      MEMORANDUM DECISION
                                                                               FILED
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                               May 11 2018, 7:56 am

      regarded as precedent or cited before any                                CLERK
                                                                           Indiana Supreme Court
      court except for the purpose of establishing                            Court of Appeals
                                                                                and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Gabriel S. Britton                                      Michael A. Ksenak
      Martinsville, Indiana                                   Ksenak Law Firm
                                                              Martinsville, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Michael Lee Sugars,                                     May 11, 2018
      Appellant-Petitioner,                                   Court of Appeals Case No.
                                                              55A04-1707-DR-1691
              v.                                              Appeal from the Morgan Superior
                                                              Court
      Heather Leanne Sugars,                                  The Honorable Peter R. Foley,
      Appellee-Respondent.                                    Judge
                                                              Trial Court Cause No.
                                                              55D01-1605-DR-733



      Mathias, Judge.


[1]   The Morgan Superior Court granted Michael Sugars’s (“Husband”) petition to

      dissolve his marriage to Heather Sugars (“Wife”), and the court equally divided

      the marital estate between the parties. Husband appeals and raises three issues,

      which we restate as:
      Court of Appeals of Indiana | Memorandum Decision 55A04-1707-DR-1691 | May 11, 2018          Page 1 of 11
        I. Whether the trial court abused its discretion when it assigned a value of
           $2,000 to the parties’ 2000 Volkswagen Beetle;
       II. Whether the trial court abused its discretion by equally dividing the equity
           in the marital residence because Husband paid down the mortgage balance
           with funds received from inheritances; and,
      III. Whether the trial court abused its discretion when it equally divided
           Husband’s pension between the parties and effectively awarded Wife half
           of his disability back pay.

      We agree that the trial court’s valuation of the vehicle is not supported by the

      evidence, but in all other respects, we affirm the trial court’s judgment.


                                 Facts and Procedural History
[2]   The parties were married on June 16, 1995. Both parties were employed full-

      time, and they comingled their assets. During the marriage, Husband received

      two inheritances. In 2000, Husband inherited $10,000 from his grandmother. In

      2007, Husband inherited $26,500 from his aunt. Husband used both

      inheritances to make payments toward the principal owed on the mortgage for

      the marital residence. Also, in 2010, Husband received disability back pay from

      the Veterans Administration in the amount of $35,000. Husband invested the

      funds in a five-year certificate of deposit (“CD”). When the CD matured,

      Husband applied the funds toward the principal owed on the parties’ mortgage.

      The parties’ goal was to have no existing debt when they reached retirement

      age.


[3]   The parties also owned a 2000 Volkswagen Beetle. During discovery, Husband

      stated the value of the vehicle was $2,000. At the dissolution hearing, Husband

      testified that the vehicle was only worth $200 or $300. He stated the $2,000

      Court of Appeals of Indiana | Memorandum Decision 55A04-1707-DR-1691 | May 11, 2018   Page 2 of 11
      value he placed on the vehicle during discovery was either a mistake or

      scrivener’s error. Wife testified that the Kelley Blue Book value for the Beetle (if

      it were sold to a private party) was $1,372.00. Tr. pp. 50–51; Ex. Vol.,

      Respondent’s Ex. 12.


[4]   During the marriage, Husband was in the Army National Guard. He served

      twenty-four years and retired in 2007. The parties were married for the last

      twelve years of Husband’s employment in the National Guard. As a result of

      his National Guard service, Husband receives a $2,404.00 monthly gross

      pension benefit.


[5]   The trial court determined that an equal division of the martial estate was

      appropriate and just. The court rejected Husband’s request for an unequal

      division of the marital estate. Specifically, the court found that Husband co-

      mingled the funds received from his inheritances and disability payment “with

      other marital assets and used the funds for the benefit of the marriage by” using

      those funds to pay principal owed on the parties’ mortgage, which was a joint

      liability. Appellant’s App. p. 15.


[6]   The court awarded Wife 25% of Husband’s monthly pension benefit and

      ordered her to pay all taxes associated with her portion. The court awarded the

      marital real estate to Husband, his vehicle, the Volkswagen Beetle, and various

      bank accounts. The court valued the Beetle at $2,000. Wife received her vehicle,

      a CD, one bank account, and a retirement account. Because of this distribution




      Court of Appeals of Indiana | Memorandum Decision 55A04-1707-DR-1691 | May 11, 2018   Page 3 of 11
      of the marital assets and liabilities, Husband was ordered to make a cash

      equalization payment to Wife in the amount of $49,292.42.


[7]   Husband now appeals. Additional facts will be provided as necessary.


                                         Standard of Review
[8]   Sua sponte, the trial court entered findings of fact and conclusions thereon to

      accompany its dissolution decree. Accordingly, the specific factual findings

      control only the issues that they cover, while a general judgment standard

      applies to issues upon which there are no findings. Fetters v. Fetters, 26 N.E.3d

      1016, 1019 (Ind. Ct. App. 2015), trans. denied. As to the issues upon which the

      trial court made specific findings, we apply a two-tiered standard of review:

      first, we consider whether the evidence supports the findings of fact; second, we

      determine whether the findings of fact support the conclusions thereon. Estudillo

      v. Estudillo, 956 N.E.2d 1084, 1090 (Ind. Ct. App. 2011). We will uphold the

      trial court’s findings of fact and conclusions thereon unless they are clearly

      erroneous. Id. Clear error is “that which leaves us with a definite and firm

      conviction that a mistake has been made.” Masters v. Masters, 43 N.E.3d 570,

      575 (Ind. 2015).


[9]   Moreover, the division of marital assets lies in the trial court’s discretion, and

      we will reverse only for an abuse of that discretion. Fischer v. Fischer, 68 N.E.3d

      603, 608 (Ind. Ct. App. 2017), trans. denied. It is well established in Indiana that

      all marital property goes into the marital pot for division, whether it was owned

      by either spouse prior to the marriage, acquired by either spouse after the

      Court of Appeals of Indiana | Memorandum Decision 55A04-1707-DR-1691 | May 11, 2018   Page 4 of 11
       marriage and prior to final separation of the parties, or acquired by their joint

       efforts. Ind. Code § 31-15-7-4(a); Hill v. Hill, 863 N.E.2d 456, 460 (Ind. Ct. App.

       2007). This “one-pot” theory ensures that all assets are subject to the trial

       court’s power to divide and award. Hill, 863 N.E.2d at 460.


                                       The Volkswagen Beetle
[10]   Husband argues that the trial court abused its discretion when it assigned a

       value of $2000.00 to the parties’ Volkswagen Beetle. We review a trial court’s

       valuation of an asset in a marriage dissolution for an abuse of discretion. Bingley

       v. Bingley, 935 N.E.2d 152, 154 (Ind. 2010). The trial court does not abuse its

       discretion where sufficient evidence and reasonable inferences drawn therefrom

       support the valuation. Webb v. Schleutker, 891 N.E.2d 1144, 1151 (Ind. Ct. App.

       2008). When we review the trial court’s valuation of property in a dissolution,

       we neither reweigh the evidence nor judge the credibility of witnesses. Crider v.

       Crider, 15 N.E.3d 1042, 1056 (Ind. Ct. App. 2014), trans. denied.


[11]   During discovery, Husband stated that the value of the parties’ Volkswagen

       Beetle was $2,000. When asked about the car’s value during the dissolution

       hearing, Husband stated that the vehicle was only worth $200 or $300. He

       stated that the discovery response was a mistake or scrivener’s error. Tr. pp. 28–

       29.


[12]   Wife testified that the vehicle had a private party value of $1,372 according to

       Kelley Blue Book. Tr. pp. 50–51. And a copy of the valuation from Kelley Blue



       Court of Appeals of Indiana | Memorandum Decision 55A04-1707-DR-1691 | May 11, 2018   Page 5 of 11
       Book listing the vehicle’s condition as “fair” and a value of $1,372 was

       admitted into evidence. Ex. Vol., Respondent’s Ex. 12.


[13]   In its findings, the trial court found that the “private party value” of the parties’

       vehicles “is the appropriate value to use and the value most likely to be the fair

       market value of the vehicles.” Appellant’s App. p. 15. We conclude that there

       was not sufficient evidence to support the trial court’s $2,000 valuation of the

       2000 Volkswagen Beetle, and the trial court should have used the “private party

       value” of the car as it did for the parties’ other vehicles. We therefore remand to

       the trial court to assign a value of $1,372 to the Volkswagen Beetle and to adjust

       its distribution accordingly.


                            Equal Division of the Marital Estate
[14]   Husband argues that he rebutted the presumption that an equal division of the

       martial estate was just and reasonable because he used two inheritances to pay

       principal owed on the parties’ mortgage. Indiana Code section 31-15-7-4(b)

       requires the trial court to divide the marital property in a “just and reasonable

       manner.” The court “shall presume that an equal division of the marital

       property between the parties is just and reasonable.” Ind. Code § 31-15-7-5.


[15]   This presumption can be rebutted by a party who presents relevant evidence,

       including evidence concerning the following factors, demonstrating that an

       equal division would not be just and reasonable:


               (1) The contribution of each spouse to the acquisition of the
               property, regardless of whether the contribution was income
               producing.
       Court of Appeals of Indiana | Memorandum Decision 55A04-1707-DR-1691 | May 11, 2018   Page 6 of 11
               (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 . . . .

               (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.
       Id.


[16]   The division of marital property is highly fact sensitive. Fobar v. Vonderahe, 771

       N.E.2d 57, 59 (Ind. 2002). A party challenging the trial court’s division of

       marital property must overcome a strong presumption that the dissolution court

       “considered and complied with the applicable statute, and that presumption is

       one of the strongest presumptions applicable to our consideration on appeal.”

       McCord v. McCord, 852 N.E.2d 35, 43–44 (Ind. Ct. App. 2006), trans. denied

       (citation omitted). Accordingly, we will reverse a trial court’s division of marital

       property only if there is no rational basis for the award. Luttrell v. Luttrell, 994

       N.E.2d 298, 301 (Ind. Ct. App. 2013), trans. denied. We consider only the

       evidence most favorable to the trial court’s disposition of the property without

       reweighing evidence or assessing witness credibility, and although the facts and




       Court of Appeals of Indiana | Memorandum Decision 55A04-1707-DR-1691 | May 11, 2018   Page 7 of 11
       reasonable inferences might justify a different property distribution, we will not

       substitute our judgment for that of the trial court. Webb, 891 N.E.2d at 1153–54.


[17]   During the marriage, Husband received a $10,000 inheritance from his

       grandmother and a $26,500 inheritance from his aunt. The parties desired to be

       debt free when they reached retirement age; therefore, Husband used the

       inheritances to make payments toward the principal owed on the parties’

       mortgage. The trial court found that Husband “co-mingled these funds with

       other martial assets and used the funds for the benefit of the marriage by paying

       the inheritance funds . . . towards the payoff of a joint liability[.]” Appellant’s

       App. p. 15. Moreover, Husband’s economic circumstances are superior to

       Wife’s, and his income throughout the marriage was significantly greater than

       Wife’s income. For all of these reasons, we conclude that Husband did not

       rebut the presumption that an equal division of the marital estate was just and

       reasonable.


                Husband’s Pension Benefit and Disability Back Pay
[18]   Finally, Husband argues that the trial court erred when it awarded Wife a

       percentage of his pension and effectively awarded her 50% of his disability back

       pay by awarding Wife half of the equity in the marital residence. Because

       Husband used his $35,000 disability back pay to make a payment toward the

       principal owed on their mortgage, he argues that the $35,000 equity in the

       martial residence should have been set aside to him. In support of his argument,

       Husband relies on Griffin v. Griffin, 872 N.E.2d 653 (Ind. Ct. App. 2007), in


       Court of Appeals of Indiana | Memorandum Decision 55A04-1707-DR-1691 | May 11, 2018   Page 8 of 11
       which our court discussed the United States Supreme Court’s opinion in

       Mansell v. Mansell, 490 U.S. 581 (1989).


[19]   The facts and circumstances of the cases Husband relies on are markedly

       different from those before us. In Griffin, Husband successfully applied for

       disability benefits while the parties’ divorce was pending. To claim his disability

       benefits, Husband was required to waive a portion of his military retirement

       benefits. Wife argued, and the trial court agreed, that she was entitled to 50% of

       Husband’s gross military benefits regardless of the source. Citing the Mansell

       case, Husband argued that VA disability benefits are not divisible marital

       property. Griffin, 872 N.E.2d at 655.


[20]   In Mansell, the United States Supreme Court held that “the Former Spouses’

       Protection Act does not grant state courts the power to treat as property

       divisible upon divorce military retirement pay that has been waived to receive

       veterans’ disability benefits.” 490 U.S. at 594–95. Therefore, the Griffin Court

       held that “the trial court’s order that [Husband] pay to [Wife] fifty percent

       (50%) of his retirement income from the military, including his disability

       payments is clearly erroneous.” 872 N.E.2d at 658 (quotations omitted). See also

       Bandini v. Bandini, 935 N.E.2d 253, 262 (Ind. Ct. App. 2010) (stating that

       “[p]ursuant to Mansell and Griffin, Indiana trial courts lack authority to enforce

       even an agreed-upon division of property insofar as it divides amounts of gross

       military retirement pay that were, previously to the decree, waived to receive

       disability benefits or elected to be deducted from gross pay as [Survivor Benefit

       Plan] costs to benefit the former spouse.”).

       Court of Appeals of Indiana | Memorandum Decision 55A04-1707-DR-1691 | May 11, 2018   Page 9 of 11
[21]   This case does not involve present or future disability benefits. Here, Husband

       received his $35,000 lump sum disability payment approximately seven years

       before he filed a petition to dissolve the parties’ marriage. Because the parties’

       desired to have their mortgage paid when they retired, Husband eventually

       applied the lump sum payment to the principal balanced owed on their

       mortgage. Husband did not dispute that the marital residence and the equity in

       the residence were marital assets.

[22]   The trial court considered Husband’s argument that he was entitled to an

       unequal division of the marital assets because he used his lump sum disability

       payment to reduce the debt owed on the parties’ residence. The trial court

       rejected Husband’s argument, and under the facts and circumstances of this

       case, we cannot conclude that trial court erred when it found that Husband did

       not rebut the presumption that an equal division of the martial estate was just

       and reasonable.


                                                Conclusion
[23]   The trial court applied the presumption that an equal division of the marital

       estate was just and reasonable, and Husband did not rebut that presumption.

       We therefore affirm the trial court’s equal division of the marital estate.

       However, the trial court abused its discretion when it assigned a $2,000 value to

       the parties’ Volkswagen Beetle. We remand this case to the trial court to revise

       the value of the vehicle to $1,372 and to adjust its distribution accordingly.




       Court of Appeals of Indiana | Memorandum Decision 55A04-1707-DR-1691 | May 11, 2018   Page 10 of 11
[24]   Affirmed in part, reversed in part and remanded for proceedings consistent with

       this opinion.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A04-1707-DR-1691 | May 11, 2018   Page 11 of 11
