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
                                                                   FILED
                                                                 Jul 25 2012, 8:24 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                            CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
                                                                             tax court




ATTORNEY FOR APPELLANT:                                     ATTORNEY FOR APPELLEE:

LEANNA WEISSMANN                                            KATHERINE A. HARMON
Lawrenceburg, Indiana                                       Mallor Grodner, LLP
                                                            Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

                                                    )
IN RE: THE MARRIAGE OF JOHN DAVIS,                  )
       Appellant-Respondent,                        )
                                                    )
               vs.                                  )      No. 15A05-1112-DR-649
                                                    )
PAMELA DAVIS,                                       )
                                                    )
       Appellee-Petitioner.                         )
                                                    )


                     APPEAL FROM THE DEARBORN CIRCUIT COURT
                         The Honorable James D. Humphrey, Judge
                             Cause No. 15C01-0907-DR-118



                                           July 25, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                        Case Summary

       John Davis (Husband) appeals the trial court’s distribution of property in the

dissolution of his marriage to Pamela Davis (Wife). We affirm.

                                            Issue

       The sole issue for our review is whether the trial court abused its discretion by

deviating from an equal distribution.

                              Facts and Procedural History

       Husband and Wife were married in 1977. They lived and worked in California for

several years before relocating to Sharonville, Ohio. They eventually purchased a farm in

Dearborn County to be closer to Wife’s elderly parents. Husband owns two corporations and

earns approximately $100,000 per year. The parties’ son is Husband’s sole employee.

Husband also purchases and renovates homes and businesses. Wife worked at United

Healthcare from 1998 to 2004, where she was Director of the National Appeals Service

Center. When her department was relocated, Wife chose not to accept a promotion and move

to Florida or Minnesota. Instead, she obtained a Master’s Degree and is currently an assistant

professor in the College of Health Professions at Northern Kentucky University where she

earns $57,000 per year.

       Before and during the course of the parties’ marriage, Wife’s father worked at Procter

and Gamble (P&G). Before the parties’ marriage, Wife’s father gifted his daughter 710

shares of P&G stock. During the course of the parties’ marriage, Wife’s father gifted Wife

stock on five occasions. He also gifted Husband shares of stock one time in 1999. Neither


                                              2
party made any deposits into nor withdrawals out of his or her P&G stock account. All of the

funds in the two accounts were from the stock and its dividend reinvestments and splits. In

2005, the parties placed their assets into trusts. The purpose of the trusts was to hold title to

the property for the grantor during his or her lifetime and to provide for the orderly transfer

of assets upon the grantor’s death. The P&G stocks were placed into each party’s trust and

were not commingled. At the time of the dissolution, Wife’s P&G shares were valued at

$300,000, and Husband’s shares were valued at $60,000.

       In July 2009, Wife filed a petition for dissolution. At the hearing on the petition, Wife

asked the trial court to set off the P&G stock to her because it was a gift from her father that

had not been commingled with joint property. Husband, however, pointed out that he had

increased the tax withholdings in his personal earnings so that the parties had enough funds

to cover the taxes on the stock.

       Wife also complained about several questionable financial transactions that occurred

both during the marriage and after she filed the dissolution petition. For example, in October

2007, Husband began transferring money in increments of less than $10,000 from one of his

businesses to the other. He transferred a total of $676,000. Certified Public Accountant

Jonathan Libbert testified that it was very unusual to transfer money from one corporation to

another in such a manner. Husband also used business funds to pay for $62,000 in personal

expenses over a two-year period. Also during the marriage, Husband alleges that he spent

$200,000 making improvements to a building that cost $90,000 in 2007 and was appraised

for $134,000 in 2009.


                                               3
       In August 2009, during the pendency of the dissolution, the trial court entered an order

restraining Husband from transferring, encumbering, concealing, selling, or otherwise

disposing of any joint property without the consent of both Wife and the court. Husband

nevertheless cashed in a Certificate of Deposit and took money out of a Schwab account to

purchase two properties, one for $51,570 and another for $135,000. Husband did not advise

wife or her counsel of these purchases.

       On November 14, 2011, the trial court issued an eleven-page order dissolving the

parties’ marriage and distributing the parties’ property. The order provides in relevant part as

follows:

       11.    The Court finds that an unequal division of property in favor of wife is
              appropriate under the facts and circumstances of this case. In
              considering the unequal division, the Court also considers the gifting of
              stock to the parties as individual and or joint gifts. In making this
              decision, the Court also considers unequal earning potential of the
              parties.

       12.    [Husband’s] place of business . . . was purchased April 16, 2007, for
              $90,000 and it appraised for $134,000 on December 15, 2009.
              [Husband] testified that he paid Steve Neal over $200,000 in 2007 and
              2008 to renovate the property.

       13.    [Husband] purchased . . . property . . . on June 11, 2010, for a purchase
              price of $135,000. [Husband] testified he purchased the property with
              marital assets in violation of the Provisional Order dated August 14,
              2009, and never supplemented his discovery answers, sought Court
              approval or notified Petitioner of this purchase until the (second) Final
              Hearing on May 9, 2011.

       14.    [Husband] purchased . . . property . . . on July 15, 2010, for a purchase
              price of $51,670. [Husband] testified that his unauthorized purchase of
              real estate with marital assets were investments in what he hoped would
              be income producing properties. The purchase was in violation of the
              August 14, 2009, Provisional Order and [Husband] did not supplement

                                               4
      his discovery answer, seek Court approval or notify [Wife] of the
      purchase until the (second) Final Hearing on May 9, 2011.

                            *      *       *      *       *

17.   The presumption of equal division is further rebutted by a showing that
      there is a disparity in the economic circumstances of the spouses at the
      time the property is to be distributed. The Court must also consider the
      disparity in the earnings and future earning abilities of the spouses. I.C.
      31-15-7-5.

18.   Petitioner changed careers in 2005 rather than take a job promotion that
      required relocation to Minnesota. Her new position, Assistant
      Professor of Nursing at Northern Kentucky University, does not
      compensate at the same rate. Respondent had been permitted to grow
      his businesses and acquire new properties which enabled him to
      increase his income. In fact, Wife gave up an opportunity to move and
      maintain her higher paying employment with United Health Care. . . .

                            *      *       *      *       *

20.   In determining Final Distribution, the Court considered the source and
      manner of the gifts of the Procter[o]r & Gamble shares to both parties,
      the Respondent’s disposition of funds during the marriage and after the
      Provisional Orders, Petitioner’s lower earning capacity and Petitioner’s
      interruption of her employment during the course of marriage.
      Simpson v. Simpson, 650 N.E.2d 333 (Ind. Ct. App. 1995).

                            *      *       *      *       *

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THE
COURT:

                            *      *       *      *       *

2.    The Court, after considering the factors set forth in I.C. 31-15-7-5
      concludes that [Wife] has rebutted the presumption of an equal
      division.

3.    The Court find, given all the circumstances, including the source and
      timing of these gifts and unequal earning capacity of the parties, that
      each party shall retain the shares of Procter & Gamble Stock in their

                                       5
              respective names.

       4.     The assets of the marriage shall be divided pursuant to the finding of
              the Court attached and marked as Exhibit “A” and the parties are
              required to sign any documents required to effectuate the transfer of
              any/all assets within 60 days of this Order.

Appellant’s App. at 28, 30-31. Exhibit A lists the total marital assets as $3,453,576.40 and

distributes $1,794,931.85, or 55% of the assets, to Wife and $1,495,959.039, or 45% of the

assets to Husband. Husband appeals.

                                  Discussion and Decision

       Husband’s sole argument is that the trial court erred in distributing the parties’

property. Specifically, he complains that the trial court “abused its discretion in depriving

him of his fair share of the marital assets.” Appellant’s Br. p. 8.

       The disposition of marital assets is within the trial court’s sound discretion. Eye v.

Eye, 849 N.E.2d 698, 701 (Ind. Ct. App. 2006). We review a claim that a trial court

improperly divided marital property for an abuse of discretion. Id. In doing so, we consider

the evidence most favorable to the trial court’s disposition of the property, without

reweighing the evidence or assessing the credibility of the witnesses. Id.        Although a

different conclusion might be reached in light of the facts and circumstances, we will not

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

       The trial court must divide marital property in a just and reasonable manner, including

property owned by either spouse prior to the marriage, acquired by either spouse after the

                                              6
marriage and prior to final separation of the parties, or acquired by their joint efforts. Ind.

Code § 31-15-7-4. An equal distribution of marital property is assumed to be just and

reasonable. Ind. Code § 31-15-7-5. However, this presumption may be rebutted by a party

who presents relevant evidence, including evidence of the following factors:

          (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.


Ind. Code § 31-15-7-5.

       Here, the trial court explicitly took into consideration the source and manner of the

P&G stock gifts. The trial court also considered the disparity in the parties’ incomes and

earning potential. Additionally, the trial court found that Wife gave up her opportunity to

move and maintain her higher paying position with United Health Care. Lastly, the trial

court found that Husband spent $290,000 on a building in 2007 and 2008 that was appraised

for $134,000 in 2009 and that he purchased two parcels of property in violation of a

                                              7
discovery order during the pendency of the dissolution. These were all factors properly

considered by the trial court in making its division of property. This evidence supports an

unequal distribution of the parties’ property, and the trial court did not abuse its discretion in

awarding Wife 55% of the marital estate and Husband 45% of the marital estate. See Macher

v. Macher, 746 N.E.2d 120, 126 (Ind. Ct. App. 2001) (concluding that trial court did not

abuse its discretion in awarding wife 60% of the marital estate and husband 40% of the

marital estate where trial court considered only one of the statutory factors).

                                          Conclusion

       The trial court did not err in distributing the parties’ property.

       Affirmed.

ROBB, C.J., and MATHIAS, J., concur.




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