MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Aug 21 2018, 8:41 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




ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Sean C. Lemieux                                         Rebecca Eimerman
Lemieux Law                                             Sarah Trostle
Indianapolis, Indiana                                   Eimerman Law
                                                        Zionsville, Indiana
Vanessa Lopez Aguilera
Lopez Law Office, PC
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Cory D. Crumpton,                                       August 21, 2018
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        17A-DR-3032
        v.                                              Appeal from the Hendricks
                                                        Superior Court
Fallon (Crumpton) Fernandes,                            The Honorable Karen M. Love,
Appellee-Petitioner                                     Judge
                                                        Trial Court Cause No.
                                                        32D03-1302-DR-106



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018                  Page 1 of 6
                                          Case Summary
[1]   Cory Crumpton (“Husband”) appeals the trial court’s order requiring him to

      pay $11,250 to his ex-wife, Fallon Fernandes (“Wife”), in relation to a daycare

      that they operated when they were married and that was to be sold after their

      divorce. Husband contends that the trial court’s decision is not supported by

      the evidence presented. We agree and reverse.



                            Facts and Procedural History
[2]   Husband and Wife married each other in 2010 and divorced in March 2014.

      One of their marital assets was a business they operated together, Kiddieville

      Day Care, and the divorce decree provided that the daycare “shall be sold and

      all debts paid” and that “each party shall receive half of the net proceeds.”

      Appellant’s App. Vol. II p. 42. Husband was given the responsibility to operate

      the daycare until the sale. A few months after the divorce, however, the State

      of Indiana shut down the daycare for violations relating to cribs and unsanitary

      conditions. Several months after that, Jacqueline Murray, who had been the

      director of Kiddieville, opened her own daycare (called Miracles and Blessings)

      in the building formerly occupied by Kiddieville.


[3]   In July 2016, Wife filed a petition claiming that the divorce decree required

      Husband to sell the daycare, that he had failed to do so, and that he should

      therefore be found in contempt. (Husband doesn’t dispute Mother’s claim that

      the divorce decree placed on him the burden of selling the daycare, even though


      Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018   Page 2 of 6
      the decree said only that the daycare “shall be sold.”) At the hearing on the

      petition, Husband testified that he had been negotiating a sale of the daycare to

      Murray when the State shut down the business. Husband anticipated that he

      would be paid by receiving “[f]ive percent of enrollment” for six to twelve

      months. Tr. Vol. III pp. 89-90. However, both Husband and Murray testified

      that the sale was never finalized because of the shutdown by the State. Both

      further testified that Murray’s opening of a daycare business several months

      later was an arrangement between Murray and the owner/landlord of the

      building, not the result of a sale by Husband to Murray.


[4]   Wife presented evidence that Husband made over $30,000 in deposits to his

      personal bank accounts between September 2014 and December 2016.

      Husband was unable to identify the source of $19,899.84 in deposits. Husband

      acknowledged selling a van that belonged to the daycare for $3500, but he said

      that amount was exceeded by the remaining debt on the van ($5000), which he

      said he paid.


[5]   In a written order issued after the hearing, the trial court did not find Husband

      in contempt for failing to sell the daycare but nonetheless ordered him to pay

      $11,250 to Wife:


              15. [Husband] is not credible when money is an issue.
              [Husband] is not credible concerning the cash he received and
              pocketed from Kiddieville Day Care after the divorce.
              [Husband] could not account for $19,899.84 of cash deposits to
              his checking account. Court finds that $16,000.00 of that was
              from Kiddieville Day Care and [Husband] owes [Wife] $8,000.00
              of that amount.
      Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018   Page 3 of 6
                                           *       *        *       *


               19. On the issue of Kiddieville Day Care, the Court does not
               have sufficient evidence to assign a value for the Kiddieville Day
               Care. The State of Indiana shut the daycare down on
               07/05/2014. [Husband] did sell a van belonging to the daycare
               for which he received $6,500. The Court awards [Wife] a
               judgment for $11,250.00 ([$3,250.00] and $8,000.00 cash
               proceeds) against [Husband] . . . .


      Appellant’s App. Vol. II pp. 31-32, 34.


[6]   Husband now appeals.



                                Discussion and Decision
[7]   Husband contends that the two findings of fact underlying the trial court’s

      award of $11,250 to Wife—the finding that Husband received $16,000 from the

      daycare after the divorce and the finding that he sold a van belonging to the

      daycare for $6500—are incorrect. We will set aside a trial court’s finding of fact

      only if it is clearly erroneous, i.e., when the record lacks any evidence or

      reasonable inferences from the evidence to support it. Steele-Giri v. Steele, 51

      N.E.3d 119, 125 (Ind. 2016). In making this determination, we consider only

      the evidence most favorable to the trial court’s decision and the reasonable

      inferences therefrom, and we will not reweigh the evidence or assess the

      credibility of witnesses. Breeden v. Breeden, 678 N.E.2d 423, 425 (Ind. Ct. App.

      1997).



      Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018   Page 4 of 6
[8]   The trial court based its finding that Husband received $16,000 from the

      daycare after the divorce on the fact that he “could not account for $19,899.84

      of cash deposits to his checking account.” Husband acknowledges that he did

      not identify “the source of all deposits to his bank account” but contends that

      the record is “devoid of evidence” that any of that money, let alone $16,000,

      was received in connection with the daycare. Appellant’s Br. p. 12. While we

      can understand why the trial court doubted Husband’s credibility when it

      comes to money, we are compelled to agree with Husband’s argument on this

      point. Wife’s position on appeal is that the trial court was free to disbelieve

      Husband’s testimony that he couldn’t recall the source of some of the deposits

      into his bank accounts and “free to infer” that $16,000 worth of deposits “were

      made from monies he received from the Kiddieville Day [C]are.” Appellee’s

      Br. p. 10. We agree with the first proposition—Husband’s claim that he doesn’t

      remember the origin of nearly $20,000 in deposits is certainly dubious. But the

      second proposition doesn’t follow from the first. That is, the fact that the trial

      court disbelieved Husband’s testimony that the deposits didn’t come from a

      sale of the daycare does not by itself support a finding that the deposits did

      come from a sale of the daycare. As the United States Supreme Court has

      noted, “discredited testimony is not normally considered a sufficient basis for

      drawing a contrary conclusion.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

      256-57 (1986). Wife does not direct us to any affirmative evidence that the




      Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018   Page 5 of 6
       daycare was sold for, or that it was worth, $16,000. Therefore, we must

       conclude that the trial court’s finding in this regard is clearly erroneous.1


[9]    The same is true of the trial court’s finding that Husband sold a daycare van for

       $6500. To be sure, there is evidence that the daycare owned as many as three

       vans at the time of the divorce. However, Mother does not direct us to any

       evidence that any of those vans was sold for (or worth) $6500. The only

       evidence of a van being sold came from Husband himself, who testified that he

       sold a van for $3500 but that he also paid off $5000 in associated debt.


[10]   While we appreciate the trial court’s desire and efforts to bring some clarity to a

       murky situation, the evidence simply does not support the factual findings

       underlying its award of $11,250 to Wife. As such, that award must be set aside.


[11]   Reversed.


       Pyle, J., and Barnes, Sr. J., concur.




       1
         In the facts section of her brief, Wife discusses testimony by Murray that Husband had access to the daycare
       even after it was shut down and that “all of the original furnishings and equipment were gone” when she
       went to re-open the daycare. Appellee’s Br. p. 6. However, Wife makes no mention of the value of those
       items and does not otherwise assert that Murray’s testimony on this point supports the trial court’s monetary
       award. She focuses solely on her belief that Husband sold the business to Murray.

       Court of Appeals of Indiana | Memorandum Decision 17A-DR-3032| August 21, 2018                    Page 6 of 6
