MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Jan 09 2019, 8:43 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Mark A. Bates                                            Shana D. Levinson
Schererville, Indiana                                    Levinson & Levinson
                                                         Merrillville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Francisco J. Jimenez,                                    January 9, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-DR-1734
        v.                                               Appeal from the Lake Circuit
                                                         Court
Blanca E. Jimenez,                                       The Honorable Marissa J.
Appellee-Respondent.                                     McDermott, Judge
                                                         The Honorable Alice A. Kuzemka,
                                                         Referee
                                                         Trial Court Cause No.
                                                         45C01-1607-DR-557



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019                Page 1 of 6
                                       Statement of the Case
[1]   Francisco J. Jimenez (“Husband”) appeals the trial court’s decree of dissolution

      of his marriage to Blanca E. Jimenez (“Wife”). Husband raises a single issue

      for our review, which we restate as whether the trial court clearly erred when it

      found that $39,000 spent by Wife and retained by Wife in her account prior to

      the dissolution of the marriage was for marital purposes and was not dissipated.

      We affirm.


                                 Facts and Procedural History
[2]   Husband and Wife married in 1990. In 2014, they borrowed $39,000 against

      their home in Hammond. They had “discussed moving to Texas,” and Wife

      was “supposed to . . . go to Texas[ and] set up house so when [Husband] retired

      he’d be able to just move . . . there.” Tr. at 74. Accordingly, on May 31, 2014,

      they deposited an initial $20,000 of that money into an account held by Wife.

      But Wife did not relocate to Texas immediately and instead continued to reside

      with Husband in Hammond. As she had not yet relocated, instead of using the

      funds on relocation costs she instead used them to pay down credit cards, a

      loan for a vehicle that was in Husband’s name, and other debt. She also used

      some of the money to “help[ their] children out.” Id. at 89.


[3]   On June 13, 2015, they deposited the remaining $19,000 into Wife’s account.

      Wife moved to Texas about two months later. She rented an apartment and

      purchased furniture pursuant to their intent to relocate there. Husband visited

      her a couple of times, and on at least one occasion they looked at houses


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019   Page 2 of 6
      together. Wife believed Husband was going to retire soon and join her in

      Texas.


[4]   However, Husband decided not to move to Texas and instead filed his petition

      for dissolution of the marriage. At an ensuing fact-finding hearing on the

      petition, Husband testified that the $39,000 had been borrowed against the

      Hammond home and given to Wife “with the intention that [it] was going to be

      part of our agreement” on dissolution, that is, her part of the equity in the

      Hammond home. Id. at 19. In support of that assertion, Husband presented a

      letter that had been notarized after the filing of the petition for dissolution and

      bore his signature but not Wife’s. In the alternative, Husband argued that Wife

      dissipated the $39,000.


[5]   The trial court found that the $39,000 was part of the marital estate and that

      Wife did not dissipate it. In particular, the court found in relevant part as

      follows:


              20. [Husband’s] written documents offered to prove his
              contention that the transfers were intended to buy out [Wife’s]
              share of the marital residence were unconvincing, as they
              appeared to have been prepared at least a year after the first
              transfer, were notarized after the date of filing the petition for
              dissolution[,] and [were] not signed at all by [Wife].


              21. Of the differing accounts of the reason for the transfer of
              the $39,000, the Court finds [Wife’s] version more convincing
              and more in line with the parties’ actions as shown by the
              testimony.



      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019   Page 3 of 6
              22. The Court finds that the portion of the $39,000 that was
              spent was used for family and marital purposes and therefore will
              not be counted against [Wife’s] share of the marital estate. The
              portion that was not spent remains part of the marital estate.


      Appellant’s App. Vol. II at 13. This appeal ensued.


                                     Discussion and Decision
[6]   Husband appeals the trial court’s finding that the $39,000 was not dissipated by

      Wife. The trial court’s judgment included findings of fact and conclusions

      thereon following an evidentiary hearing. As our Supreme Court has stated:


              pursuant to Trial Rule 52(A), we “shall not set aside the findings
              or judgment unless clearly erroneous, and due regard shall be
              given to the opportunity of the trial court to judge the credibility
              of the witnesses.” Factual findings are only clearly erroneous
              where there is no support for them in the record, either directly or
              by inference; a judgment is only clearly erroneous when it applies
              an improper legal standard to proper facts. Johnson v. Wysocki,
              990 N.E.2d 456, 460 (Ind. 2013). “In either case, we must be left
              ‘with the firm conviction that a mistake has been made.’” Id.
              (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)).


      Johnson v. Johnson, 999 N.E.2d 56, 59 (Ind. 2013).


[7]   In distributing the marital estate, the trial court “shall presume that an equal

      division of the marital property is just and reasonable.” Ind. Code § 31-15-7-5

      (2018). However, a court may deviate from that presumption if “[t]he conduct

      of the parties during the marriage” demonstrates “dissipation of their property.”

      Id. As we have explained:


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019   Page 4 of 6
              The dissipation of marital assets involves frivolous, unjustified
              spending of marital assets. The test for dissipation of marital
              assets is whether the assets were actually wasted or misused. To
              determine whether dissipation has occurred, we consider the
              following factors:


              1. Whether the expenditure benefited the marriage or was made
              for a purpose entirely unrelated to the marriage;


              2. The timing of the transaction;


              3. Whether the expenditure was excessive or de minimis; and


              4. Whether the dissipating party intended to hide, deplete, or
              divert the marital asset.


      Kondamuri v. Kondamuri, 852 N.E.2d 939, 951-52 (Ind. Ct. App. 2006)

      (citations, quotation marks, and footnote omitted); see also Coyle v. Coyle (In re

      Marriage of Coyle), 671 N.E.2d 938, 943-44 (Ind. Ct. App. 1996).


[8]   On appeal, Husband argues that the trial court erred because, according to

      Husband, “[t]he evidence clearly shows that Wife used the money for her own

      benefit, thereby dissipating a portion of the marital estate to the detriment of

      Husband.” Appellant’s Br. at 10. Husband argues only that the first factor of

      the above four is relevant here, and he does not discuss the other three. In

      particular, he asserts that “Wife admitted that she did not spend the money as

      the parties originally intended. Thus . . . it is clear that Wife dissipated and

      disposed of the money to benefit herself . . . .” Id. at 13. Husband then argues



      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019   Page 5 of 6
       that the trial court erred when it did not “apply the $39,000 as a credit against

       Wife’s share of the marital estate.” Id.


[9]    The trial court did not clearly err when it found that Wife did not dissipate the

       $39,000. Wife testified that she used some of the money to pay down credit

       card debt, a loan for a car that was in Husband’s name, and other debt. Wife

       also testified that she used some of the money on expenses relating to their

       children. And she used some of the money on relocation costs to Texas in the

       belief, prior to Husband’s petition for dissolution, that both parties would be

       relocating there. The evidence supports the trial court’s finding that Wife did

       not engage in “frivolous, unjustified spending” of that money or otherwise use

       the money for a “purpose entirely unrelated to the marriage.” Kondamuri, 852

       N.E.2d at 951-52.


[10]   Husband’s argument on appeal is merely a request for this Court to reweigh the

       evidence, which we cannot do. Further, insofar as Husband asserts that some

       portion of the credit card or other debt was in Wife’s name, Husband has not

       shown that that debt was outside the marital pot. Accordingly, we cannot say

       that the trial court’s judgment is clearly erroneous, and we affirm its judgment.


[11]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1734 | January 9, 2019   Page 6 of 6
