MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                               FILED
court except for the purpose of establishing                       Apr 19 2017, 8:45 am
the defense of res judicata, collateral                                 CLERK
estoppel, or the law of the case.                                   Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Gregory K. Blanford                                      George T. Catanzarite
The Blanford Law Office                                  Stipp Law, LLC
South Bend, Indiana                                      South Bend, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Debra L. Myer,                                           April 19, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         71A04-1604-DR-719
        v.                                               Appeal from the St. Joseph Circuit
                                                         Court
Michael A. Myer,                                         The Honorable Andre B.
Appellee-Respondent.                                     Gammage, Magistrate
                                                         The Honorable Michael G.
                                                         Gotsch, Judge
                                                         Trial Court Cause No.
                                                         71C01-1306-DR-312



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017        Page 1 of 12
[1]   Debra L. Myer appeals from the trial court’s division of marital property in the

      dissolution of her marriage to Michael A. Myer. Debra raises several issues

      which we consolidate and restate as whether the court abused its discretion in

      its division of the marital property. We affirm.


                                      Facts and Procedural History

[2]   Debra and Michael were married in March 1990. Debra had one child prior to

      the marriage, and Debra and Michael had two children together. Debra filed a

      petition for legal separation on June 21, 2013, and Michael filed a petition for

      dissolution of marriage on July 1, 2013. The court held an evidentiary hearing

      on July 22 and September 4, 2015, at which the parties presented evidence

      regarding their incomes, real properties and mortgages, bank accounts, credit

      cards, retirement accounts, and other marital assets and liabilities. Debra

      requested findings of fact and conclusions thereon and that Michael contribute

      to the payment of her attorney fees. The parties submitted proposed findings

      and conclusions.


[3]   On March 4, 2016, the court entered a decree of dissolution and found that the

      children are over the age of majority and are emancipated by operation of law.

      In dividing the marital estate, the court awarded real property on Tyler Road in

      Walkerton, Indiana, to Michael, and real property on Quinn Road in North

      Liberty, Indiana, to Debra. Under a heading for homestead exemption, it

      found that Debra caused a homestead exemption to be removed from the Tyler

      Road property, thereby increasing the tax obligation on that property by $1,756,

      and that Michael “shall be credited $1,756 as reimbursement for said tax
      Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017   Page 2 of 12
      increase.” Appellant’s Appendix II at 41. Under a heading for retirement

      accounts, it found that a portion of Debra’s individual retirement account (IRA)

      was received by Debra from a previous divorce, that the portion was acquired

      by Debra without contribution in any form by Michael, and that an equal

      distribution of the full value of the IRA would not be just and reasonable. The

      court also found Debra is vested in a retirement plan which is payable

      beginning in August 2021 with a value of $100 per month as a life annuity.


[4]   The court further found, under a heading for student loans, that Debra included

      in her contentions a student loan debt which constituted a support obligation

      from a previous marriage, that the debt is related to post-secondary education

      for a child not born of this marriage, and that the amount would be excluded in

      the computation of marital debt. The decree states “[t]he Court favors an equal

      distribution of the marital estate between the parties,” identified and assigned

      values to the marital assets and liabilities, did not include the pre-marital value

      of Debra’s IRA or her debt related to the support obligation from a previous

      marriage in the marital property to be divided, and divided the remaining

      marital property equally. Id. at 44. The court entered a judgment of $25,480 in

      favor of Debra and against Michael to effectuate its division of the marital

      property and ordered the parties’ attorneys to prepare a qualified domestic

      relations order for Michael’s 401(k) account to satisfy the judgment. The court

      also determined the parties would be responsible for their own attorney fees.




      Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017   Page 3 of 12
                                                   Discussion

[5]   The issue is whether the trial court abused its discretion in its division of the

      marital property. When a trial court has made findings of fact, we apply the

      following two-step standard of review: whether the evidence supports the

      findings of fact, and whether the findings of fact support the conclusions

      thereon. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). Findings will be

      set aside if they are clearly erroneous. Id. Findings are clearly erroneous only

      when the record contains no facts to support them either directly or by

      inference. Id. To determine that a finding or conclusion is clearly erroneous,

      our review of the evidence must leave us with the firm conviction that a mistake

      has been made. Id.


[6]   Debra claims the trial court failed to enter specific findings and conclusions and

      applied an incorrect legal standard in stating that it favors an equal distribution

      of the marital estate. She further claims the court erred in awarding Michael a

      credit related to the loss of the homestead exemption on the Tyler Road

      property, in declining to award her a greater share of the marital estate, and in

      denying her request for attorney fees. Michael responds that the court’s

      inclusion of a tax credit related to the loss of the homestead exemption on the

      Tyler Road property as a marital asset was advantageous to Debra, that Debra

      ultimately received fifty-four percent of the marital estate in addition to her

      monthly pension, and the court did not abuse its discretion in denying her

      request for attorney fees.



      Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017   Page 4 of 12
[7]   The division of marital property is within the sound discretion of the trial court,

      and we will reverse only for an abuse of discretion. Love v. Love, 10 N.E.3d

      1005, 1012 (Ind. Ct. App. 2014) (citing Hartley v. Hartley, 862 N.E.2d 274, 285

      (Ind. Ct. App. 2007)). When we review a claim that the trial court improperly

      divided marital property, we must consider only the evidence most favorable to

      the trial court’s disposition of the property. Id. (citation omitted). Although the

      facts and reasonable inferences might allow for a different conclusion, we will

      not substitute our judgment for that of the trial court. Id.


[8]   Ind. Code § 31-15-7-4 provides that the court in a dissolution action shall divide

      the property in a just and reasonable manner. The court shall presume that an

      equal division of marital property between the parties is just and reasonable.

      Ind. Code § 31-15-7-5. However, this presumption may be rebutted by a party

      who presents relevant evidence that an equal division would not be just and

      reasonable. Id. Relevant evidence includes evidence concerning 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 the

      disposition of the property is to become effective, the conduct of the parties

      during the marriage as related to the disposition or dissipation of their property,

      and the earnings or earning ability of the parties. Id. The court is not required

      to explicitly address each factor, and a court on review must be able to infer

      from the court’s findings that the statutory factors were considered. Love, 10

      N.E.3d at 1012.


      Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017   Page 5 of 12
[9]    The trial court’s division of marital property is “highly fact sensitive . . . .” Id.

       (citing Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002)). A trial court’s

       discretion in dividing marital property is to be reviewed by considering the

       division as a whole, not item by item. Id. We will not weigh evidence, but will

       consider the evidence in a light most favorable to the judgment. Id. A party

       who challenges the trial court’s division of marital property must overcome a

       strong presumption that the court considered and complied with the applicable

       statute, and thus we will reverse a property distribution only if there is no

       rational basis for the award. Id. at 1012-1013 (citation omitted). It is well-

       established that 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. Id. at 1013 (citing Ind. Code § 31-15-7-4(a); Beard v. Beard,

       758 N.E.2d 1019, 1025 (Ind. Ct. App. 2001), trans. denied). This one-pot theory

       ensures that no asset is excluded from the trial court’s power to divide and

       award. Id. (citation omitted). Further, the trial court’s valuation of marital

       assets will be disturbed only for an abuse of discretion. Morey v. Morey, 49

       N.E.3d 1065, 1069 (Ind. Ct. App. 2016). As long as the evidence is sufficient

       and reasonable inferences support the valuation, an abuse of discretion does not

       occur. Id.


[10]   With respect to the adequacy of the trial court’s findings, we observe that the

       court’s decree sets forth findings regarding the parties’ real properties and

       mortgages, whether there had been a dissipation of assets by Debra, the parties’

       Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017   Page 6 of 12
       retirement accounts and the value of Debra’s IRA received from a previous

       divorce, Debra’s debt related to a support obligation from a previous marriage,

       and the value of their personal property. The court set forth its reasons for not

       dividing certain assets and liabilities and then divided the remaining property

       equally. We cannot say that the court did not enter additional, particular, or

       more specific findings or conclusions warrants reversal or remand. In addition,

       as to Debra’s assertion the court applied an incorrect legal standard, we note

       that, although the decree stated “[t]he Court favors an equal distribution of the

       marital estate,” Appellant’s Appendix II at 44, the court also cited Ind. Code §

       31-15-7-5, providing the court shall presume an equal division of marital

       property is just and reasonable and may deviate from an equal division when

       the presumption is rebutted, and then set aside certain property to Debra upon

       entering findings as to the reasons it did so and divided the remaining marital

       property equally. We cannot conclude, given the court’s findings and the

       strong presumption the court considered and complied with the applicable

       statute, see Love, 10 N.E.3d at 1012-1013, that the court applied an incorrect

       standard based on its statement that the court favors an equal distribution of the

       marital estate.


[11]   As to the homestead exemption, Michael indicated that, at the time the petition

       for dissolution was filed, there was a homestead exemption attached to the

       Tyler Road property. He presented evidence that his real estate taxes on that

       property were $1,858.90 for the year 2014 and $3,614.44 for the year 2015 and

       that the homestead exemption had been removed for 2015. He testified he did


       Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017   Page 7 of 12
not change the homestead exemption and was requesting a judgment against

Debra for the difference of $1,755.54. When asked to explain about the

homestead exemption, Debra testified that she “had been paying approximately

$900 a year extra in real estate tax because I could not have a homestead

exemption” and that she and Michael had executed quitclaim deeds on their

properties so that the Tyler Road property was in Michael’s name and the

Quinn Road property was in her name “thinking that we could go down to the

assessor’s office and have each of us file the homestead exemption.” Transcript

at 192. Debra testified “I filed for my homestead exemption so that I could

claim it for year 2014, payable ‘15,” “I did absolutely nothing to take away his

homestead exemption,” “I filed for mine thinking we were both eligible to get

the homestead exemption,” and that she later learned that “if there is not a

divorce decree entered, you cannot have both properties with the homestead

exemption.” Id. at 193. When asked “[d]id that result in losses someplace,”

Debra replied affirmatively, and when asked if “that can be recouped,” she

again responded affirmatively. Id. at 193-194. When asked “How,” Debra

testified “[t]he assessor’s office will make a retroactive adjustment to the 2014

taxes, payable 2015 if we can agree on who gets the exemption.” Id. at 194.

When asked if she had “a suggestion as to how to do that,” Debra testified “I

paid approximately $1,200 extra in real estate taxes because I could not claim

the homestead exemption,” “I would be more than willing to sign whatever

documents need to be signed for Mike to get the homestead exemption,” and “I

think it would be fair that he share in half of the overpayment I had to make for

not having the homestead exemption on Quinn Road.” Id.
Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017   Page 8 of 12
[12]   The court found that Debra “caused the homestead exemption to be removed

       from the Tyler Road property, thereby increasing the tax obligation on that

       property by $1,756,” and that Michael “shall be credited $1,756 as

       reimbursement for said increase.” Appellant’s Appendix II at 41. The court

       included an amount of $1,756 for “Husband’s reimbursement credit for

       homestead taxes” in its list of the marital assets and assigned the asset to

       Michael in its division of the marital estate. Id. at 45. The court characterized

       the amount of $1,756, which Debra testified could be recouped, as a credit and

       listed it as a marital asset to be assigned to Michael and divided the value of the

       asset equally, resulting in Debra receiving an equalization payment $878 higher

       than the payment she would have received if the court had not included an

       amount of $1,756 in the marital assets. We cannot say that the court abused its

       discretion in its treatment of the real estate tax increase resulting from the loss

       of the homestead exemption on the Tyler Road property.


[13]   Turning to the division of the marital estate, the parties presented evidence

       regarding their real property, bank and retirement accounts, earnings,

       employment, debt, and economic circumstances. Michael indicated that he

       worked for his current employer Aero Metals for almost sixteen years, that he

       was an hourly employee and received overtime and profit sharing which varied,

       and that in 2014 he grossed “74, 75” “someplace in there” and he believed

       Debra grossed “25.” Transcript at 46. Debra testified regarding her health

       conditions, including a recent heart attack and surgery to fuse vertebrae, her

       income in 2014 of around $24,000 to $25,000 and that she works from home,


       Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017   Page 9 of 12
       her retirement, that she had been principally responsible for caring for her

       children, and that Michael worked about fifty hours a week. The parties

       presented evidence of the value of the marital assets and liabilities.


[14]   The court’s decree identified and assigned values to the marital assets and

       liabilities. The marital assets included the real properties on Tyler Road and

       Quinn Road,1 the parties’ bank accounts and life insurance policy values,

       Debra’s IRA and pension and the parties’ 401(k) accounts, Michael’s tools, and

       the parties’ personal property. The marital liabilities included mortgages on the

       real property, credit card balances, and loans including a loan from Michael’s

       401(k). With respect to one of the credit card balances, Debra presented

       evidence that Michael had incurred a charge of $2,000 on the parties’ joint

       credit card to pay his attorney prior to the filing of the petition for dissolution

       and testified that she had used the same credit card to pay her attorney $500

       prior to separation. The court entered specific findings regarding Debra’s IRA,

       indicating that the pre-marital value of the IRA would be set over to Debra, and

       that Debra’s debt related to a previous support obligation and gave reasons it

       did not divide the debt between the parties. See Ind. Code § 31-15-7-5

       (providing the court may consider evidence concerning the extent to which the

       property was acquired before the marriage). With respect to the parties’ joint

       bank account, the decree states that Michael contended Debra withdrew funds

       from their joint bank account and that the court does not find a dissipation of



       1
           The Quinn Road property had been a rental property before it became Debra’s residence.


       Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017         Page 10 of 12
       marital assets in anticipation of the dissolution. The court also entered findings

       regarding the valuation of the real properties and mortgage balances, Michael’s

       tools, and the personal property. Debra does not challenge the court’s

       valuations. We also note that Debra received a slightly higher percentage of the

       marital property due to the fact the court did not divide the pre-marital value of

       her IRA between the parties.


[15]   The trial court’s division of marital property is highly fact sensitive, and we

       review the court’s discretion in dividing marital property considering the

       division as a whole and not item by item. See Love, 10 N.E.3d at 1012. The

       trial court considered the relevant statutory factors, determined that a just and

       reasonable division was to set certain property and debt over to Debra and

       equally divide the remaining property, and ordered that Michael make a

       payment to Debra of $25,480, resulting in a net distribution to Debra of slightly

       more than half of the marital estate. Based upon our review of the record and

       the court’s findings and conclusions, we cannot say that Debra has overcome

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

       applicable statute. See Love, 10 N.E.3d at 1013-1015 (observing the trial court

       considered the relevant statutory factors, found a just and reasonable division

       was to shift certain debt to the former wife, and achieved its net distribution by

       ordering the former husband to make an equalization payment to the former

       wife, and concluding that the former wife did not overcome the strong

       presumption the court considered and complied with the applicable statute).




       Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017   Page 11 of 12
       We do not disturb the division of the marital property set forth in the trial

       court’s decree of dissolution.


[16]   The court may order a party to pay a reasonable amount for attorney fees,

       including for legal services incurred before the commencement of the

       proceedings or after entry of judgment. Ind. Code § 31-15-10-1. The trial court

       has broad discretion in awarding attorney fees. Barton v. Barton, 47 N.E.3d 368,

       377 (Ind. Ct. App. 2015), trans. denied. The court must consider the parties’

       resources, economic conditions, abilities to earn adequate income, and other

       factors that bear on the reasonableness of the award. Hartley, 862 N.E.2d at

       286. Although Michael’s earnings are greater than Debra’s earnings, we note

       that Debra received slightly more than half of the marital property. Our review

       of the record, including the parties’ resources and employment, does not

       demonstrate that the trial court abused its discretion in determining that the

       parties will be responsible for the payment of their own attorney fees.


                                                   Conclusion

[17]   For the foregoing reasons, we affirm the trial court’s decree of dissolution and

       division of the marital estate.


[18]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1604-DR-719 | April 19, 2017   Page 12 of 12
