      MEMORANDUM DECISION
                                                                     Jul 08 2015, 9:06 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Brent R. Dechert                                          Alan D. Wilson
      Dechert Law Office                                        Kokomo, Indiana
      Kokomo, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Allen E. Wilson,                                          July 8, 2015

      Appellant-Respondent,                                     Court of Appeals Case No.
                                                                34A02-1410-DR-754
              v.                                                Appeal from the Howard Circuit
                                                                Court

      Amy L. Wilson,                                            The Honorable Lynn Murray, Judge
      Appellee-Petitioner.
                                                                Cause No. 34C01-1111-DR-927




      Najam, Judge.


                                         Statement of the Case
[1]   Allen E. Wilson (“Husband”) appeals the trial court’s order dissolving his

      marriage to Amy L. Wilson (“Wife”) and distributing the marital estate.

      Husband raises five issues for our review, which we consolidate and restate as

      the following three issues:

      Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015    Page 1 of 14
              1.    Whether the trial court erred when it denied Husband’s
              motion for relief from judgment without first allowing further
              discovery.

              2.    Whether the trial court erred when it determined certain
              property was within or not within the marital estate.

              3.    Whether the trial court erred when it valued a 2002
              Corvette.


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


                                  Facts and Procedural History
[3]   Husband and Wife were married on April 1, 2001, and had one child of the

      marriage, E.W. In November of 2011, Wife filed a petition for the dissolution

      of marriage. More than two and one-half years after the petition had been filed,

      on June 27, 2014, the trial court held a final fact-finding hearing on Wife’s

      petition.


[4]   At that hearing, Wife testified that she had accepted a “buy-out” of her

      retirement pension with General Motors during the marriage and that she had

      “no pension left.” Tr. at 67. Wife also testified that the parties had a line of

      credit with Key Bank; this line of credit was used both for the marriage and for

      Husband’s auto-repair business. Four days before Wife filed her dissolution

      petition, Husband, without Wife’s knowledge or consent, advanced himself

      $36,815 from the line of credit. Immediately prior to this advance, the balance

      on the line of credit was $28,061.54.



      Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015   Page 2 of 14
[5]   The parties agreed that they owned several vehicles during the marriage. They

      agreed they had purchased two “Bracket” and two “Outlaw” race cars during

      the marriage for E.W.’s use. Id. at 60. The parties agreed that they only owned

      one race car at a time, that Husband sold one of the Outlaws last, and that he

      had sold that car for a fair market value at $7,500. The parties also owned a

      2004 Chevrolet pickup truck during the marriage. In a provisional order, the

      court had awarded the truck to Husband. Thereafter, but before the final

      hearing, E.W. wrecked the truck, which was not covered by a comprehensive

      liability insurance policy. And, at the time Wife filed the dissolution petition,

      the parties owned a 2002 Chevrolet Corvette. Shortly after Wife filed the

      dissolution petition, however, Husband traded in the Corvette for $19,000.

      Wife believed the value of the Corvette to be closer to $28,875, though she

      based that value on her mistaken belief that the Corvette was a 2004 model.


[6]   On August 5, the trial court, sua sponte, entered its findings of fact and

      conclusions thereon dissolving the parties’ marriage. In relevant part, the court

      found and concluded as follows:

              18. At separation, the Husband owned a 2002 Chevrolet
              Corvette Z06, which he later traded on the purchase of a 2013
              Corvette 427 during the provisional period without notice to the
              Wife or the Court. The Husband received credit for the trade in
              the sum of $19,000.00, which the Court finds is less than the fair
              market value of the vehicle at the time of separation. The 2002
              Corvette was a marital asset, . . . which the court finds had a fair
              market value at separation of $22,000.00 and is awarded to the
              Husband. The 2013 Corvette was acquired after separation and
              is not a marital asset. . . .

      Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015   Page 3 of 14
        19. At separation, the Husband owned a 2004 Chevrolet Truck
        having a value of $11,825.00. The Husband is awarded this
        vehicle, and [he] shall hold the Wife harmless from all liens and
        obligations associated with the vehicle.

                                                ***

        23. At separation, the Husband owned two outlaw cars and two
        bracket cars he had purchased during the marriage, which were
        used by the parties’ son [E.W.], then a minor, in racing
        activities . . . . After separation, the Husband sold all four (4)
        vehicles. The court finds that these vehicle[s] were marital assets
        at the time of separation. The outlaw cars had a value of
        $19,000.00 and $7,500.00, and the bracket cars had a value of
        $6,000.00 and $4,000.00.

                                                ***

        34. At separation, the parties owed a debt to Key Bank on a line
        of credit account used primarily by the Husband for expenses and
        obligations of the business. On November 18, 2011, four (4) days
        prior to the separation date, the Husband took out an advance on
        the account in the amount of $36,815.00, of which the Wife did
        not receive or benefit [sic]. Prior to the advance, the amount
        owed to Key[ ]Bank was $28,061.54. The court finds that the
        Husband is responsible for the debt owed to Key[ ]Bank on the
        line of credit account and that the marital portion of the debt is
        $28,061.51.


Appellant’s App. at 29-30, 32. The court then distributed the marital assets

fifty-fifty between Husband and Wife, which required Husband to pay an

equalization payment to Wife of $114,090.42.




Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015   Page 4 of 14
[7]   On August 29, Husband filed a document titled, “Motion to Reopen

      Evidence[,] Motion for Relief from Judgment[, and] Motion to Correct Errors.”

      Id. at 42. That same day, Husband, along with other related motions, also filed

      a document titled, “Motion for Order Allowing [Husband] to Obtain Discovery

      and for Evaluation of Retirement/Pension Value.” Id. at 55. In essence, in

      these motions Husband asserted that the court had erred in its inclusion of

      certain assets in the marital estate as well as in its valuation of certain assets.

      Husband further asserted that “[i]t has been brought to [his] attention, through

      sources familiar with the parties, . . . that [Wife] accepted a ‘buy down’ rather

      than a ‘buy out’ of her pension” with General Motors. Id. at 56.


[8]   On September 22, the trial court entered an order on all of Husband’s post-

      judgment motions (“the September 22 Order”). In relevant part, the court

      concluded as follows:


              4. At final hearing, there was undisputed evidence that [Wife]
              had no vested retirement benefit through her former employment
              with General Motors as of the separation date. There was no
              evidence that the Wife had not complied with discovery with
              respect to her retirement accounts or benefits, and her testimony
              at [the] hearing was consistent with the discovery she had
              provided to the Husband. At [the] hearing, the undisputed
              evidence was submitted that[,] during the marriage, the Wife had
              received a “buy out” from her former employer[,] General
              Motors[,] and the funds were used to the benefit of both parties
              before separation.

              5. The basis for the Husband’s motion to reopen evidence and
              conduct third party discovery is hearsay from an unknown third
              party, and he seeks to do what he had more than two (2) years

      Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015   Page 5 of 14
              during the provisional period to do. The Husband had ample
              opportunity to conduct third party discovery as to any interest the
              Wife had as of the separation date in any retirement benefit with
              General Motors.

                                                      ***

              7. The Husband should not be able to reopen evidence to
              conduct discovery he could and should have done prior to [the]
              final hearing.


      Id. at 76. With respect to Husband’s complaints regarding the inclusion of

      certain assets in the marital estate or the valuation of certain assets, the court

      affirmed its earlier conclusions. The court then denied Husband’s post-

      judgment motions, and this appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[9]   Husband appeals the September 22 Order, which was, in effect, the denial of a

      motion to correct error. We have explained our standard of review as follows:

              A trial court is vested with broad discretion to determine whether
              it will grant or deny a motion to correct error. Volunteers of
              America v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 658
              (Ind. Ct. App. 2001). A trial court has abused its discretion only
              if its decision is clearly against the logic and effect of the facts and
              circumstances before the court or the reasonable inferences
              therefrom. Id. The trial court’s decision comes to us cloaked in a
              presumption of correctness, and the appellant has the burden of
              proving that the trial court abused its discretion. Id. In making
              our determination, we may neither reweigh the evidence nor
              judge the credibility of witnesses. Id.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015   Page 6 of 14
       Luxury Townhomes, LLC v. McKinley Props., Inc., 992 N.E.2d 810, 815 (Ind. Ct.

       App. 2013) (quoting Jones v. Jones, 866 N.E.2d 812, 814 (Ind. Ct. App. 2007)),

       trans. denied.


[10]   Further, “[u]pon reviewing a motion to correct error, this court also considers

       the standard of review for the underlying ruling.” Id.


               Generally, when, as here, a trial court enters findings of fact and
               conclusions thereon sua sponte, we apply a two-tiered standard of
               review; first we determine whether the evidence supports the
               findings, and second, whether the findings support the judgment.
               Davis v. Davis, 889 N.E.2d 374, 379 (Ind. Ct. App. 2008). In
               deference to the trial court’s proximity to the issues, we disturb
               the judgment only where there is no evidence supporting the
               findings or the findings fail to support the judgment. Id. We do
               not reweigh the evidence, but consider only the evidence
               favorable to the trial court’s judgment. Id. Those appealing the
               trial court’s judgment must establish that the findings are clearly
               erroneous. Id. Findings are clearly erroneous when a review of
               the record leaves us firmly convinced that a mistake has been
               made. Id. We do not defer to conclusions of law, however, and
               evaluate them de novo. Id.


       Douglas v. Spicer, 8 N.E.3d 712, 714 (Ind. Ct. App. 2014).


                                  Issue One: Husband’s Post-Judgment
                                      Request for Further Discovery
[11]   On appeal, Husband first asserts that the trial court abused its discretion when it

       denied his post-judgment requests for further discovery. In particular, Husband

       argues that Wife misled him and the court when she stated in her interrogatory

       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015   Page 7 of 14
       responses—and then affirmed at the final fact-finding hearing more than two

       years later—that General Motors had bought out the entirety of her pension.

       Thus, Husband continues, pursuant to Indiana Trial Rule 60(D) he should have

       been allowed to conduct additional discovery post-judgment to determine the

       amount, if any, of Wife’s remaining pension with General Motors.


[12]   The crux of Husband argument is an attempt to frame his post-judgment

       motion as one based on Wife’s alleged misrepresentations. Indeed, in his

       appellate brief Husband asserts that he had “no need to conduct additional

       discovery unless [Wife] was lying” in her interrogatory responses. Appellant’s

       Br. at 11. But the trial court squarely rejected Husband’s theory and, instead,

       concluded that Husband’s motion was premised on newly discovered evidence

       that Husband should have discovered during the original discovery period. We

       cannot say that the trial court abused its discretion in reaching that conclusion.


[13]   As we have explained: “When a new trial is sought based on newly-discovered

       evidence, the appellant must show, among other things, that the evidence could

       not have been discovered before the trial by the exercise of due diligence.”

       Hartig v. Stratman, 760 N.E.2d 668, 671 (Ind. Ct. App. 2002), trans. denied.

       Further, we have long recognized that a litigant is obliged “to search for

       evidence in the place where . . . it would be most likely to be found,” id.

       (quotation omitted), and, when a party neglects to follow-up with discovery, he

       does so at his “own peril and may not later turn to the doctrine of newly

       discovered evidence for relief,” id. at 671-72.



       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015   Page 8 of 14
[14]   Here, determining the veracity of Wife’s interrogatory responses was a key

       reason for Husband to conduct additional discovery during the pendency of the

       dissolution action. Moreover, General Motors is the most likely source to have

       accurate information regarding its employees’ pensions, and it was incumbent

       on Husband to follow-up on Wife’s interrogatory responses accordingly. Id. As

       the trial court explained in the September 22 Order, Husband had more than

       two years to follow-up on Wife’s responses. His choice to not do so was made

       at his own peril, and he cannot now rely on Trial Rule 60 for relief from the

       consequences of his prior decision. Id. We affirm on this issue.


                                   Issue Two: Whether Certain Assets
                                     Were Within the Marital Estate
[15]   Husband next contends that the trial court abused its discretion when it denied

       his post-judgment requests for the court to reconsider whether certain assets

       were to be included in or excluded from the marital estate. This issue requires

       consideration of whether the court’s underlying findings and conclusions were

       clearly erroneous. In particular, Husband asserts that the trial court erred when

       it: (1) excluded Husband’s advance on the Key Bank line of credit from the

       marital estate; (2) included the four race cars in the marital estate; and (3)

       included the 2004 Chevrolet pick-up in the marital estate. We address each

       argument in turn.

                                                The Line of Credit


[16]   We first consider Husband’s assertion that the trial court erred when it excluded

       his $36,815 advance on the Key Bank line of credit from the marital estate.
       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015   Page 9 of 14
       According to Husband, he had previously deposited this money into the line of

       credit from an insurance settlement, which he later withdrew to improve

       marital property. Husband asserts on appeal that his testimony to that effect

       went undisputed. Husband is incorrect.


[17]   During recross-examination, Wife testified as follows:


               Q: . . . was there damage to the barn or to the roof of any of the
               properties owned by you and [Husband] in 2011?

               A: Yes, and insurance covered them.

               Q: Are you familiar with whether [Husband] ever deposited
               funds in and withdrew funds out of that line of credit[,] similar to
               a bank account?

               A: No, he didn’t.

               Q: Is it possible that he put the interest funds in that account and
               paid it down and then withdrew them to pay for the repair to the
               roof?

               A: No.

               Q: That’s not possible?

               A: I mean, it could have been but I don’t think . . .

               MS. PITCHER: OK, no other questions.


       Tr. at 97-98 (ellipses original).




       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015   Page 10 of 14
[18]   According to Husband, Wife’s testimony above “does not exactly refute

       Husband’s version of events.” Appellant’s Br. at 14. But it does, twice. Wife

       directly said “[n]o” both times she was asked whether Husband made deposits

       into the line of credit. Tr. at 97-98. It was within the trial court’s prerogative to

       find that Husband’s version of events was not credible in light of Wife’s

       testimony, and we will not reconsider that finding on appeal. And, in light of

       the timing of the advance and the trial court’s finding that Wife received no

       benefit from it, we cannot say that the trial court erred when it excluded

       Husband’s $36,815 advance from the marital estate. See, e.g., Thompson v.

       Thompson, 811 N.E.2d 888, 915 (Ind. Ct. App. 2004) (affirming the trial court’s

       exclusion of a certain amount of money from the marital estate after noting that

       the timing of the transaction and whether the marriage benefited from the

       transaction were relevant factors for the trial court to consider), trans. denied.


                                                      The Race Cars


[19]   Husband next asserts that the trial court erred when it included the four race

       cars in the marital estate. Husband’s argument on appeal here is two-fold: first,

       he asserts that the race cars were gifts for E.W. and, therefore, outside the

       marital estate; second, he asserts that the undisputed evidence showed that

       Husband and Wife only owned one race car at a time, which included at the

       time Wife filed her petition for dissolution.1




       1
           Wife’s arguments on appeal focus only on the values of the race cars, but those values were never disputed.


       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015                Page 11 of 14
[20]   Regarding Husband’s first argument, he testified that he had purchased the

       vehicles during the marriage. As such, it was within the trial court’s prerogative

       to consider the vehicles marital assets.


[21]   But Husband’s second argument is correct. He testified that the family was

       only in possession of one race car at a time, and they would trade in a race car

       to obtain another race car. During her testimony at the final hearing, Wife

       agreed with those aspects of Husband’s testimony. Tr. at 87. Husband further

       testified that the $7,500 Outlaw race car was the last car sold, and that he sold it

       after E.W. had graduated from high school, which, in turn, was after Wife had

       filed her petition for the dissolution of marriage. Accordingly, we reverse the

       trial court’s findings and conclusions with respect to the four race cars and

       remand with instructions that the court consider only the $7,500 Outlaw marital

       property at the time of the parties’ separation.

                                      The 2004 Chevrolet Pick-Up Truck


[22]   Husband also contends that the trial court erred when it included the 2004

       Chevrolet pick-up truck in the marital estate. According to Husband, because

       the truck was wrecked after the parties’ separation but before the final hearing,

       the court had no discretion to include it in the marital estate. But Husband cites

       no authority for this proposition, and it is well established that the court may

       use “any date between the date of filing the dissolution petition and the date of

       the hearing” to determine the “valu[e of] the marital assets.” Quillen v. Quillen,




       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015   Page 12 of 14
       671 N.E.2d 98, 102 (Ind. 1996). That is what the court did here, and we cannot

       say the court erred in doing so.


                              Issue Three: Valuation of the 2002 Corvette

[23]   Finally, Husband asserts that the trial court erred when it valued the 2002

       Corvette at $22,000. Husband testified that he traded in that vehicle for a

       newer model and received $19,000 for it, which was identical to an appraisal he

       had received for the vehicle. Wife submitted evidence that a 2004 model

       Corvette was worth $28,875.


[24]   We agree with Husband. Wife’s only evidence regarding the value of any

       Corvette went to the value of a model year Husband did not own. As such, her

       proffered evidence was in no way probative to the issue at hand, namely, the

       value of the 2002 model. Thus, Husband’s evidence that the 2002 Corvette had

       a fair market value of $19,000 was not disputed, and the trial court erred when

       it valued the Corvette at $22,000.


                                                 Conclusion
[25]   In sum, we affirm the trial court’s judgment in all respects except for its

       inclusion of all four race cars in the marital estate and its valuation of the 2002

       Corvette. On those issues, we reverse the trial court’s judgment and remand

       with instructions that the court: (1) include only the $7,500 Outlaw race car in

       the marital estate; (2) value the 2002 Corvette at $19,000; and (3) proceed

       accordingly.



       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015   Page 13 of 14
[26]   Affirmed in part, reversed in part, and remanded with instructions.


       Baker, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-DR-754 | July 8, 2015   Page 14 of 14
