                                                                       FILED
                                                                  Dec 14 2016, 7:44 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Michael H. Michmerhuizen                                  Nicholas J. Hursh
      Barrett McNagny LLP                                       Edward E. Beck
      Fort Wayne, Indiana                                       Shambaugh, Kast, Beck &
                                                                Williams, LLP
      Cornelius (Neil) B. Hayes
                                                                Fort Wayne, Indiana
      Hayes & Hayes
      Fort Wayne, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Marriage of:                         December 14, 2016

      Mark A. Del Priore,                                       Court of Appeals Case No.
                                                                02A03-1603-DR-605
      Appellant-Respondent,
                                                                Appeal from the
              v.                                                Allen Superior Court
                                                                The Honorable
      Jill E. Del Priore,                                       Charles F. Pratt, Judge
                                                                The Honorable
      Appellee-Petitioner.                                      Lori Morgan, Judge Pro Tempore
                                                                The Honorable
                                                                Sherry A. Hartzler, Magistrate
                                                                Trial Court Cause No.
                                                                02D07-1307-DR-976



      Kirsch, Judge.


[1]   Mark A. Del Priore (“Husband”) appeals the trial court’s decree of dissolution

      (“the Decree”) of his marriage to Jill E. Del Priore (“Wife”) and its distribution

      Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016           Page 1 of 26
      of the marital estate. Husband raises several issues on appeal, which we restate

      as:


              I. Whether the trial court abused its discretion in its valuation of
              the TD Ameritrade account because the trial court’s findings
              were not supported by the evidence;


              II. Whether the trial court abused its discretion in not excluding
              certain payments from the marital estate that were made by
              Husband for the benefit of the parties and their children;


              III. Whether the trial court abused its discretion in ordering the
              payment of graduate school expenses;


              IV. Whether the trial court abused its discretion in ordering
              Husband to pay 65% of the educational expenses of the children;


              V. Whether the trial court abused its discretion in its valuation of
              an investment when the evidence did not support the valuation;


              VI. Whether the trial court abused its discretion in making its
              property distribution because it failed to consider the tax
              consequences of the property division;


              VII. Whether the trial court abused its discretion when it
              awarded Wife 55% of the marital estate; and


              VIII. Whether the trial court abused its discretion when it
              ordered Husband to pay a portion of Wife’s attorney fees.


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



      Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 2 of 26
                                  Facts and Procedural History
[3]   Husband and Wife were married on June 18, 1988, and three children were

      born of the marriage, Austin, Tyler, and Alyssa. At the time of the final

      hearing in this case, Austin was twenty-two years old, Tyler was twenty years

      old, and Alyssa was eighteen years old.


[4]   Husband graduated with a bachelor’s degree from Indiana University-

      Bloomington and then attended the University of Iowa, where he received his

      MBA. Wife also graduated with a bachelor’s degree from Indiana University-

      Bloomington; she then attended Indiana Purdue University Fort Wayne

      (“IPFW”) for her master’s degree. After the parties got married, Wife moved to

      Iowa and worked full-time as a teacher while Husband finished his MBA.

      When Husband completed his MBA, the parties returned to Fort Wayne,

      Indiana. Wife worked in a teaching position with Fort Wayne Community

      Schools, and about six months after moving to Fort Wayne, Husband became

      employed with Lincoln Life Insurance Company.


[5]   In 1994, the parties’ second child was born, and Wife stayed home full-time for

      approximately ten years. Husband later began employment with Insurance and

      Risk Management and eventually became a part owner. Wife went back to

      teaching part-time and, in approximately 2006, returned to working full-time as

      a teacher. At the time of the final hearing, Wife was employed as a special

      education teacher at Carroll Middle School, and her income, according to the

      Child Support Obligation Worksheet, was $1,090 per week.


      Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 3 of 26
[6]   In 2002 or 2003, Insurance and Risk Management was sold to Old National

      Bank (“ONB”), and Husband received approximately one million dollars in

      exchange for his partnership interest. After the sale of the business, Husband

      became employed by ONB, where he is involved in insurance sales. Husband’s

      income fluctuates from year to year based upon his performance, and at the

      time of the final hearing, his income for child support purposes was $2,053 per

      week. Husband earned significantly more in income than Wife during the

      marriage, with his pay generally being more than twice what Wife made. In

      2003 or 2004, Husband opened a TD Ameritrade account (“TD account”),

      which included a stock account and money market accounts. During the

      marriage, Husband secured and was the beneficiary of a life insurance policy

      insuring one of his partners, which resulted in $500,000 in insurance benefits

      being deposited into the parties’ TD account.


[7]   At the beginning of the marriage, Wife took care of the finances for a short

      period of time, but Husband later began taking care of the parties’ finances and

      continued for the length of the marriage. Wife had her paycheck direct

      deposited into the parties’ joint checking account and continued to do so until

      October 2014. At that time, Wife withdrew $15,000 and opened a new

      account. Husband continued to deposit his paycheck into the joint account

      after this withdrawal by Wife.


[8]   Wife filed a petition for dissolution of marriage on July 16, 2013. The trial

      court entered an order enjoining the parties from transferring, encumbering,

      concealing, selling, or otherwise disposing of any joint property of the parties or

      Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 4 of 26
       asset of the marriage except in the usual course of business or for the necessities

       of life, without the written agreement of both parties or the permission of the

       trial court. Appellant’s App. at 3.


[9]    No funds were disbursed from the TD account in 2013. During 2014, Husband

       withdrew funds totaling $470,000 from the TD account and placed the funds in

       the parties’ joint checking account. Prior to discovery in the dissolution action,

       Wife was not aware of these withdrawals. Husband paid many extraordinary

       expenses with the funds withdrawn from the TC account, including paying

       taxes for 2013 and 2014, college payments for the children, and credit card bills.

       However, approximately $93,344 of the funds withdrawn from the TD account

       was not accounted for, although Husband claimed that the entire $470,000 was

       exhausted by marital expenses. Before the final hearing, Husband and Wife

       agreed to divide the remaining funds in the money market portion of the TD

       account. Husband received $621,000, and Wife received $601,000.


[10]   Husband was the sole investor for the parties during their marriage and did not

       routinely discuss investments with Wife. One of Husband’s investments was in

       a startup orthopedic company, Biopoly. After discussing it with Wife, Husband

       invested $50,000 in Biopoly. Prior to the Decree, the parties equally split the

       units in Biopoly. Sometime in 2011, Husband loaned $292,000 of the parties’

       joint funds to RAINS Investments, LLC (“RAINS”) without discussing with

       Wife. RAINS is a record label that has one musical artist. Husband owns fifty

       units of RAINS and is a 50% owner. Although Husband referred to the loan as

       a unit acquisition, it was listed as a loan for tax purposes by the IRS, and

       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 5 of 26
       RAINS, itself, showed that the $292,000 was a shareholder loan payable to

       Husband. At the time of the final hearing, RAINS had not paid back the loan.

       Husband estimated the value of RAINS to be approximately $40,000 based on

       anticipated royalty income for the twelve months following the final hearing.

       Tr. at 147. At the final hearing, Husband offered to give Wife the units in

       RAINS for a credit of $40,000 or to split the units fifty-fifty.


[11]   At the time of the final hearing, the parties’ oldest child, Austin, had graduated

       from Butler University (“Butler”), their middle child, Tyler, was attending

       IPFW, and their youngest child, Alyssa, had graduated from high school and

       planned to attend Butler. Husband testified that if the parties had remained

       married, they would have agreed to pay Alyssa’s tuition in an equivalent

       amount to that of an in-state public school. Id. at 166. The parties had paid for

       Austin’s college expenses at Butler, less scholarships received, which made the

       cost of Butler close to what it would cost to attend Indiana University. Alyssa

       was admitted to the physician’s assistant program at Butler, which is an auto

       advance program that takes six years to complete and results in a bachelor’s and

       a graduate degree. Her college expenses to attend Butler were expected to be

       approximately $52,616 per year, less grants in the amount of $13,400, for a net

       cost of $39,216 per year. Pet’r’s Ex. 2.


[12]   At the final hearing, Wife testified that she believed a 55/45 division of the

       marital estate was fair and equitable because, historically, Husband had a

       higher earning potential throughout the marriage. Tr. at 65-66. Husband

       earned $173,323 in 2011 and $148,656 in 2012. In 2014, Husband earned

       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 6 of 26
       $97,111, and Wife earned $50,937 according to their tax return. On November

       30, 2015, the trial court issued the Decree, dividing the marital estate 55/45 in

       favor of Wife. Husband filed a motion to correct error, which was denied by

       the trial court, with the exception of a typographical error. Husband now

       appeals.


                                       Discussion and Decision
[13]   Husband challenges the trial court’s division of the marital property.

       Technically, however, he appeals from the denial of his motion to correct error.

       This court reviews a trial court’s ruling on a motion to correct error under an

       abuse of discretion standard. Wortkoetter v. Wortkoetter, 971 N.E.2d 685, 687

       (Ind. Ct. App. 2012). An abuse of discretion occurs when the decision is clearly

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

       including any reasonable inferences therefrom. Id.


[14]   The motion to correct error addressed the trial court’s division of marital

       property, which is a matter committed to the sound discretion of the trial court.

       Wanner v. Hutchcroft, 888 N.E.2d 260, 263 (Ind. Ct. App. 2008). A party

       challenging the trial court’s division of marital property must overcome a strong

       presumption that the court considered and complied with the applicable statute.

       Id. Even if the facts and reasonable inferences permit a conclusion different

       from that reached by the trial court, we will not substitute our judgment for that

       of the trial court unless its decision is clearly against the logic and effect of the

       facts and circumstances before it. Perkins v. Harding, 836 N.E.2d 295, 299 (Ind.


       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 7 of 26
       Ct. App. 2005). We consider only the evidence favorable to the judgment and

       we do not reweigh the evidence or reassess witness credibility. Id. In addition,

       we will not set aside the findings or judgment unless clearly erroneous. Elkins v.

       Elkins, 763 N.E.2d 482, 484 (Ind. Ct. App. 2002).


                                I. Valuation of the TD Account
[15]   Husband argues that the trial court abused its discretion in its valuation of the

       TD account when it failed to include $93,344 in the account’s valuation. The

       trial court has broad discretion in ascertaining the value of property in a

       dissolution action, and its valuation will only be disturbed for an abuse of that

       discretion. Trabucco v. Trabucco, 944 N.E.2d 544, 557-58 (Ind. Ct. App. 2011),

       trans. denied. An abuse of discretion occurs where the trial court’s decision is

       clearly against the logic and effect of the facts and circumstances before it. Id.

       at 558 (citing Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996)). A trial court

       does not abuse its discretion if its decision is supported by sufficient evidence or

       reasonable inferences therefrom. Id. When reviewing a trial court’s valuation

       decision, we will not reweigh evidence, but will consider the evidence in a light

       most favorable to the judgment. Id.


[16]   Husband contends that it was an abuse of discretion for the trial court to find

       that he failed to account for $93,344 of funds from the TD account and to not

       include that amount in its valuation of the TD account. He asserts that

       Respondent’s Exhibit E (“Exhibit E”) demonstrated expenses in the amount of

       approximately $92,451 against the unaccounted for expenses of $93,344 and


       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 8 of 26
       that the trial court erred when it found that Exhibit E did not properly account

       for the $93,344. Husband further claims that Wife’s Petitioner’s Exhibit 4 did

       not support the trial court’s findings, and the trial court’s reliance on it was an

       abuse of discretion.


[17]   The trial court made the following findings in the Decree:


               38. Commencing in 2014, [Husband], without [Wife’s]
               knowledge or consent, withdrew substantial amounts from the
               TD [account]. From January 16, 2014 to November 24, 2014,
               [Husband] withdrew $470,000 from the account. [Pet’r’s Ex. 3].
               These funds were used in part for payment of what could be
               considered extraordinary expenses of the marriage including
               income taxes, home repair, college expenses, and family credit
               cards. The total of these extraordinary expenses account for
               $376,656 of the funds withdrawn, leaving $93,344 of said
               distributions unaccounted for.


               39. [Husband] has offered Respondent’s Exhibit E to account for
               the above distributions. However, the Exhibit shows payments
               made in 2013, prior to the withdrawals in 2014, or show
               payments made which were not extraordinary in that they should
               have been paid out of, and historically had been paid out of, the
               parties’ income, for example, mortgage payments and payments
               on Jill’s car loan.


       Appellant’s App. at 18.


[18]   As the trial court found, the evidence presented showed that Husband,

       unbeknownst to Wife, withdrew funds totaling $470,000 from the TD account

       during the time period of January 16, 2014 to November 24, 2014. Pet’r’s Ex. 3.

       Although the majority of those funds were accounted for through the payment
       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 9 of 26
during the relevant period of time of expenses, evidence was presented that

funds in the amount of $93,344 were not accounted for in these extraordinary

expenses. Pet’r’s Ex. 4. Husband’s Exhibit E purported to show expenses that

accounted for the $93,344; however, it only showed expenses totaling

approximately $92,451, and most of the expenses listed were made outside of

the relevant time period. Specifically, Husband listed expenses for furnace

replacement, a new roof, and a home automation upgrade for the primary

residence. Resp’t’s Ex. E. The evidence showed, however, that these expenses

were all paid in 2013, prior to the first withdrawal from the TD account in

January 2014. Tr. at 207-08, 210; Resp’t’s Ex. A, Item 3.1. Additionally, the

other expenses listed in Exhibit E were for mortgage payments for the primary

residence and payments of Wife’s car loan. Many of these expenses occurred

outside of the relevant time period, either prior to January 16, 2014 or after

November 24, 2014, and were expenses historically paid out of the parties’ joint

account and not extraordinary expenses in that they should have been paid out

of the TD account.1 Viewing the evidence in a light most favorable to the

judgment, we conclude that the trial court did not abuse its discretion when it

refused to give Husband credit for the $93,344 in expenses that the court found

to be unaccounted for. The trial court’s decision was supported by sufficient




1
 The evidence presented showed that no withdrawals were taken out of the TD account in 2013, and all
mortgage and car loan payments were able to be paid out of the parties’ joint account. Pet’r’s Ex. 12.

Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016                   Page 10 of 26
       evidence, and Husband’s argument is merely a request that we reweigh the

       evidence. Trabucco, 944 N.E.2d at 558.


                                      II. Payments by Husband
[19]   Husband contends that the trial court abused its discretion when it failed to give

       him a credit for payments he made benefitting the family during the pendency

       of the dissolution proceedings. The division of marital assets lies within the

       sound discretion of the trial court, and we will reverse only for an abuse of that

       discretion. Troyer v. Troyer, 987 N.E.2d 1130, 1139 (Ind. Ct. App. 2013), trans.

       denied. We may not reweigh the evidence or assess the credibility of the

       witnesses, and we will consider only the evidence most favorable to the trial

       court’s disposition of the marital property. Id. Although the facts and

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

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


[20]   Husband argues that it was an abuse of discretion for the trial court to not give

       him a credit against his equalization payments to Wife for certain payments he

       made while the dissolution proceedings were pending and after the parties split

       their joint account, totaling $48,719. He asserts that the payments were made

       for household expenses and that the trial court erred in finding that these

       payments were gratuitous. Specifically, he contends that many of the payments

       were for the primary residence and for the children’s educational expenses, and

       he should receive a credit for such payments.




       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 11 of 26
[21]   The trial court made the following findings pertinent to Husband’s request for a

       credit for payments he made after the parties’ joint account was split:


               60. [Husband] seeks a credit for payments made by him after the
               parties divided their bank account on October 1, 2014. The total
               amount of payments made by [Husband] is in the amount of
               $48,719 for which he seeks a credit against his equalization
               payment in the amount of $24,360. [Resp’t’s Ex. A, Item 2.1].


               61. No Provisional Order has been entered in this case
               identifying the obligations of the respective parties for the
               payment of the ongoing marital obligations. Further, a review of
               [Husband’s] Exhibit shows that many of the expenses for which
               he seeks a credit were for child-related expenses for Austin and
               Tyler, both of whom are emancipated for purposes of support.
               [Husband’s] request for a credit for the payments outlined on
               [sic] his Exhibit is denied in that, in the absence of a Provisional
               Order, such payments are considered to have been voluntarily
               given.


       Appellant’s App. at 21-22.


[22]   A provisional order is designed to maintain the status quo of the parties during

       the dissolution proceedings. Mosley v. Mosley, 906 N.E.2d 928, 929 (Ind. Ct.

       App. 2009). It is an interim order that terminates when the final dissolution

       decree is entered. Id. at 930 (citing I.C. § 31-15-4-14). “Any disparity or

       inequity in a provisional order—can and should—be adjusted in the trial court’s

       final order.” Id.


[23]   As the trial court found, no provisional order was entered in the present case to

       assign the payment of certain marital expenses while the dissolution

       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 12 of 26
       proceedings were pending.2 Therefore, there was no order put in place to

       maintain the status quo of the parties during the dissolution proceedings. The

       majority of the expenses for which Husband requested a credit were on behalf

       of Austin and Tyler, who were both over the age of nineteen and emancipated

       at the time. The duty to support a child ceases when the child becomes

       nineteen. Ind. Code § 31-16-6-6(a). Therefore, any payments on behalf of the

       emancipated children were gratuitous, and no credit was required. The rest of

       the expenses for which Husband requested a credit were either education-

       related or medical-related expenses for the children, expenses for the primary

       residence, or expenses for a storage unit owned by the parties. Here, no

       provisional order was entered, and Husband likely, as the party with higher

       earning ability, would have been ordered to pay many of these household

       expenses provisionally during the dissolution proceedings. In light of the trial

       court’s broad discretion in the division of the marital estate, we conclude that

       the trial court did not abuse its discretion in not granting Husband a credit

       against his equalization payment.


                                   III. Graduate School Expenses
[24]   Husband claims that the trial court abused its discretion when it ordered the

       parties to pay for educational expenses beyond a bachelor’s degree for Alyssa.




       2
         Although no provisional order was issued in this case, the trial court did issue an order enjoining the parties
       from transferring, encumbering, concealing, selling, or otherwise disposing of any joint property of the parties
       or asset of the marriage except in the usual course of business or for the necessities of life, without the written
       agreement of both parties or the permission of the trial court. Appellant’s App. at 3.

       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016                         Page 13 of 26
       We review a trial court’s decision regarding the payment of post-secondary

       educational expenses for an abuse of discretion. Hirsch v. Oliver, 970 N.E.2d

       651, 662 (Ind. 2012); Snow v. Rincker, 823 N.E.2d 1234, 1237 (Ind. Ct. App.

       2005), trans. denied. An abuse of discretion occurs if the trial court’s decision is

       against the logic and effect of the facts and circumstances before the court, or

       the reasonable inferences drawn therefrom. Hirsch, 970 N.E.2d at 662.


[25]   Husband contends that the trial court abused its discretion in ordering the

       parties to be responsible for Alyssa’s graduate school expenses. He asserts that

       the Indiana Supreme Court recently held that the term “postsecondary” in

       Indiana Code section 31-16-6-2 does not include graduate school and that

       Alyssa’s chosen degree program includes a graduate degree, for which the

       parties should not be responsible to pay the expenses. Therefore, Husband

       maintains that it was an abuse of discretion for the trial court to order any

       payment beyond a bachelor’s degree. We agree.


[26]   Indiana Code section 31-16-6-2 provides that the child support order or

       educational support order may include, where appropriate:

               (1) amounts for the child’s education in elementary and
               secondary schools and at postsecondary educational institutions,
               taking into account:


               (A) the child’s aptitude and ability;


               (B) the child’s reasonable ability to contribute to educational
               expenses through:


       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 14 of 26
               (i) work;


               (ii) obtaining loans; and


               (iii) obtaining other sources of financial aid reasonably available
               to the child and each parent; and


               (C) the ability of each parent to meet these expenses.


       Ind. Code § 31-16-6-2(a)(1). Therefore, under section 31-16-6-2, a trial court

       can order parties to pay for educational expenses for postsecondary education.

       In Allen v. Allen, 54 N.E.3d 344 (Ind. 2016), our Supreme Court recently defined

       the word “postsecondary” as it is used in Indiana Code section 31-16-6-2 and

       held that the term “does not include graduate and professional school

       expenses.” Id. at 349. The Supreme Court went on to state that, although it

       was holding that the statutory language excludes professional and graduate

       programs, it was not “our intent to limit the trial court’s ability to order

       divorced parents to pay for education that is less than a baccalaureate degree.”

       Id. at 348 n.1. The Court’s opinion was only meant to limit “payment of

       educational expenses beyond a baccalaureate degree.” Id.


[27]   In the present case, the trial court ordered the parties “to pay the costs of

       Alyssa’s post-high school education expenses at Butler . . . for her to obtain a

       six (6) year degree as a physician’s assistant.” Appellant’s App. at 23. The

       evidence showed that Alyssa had been admitted to the physician’s assistant

       program at Butler, which is an auto advance program that takes six years to


       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 15 of 26
       complete and will result in a bachelor’s and a graduate degree. Tr. at 43.

       Pursuant to our Supreme Court’s decision in Allen, we find that the trial court

       abused its discretion in ordering the parties to be responsible for paying for

       Alyssa’s education expenses beyond a bachelor’s degree. We, therefore, reverse

       this portion of the Decree and remand to the trial court to amend the Decree to

       reflect that the parties are ordered to pay only for the portion of Alyssa’s

       educational expenses that pertain to her obtaining a bachelor’s degree.


                           IV. Division of Educational Expenses
[28]   Husband argues that the trial court abused its discretion when it ordered him to

       pay 65% of the educational expenses for the children. An appellate court

       reviews a trial court’s decision to order the payment of post-secondary

       educational expenses for an abuse of discretion. Hirsch, 970 N.E.2d at 662

       (citing Carr v. Carr, 600 N.E.2d 943, 945 (Ind. 1992)). Accordingly, we will

       affirm the trial court unless its decision is against the logic and effect of the facts

       and circumstances before the trial court. Id.


[29]   Husband contends that the trial court’s apportionment of college expenses was

       an abuse of discretion. He claims that the trial court’s order was in error

       because it was based on his former earning ability despite his assertion that his

       earnings are declining and because the trial court had already used his past

       earning ability to justify a deviation from the presumptive equal division of the

       marital estate. Husband next alleges that the trial court failed to consider the

       testimony by the parties that they had already saved for the children’s education


       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 16 of 26
       through investments contained in the marital estate and that his portion of the

       marital estate was inflated with little liquid assets and a requirement to pay a

       large cash equalization to Wife.


[30]   In the present case, the evidence showed that there was a disparity in incomes

       between Husband and Wife. The evidence presented supported this inequality

       in the earning abilities of the parties because it showed that Husband’s income

       was at least twice what Wife earned and that Husband’s income fluctuated

       depending on performance while Wife’s was dependent on her contract with

       the school corporation. We, therefore, conclude that the trial court did not

       abuse its discretion in ordering that Husband should be responsible for 65% and

       Wife for 35% of the children’s education expenses.


                             V. Valuation of RAINS Investment
[31]   Husband contends that the trial court abused its discretion in its valuation of the

       investment in RAINS. He asserts that the purchase of the RAINS units was an

       investment, which was not worth anything at the time of the final hearing.

       Husband alleges that there was no support for the trial court’s valuation of the

       RAINS units “in an amount equal to a ‘loan’ on the books for tax purposes.”

       Appellant’s Br. at 34 (citing Shriner v. Sheehan, 773 N.E.2d 833, 843 (Ind. Ct.

       App. 2002), trans. denied). He claims that no one testified that the units were

       worth the value of the booked loan, and therefore, the value used by the trial

       court was outside the range supported by the evidence. Husband thus

       maintains that the trial court abused its discretion in considering the units as a


       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 17 of 26
       loan, by valuing the units at full loan value, and for even including the units in

       the marital estate.


[32]   A trial court’s decision in ascertaining the value of property in a dissolution

       action is reviewed for an abuse of discretion. Crider v. Crider, 15 N.E.3d 1042,

       1056 (Ind. Ct. App. 2014) (citing Balicki v. Balicki, 837 N.E.2d 532, 536 (Ind. Ct.

       App. 2005), trans. denied), trans. denied. Generally, there is no abuse of

       discretion if a trial court’s chosen valuation is within the range of values

       supported by the evidence. Id. “‘A valuation submitted by one of the parties is

       competent evidence of the value of property in a dissolution action and may

       alone support the trial court’s determination in that regard.’” Alexander v.

       Alexander, 927 N.E.2d 926, 935 (Ind. Ct. App. 2010) (quoting Houchens v.

       Boschert, 758 N.E.2d 585, 590 (Ind. Ct. App. 2001), trans. denied), trans. denied.

       When we review a trial court’s valuation of property in a dissolution, we will

       neither reweigh the evidence nor judge the credibility of witnesses. Crider, 15

       N.E.3d at 1056.


[33]   The trial court in the present case found that the investment in RAINS was a

       shareholder loan repayable to Husband and set it off entirely to Husband in the

       amount of $292,196. Appellant’s App. at 19. The evidence presented at the final

       hearing showed that Husband made an investment in RAINS in 2011 in the

       amount of $292,196 using marital funds without prior discussion with Wife;

       this investment made him a 50% owner of RAINS. This investment was listed

       in RAINS’s books as a shareholder loan payable to Husband, and it was

       classified as a loan by the IRS for tax purposes. Tr. at 184-85. At the time of

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       the final hearing, RAINS had not repaid the loan and still owed the full amount

       of $292,196 payable to Husband. Id. at 197. The RAINS units did not provide

       any distributions during the marriage. Id. at 186-88, 194, 197. The evidence

       supported the trial court’s determination that the amount loaned to RAINS

       represented a loan owing to Husband and should be valued in the amount of

       the unpaid loan, $292,196. Husband’s arguments are a request for us to

       reweigh the evidence and judge witness credibility, which we cannot do. Crider,

       15 N.E.3d at 1056. The trial court did not abuse its discretion in its valuation.


                      VI. Tax Consequences of Property Division
[34]   Husband claims that the trial court abused its discretion when it failed to

       properly consider the tax consequences of the property division. He contends

       that the trial court erred when it awarded the mutual fund portion of the TD

       account to him and ordered him to make an equalization payment to Wife of a

       certain amount in cash, instead of dividing the units of the mutual funds among

       the parties. Husband asserts that the trial court should have realized that, in

       order to make the equalization payment, he would be required to liquidate a

       portion of the mutual funds and incur negative capital gains taxes. He argues

       that, because the trial court was statutorily required to consider the tax

       consequences of the property disposition, the trial court abused its discretion in

       not doing so.


[35]   Pursuant to Indiana Code section 31-15-7-7, the trial court, “in determining

       what is just and reasonable in dividing property under this chapter, shall

       consider the tax consequences of the property disposition with respect to the
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       present and future economic circumstances of each party.” This statute,

       however, requires the trial court to consider only the direct or inherent and

       necessarily incurred tax consequences of the property disposition. Knotts v.

       Knotts, 693 N.E.2d 962, 968 (Ind. Ct. App. 1998), trans. denied. “Future tax

       consequences incident to the disposition of stock awarded one party are not a

       proper considerations [sic] before the trial court.” Id. (citing DeHaan v. DeHaan,

       572 N.E.2d 1315, 1327 (Ind. Ct. App. 1991), trans. denied).


[36]   Here, Husband did not offer any evidence as to what the actual or potential tax

       consequences would be if he sold a portion of the mutual funds. Additionally,

       given that it is not definite whether Husband will have to sell a portion of the

       mutual funds, or how much he may have to sell, the trial court was not required

       to consider possible future tax consequences incident to any possible sale. We,

       therefore, conclude that the trial court did not abuse its discretion.


                               VII. Division of Marital Property
[37]   We will reverse a property distribution only if there is no rational basis for the

       award—that is, if the result reached is clearly against the logic and effect of the

       facts and circumstances before the court, including the reasonable inferences to

       be drawn therefrom. Luttrell v. Luttrell, 994 N.E.2d 298, 301 (Ind. Ct. App.

       2013), trans. denied. We do not reweigh the evidence, and we consider only the

       evidence favorable to the dissolution court’s decision. Id. We will also reverse

       where the trial court has misinterpreted the law or has disregarded evidence of

       statutory factors. Id.


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[38]   Husband argues that the trial court abused its discretion when it deviated from

       an equal division of the marital assets. He contends that the trial court failed to

       consider all of the statutory factors necessary to rebut the presumption of an

       equal division of property and that the evidence presented supported an equal

       division. Husband specifically asserts that it was an abuse of discretion to

       award Wife 55% of the marital estate based on his former earning ability

       because he claims that he no longer has superior earning ability.


[39]   The disposition of marital property is governed by Indiana Code section 31-15-

       7-4 and 31-15-7-5. There is a presumption of an equal division of property, but

       that presumption may be rebutted. Ind. Code § 31-15-7-5. This can include

       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.


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


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


               (A) a final division of property; and


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


       Id. In dividing marital property, the trial court must consider all of these

       factors, but it is not required to explicitly address each one in every case.

       Montgomery v. Faust, 910 N.E.2d 234, 239 (Ind. Ct. App. 2009). To the

       contrary, we presume that the trial court considered each factor. Id. This is one

       of the strongest presumptions applicable to our consideration on appeal and

       must be overcome by a party challenging the trial court’s division of property.

       Eye v. Eye, 849 N.E.2d 698, 701 (Ind. Ct. App. 2006).


[40]   In the present case, the trial court found that, when the parties were first

       married, Wife worked full-time as a teacher while Husband finished his MBA

       and continued to do so for the six months after his graduation when he secured

       employment. Appellant’s App. at 13. Wife was employed full-time until the

       birth of the parties’ second child, when she stayed home as a full-time mother

       and homemaker for about ten years. Id. Although Wife later went back to

       work as a teacher, first part-time and then full-time, her income has always been

       less then Husband’s by at least half. Id. at 13-14. At the time of the final

       hearing, Wife’s income was $1,090 per week, and Husband’s income was


       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 22 of 26
       $2,053 per week. Id. at 13. The trial court also found that Husband’s income in

       insurance sales fluctuates from year to year based on his performance, while

       Wife’s income as a teacher is subject to a contract with her school system. Id.

       at 13, 22. Therefore, although Husband’s income had decreased in the recent

       years prior to the final hearing, it was still over twice the amount of Wife’s

       income, and Husband has the ability to increase according to his performance.

       Id. at 14.


[41]   The trial court also made findings that Husband withdrew a significant amount

       of funds from the TD account without Wife’s knowledge or consent, totaling

       $470,000, of which over $93,000 could not be accounted for, to pay

       extraordinary expenses of the marriage. Id. at 18. Husband offered Exhibit E

       to account for this amount, but the trial court found that many of the payments

       shown in the exhibit were made prior to the funds being withdrawn and other

       payments were not for extraordinary expenses. Id. Therefore, the trial court

       found that Husband had failed to account for a portion of the withdrawals from

       the TD account in the amount of $93,344. Id. Additionally, the trial court

       found that Husband made an investment in RAINS in the amount of $292,196

       without prior discussion with Wife that was classified as a shareholder loan of

       which none had been repaid and which did not provide any distributions during

       the marriage. Id. at 19.


[42]   After making these findings, the trial court concluded that the presumption of

       an equal division had been rebutted and granted Wife 55% and Husband 45%

       of the marital estate. Id. at 22. The trial court properly considered the factors

       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 23 of 26
       and evidence showing that an unequal division would be just and reasonable.

       We conclude that Husband has failed to overcome our presumption that the

       trial court considered the proper factors and evidence. The trial court did not

       abuse its discretion in awarding Wife 55% of the marital estate.


                                          VIII. Attorney Fees
[43]   Husband contends that the trial court abused its discretion in ordering him to

       pay 65% of Wife’s attorney fees. Pursuant to Indiana Code section 31-15-10-1,

       a trial court may order a party in a dissolution proceeding to pay a reasonable

       amount of the other party’s attorney fees, after considering the parties’

       resources, their economic condition, their ability to engage in gainful

       employment and earn income, and other factors bearing on the reasonableness

       of the award. Ahls v. Ahls, 52 N.E.2d 797, 803 (Ind. Ct. App. 2016) (citing

       Troyer, 987 N.E.2d at 1142-43). The trial court has broad discretion in

       awarding attorney fees. Barton v. Barton, 47 N.E.3d 368, 377 (Ind. Ct. App.

       2015) (citing Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind. Ct. App. 2012), trans.

       denied), trans. denied. We will only reverse where the trial court’s award is

       clearly against the logic and effect of the facts and circumstances before the

       court. Id. “Further, ‘the trial court need not give its reasons for its decision to

       award attorney’s fees.’” Bessolo, 966 N.E.2d at 733 (quoting Thompson v.

       Thompson, 811 N.E.2d 888, 905 (Ind. Ct. App. 2004), trans. denied).


[44]   Husband argues that the trial court’s award of attorney fees to Wife was against

       the logic and effect of the circumstances before it. He specifically claims that


       Court of Appeals of Indiana | Opinion 02A03-1603-DR-605 | December 14, 2016   Page 24 of 26
       the purpose of awarding attorney fees in a dissolution is to make sure a party

       who could not otherwise afford an attorney is able to retain representation, see

       Ahls, 52 N.E.3d at 803, and that because Wife was able to retain counsel who

       could competently represent her, she should not have been awarded attorney

       fees. He further contends that Wife was awarded significant liquid assets in the

       Decree such that she could afford to pay her attorney fees. Husband also

       argues that the trial court should not have used his alleged superior financial

       position as support to justify an award of attorney fees to Wife.


[45]   Here, the trial court concluded that “[g]iven the disparity of earnings of the

       parties,” Husband should pay 65% of the total amount of attorney fees and

       costs of the parties and that Wife should be responsible for 35% of attorney fees

       and costs. Appellant’s App. at 28. Although the trial court was not required to

       cite to any reasons for its decision to award attorney fees, see Bessolo, 966

       N.E.2d at 733, the trial court based its award on the disparity in incomes

       between Husband and Wife. The evidence presented supported this inequality

       in the earning abilities of the parties because it showed that Husband’s income

       was at least twice what Wife earned and that Husband’s income fluctuated

       depending on performance while Wife’s was dependent on her contract with

       the school corporation. We, therefore, conclude that the trial court did not

       abuse its discretion in ordering that Husband should be responsible for 65% and

       Wife for 35% of the total attorney fees and costs.


[46]   Affirmed in part, reversed in part, and remanded.



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[47]   May, J., and Crone, J., concur.




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