.

       52(A). A finding is clearly erroneous when there is no evidence or inferences

       reasonably drawn therefrom to support it. Bertholet, 725 N.E.2d at 495. The

       judgment is clearly erroneous when it is unsupported by the findings of fact and

       conclusions entered on the findings. Id. We may affirm the judgment on any

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       legal theory supported by the findings if that theory is consistent with “all of the

       trial court’s findings of fact and the inferences reasonably drawn from the

       findings[,]” and if we deem such a decision prudent in light of the evidence

       presented at trial and the arguments briefed on appeal. Id.


[12]   The division of marital property in Indiana is a two-step process. Thompson v.

       Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004), trans. denied. The trial

       court must first determine what property must be included in the marital estate.

       Id. Included within the estate is all the property acquired by the joint effort of

       the parties. Id. With certain limited exceptions, this “one-pot” theory

       specifically prohibits the exclusion of any assets from the scope of the trial

       court’s power to divide and award. Id. Only property acquired by an

       individual spouse after the final separation date is excluded from the marital

       estate. Id.


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

       divide the marital property under the presumption that an equal split is just and

       reasonable. Ind. Code § 31-15-7-5. A party who challenges the trial court’s

       division of the marital estate must overcome a strong presumption that the trial

       court considered and complied with the applicable statute. Frazier v. Frazier, 737

       N.E.2d 1220, 1223 (Ind. Ct. App. 2000). This presumption may be rebutted if a

       party presents relevant evidence regarding the following factors: (1) each

       spouse’s contribution to the acquisition of property, regardless of whether the

       contribution was income producing; (2) acquisition of property through gift or

       inheritance prior to the marriage; (3) the economic circumstances of each

       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016   Page 7 of 16
       spouse at the time of the disposition; (4) each spouse’s dissipation or disposition

       of property during the marriage; and (5) each spouse’s earning ability. See I.C. §

       31-15-7-5.

[14]   Here, the trial court found that an equal division of the marital estate would be

       just and reasonable. The trial court first established all the marital assets and

       marital liabilities and then divided the net marital estate evenly between the

       parties. “The [c]ourt determine[d] this disposition to be equitable and an equal

       division of the assets, having taken into consideration the statutory

       requirements in I.C. [§] 31-15-7-5, the significant disparity in income between

       the parties, and the significate [sic] debts taken on by [Robert].” (Appellant’s

       App. p. 22). Nonetheless, focusing upon her economic circumstances and

       earning ability, Robin attempts to rebut the presumption of an equal division.

       She maintains that during the marriage she made major contributions to

       Robert’s business while at the same time being the primary care giver for their

       daughter. Furthermore, she posits that her current economic circumstances are

       negatively affected by her medical condition, which prevents her from working.


[15]   The record reflects that prior to the parties’ separation, Robin worked twenty to

       sixty hours per week in Robert’s business and she acknowledged to being paid

       fifteen dollars per hour. Due to the separation, she discontinued her work in

       the business. She now maintains that she cannot find work because of her

       medical problems. Although she applied for social security disability benefits, it

       should be noted that at the time of filing the appellate briefs, Robin’s request had

       been declined and a federal appeal to that decision was pending.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016   Page 8 of 16
         Nevertheless, despite her extensive medical problems, the trial court gave

         credence to Dr. Harris’ testimony that it might be possible for Robin to work

         from home in some capacity. In its findings, the trial court accounted for

         Robert’s earning abilities and “significant disparity in income” by assigning him

         most of the debts of the marriage. Based on the evidence before us, we cannot

         say that Robin overcame the strong presumption that an equal split of the

         marital estate is just and reasonable.


[16]     In a cursory argument, Robin also takes issue with three specific items in the

         trial court’s property division: the specificity of the requirement that Robert pay

         all of the joint taxes due, the attribution of Robin’s retirement account to her

         share of the parties’ assets, and the requirement that she pay her own student

         loan.


[17]   With respect to the taxes due and owing, both parties agree that the trial court

         intended Robert to pay these taxes but failed to specifically direct him to do so

         in its order. Accordingly, we remand to the trial court to clarify its order.


[18]     At trial, Robert submitted evidence of Robin’s TIAA-CREF retirement account

         which had a balance of $2,030.51 in 2005. Despite Robin’s claim that she had

         withdrawn all the money from the account “to pay off accounts,” no evidence

         was submitted that this specific retirement account no longer existed.

         (Transcript p. 55). Although the trial court acknowledged the age of the

         account—“given it is seven years before the divorce is filed”—the trial court

         admitted the evidence and placed it in the marital pot. (Tr. p. 146). As such, it


         Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016   Page 9 of 16
       is apparent that the trial court weighed the evidence and judged the credibility of

       the witnesses in reaching its decision on this issue. Robin’s claim amounts to a

       request to reweigh the evidence, which we decline to do. See Bertholet, 725

       N.E.2d at 494.

[19]   With respect to Robin’s student loan in the amount of $1,286.44, she argues in a

       single sentence that her “student loan should be included on the list of marital

       [assets] as the loan was incurred in 2006 and is clearly a marital asset, and

       should be included in the marital pot.” (Appellant’s Br. p. 19). In its division,

       the trial court determined “[Robin’s] student loan is not included in the marital

       debt. Mother is to pay this debt on her own and to hold [Robert] harmless

       thereon.” (Appellant’s App. p. 20). Nevertheless, we have repeatedly held that

       student loans incurred during the marriage are marital obligations and thus are

       part of the marital estate. See Nornes v. Nornes. 884 N.E.2d 886, 889 (Ind. Ct.

       App. 2008); Roberts v. Roberts, 670 N.E.2d 72, 77 (Ind. Ct. App. 1996), trans.

       denied. Accordingly, the trial court erred by assigning Robin the student loans

       on the basis that she has the degree and she should pay for it.2 We remand to

       the trial court with direction to include the student loan in the marital pot.


                                              II. Spousal Maintenance




       2
        However, a trial court may give due consideration to the effect that the degree may have in determining the
       earnings ability of the party holding the degree. See I.C. § 31-15-7-5(5).


       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016            Page 10 of 16
[20]   Robin contends that the trial court abused its discretion by failing to award her

       spousal maintenance. Pointing towards her medical condition and Dr. Harris’

       testimony, she claims that she is entitled to incapacity maintenance. A trial

       court’s decision to award maintenance is purely within its jurisdiction and we

       will only reverse if the award is against the logic and effect of the facts and

       circumstances of the case. Augspurger v. Hudson, 802 N.E.2d 503, 508 (Ind. Ct.

       App. 2004). “A maintenance . . . award is designed to help provide for a

       spouse’s sustenance and support.” Wilhelm v. Wilhelm, 397 N.E.2d 1079, 1081

       (Ind. Ct. App. 1979). “The essential inquiry is whether the incapacitated

       spouse has the ability to support himself or herself.” McCormick v. McCormick,

       780 N.E.2d 1220, 1224 (Ind. Ct. App. 2003).


[21]   In reviewing a claim for incapacity maintenance, “[a] court may make the

       following findings . . .: If the court finds a spouse to be physically or mentally

       incapacitated to the extent that the ability of the incapacitated spouse to support

       himself or herself is materially affected, the court may find that maintenance for

       the spouse is necessary during the period of incapacity, subject to further order

       of the court.” I.C. § 31-15-7-2(1). In its amended order of April 20, 2015, the

       trial court extensively reviewed the evidence in its findings and found that

               [o]ther than testimony from [Robin] regarding her list of
               maladies, the only other evidence presented at trial regarding
               [Robin’s] incapacity was the deposition of [Dr. Harris]. Dr.
               Harris testified that [Robin] was incapacitated and therefore
               unable to work; however, Dr. Harris also state[d] that [Robin]
               could possibly work from home.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016   Page 11 of 16
       (Appellant’s App. p. 60). The trial court concluded that “[b]ased on the

       evidence presented at trial, [Robin] has not established that she is incapacitated

       or that the party’s daughter, [Z.R.], is incapacitated to the extent that [Robin]

       has to forego working to care for the daughter.”3 (Appellant’s App. p. 62).


[22]   In Matzat v. Matzat, 854 N.E.2d 918, 921 (Ind. Ct. App. 2006), this court

       reversed an award of maintenance where the wife had claimed back problems

       but failed to present any evidence suggesting the nature or origin of the

       problems, her diagnosis or prognosis, her recommended treatment, whether she

       had followed such treatment, or the permanency of the problem. Significantly,

       the wife in Matzat had applied for social security benefits and had been denied.

       Id. We concluded that such meager evidence could not sustain an award of

       incapacity maintenance. Id.


[23]   Similarly, here, Robin testified as to her medical problems and submitted Dr.

       Harris’ testimony. While Dr. Harris did not anticipate Robin to improve to the

       point where she can work again, the trial court deemed it important that Dr.

       Harris nuanced his testimony by noting that it could be “possible” for Robin “to

       work from home in some capacity.” (Petitioner’s Ex. 1, p. 43). Moreover, the

       trial court noted that Robin had worked for the family business and that she

       was a certified medical assistant. Most importantly, Robin “had been denied

       social security benefits.” (Appellant’s App. p. 61). Accordingly, in line with



       3
        On appeal, Robin no longer claims incapacity based upon her daughter’s condition, but focuses on spousal
       maintenance based on her own medical problems.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016          Page 12 of 16
       Matzat, we conclude that, based on the evidence, the trial court did not abuse its

       discretion by declining to award incapacity maintenance.


                                                III. Attorney’s Fees


[24]   Robin contends that the trial court abused its discretion by not awarding her

       attorney’s fees. Comparing Robert’s earning ability and award of the marital

       residence to her lack of “assets of substantial value,” she requests this court to

       reverse the trial court’s denial of attorney’s fees. (Appellant’s Br. p. 22).


[25]   Indiana Code section 31-15-10-1(a) provides that a trial court in a dissolution

       proceeding “periodically may order a party to pay a reasonable amount . . . for

       attorney’s fees . . .; including amounts for legal services provided and costs

       incurred before the commencement of the proceedings or after entry of

       judgment.” We review a decision on attorney’s fees in connection with a

       dissolution decree for an abuse of discretion. Crider v Crider, 15 N.E.3d 1042,

       1053 (Ind. Ct. App. 2014), trans. denied. When deciding whether to award

       attorney’s fees, trial courts must consider the relative resources of the parties,

       their economic condition, the ability of the parties to engage in gainful

       employment and earn an adequate income, and other factors that bear on the

       reasonableness of the award. Id. The legislative purpose behind I.C. § 31-15-

       10-1 is to ensure that a party in a dissolution proceeding is able to retain

       representation when he or she would otherwise be unable to afford an attorney.

       Id. When one party is in a superior position to pay fees over the other party, an

       award of attorney’s fees is proper. Id.


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[26]   Here, despite a request for attorney’s fees from both parties, the trial court

       ordered the parties to be responsible for their own legal fees. We agree. The

       enumeration of assets in the marital estate reflects few items of substantial value,

       and its total worth amounted to $152,472. These assets are practically

       overshadowed by the liabilities carried by the parties during the marriage,

       which amounted to $136,119, resulting in a net marital estate of $16,353. Even

       though the trial court awarded Robert most assets of value, the trial court also

       shifted most of the marital debts to him. In support of her argument, Robin

       again relies on her inability to earn an income; however, the trial court, relying

       on Dr. Harris’ testimony, opined otherwise. Accordingly, with a low balance in

       the net marital estate and an equal division of these assets, we cannot say that

       Robert is in a superior position to pay attorney’s fees. See id.


                                                  CROSS-APPEAL


[27]   On cross-appeal, Robert challenges the trial court’s determination that he

       dissipated marital assets.4 Our court reviews findings of dissipation in various

       contexts under an abuse of discretion standard. Goodman v. Goodman, 754

       N.E.2d 595, 598 (Ind. Ct. App. 2001), reh’g denied. We will reverse only if the

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

       reasonable inferences to be drawn from those facts. Id.




       4
        Although our motions panel granted Robin time to file a reply/cross-appellee’s brief, Robin did not avail
       herself of this opportunity.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016             Page 14 of 16
[28]   Dissipation of marital assets involves “the frivolous, unjustified spending of

       marital assets.” Id. The test for dissipation of marital assets is “whether the

       assets were actually wasted or misused.” Id. Factors to consider in determining

       whether dissipation has occurred include: (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. Id.


[29]   In its order, the trial court concluded that Robert

               removed the sum of $4,666.00 within about a two-week period,
               much of it withdrawn in cash and with no evidence of its use for
               the benefit of the family. The [c]ourt determined that the monies
               taken by [Robert] were used for his own benefit and not for the
               benefit of the family.


       (Appellant’s App. p. 52).

       The parties separated on December 3, 2012, with the petition for dissolution

       filed on May, 29, 2013. The evidence reflects that Robert made five contested

       withdrawals from the parties’ joint bank account: $1,700 on May 2, 2013; $900

       on May 13, 2013, $1,006 on May 15, 2013, $60 on May 16, 2013, and $1,000

       on May 18, 2013. See In re Marriage of Coyle, 671 N.E.2d 938, 943 (Ind. Ct.

       App. 1996) (“[T]ransactions which occur during the breakdown of the

       marriage, just prior to filing a petition or during the pendency of an action, may

       require heightened scrutiny.”) Robin testified that she had “no idea what” the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-DR-259 | April 14, 2016   Page 15 of 16
       withdrawals were for. (Tr. pp. 49-50). See id. (“The non-dissipating party’s

       participation in or consent to the expenditure is a relevant consideration.”). In

       his testimony, Robert stated—without any supporting evidence—that the

       $1,006 withdrawal was “a mortgage payment.” (Tr. p. 178). However, he

       admitted not to know what he did with the cash withdrawals of $1,700, $900,

       and $1,000. In light of this evidence, the trial court concluded that all five

       withdrawals were used for Robert’s own benefit and not for the family’s needs.

       Accordingly, the trial court’s judgment is not clearly against the logic and effect

       of the facts before it, and as we find no abuse of discretion, we affirm the trial

       court’s conclusion of dissipation.


                                                CONCLUSION

[30]   Based on the foregoing, we remand to the trial court to specifically direct

       Robert to pay the taxes due and owing. We also remand with instruction to

       include Robin’s student loan in the marital estate and to recalculate the equal

       division of the estate, if necessary. We affirm the trial court in all other

       respects.


[31]   Affirmed.

[32]   Najam, J. and May, J. concur




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