Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                            FILED
regarded as precedent or cited before any                 Jun 06 2012, 8:41 am
court except for the purpose of
establishing the defense of res judicata,                        CLERK
                                                               of the supreme court,
collateral estoppel, or the law of the case.                   court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

JOE KEITH LEWIS                                 DOUGLAS D. MARTZ
Marion, Indiana                                 Marion, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA


TERI WOENKHAUS,                                 )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )     No. 34A02-1111-DR-1041
                                                )
DAVID WOENKHAUS,                                )
                                                )
       Appellee-Respondent.                     )



                    APPEAL FROM THE HOWARD SUPERIOR COURT
                        The Honorable George A. Hopkins, Judge
                            Cause No. 34D04-1010-DR-1254



                                       June 6, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       Teri Woenkhaus (Wife) appeals the trial court’s property division order in the

dissolution of her marriage to David Woenkhaus (Husband). Specifically, Wife argues

that the findings of fact and conclusions of law do not support the judgment because

although the trial court concluded that Wife rebutted the statutory presumption that an

equal division of marital property is just and reasonable, the trial court only awarded

Wife 50% of the marital property. Finding no error, we affirm and remand the case to the

trial court with instructions for the trial court to place the parties’ income tax refunds in

the marital pot and award them to Wife.

                                          FACTS

       Husband and Wife were married in July 1990. They have one child, a twenty-

year-old son. Wife filed a petition for dissolution in October 2010, and the trial court

held a hearing on the petition in August 2011. At the time of the hearing, Husband was a

truck driver for Wal-Mart and earned approximately $80,000 in 2010. Wife was the

office manager for a law firm and earned approximately $35,500 in 2010. The trial court

issued its dissolution and property distribution order in October 2011.

       In the order, Finding of Fact Number 15 provides that the parties filed joint federal

and state income tax returns for 2010. They received a $6,842 federal refund and a $368

state refund. The finding of fact also states that [Wife] exercised control over all of the

tax refunds. However, the trial court failed to include the tax refunds in the marital pot

and distribute them.



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       The trial court concluded that the net marital estate was $89,706.10 and that Wife

rebutted the statutory presumption that an equal division of the marital property is just

and reasonable. Nevertheless, the parties agree that the trial court equally divided the

marital estate. Wife appeals.

                              DISCUSSION AND DECISION

       Marital property includes both assets and liabilities. McCord v. McCord, 852

N.E.2d 35, 45 (Ind. Ct. App. 2006). The trial court’s authority to divide marital property

is governed by Indiana Code section 31-15-7-4, which provides that the trial court has the

authority to divide property that was 1) owned by either spouse before the marriage; 2)

acquired by either spouse in his or her own right after the marriage and before the final

separation of the parties; or 3) acquired by their joint efforts.

       The division of marital property is a two-step process. Thompson v. Thompson,

811 N.E.2d 888, 912 (Ind. Ct. App. 2004). First, the trial court determines what property

must be included in the marital estate, which includes “all the property acquired by the

joint efforts of the parties.” Id. Second, the trial court must divide the marital property.

Id. The statutory presumption is that an equal division of the marital property is just and

reasonable. Ind. Code § 31-15-7-5. However, the trial court may deviate from this

presumption. Chase v. Chase, 690 N.E.2d 753, 756 (Ind. Ct. App. 1998).

       We apply a strict standard of review to a trial court’s distribution of property upon

dissolution. Wilson v. Wilson, 732 N.E.2d 841, 844 (Ind. Ct. App. 2000). The division

of marital assets is a matter within the sound discretion of the trial court. Hyde v. Hyde,

                                               3
751 N.E.2d 761, 765 (Ind. Ct. App. 2001). The party challenging the trial court’s

property division bears the burden of proof and must overcome a strong presumption that

the court complied with the property division statute by considering each of the statutory

factors in Indiana Code section 31-15-7-5.1 Indeed, the presumption that the trial court

correctly followed the law and made all proper considerations in dividing the marital

estate is one of the strongest presumptions on appeal. Spivey v. Topper, 876 N.E.2d 781,

787 (Ind. Ct. App. 2007). Thus, we will reverse only if there is no rational basis for the

award. Id.

        We note that in this case, at Wife’s request, the trial court made special findings of

fact and conclusions of law pursuant to Indiana Trial Rule 52(A). Our standard of review

is therefore two-tiered. Heiligenstein v. Matney, 691 N.E.2d 1297, 1299 (Ind. Ct. App.

1998). First, we determine whether the evidence supports the findings of fact and then

whether those findings support the judgment. Id. On review, we do not set aside the trial

court’s findings or judgment unless clearly erroneous. T.R. 52(A). A finding is clearly

erroneous when there is no evidence or inferences reasonably drawn therefrom to support

it. Shively v. Shively, 680 N.E.2d 877, 882 (Ind. Ct. App. 1997). The judgment is

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

on the findings. Id. We may affirm the judgment on any legal theory supported by the

findings if that theory is consistent with “all of the trial court’s findings of fact and the

1
  These factors included the contribution of each spouse to the acquisition of the property, the extent to
which the property was acquired by each spouse before the marriage or through inheritance or gift, the
economic circumstances of each spouse at the time of the disposition of the property, and the conduct of
the parties during the marriage as related to the disposition or dissipation of their property.
                                                    4
inferences reasonably drawn from the findings[,] and if we deem such a decision prudent

in light of the evidence presented at trial and the arguments briefed on appeal.” Mitchell

v. Mitchell, 695 N.E.2d 920, 924 (Ind. 1998).

       Wife’s sole argument is that the trial court’s findings and conclusions do not

support the judgment because although the trial court concluded that she rebutted the

presumption that an equal division of marital property is just and reasonable, the trial

court only awarded her 50% of the marital property. As noted above, Finding of Fact

Number 15 states that the parties received a $6842 federal tax refund and a $368 state tax

refund for 2010, and that Wife exercised control over both of the refunds. However, the

trial court failed to include the tax refunds in the marital estate and distribute them.

       Because the trial court included the tax refunds in the findings of fact, we believe

that the trial court also intended to include the refunds in the marital pot where they were

acquired by both of the working parties’ joint efforts, see Nill v. Nill, 584 N.E.2d 602

(Ind. Ct. App. 1992) (holding that the trial court acted properly in including a tax refund

in the property subject to division), and that the trial court’s failure to do so was a mere

oversight. When the refunds are added to the marital pot and distributed to Wife, Wife

receives 54% of the marital property and Husband receives 46%.            This distribution is

consistent with the trial court’s conclusion that Wife rebutted the presumption that an

equal division of marital property is just and reasonable. And under such circumstances,

the trial courts findings and conclusions support its judgment.



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        The judgment of the trial court is affirmed and remanded with instructions that the

trial court include the federal and state tax refunds in the marital pot and award them to

Wife.

KIRSCH, J., and BROWN, J., concur.




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