      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                FILED
      this Memorandum Decision shall not be                            Aug 24 2016, 9:17 am
      regarded as precedent or cited before any                             CLERK
      court except for the purpose of establishing                      Indiana Supreme Court
                                                                           Court of Appeals
      the defense of res judicata, collateral                                and Tax Court


      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Matthew J. McGovern                                      Thomas A. Massey
      Anderson, Indiana                                        Evansville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Timothy B. Hopper,                                       August 24, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               65A01-1510-DR-1603
              v.                                               Appeal from the Posey Circuit
                                                               Court
      Angela C. Hopper,                                        The Honorable James M.
      Appellee-Plaintiff.                                      Redwine, Judge
                                                               The Honorable S. Brent Almon,
                                                               Special Judge
                                                               Trial Court Cause No.
                                                               65C01-1405-DR-192



      Altice, Judge.


                                               Case Summary


[1]   Timothy Hopper and Angela Hopper were married in 1999 and had one child.

      In 2014, Angela filed a petition for dissolution of marriage. The trial court
      Court of Appeals of Indiana | Memorandum Decision 65A01-1510-DR-1603 | August 24, 2016    Page 1 of 13
      dissolved the parties’ marriage, determined custody of the minor child, set child

      support, valued the parties’ assets, and divided the marital estate. On appeal,

      Timothy challenges the trial court’s valuation of his business for purposes of

      dividing the marital estate. Timothy presents two issues for our review:


              1. Did the trial court abuse its discretion in valuing the business
              at $200,000?


              2. Did the trial court rely on impermissible hearsay evidence in
              valuing the business?


      Angela cross-appeals, asserting that the trial court abused its discretion in

      awarding her only $3000 toward her attorney fees.


[2]   We affirm.


                                       Facts & Procedural History


[3]   The parties were married on January 15, 1999. In September 2009, Timothy

      and a business partner purchased Carter Plumbing and Heating, LLC, (Carter

      Plumbing) for $167,500. The business purchase included all intangibles such

      as, but not limited to, the exclusive rights to use the name Carter Plumbing and

      the goodwill associated with the business through execution of a covenant not

      to compete by the seller. In 2012, Timothy bought out his business partner’s

      fifty-percent interest in Carter Plumbing for $10,000. As part of the purchase

      agreement, Timothy’s business partner signed a non-compete agreement.




      Court of Appeals of Indiana | Memorandum Decision 65A01-1510-DR-1603 | August 24, 2016   Page 2 of 13
[4]   Angela filed a verified petition for dissolution of marriage on April 14, 2014.

      During the pendency of the divorce proceedings, Timothy hired an appraiser,

      George Pritchett, to value all tangible and intangible assets of Carter Plumbing.

      As directed by Timothy, Pritchett used April 14, 2014 as the date upon which to

      base his appraisal. As of that date, Carter Plumbing’s balance sheet reflected an

      ownership equity1 of negative $43,460.


[5]   In addition to considering the ownership equity, Pritchett collected various

      information and industry data, which informed him that approximately seventy

      percent of the selling price of similar businesses represented the value of

      intangibles and non-compete agreements. Pritchett also took into account that

      Timothy stated he would not sign a covenant not to compete. He therefore did

      not include personal goodwill in his calculation. Based on the information he

      compiled, Pritchett prepared an appraisal report in which he concluded that, if

      sold, Carter Plumbing had a nominal value of $1,000. Pritchett opined that

      even though Carter Plumbing had a negative ownership equity, a potential

      buyer might pay $1,000 for use of the name Carter Plumbing.


[6]   In contrast to the valuation provided by Pritchett, Angela presented evidence

      that Timothy provided his bank with a verified personal financial statement,

      dated August 25, 2014, in which he asserted that Carter Plumbing was an asset

      valued at $200,000. Timothy attached a balance sheet dated that same day that



      1
       Pritchett explained that ownership equity is the value of the assets minus the value of the liabilities.
      Ownership equity does not include a value for intangibles.

      Court of Appeals of Indiana | Memorandum Decision 65A01-1510-DR-1603 | August 24, 2016               Page 3 of 13
      showed Carter Plumbing had an ownership equity of $197,315.72.2 Angela also

      presented evidence that in 2013 Timothy retained Strategic Tax Advisors (STA)

      to provide tax strategies and business recommendations for Carter Plumbing

      and paid them $15,000 for the services provided. STA prepared a report

      wherein it was noted that Timothy informed STA that Carter Plumbing had a

      value of $400,000.


[7]   Finally, Angela presented the expert testimony of Jerry Peters, a Certified

      Public Accountant, who noted that Carter Plumbing had a substantial increase

      in ownership equity from April 14, 2014, the date used by Pritchett in his

      appraisal, and August 25, 2014. Specifically, Peters noted that Carter

      Plumbing’s ownership equity increased from negative $43,460 to positive

      $197,315. In subsequent months, the balance sheet continued to reflect that the

      ownership equity for Carter Plumbing remained steady around $200,000.

      Peters acknowledged that his analysis of Carter Plumbing’s balance sheets was

      not a valuation of the worth of the business as it did not include a value for

      intangible assets (including goodwill).


[8]   In contrast to Peters’s testimony, Timothy presented the August 25, 2014

      balance sheet to Pritchett. Pritchett testified that some of the entries on the




      2
        During discovery, Angela requested numerous times that Timothy provide her with financial information
      pertaining to Carter Plumbing and Timothy did not comply with those discovery requests. Angela obtained
      Timothy’s personal financial statement and accompanying balance sheet through her own efforts. With the
      court’s intervention during a hearing, Timothy provided to Angela additional financial information in the
      form of monthly balance sheets for Carter Plumbing from September 2014 through March 2015.

      Court of Appeals of Indiana | Memorandum Decision 65A01-1510-DR-1603 | August 24, 2016        Page 4 of 13
       balance sheet were “probably” accounting-related entries that had not been

       “marked to market.” Transcript Day 1 at 57. Pritchett further testified that if he

       had used the August 25, 2014 balance sheet for his valuation, he would have

       valued Carter Plumbing at between $40,000 and $50,000.


[9]    The final hearing was held on May 8, 2015, and July 29 through July 30, 2015.

       The trial court issued its final decree of dissolution of marriage on September

       16, 2015, and a corrected decree on September 17, 2015. In the corrected

       decree, the trial court dissolved the parties’ marriage, determined custody of the

       parties’ only child, set child support, valued the parties’ assets, and divided the

       marital estate.


[10]   With respect to the property division, the trial court valued Carter Plumbing at

       $200,000 and awarded the business in its entirety to Timothy, bringing the

       value of his share of the marital estate to $237,580.83. The total value of

       Angela’s share was $49,684.98. Finding that the marital estate should be

       divided equally, the trial court ordered Timothy to make an equalization

       payment of $93,911.93 to Angela.3 The trial court also ordered Timothy to pay

       $3000 of Angela’s attorney fees at a rate of $250 per month. Timothy now




       3
        The trial court allowed Timothy to pay this amount at a rate of $5000 per quarter with statutory interest
       accruing at 8% per annum, with the first payment to commence on January 15, 2016. The trial court also
       awarded Angela a lien against Carter Plumbing and certain rental property until Timothy paid the
       equalization payment in full.

       Court of Appeals of Indiana | Memorandum Decision 65A01-1510-DR-1603 | August 24, 2016           Page 5 of 13
       appeals and Angela cross-appeals. Additional facts will be provided as

       necessary.


                                           Discussion & Decision


[11]   Where, as here, the trial court enters findings and conclusions sua sponte, the

       findings control only with respect to the issues they cover, while a general

       judgment standard applies to issues on which there are no findings. In re

       Marriage of Sutton, 16 N.E.3d 481, 484-85 (Ind. Ct. App. 2014). We affirm a

       general judgment entered with findings if it can be sustained on any legal theory

       supported by the evidence. Hurt v. Hurt, 920 N.E.2d 688, 691 (Ind. Ct. App.

       2010). When the court has made findings of fact and conclusions thereon, we

       review those findings and conclusions using a clearly erroneous standard.

       Sutton, 16 N.E.3d at 485. A finding of fact is clearly erroneous when the record

       contains no facts to support the findings, either directly or by inference. Hurt,

       920 N.E.2d at 691. “A judgment is clearly erroneous if it applies the wrong

       legal standard to properly found facts.” Id. In conducting our review, we first

       determine whether the evidence supports the findings; then we determine

       whether the findings support the judgment. Id.


                                            1. Business Valuation


[12]   Timothy argues that the trial court abused its discretion by assigning a value of

       $200,000 to Carter Plumbing. The trial court’s valuation of marital assets is

       within its sound discretion and will only be disturbed for an abuse of discretion.

       Morey v. Morey, 49 N.E.3d 1065, 1069 (Ind. Ct. App. 2016) (citing In re Marriage

       Court of Appeals of Indiana | Memorandum Decision 65A01-1510-DR-1603 | August 24, 2016   Page 6 of 13
       of Nickels, 834 N.E.2d 1091, 1095 (Ind. Ct. App. 2005)). As long as the

       evidence is sufficient and reasonable inferences support the valuation, an abuse

       of discretion does not occur. Id. We will not weigh 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.”

       Nickels, 834 N.E.2d at 1095 (quoting Bizik v. Bizik, 753 N.E.2d 762, 766 (Ind.

       Ct. App. 2001), trans. denied).


[13]   During the final hearing, Timothy and Angela both put forth evidence

       pertaining to the value of Carter Plumbing. The trial court ultimately

       determined “the most credible value of Carter Plumbing to be $200,000.00,”

       which value Timothy assigned to Carter Plumbing in the August 25, 2014

       verified personal financial statement he submitted to his bank.4 Appellant’s

       Appendix at 103. This value corresponded with an August 25, 2014 balance

       sheet for Carter Plumbing that showed Carter Plumbing had an ownership

       equity of $197,315.




       4
         Generally, the marital pot closes on the date the dissolution petition is filed. Smith v. Smith, 854 N.E.2d 1, 6
       (Ind. Ct. App. 2006). However, a trial court has broad discretion in determining the date upon which to
       value the marital assets, and the trial court may select any date between the date of filing the petition of
       dissolution and the date of the final hearing. Id. Here, Timothy asked his expert to value Carter Plumbing as
       of April 14, 2014, the day Angela filed the petition for dissolution. Timothy accepts that the trial court
       apparently chose to value Carter Plumbing as of August 25, 2014. See Appellant’s Brief at 15 (noting without
       argument that August 25, 2014 was “the date on which the trial court determined that the business should be
       valued”).

       Court of Appeals of Indiana | Memorandum Decision 65A01-1510-DR-1603 | August 24, 2016               Page 7 of 13
[14]   Here, Timothy does not dispute that he identified Carter Plumbing as an asset

       valued of $200,000 in the August 25, 2014 personal financial statement he

       submitted to his bank. Nevertheless, Timothy argues that the trial court could

       not rely on his valuation because there is no basis for that assigned value. See

       Court View Centre, L.L.C. v. Witt, 753 N.E.2d 75, 82 (Ind. Ct. App. 2001)

       (holding that a business owner is competent to offer an opinion as to the value

       of his business so long as there is a basis for that valuation). Timothy asserts

       that there is a lack of evidence regarding the methodology he used or what

       information he included in arriving at the value he assigned to Carter Plumbing

       at that time. Timothy claims that the value the court assigned to Carter

       Plumbing may have included his personal goodwill, which is not a marital asset

       subject to distribution. Timothy also claims that the balance sheet on which he

       relied may not have used figures that had been reduced to market value.


[15]   We disagree with Timothy that there is no basis for the $200,000 valuation of

       Carter Plumbing he submitted to his bank. Timothy’s $200,000 valuation

       directly correlated with the August 25, 2014 balance sheet that he attached to

       his personal financial statement. As described by the parties’ experts, the

       balance sheets compared Carter Plumbing’s assets and liabilities, with the

       ultimate calculation being the ownership equity for Carter Plumbing. As

       indicated by the August 25, 2014 balance sheet, Carter Plumbing had

       ownership equity of $197,315.22.


[16]   We also disagree with Timothy that the $200,000 value assigned to Carter

       Plumbing included items that are not marital property subject to disposition.

       Court of Appeals of Indiana | Memorandum Decision 65A01-1510-DR-1603 | August 24, 2016   Page 8 of 13
       The experts’ testimony made it clear that ownership equity is the difference

       between the hard assets and hard liabilities and does not include the value of

       intangibles, such as personal or enterprise goodwill. Yoon v. Yoon, 711 N.E.2d

       1265, 1268 (Ind. 1999) (citing In re Marriage of Talty, 652 N.E.2d 330, 333 (Ill.

       1995)) (noting goodwill that is personal to one spouse is not a divisible marital

       asset, but enterprise goodwill is a marital asset subject to property division).


[17]   To the extent Timothy asserts that the August 25, 2014 balance sheet could not

       be relied upon because it was not adjusted to market value, we find that such

       claim is not supported by the record. After being shown the August 25, 2014

       balance sheet, Pritchett testified that “a lot of those entries in there are probably

       accounting related entries and have not been marked to market.” Transcript Day

       1 at 57 (emphasis supplied). Pritchett’s testimony does not establish that the

       values used in the August 25, 2014 balance sheet were incorrect or improper

       and Timothy presented no other evidence suggesting that the August 25, 2014

       balance sheet was not accurate. We also find it curious that Timothy found the

       August 25, 2014 balance sheet sufficiently accurate to claim in a personal

       financial statement submitted to his bank that Carter Plumbing was an asset

       valued at $200,000, but that the same balance sheet is not accurate for purposes

       of valuing and dividing the marital estate.


[18]   Finally, we note that Pritchett, in explaining his appraisal, made much of the

       fact that Timothy would not sign a covenant not to compete. Pritchett

       therefore did not include any value for goodwill attributable to Pritchett

       himself. Pritchett’s appraisal was essentially a valuation of Carter Plumbing

       Court of Appeals of Indiana | Memorandum Decision 65A01-1510-DR-1603 | August 24, 2016   Page 9 of 13
       based on the April 14, 2014 balance sheet. The $1000 value Pritchett assigned

       to Carter Plumbing was the value if the business name was sold.


[19]   Here, the trial court based its valuation of Carter Plumbing on the ownership

       equity as reflected on the balance sheet as of August 25, 2014. The trial court

       did not have to accept Pritchett’s uninformed opinion that such figures had not

       been adjusted to market value or assign a value to Carter Plumbing consistent

       with its fair market value if sold. See Crider v. Crider, 15 N.E.3d 1042, 1061 (Ind.

       Ct. App. 2014) (holding that a trial court is vested with discretion in choosing a

       methodology to use and is not required to use fair market value), trans. denied.


[20]   As noted above, we will not second-guess the manner in which the trial court

       determined the value to assign to Carter Plumbing so long as there is evidence

       in the record or reasonable inferences that support the valuation. We find the

       trial court’s findings with respect to its valuation of Carter Plumbing are

       supported by the evidence and conclude that the trial court did not abuse its

       discretion in relying upon Carter Plumbing’s balance sheet in deciding to value

       Carter Plumbing at $200,000 for purposes of dividing the marital estate.


                                                   2. Hearsay


[21]   Timothy also argues that the trial court relied on impermissible hearsay

       evidence in valuing Carter Plumbing. Specifically, Timothy asserts that, over

       his objection, the trial court erroneously admitted and then considered the STA

       report that included his statement in 2013 that he believed Carter Plumbing had

       a value of $400,000.

       Court of Appeals of Indiana | Memorandum Decision 65A01-1510-DR-1603 | August 24, 2016   Page 10 of 13
[22]   In its findings of fact, the trial court summarized the evidence as it pertained to

       the STA report. Contrary to Timothy’s assertion, however, there is no

       indication in the trial court’s conclusions that the court “likely used this

       valuation as it narrowed the eventual valuation down to $200,000.” Appellant’s

       Brief at 16. Indeed, in its conclusions of law, the trial court referenced only

       Timothy’s post-filing assertion in his personal financial statement that Carter

       Plumbing was an asset valued at $200,000, which the court found to be “the

       most credible” value of Carter Plumbing. Appellant’s Appendix at 103. Thus,

       even if the trial court erroneously admitted the STA report into evidence and

       then considered it, any error would have been harmless as the evidence likely

       did not contribute to the court’s determination regarding the value of Carter

       Plumbing. See Techna-Fit, Inc. v. Fluid Transfer Products, Inc., 45 N.E.3d 399, 411

       (Ind. Ct. App. 2015) (noting that an error is harmless when the probable impact

       of the erroneously admitted evidence on the factfinder, in light of all the

       evidence presented, is sufficiently minor so as not to affect a party’s substantial

       rights).


                                               3. Cross-Appeal


[23]   Angela filed a cross-appeal in which she maintains that the trial court abused its

       discretion in not ordering Timothy to pay all of her claimed amount of attorney

       fees. Angela maintains that a majority of her attorney fees were incurred as a

       result of Timothy’s failure to comply with discovery requests.




       Court of Appeals of Indiana | Memorandum Decision 65A01-1510-DR-1603 | August 24, 2016   Page 11 of 13
[24]   We review a trial court’s decision to award or deny attorney fees in connection

       with a dissolution decree using an abuse of discretion standard. Troyer v. Troyer,

       987 N.E.2d 1130, 1142 (Ind. Ct. App. 2013), trans. denied. The trial court has

       broad discretion in assessing attorney fees, and we will reverse only if its

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

       before it or if it misapplies the law. Fackler v. Powell, 923 N.E.2d 973, 981 (Ind.

       Ct. App. 2010).


[25]   Pursuant to Ind. Code § 31-15-10-1, a trial court may order a party in a

       marriage dissolution proceeding to pay a reasonable amount of the attorney fees

       of the other party. “When making such an award, the 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 other factors

       that bear on the reasonableness of the award.” Hendricks v. Hendricks, 784

       N.E.2d 1024, 1028 (Ind. Ct. App. 2003). “‘When one party is in a superior

       position to pay fees over the other party, an award of attorney fees is proper.’”

       Hartley v. Hartley, 862 N.E.2d 274, 287 (quoting Ratliff v. Ratliff, 804 N.E.2d 237,

       249 (Ind. Ct. App. 2004)). Where the parties’ resources are relatively on par

       with each other, the only basis for an award of attorney fees are the improper

       actions of one party necessitating the incurrence of attorney fees by the other

       party. Hendricks, 784 N.E.2d at 1028 (stating that the misconduct that directly

       results in additional litigation expenses may be properly taken into account in

       trial court’s decision to award attorney fees).




       Court of Appeals of Indiana | Memorandum Decision 65A01-1510-DR-1603 | August 24, 2016   Page 12 of 13
[26]   Here, the trial court found that Timothy “habitually failed to comply” with

       Angela’s “reasonable and necessary” discovery requests even after being

       encouraged by the court and then admonished. Appellant’s Appendix at 97, 99.

       The trial court specifically noted Timothy’s most egregious violations and

       further noted that even after being ordered to comply, Timothy only reluctantly

       did so. Upon considering Angela’s request for attorney fees, the trial court

       determined that $3000 was a reasonable amount to order Timothy to pay given

       the difficulties created by his failure to comply with discovery requests.


[27]   Aside from Timothy’s actions concerning discovery matters, Angela asserts no

       other basis upon which to support an award of all of her attorney fees. Indeed,

       the trial court found that the marital estate should be divided equally and

       ordered Timothy make an equalization payment to Angela, thereby putting

       them relatively on par with each other. Having reviewed the record, we cannot

       say that the trial court abused its discretion in deciding not to award Angela all

       of her attorney fees.5


[28]   We affirm.


[29]   Bailey, J. and Bradford, J., concur.




       5
         In addition to arguing that she should have been awarded all of her attorney fees she incurred at the trial
       level, Angela seeks an award of appellate attorney fees. Angela, however, fails to cite any relevant authority
       or assert any basis upon which an award of appellate attorney fees may be warranted. She has therefore
       waived the issue for our consideration.

       Court of Appeals of Indiana | Memorandum Decision 65A01-1510-DR-1603 | August 24, 2016           Page 13 of 13
