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


ATTORNEY FOR APPELLANT:

YVONNE FERGUSON-WATKINS
Ferguson-Watkins & Associates                              Mar 31 2014, 6:24 am
Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

In re the Marriage of:                             )
                                                   )
TASHA BATES,                                       )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )      No. 49A02-1306-DR-572
                                                   )
DAMON BATES,                                       )
                                                   )
       Appellee-Respondent.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Robert R. Altice, Jr., Judge
                      The Honorable Kimberly D. Mattingly, Magistrate
                            Cause No. 49D05-1112-DR-45904



                                         March 31, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
          Tasha Bates (“Mother”) appeals the trial court’s findings of fact and conclusions

thereon dissolving the parties’ marriage. She raises the following restated and reordered

issues:

          I.     Whether the trial court abused its discretion when it denied Mother’s
                 emergency motion to continue the final hearing;

          II.    Whether the trial court erred when it denied Mother’s Motion to
                 Amend and/or Supplement Trial Documents;

          III.   Whether the trial court’s child support order was an abuse of
                 discretion;

          IV.    Whether the trial court’s unequal division of the marital estate was an
                 abuse of discretion; and

          V.     Whether the trial court abused its discretion when it ordered Mother
                 to pay a portion of Father’s attorney fees.

          We affirm in part and remand in part.

                           FACTS AND PROCEDURAL HISTORY1

          Mother and Father were married on April 23, 1999. They had one child together,

T.B., born in July 2000. On December 2, 2011, Mother filed her petition for legal

separation, and on January 5, 2012, Father filed his petition to convert the legal separation

to a petition for dissolution, which the trial court granted.




          We note that Mother’s Appellant’s Brief does not include a Statement of Facts, as is required by
          1

Indiana Appellate Rule 46(A)(6), nor does her Appellant’s Appendix include a chronological case summary
as required by Ind. App. Rule 50(A)(2)(a). “The purpose of our appellate rules, especially Indiana Appellate
Rule 46, is to aid and expedite review and to relieve the appellate court of the burden of searching the record
and briefing the case.” Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). We admonish
Mother’s counsel to, in the future, comply with our appellate rules.


                                                      2
       The parties never owned a marital residence together. For a number of years, they

rented residences in which to live. At some point, the parties moved into a home owned

by Mother’s mother on West 58th Street in Indianapolis, and in 2009, Mother’s mother

gifted that house to Mother individually. The parties lived together at that house until the

end of September 2011, when Father moved out.

       During the course of the marriage, Father concurrently worked two separate forty-

hour-per-week jobs. Tr. at 20 (“I’ve held down two jobs for over 22 years.”). However,

sometime in 2010 or 2011, Father’s mother (“Mrs. Boyd”) became terminally ill with a

brain tumor, and he began providing daily physical care for her. In order to do so, he quit

one of his two jobs, at Aaron’s Sales and Rental, where he was earning $10.00 per hour,

driving a delivery truck and doing assembly work. In the fall of 2011, Father still was

working for I.U. Health in the Supply Chain Operation department, earning $16.25 per

hour. Sometime in October 2011, he requested and received a three-week leave of absence

from work through FMLA, in order to take care of his mother. Mrs. Boyd passed away on

October 31, 2011. Father did not receive I.U. Health’s written notice advising him on the

date to return to work, because it was sent to the 58th Street residence. I.U. terminated

Father’s employment.

       For most of the marriage, Mother was also employed outside the home. From about

2000 to 2007, Mother was employed in a supervisory capacity with Indiana Mentor earning

approximately $45,000.00 per year. However, around 2007, T.B. was failing her first grade

classes, and Mother and Father were concerned about her grades. Mother quit her job at

Indiana Mentor, in order to be home more and available to T.B. Around this time frame,

                                             3
Mother and Father completed necessary paperwork and were approved to have foster

children in their home.

       In January 2012, the trial court held a preliminary hearing.            Father was still

unemployed, although he testified to having applied to over fifteen places for employment.

The financial declaration imputed $290 per week in income for Father, which was

calculated based on minimum wage. Mother testified at the hearing that she was working

at Pizza Hut, fifteen hours a week, making $7.50 per hour. She also received a $60 per

diem for a two-year-old foster child in her care. Father was expected to receive an

inheritance from his mother, Mrs. Boyd, who was awarded a significant class action lawsuit

settlement before her death. Upon Mrs. Boyd’s death, the inheritance was placed in a trust,

which later would be distributed after her estate matters were completed. At the conclusion

of the preliminary hearing, the trial court ordered that it was in the best interest of the child

to grant physical custody of T.B. to Mother and that the parties share joint legal custody.

The trial court ordered each party to pay his or her own attorney fees and ordered that

Father was entitled to visitation pursuant to Indiana Parenting Time Guidelines. Id. at 52.

       On February 8, 2013, several days before the final hearing, Mother moved for an

emergency continuance of the final hearing due to illness of both T.B. and the foster child,

which Mother’s counsel asserted made it not possible for Mother to attend the hearing.

The court permitted a hearing on the matter on the morning of February 11, the date the

final hearing was to begin. After receiving argument and evidence, the trial court denied

the request to continue and proceeded with the final hearing. Prior to the start of evidence,

the parties stipulated that Mother would have primary physical custody of T.B. and that the

                                               4
parties would share joint legal custody. The parties also stipulated that Father would have

parenting time pursuant the Guidelines. Remaining at issue, then, were the matters of

division of marital property and child support.

       A significant portion of the hearing was devoted to the issue of Father’s inheritance

from his mother, including portions that were distributed to T.B. At the hearing, Father

called as a witness a bank trust officer to testify as to the final distribution to Father in

December 2012, in the amount of $415,219.85, as well as several prior distributions:

including $1,125.00, which was applied to child support owed for T.B. Father also called

attorney Christi Anderson, who was the attorney that prepared Mrs. Boyd’s estate plan and

handled her estate. Anderson testified that Mrs. Boyd directed that 68% of her estate was

to go to Father, who was her only child. None was directed to be given to Mother; in fact,

Anderson testified that, although she met with Mrs. Boyd a number of times, including

sessions to review and discuss family members and whether they would inherit anything,

Anderson did not realize Father was ever married, as Mrs. Boyd never mentioned it.

Anderson also testified that Mother filed various pleadings in the estate cause of action,

which ultimately were dismissed or denied but cost the estate over $22,000 to defend.

       Father also testified at the final hearing. He possesses a high school diploma but

has no further education. He has no retirement or savings. The car he was currently

driving, a 2007 Dodge Charger, was owned by his step-father, and he would be returning

it to him. He testified that he lived with Mother in the 58th Street residence from

approximately 2006 to 2011, and contributed to its property taxes and maintenance, but

that he and Mother always kept their finances separate. As of the final hearing, he had

                                             5
obtained employment doing “junking” for scrap metal through an employment agency, but

that his goal was to further his education. He conceded he was behind in child support for

T.B. as of the final hearing date. He said that he owed support for two other children, ages

18 and 20, as of the final hearing, and he testified that Mother had three other children,

ages 18, 21, and 22 for which she sporadically received child support. Father testified that

Mother and his now-deceased mother “were not close” and that Mother did not assist him

in caring for his ill mother before her death. Tr. at 264.

        Father offered a number of documentary exhibits to the trial court, which were

admitted into evidence, including: (1) an appraisal for the 58th Street house, valuing it at

$42,000; (2) a list of marital assets and debts, as known to him; (3) a proposed distribution

of the marital estate; (4) a proposed child support worksheet; and (5) paycheck stubs and a

W-2 form for 2011. Father also submitted an attorney fee itemization, which the trial court

took under advisement. Father’s child support worksheet imputed income to him in the

amount of $10/hour at forty hours per week, resulting in a child support obligation of $3.00

per week; however, Father testified that he was willing to pay $70-80 per week in child

support for T.B. Id. at 274.

        Mother did not appear in person at the final hearing until mid-afternoon. While she

did present testimony, she did not offer or present any exhibits at the final hearing. As to

her prior employment, she testified that she had been working in a supervisory capacity2 at


        2
          Concerning her supervisory position at Indiana Mentor, Mother testified that “you have to have a
degree to get that job,” but that she did not “have a degree,” explaining that she obtained the position simply
by having been employed there so long. Tr. at 277. From this, it appears Mother did not have a college
degree at the time she was hired, but it is not clear whether she ever earned a college degree during the
course of her employment or marriage.

                                                      6
Indiana Mentor from approximately 1999 or 2000 until 2007, when she voluntarily left,

out of concern for T.B. and her failing grades, believing she and Father were gone and

working so much that it was negatively affecting T.B. Since leaving Indiana Mentor in

2007, Mother cared for foster children in the home, receiving what had been a $60.00 per

diem, but which was reduced to $29.43 per diem in January 2012. Additionally, Mother

was working an unidentified number of hours at Pizza Hut. She requested that the trial

court award her half of the inheritance that Father received from his mother’s estate. On

March 7, 2013, Mother filed a motion to supplement and/or amend trial documents, which

the trial court denied.

        Father timely filed a motion requesting that the trial court issue Findings and

Conclusions pursuant to Indiana Trial Rule 52. In May 2013, the trial court issued its

findings of fact and conclusions thereon and decree of dissolution of marriage. 3 The trial

court included the inheritance in the marital estate, finding that the value of the net marital

estate was $472,210; however, but for the gift of the 58th Street home and the inheritance,

the parties would have a negative marital estate value. The trial court’s findings and

conclusions included the following:

        18.     Husband’s income potential is approximately $10 per hour gross or
                $20,800 gross income annually.

        19.     Husband has a high school diploma and has no post-secondary
                education.

        20.     During the marriage, Wife was a manager at Indiana Mentor earning
                a salary of $45,000 annually until she voluntarily left this position.

        3
           We commend the trial court on the thoroughness of its findings and conclusions, which greatly
facilitated appellate review.

                                                   7
22.   The parties also had the care and custody of one to two foster children
      during the majority of the marriage, for which Wife received a stipend
      of $1,800 per month. Wife continues to have one foster child in her
      care for which she receives a monthly stipend of $620.

23.   Wife receives child support of $56 per week [] for her prior-born
      children.

24.   Husband has two prior-born children, not of the marriage, for which
      he pays weekly child support in the amount of $79.

42.   The Court has discretion to value Husband’s inheritance at any date
      between final separation and final dissolution of marriage. Therefore,
      the Court finds that Husband received a distribution check in the
      amount of $415,011.51 on December 12, 2012. The Court adds
      Husband’s pre-distributions that were made to him for payment of
      child support of $1,125 on November 19, 2012 and $175 on December
      19, 2012, to this amount, and find that the total value Husband
      received, to be included in the marital pot from his inheritance, is
      $416,567.

43.   The Court finds that Wife already received a value of $15,505 from
      Husband’s inheritance, which was Husband’s 68% of the fees spent
      out of the inheritance funds that would have otherwise been
      distributed to the beneficiaries but for Wife’s repeated and meritless
      claims, complaints, and requests against the estate.

54.   Husband’s mother died on October 31, 2011, which was 32 days
      before Wife filed her petition for Legal Separation.

56.   Husband’s mother’s estate was not closed, and distribution made to
      Husband, until December 21, 2012.

57.   Husband has at all times kept the monies received from his mother’s
      estate separate. He did not receive distribution of the funds until
      approximately a year and two months after final separation and 52
      days prior to final hearing herein, which was continued by Wife
      multiple times.

61.   There is no showing that Wife made any contributions to the
      acquisition, preservation, or enhancement of the inherited property.


                                     8
       66.        The inheritance from Husband’s mother was to Husband and the
                  parties’ daughter; Wife was not mentioned in her will or trust
                  documents.

       68.        Husband did not, at any time, treat the inherited property as marital.

       96.        The court finds that both Husband and Wife are voluntarily
                  underemployed by choice as Husband is choosing to scrap junk for
                  approximately $250 gross per week and Wife is choosing to foster a
                  child for a monthly per diem of $620.64, nontaxable[.] . . . However,
                  no evidence was presented that either party is underemployed for the
                  purpose of avoiding payment of child support for their daughter. In
                  fact, Husband testified he would agree to a higher amount than
                  recommended by his Child Support Worksheet.

Appellant’s Br. at 18-30.

       The trial court determined that Father rebutted the presumption that an equal

division was fair and reasonable, awarding $416,576 (or 88% of the marital pot) to Father

and $55,634 (or 12%) to Mother. The trial court ordered Father to pay $70 per week in

child support, and it also ordered Mother to pay $10,000 toward Father’s attorney fees

within 90 days. Mother now appeals.

                                   DISCUSSION AND DECISION

                              I.      Mother’s Motion for Continuance

       On Friday February 8, 2013, Mother, by counsel, requested an emergency

continuance of the Monday, February 11 final hearing because both T.B. and the parties’

foster child4 were ill. The trial court permitted a hearing on the motion on the morning of

February 11. Mother’s counsel was present, as were Father and his counsel; however,

Mother was not.


       4
           As of that time, the parties jointly possessed a foster-care license. Tr. at 70.

                                                        9
       Counsel for Mother explained that T.B. and the foster child both were suffering

from an upper respiratory infection, and the foster child, who was described as

“challenged,” also had bleeding from the ear due to an ear infection necessitating a trip to

the emergency room over the preceding weekend. Tr. at 68. Mother’s counsel explained

that there are rules concerning in whose care a foster child may be left, “not everyone can

care for those special children.” Id. at 67. Father responded and explained that a number

of adult family members were certified to care for their foster child. Additionally, the

foster care organization, Benchmark, is available to find childcare in circumstances when

a foster parent has to be somewhere, and according to Father, they had used that service

before. With regard to T.B., Father had asked to exercise his visitation with her over the

preceding weekend, assured Mother that he would seek medical care for T.B. if she needed

it, but he did not receive the visitation. Father had told her that if T.B. needed to be home

from school on Monday, the date of the final hearing, he would make arrangements for her

care. He stated that the woman he lived with “for some[ ]time,” was a nurse and could care

for T.B. during the final hearing, if family members were not able to do so. Id. at 65.

       The trial court denied the request for a continuance:

       Mom is facing very difficult choices, I understand that, but I’m not
       continuing the hearing. If mom prefers to take care of the foster child than
       be here, I understand that as a mom myself, but mom’s had plenty of notice,
       she has repeatedly tried to continue this. . . . but she never reached out to
       dad, to any of dad’s relatives, none of that. Uh, if mom doesn’t want to be
       here, she doesn’t have to be here, but we’re still having a hearing.”

Id. at 76-77.




                                             10
       The decision to grant or deny a motion for a continuance rests within the sound

discretion of the trial court. Thompson v. Thompson, 811 N.E.2d 888, 907-08 (Ind. Ct.

App. 2004), trans. denied. An abuse of discretion may be found in the denial of a motion

for continuance when the moving party has shown good cause for granting the motion. Id.

       Here, Mother’s reason for requesting a continuance was because both T.B. and the

foster child had been sick over the weekend. The implication was that either or both

children remained ill, as Mother was not present at the hearing, although there was no direct

evidence presented as to their condition that date. Regardless, Father stated that he was

able to, and desired to, exercise visitation with T.B. the prior weekend and had told Mother

that he would take T.B. for medical care if needed, but that Mother appeared to be avoiding

his calls, and the visitation never happened. He said he offered and would have made sure

that arrangements would have been made for T.B.’s care if she needed to stay home from

school, allowing Mother to attend the final hearing. Father also advised the trial court that

various adult family members were licensed or certified to take care of the foster child, or

alternatively, Benchmark would arrange for the child’s care. Under these circumstances,

the trial court was not presented with good cause to grant the continuance. The trial court

did not abuse its discretion in denying Mother’s request for an emergency continuance of

the final hearing.

                II.    Mother’s Request to Amend and/or Supplement

       The final hearing occurred on February 11, 2013. Thereafter, on March 7, 2013,

Mother filed a Motion to Supplement and/or Amend Trial Documents under Indiana Trial

Rules 15(B) and (D). Mother was seeking the trial court’s permission to submit various

                                             11
documents including: an affidavit; an amended financial declaration; an amended child

support worksheet; an annuity statement for the last quarter of 2011; an attorney fee

itemization for Mother’s counsel; a certified copy of the Clerk’s child support payment

history; and reimbursement of Mother’s foster child income, none of which she submitted

during the final hearing. Father, by counsel, filed his response, stating that neither of the

trial rules cited by Mother provided support for her request, as T.R. 15(B) concerned

allowing amendments to pleadings in order to conform to the evidence, and T.R. 15(D)

concerned amending pleadings to include transactions or events that occurred since the

date of the original pleading. The trial court denied Mother’s request.

         Mother claims on appeal that “it is well established that Trial Rule 15 should be

used liberally to permit Mother to supplement the record at the final hearing.” Appellant’s

Br. at 6. However, as Father argued in his response to Mother’s motion, T.R. 15(B) and

15(D) “ha[ve] nothing to do with supplementing exhibits to a record after trial that could

have been produced at trial. Petitioner . . . seeks to supplement the record with evidentiary

documents, not to supplement a pleading for purposes of conforming the pleading to the

evidence[.]” Appellant’s App. at 59. Those rules “ha[ve] nothing to do with allowing a

party to supplement evidence after trial that could have been submitted at trial[.]” Id. We

agree.

         Mother asserted to the trial court in her motion, and again to us on appeal, that

Mother’s counsel, on or before the final hearing date,5 “attempted to forward by email


         5
          According to Mother, the trial court’s January 25, 2013 case management order directed the
parties to exchange exhibits by February 8, 2013, which was several days before the final hearing.
Appellant’s App. at 30.

                                                12
copies of her exhibits; however, opposing counsel’s email was infected with a virus which

disallowed copies of the requested supplemental documents to be served upon opposing

counsel.” Appellant’s App. at 30; see also Appellant’s Br. at 5. However, even assuming

Mother’s counsel could not forward the documents to opposing counsel via email on

February 8 due to a computer virus, this does not explain why the documents were not

exchanged via email or in person in the remaining several days leading up to the February

11 final hearing, or, at a minimum, offered into evidence at the final hearing, of which all

parties had notice. The trial court committed no error when it denied Mother’s post-trial

motion to supplement the record with evidence that seemingly could have been produced

at the final hearing.6

                                    III.    Child Support Order

        On May 9, 2013, the trial court issued Trial Rule 52 findings of fact and conclusions

thereon pursuant to Father’s request. When a party has requested special findings of fact

and conclusions thereon pursuant to Indiana Trial Rule 52(A), we may affirm the judgment

on any legal theory supported by the findings. Werner v. Werner, 946 N.E.2d 1233, 1244-

45 (Ind. Ct. App. 2011), trans. denied. We will reverse the judgment if it is clearly

erroneous. Id. In reviewing the judgment, we first must determine whether the evidence

supports the findings, and second we determine whether the findings support the judgment.




        6
          In arguing that the trial court should have granted her request for an emergency continuance,
Mother stated that she “appeared in the afternoon and was unable to present her witnesses and exhibits[.]”
Appellant’s Br. at 13. This general reference to an inability to present exhibits because of time constraints
does not change our view that the trial court did not err in denying her Motion to Supplement and/or Amend
Trial Documents.

                                                     13
Id. Findings of fact are clearly erroneous when the record lacks any evidence or reasonable

inferences from the evidence to support them. Id.

         To determine whether the findings or judgment are clearly erroneous, we
         consider only the evidence favorable to the judgment and all reasonable
         inferences flowing therefrom. We will not reweigh the evidence or assess
         witness credibility. Even though there is evidence to support it, a judgment
         is clearly erroneous if the reviewing court’s examination of the record leaves
         it with the firm conviction that a mistake has been made.

Id. (quoting Kondamuri v. Kondamuri, 852 N.E.2d 939, 944 (Ind. Ct. App. 2006)).

         A trial court’s calculation of a child support obligation under the child support

guidelines is presumptively valid. Glover v. Torrence, 723 N.E.2d 924, 936 (Ind. Ct. App.

2000).     Reversal of a trial court’s child support order is merited only where the

determination is clearly against the logic and effect of the facts and circumstances. Id. In

our review of a child support order, weight and credibility issues are disregarded and only

the evidence and reasonable inferences favorable to the judgment are considered. Id. For

the purposes of determining the parents’ income in the child support guideline calculation,

the definition of “weekly gross income” is broadly defined to include not only actual

income from employment, but also potential income and imputed income. Id. at 936.

         Here, Father presented testimony at the final hearing concerning his income and

employment over the last number of years, including pay check stubs and a W-2 form,

reflecting his 2011 income, when for most of the year he was working two full-time jobs.

He also presented a proposed child support worksheet, which imputed $400 of weekly

gross income to him ($10 per hour times forty hours) and $1,142 to Mother (based on

$45,000 annual income). This resulted in a net child support obligation of $3.38 per week.


                                              14
However, Father thereafter offered that he would pay between $70-80 per week in child

support for T.B. Mother presented no child support worksheet, nor did she present any

other testimony concerning her income or potential income, other than that which Father

presented concerning Mother’s previous $45,000 annual salary and the per diem she

received for the foster child living with her.

       The trial court’s findings of fact determined that Father’s current weekly gross

income was $250 per week, and Mother’s weekly gross income was $174 per week and,

further, that both parents were voluntarily underemployed. Appellant’s Br. at 30 (Finding

of Fact Nos. 96, 103). The trial court gave credit to Father for a $79 child support

obligation for his prior-born children, as well as parenting time credit for 63 overnights per

year, and it gave credit to Mother for a subsequent foster child in her home. Id. at 31

(Findings of Fact Nos. 101, 104). The trial court ordered Father to pay $70 per week in

child support to Mother, a deviation from the presumptive, via income withholding order

when he is employed.

       On appeal, Mother argues that the trial court abused its discretion because it “did

not consider [Father’s] inheritance in making the child support determination[,] which

contravenes Indiana law.” Id. at 6. Mother is correct that inheritance properly is considered

in child support calculations. Child Support Guideline 3(A)(1) states in part, “Weekly

Gross Income of each parent includes income from any source, except as [otherwise]

excluded . . . and includes, but is not limited to, income from salaries, wages . . . gifts,

inheritance, prizes, and alimony or maintenance received from other marriages.”

(Emphasis added.)

                                                 15
       Mother relies on Gardner v. Yrttima, 743 N.E.2d 353 (Ind. Ct. App. 2001), as

support for her argument that Father’s inheritance was improperly excluded as gross

income. There, a panel of this court determined that, generally, inheritances are properly

considered in calculating a parent’s weekly gross income, although ultimately the effect of

the receipt of an inheritance on the determination of child support lies within the sound

discretion of the trial court. Id. at 358. In making the determination, the trial court should

consider the nature and use of the inheritance. Id. For instance, “[w]here an inheritance is

in the form of cash or securities and is placed in income-generating assets, the interest,

dividends, or other income from such assets should be included in gross income for

purposes of determining child support.” Id. In Gardner, we affirmed the trial court’s

decision to exclude the inheritance from the mother’s gross income calculation due to the

lack of evidence that she derived any regular, ongoing income from the inheritance. Id. at

359.

       Here, the evidence presented, was that Father possessed a Key Bank account with a

value of $415,266.34 as of January 28, 2013. In it, Father held $100,095.11 in cash

equivalents, $219,075.77 in fixed income securities, and $96,095.46 in equities.

Appellant’s Br. at 21 (Finding of Fact No. 38); Ex. Vol. at 3 (Resp’t’s Ex. B). The bank

account statement reflected an estimated annual income of $10,481.29; however, there was

no separate testimonial evidence presented concerning income and interest received by

Father from the inheritance. To the extent that the cash equivalents, fixed income

securities, and equities produce actual income and interest to Father, we find this amount

should have been included in the child support calculation. The trial court’s comments

                                             16
during discussion of preliminary matters, prior to the start of evidence at the final hearing,

reflect the trial court’s intention to include such income or interest in the child support

calculation. Specifically, counsel for Mother was arguing that the inheritance should be

considered in the child support determination. The trial court replied, “[I]f it generates

income, of course it goes into his income for support purposes.” Tr. at 85; see also id. at

85-86 (“[T]o the extent it will generate . . . interest, . . . then, yes, that would probably be

included in his income for support purposes.”). Counsel for Mother continued to assert

that the entirety of the over $400,000 inheritance should be considered as Father’s income,

to which the trial court responded,

        I cannot assess his income for 2012 at $400,000 and order him to pay support
        on that amount. You know, to the extent that any liquid or income producing
        $100 grand in a bank account [will] earn maybe $2000 worth of interest this
        year. I can’t imagine that’s going to change child support a whole lot, but
        we’ll consider that assuming there is evidence on all of that, absolutely, that
        would be part of the calculation.

Id. at 89. The findings and conclusions do not reflect that the income or interest from the

inheritance was considered in the child support calculation; therefore, we remand for the

trial court to clarify its calculation and/or recalculate child support to include Father’s

income from the inheritance if it was not already included.7

                                 IV.      Division of Marital Estate

        7
           Although Mother does not raise the issue of arrearage in her brief, we note that, during the final
hearing, Mother alleged that a child support arrearage still existed (although the amount was not identified),
and the trial court commented, “I think it’s despicable that someone would be sitting on $400 grand and be
behind in support even $10. Now, one of my orders from today will be to catch that [] up immediately[.]”
Tr. at 249. Evidence admitted at the final hearing reflected that Father made payments toward child support
arrearage to the Marion County Clerk on November 11, 2012 of $1,125 and December 19, 2012 of $175.
Ex. Vol. at 15 (Resp’t’s Ex. O). The trial court’s findings and conclusions do not address the matter of
arrearage, if any still exists, and in accordance with the trial court’s remark during the final hearing, the
trial court also may address the issue of arrearage upon remand, if necessary.

                                                     17
         Mother next asserts that the trial court erred in dividing the marital estate,

maintaining that the trial court should have equally divided the inheritance from Father’s

mother. The law governing the division of marital property is a two-step process. Estudillo

v. Estudillo, 956 N.E.2d 1084, 1090 (Ind. Ct. App. 2011). First, the trial court determines

what property should be included in the marital estate, and second, the trial court divides

the marital property. Id. All marital property goes into the marital pot for division, whether

it was owned by either spouse before the marriage, acquired by either spouse after the

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

Code § 31-15-7-4(a).

         The division of marital assets is a matter within the trial court’s sound discretion.

Estudillo, 956 N.E.2d at 1090. We will reverse only for an abuse of that discretion. Id.

When a party challenges the trial court’s division of marital property, that party must

overcome the strong presumption that the trial court fully considered and complied with

the applicable statute, and that presumption is one of the strongest presumptions applicable

to this court’s consideration on appeal. Id. We will reverse a property distribution only if

there is no rational basis for the award, and although circumstances might have justified a

different distribution, we may not substitute our judgment for that of the dissolution court.

Augspurger v. Hudson, 802 N.E.2d 503, 512 (Ind. Ct. App. 2004). Where, as here, Father

requested special findings of fact and conclusions thereon, we review a trial court’s

findings to determine if they are clearly erroneous, but review its conclusions de novo, even

where the trial court labels them as findings. Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind.

2002).

                                              18
       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 marriage and prior to final separation of the parties, or acquired by their joint

efforts. Ind. Code § 31-15-7-4. An equal division is presumed 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.

Thus, while the presumption is an equal division of the marital property, the trial court may

deviate from an equal division so long as it sets forth a rational basis for its decision.

Hacker v. Hacker, 659 N.E.2d 1104, 1109 (Ind. Ct. App. 1995).




                                              19
        Here, the trial court determined that the net value of the marital estate, including the

$42,000 house gifted to Mother and the $432,072 inheritance from Mrs. Boyd, was

$472,210.00. Mother does not appear to contest the valuation of the marital estate;8 rather,

she argues that she should have received a greater percentage of it, namely, a greater

percentage of the inheritance. The trial court’s findings and conclusions reflect that it

determined that the presumption of an equal division of marital assets had been rebutted

and that unequal division of property was just and reasonable. In support of its decision,

the trial court issued detailed findings and conclusions, including:

        28.     Husband’s earning potential is approximately $10 per hour gross or
                $20,900 gross income annually.

        20.     During the marriage, Wife was a manager at Indiana Mentor earning
                a salary of $45,000 annually until she voluntarily left this position.

        49.     The parties accumulated no significant assets of their own efforts but
                rather all assets in the marital estate are either gifts or inheritances.

        54.     Husband’s mother died on October 31, 2011, which was 32 days
                before Wife filed her Petition for Legal Separation.

        55.     Husband received 68% of his mother’s estate.

        56.     Husband’s mother’s estate was not closed, and distribution made to
                Husband, until December 21, 2012.

        57.     Husband has at all times kept the monies received from his mother’s
                estate separate. He did not receive distribution of the funds until
                approximately a year and two months after final separation and 52
                days prior to final hearing herein, which was continued by Wife
                multiple times.

        58.     Husband’s income potential is far less than Wife’s.
        8
          Indeed, as the trial court recognized: “Wife presented no evidence on the assets and debts of the
marital estate or their values. Only Husband presented a marital balance sheet or any documentation on the
assets, debts, or incomes of the parties.” Appellant’s Br. at 22 (Finding of Fact No. 45).

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       61.     There is no showing that Wife made any contributions to the
               acquisition, preservation, or enhancement of the inherited property.

       62.     Wife did not increase the value of Husband’s inheritance. In fact,
               Wife decreased the value of Husband’s inheritance. Wife spent
               $15,505 of Husband’s inheritance through her claims in the probate
               estate, which were dismissed.

       63.     Wife did nothing to secure, protect, or contribute to the preservation
               of Husband’s inheritance. . . . .

       68.     Husband did not, at any time, treat the inherited property as marital.

       79.     Absent Husband’s inheritance, the property division is 100% to Wife
               and 0% to Husband.

       The trial court’s findings reflect that it properly considered the factors in Indiana

Code section 31-15-7-5, including contribution of the parties, the conduct of the parties,

and the relative earning ability of each party, and it set forth a rational basis for its decision.

Evidence at the hearing supports the trial court’s findings, and those findings support its

judgment. Mother has not overcome the strong presumption that the trial court complied

with the statute. Under the circumstances of this case, we hold that he trial court did not

abuse its discretion when it determined that an unequal division of the marital estate was

just and reasonable.

                                     V.      Attorney Fees

       The trial court ordered that Mother pay $10,000 of Father’s attorney fees, and it

denied her request that Father pay her fees. Mother argues that the trial court abused its

discretion in this regard because Father received $416,000 of the marital estate and




                                                21
awarded approximately $55,600 to her, making her payment of $10,000 of Father’s fees

unreasonable.

        The trial court has statutory authority to order a party to pay reasonable attorney

fees for the opposing party pursuant to Indiana Code section 31-15-10-1. The trial court

enjoys broad discretion in assessing attorney fees in dissolution cases. Goodman v.

Goodman, 754 N.E.2d 595, 602 (Ind. Ct. App. 2001). In deciding whether to make an

award of attorney fees, the court should consider the resources of the parties, their

economic condition, their ability to engage in gainful employment and to earn adequate

income, and any other factors that bear on the reasonableness of the award.                Id.

“‘Misconduct that directly results in additional litigation expenses may properly be taken

into account in the trial court’s decision to award attorney fees in the context of a

dissolution proceeding.’” Id. (quoting Lewis v. Lewis, 638 N.E.2d 859, 861 (Ind. Ct. App.

1994)). Reversal is proper only where the trial court’s award is clearly against the logic

and effect of the facts and circumstances before the court. Bessolo v. Rosario, 966 N.E.2d

725, 733 (Ind. Ct. App. 2012), trans. denied. Further, “‘the trial court need not give its

reasons for its decision to award attorney’s fees.’” Id. (quoting Thompson, 811 N.E.2d at

905).

        Here, in reaching its decision regarding award of attorney fees, the trial court cited

to what it perceived as misconduct on the part of Mother. For instance, the trial court found

that Mother caused additional unnecessary fees in a number of ways, including, by filing

for repeated continuances, objecting to a second mediation date, requesting to supplement

evidence after the final hearing, and making claims to the same assets, namely the

                                              22
inheritance, in both the dissolution action as well as the estate proceedings, which claims

ultimately were dismissed or denied. Appellant’s Br. at 28 (Finding of Fact No. 89).

Additionally, Father had requested in discovery that Mother provide an itemization of her

requested attorney fees, and upon not receiving it, Father again requested the itemization

of fees, this time via subpoena seeking that it be brought to court. However, Mother failed

to produce these documents before or at the final hearing. Consequently, Father was not

able to cross-examine Mother’s counsel with regard to the reasonableness of her fees and

the nature of the work performed. Id. (Finding of Fact No. 88); Tr. at 294-95.

       Mother urges on appeal that “[t]he trial court [] did not consider the relative earning

power of the parties when making its decision.” Appellant’s Br. at 15. However, as we

previously discussed, the trial court’s findings addressed the past incomes of the parties

and specifically determined that Mother possessed a greater earning potential than Father.

Id. at 24 (Finding of Fact No. 58 “Husband’s income potential is far less than Wife’s.”).

Thus, contrary to Mother’s argument, the trial court considered the earning power of the

parties. We find no abuse of discretion.

       Affirmed in part and remanded in part.

BAILEY, J., concurs.

FRIEDLANDER, J., concurs as to Parts I through IV and dissents as to Part V without
     separate opinion.




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