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.
                                                               FILED
                                                            Feb 22 2013, 9:23 am

ATTORNEY FOR APPELLANT:
                                                                    CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court
GREGG S. THEOBALD
Lafayette, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

PABLO C. GALLO,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )    No. 79A02-1207-DR-624
                                                   )
SANDRA MOIRA HYLAND,                               )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                            The Honorable Thomas H. Busch, Judge
                               Cause No. 79D02-0808-DR-319




                                        February 22, 2013



                 MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                  Case Summary and Issue

       Pablo C. Gallo appeals from the trial court’s distribution of marital property following

the dissolution of his marriage to Sandra Moira Hyland. He raises the sole issue of whether

the trial court erred in deviating from the statutory presumption of an equal distribution of

marital property. Concluding that the trial court erred when it did not explain why it deviated

from the presumption, we reverse and remand with instructions to the trial court to either

follow the statutory presumption or to set forth its rationale for deviating from it.


                                Facts and Procedural History

       Gallo and Hyland were divorced in 2009. The original dissolution decree included a

general statement that the “property of the parties shall be divided equally” but also

addressed the property division in more detail, dividing the American debts equally and

deferring further property division until more information was presented to the court.

Appellant’s Appendix at 15. The court ordered that, in the meantime, Gallo would be given

possession of all property in the United States and Hyland possession of all property in

Argentina.

       In 2012, Gallo filed a petition to set property division matters for hearing. Hyland did

not appear at the hearing or present any evidence. Gallo presented evidence regarding the

value of a 5% interest in two Argentina corporations and an Argentina home all in Hyland’s

name, the only significant assets the parties owned. Gallo requested that the court divide the

assets equally. The court expressed some concern in giving Gallo an interest in the Argentina

corporations because they are closely-held organizations and appeared to be owned, at least


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in part, by relatives of Hyland, but requested that Gallo submit to the court a proposed order.

The court issued its order on June 29, 2012, and gave Hyland a 100% interest in both the

Argentina home and in the 5% interest in the two Argentina corporations. Gallo now

appeals.

                                   Discussion and Decision

                                  I. Standard of Review


       We note that Hyland did not file an appellee’s brief. When the appellee fails to file a

brief, we need not undertake the burden of developing an argument for the appellee. Trinity

Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we will reverse the trial

court’s judgment if the appellant presents a case of prima facie error. Id. Prima facie error is

defined as “at first sight, on first appearance, or on the face of it.” Id. at 1068 (quoting

Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999)). If the appellant does not

meet this burden, we will affirm. Id.

       The division of marital assets is within the sound discretion of the trial court. Hatten

v. Hatten, 825 N.E.2d 791, 794 (Ind. Ct. App. 2005), trans. denied. We review a claim that

the trial court improperly divided marital property for an abuse of discretion. Id. “An abuse

of discretion occurs if the trial court’s decision is clearly against the logic and effect of the

facts and circumstances before the court, or if the trial court has misinterpreted the law or

disregards evidence of factors listed in the controlling statute.” Id. We will not reweigh the

evidence or assess the credibility of the witnesses and will only consider the evidence most

favorable to the trial court’s disposition of the marital property. Id.


                                               3
                      II. Unequal Distribution of Marital Property


       An equal division of marital property is presumed to be just and reasonable. Ind.

Code § 31-15-7-5. This presumption may be rebutted if a party presents relevant evidence

regarding the following factors:

       (1) each spouse’s contribution to the acquisition of property, (2) acquisition of
       property through gift or inheritance prior to the marriage, (3) the economic
       circumstances of each spouse at the time of disposition, (4) each spouse’s
       dissipation or disposition of property during the marriage, and (5) each
       spouse’s earning ability.

Chase v. Chase, 690 N.E.2d 753, 756 (Ind. Ct. App. 1998) (citing Ind. Code § 31-15-7-5).

Although a trial court may decide to divide the marital property unequally, it “must, in its

findings and judgment, based on the evidence, state its reasons for deviating from the

presumption of an equal division.” In re Marriage of Davidson, 540 N.E.2d 641, 646 (Ind.

Ct. App. 1989).

       Here, the trial court deviated from the presumption of equal distribution by giving

Hyland a 100% interest in the Argentina home and in the shares of the Argentina

corporations. Gallo argues that because Hyland did not present evidence rebutting the

statutory presumption of equal division, the court erred by not ordering an equal distribution

of the marital property. Gallo argues, more specifically, that for a court to deviate from the

statutory presumption of equal distribution, one or both parties must specially request such a

deviation. However, taking this argument literally would mean that if a motion for an equal

division of marital property is made and goes unopposed, a trial court must grant it.

However, the division of marital property is within the sound discretion of the trial court and


                                              4
is subject only to the statute. Id. at 645. While, ordinarily, the party opposing equal division

is the one who presents evidence to rebut the presumption, a court may choose to deviate

from the statutory presumption as long as the deviation is based on a consideration of all of

the relevant statutory facts, Wallace v. Wallace, 714 N.E.2d 774, 780 (Ind. Ct. App. 1999),

trans. denied, and the court articulates its reasons for doing so, Norton v. Norton, 573 N.E.2d

941, 943 (Ind. Ct. App. 1991).

       Contrary to Gallo’s assertion, there is evidence in the record that may support an

unequal distribution of property. The court pointed to one piece of evidence during the

hearing when it expressed its concern regarding awarding a non-relative an interest in a

closely-held organization owned by relatives. However, the trial court should have set forth

its reasons for deviating from the statutory presumption of equal distribution when it ordered

an unequal division. See Chase, 690 N.E.2d at 756 (remanding the issue of an unequal

division of marital property, because, while the evidence could support an unequal division,

the court’s decree was devoid of any reason or explanation for deviating from the statutory

presumption). This is especially true in light of the trial court’s previous comment in the

original dissolution decree that the “property of the parties shall be divided equally,” which is

consistent with the statutory presumption. See Appellant’s App. at 15. We may not

speculate as to the trial court’s reasoning and cannot reweigh the evidence in this case. Thus,

we reverse and remand with instructions to the trial court to either follow the statutory

presumption or to set forth its reasons for choosing not to do so.




                                               5
                                             Conclusion

       The trial court erred by not setting forth the reasons for why it deviated from the

statutory presumption of an equal division of marital property. Therefore, we reverse and

remand with instructions to the trial court to either follow the statutory presumption or to set

forth its rationale for deviating from it.

       Reversed.

MAY, J., and PYLE, J., concur.




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