MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                              Aug 11 2015, 6:05 am
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.



APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
Matthew Carie                                            Jill Doggett
Vincennes, Indiana                                       Hart Bell, LLC
                                                         Vincennes, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Matthew R. Carie,                                        August 11, 2015

Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         42A05-1409-DR-419
        v.                                               Appeal from the Knox Superior
                                                         Court.
                                                         The Honorable W. Timothy
Jennifer Carie, f/k/a Jennifer                           Crowley, Judge.
Wade, n/k/a Jennifer Andrews,                            Cause No. 42D01-1304-DR-84
Appellee-Respondent.




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 42A05-1409-DR-419 | August 11, 2015       Page 1 of 10
                                       Statement of the Case
[1]   Matthew R. Carie appeals from the trial court’s order resolving the division of
                                                                                                         1
      property and debts in an action dissolving his marriage to Jennifer Carie. We

      affirm.


                                                      Issues
[2]   Matthew presents the following issues for our review:

              I.       Whether the trial court abused its discretion by failing to
                       include marital liabilities in the marital pot.
              II.      Whether the trial court abused its discretion in its valuation of
                       certain marital assets.

                                Facts and Procedural History
[3]   After Matthew and Jennifer began dating, she moved into a home Matthew had

      purchased prior to their relationship. They lived together there until the date of

      their separation. Matthew continues to reside in the home. At issue in this

      appeal is the trial court’s resolution of contested property division issues.


[4]   Matthew purchased what would later become the marital residence in 2004 for

      $100,000, taking out a mortgage for the entire purchase price. Jennifer moved

      into the house in 2008. Matthew and Jennifer were married on October 10,

      2010, a little more than a year after the birth of their child. Jennifer decorated




      1
       Jennifer Carie had her maiden name, Jennifer Wade, restored at the conclusion of the August 29, 2013
      hearing. By the time of the final hearing in this matter Jennifer had remarried and was known as Jennifer
      Andrews. For ease of reference we will refer to her as Jennifer in this opinion.

      Court of Appeals of Indiana | Memorandum Decision 42A05-1409-DR-419 | August 11, 2015           Page 2 of 10
      the home, and with the help of her grandparents, painted the cabinets in the

      kitchen and replaced flooring in the home. Matthew and Jennifer also made

      improvements to the home such as hanging shutters, landscaping the property,

      and laying brick edging along the walkways. Matthew made the mortgage

      payments on the home. At the time the parties separated on March 23, 2013,

      the remaining obligation on the mortgage was $79,000.00.


[5]   Prior to their marriage, but while the parties were living together, Matthew paid

      $5,219.25 for a new roof that was installed on the house. During the marriage,

      a pole barn costing $20,000.00 was built on the property after both parties

      agreed to do so. Matthew borrowed money for the price of the pole barn from a

      401K he had with his employer, which at that time was Peabody Energy.

      When the coal mine was closed, Matthew’s loan was converted to a

      withdrawal. Matthew testified that the tax consequences for the conversion of

      the loan were $8,321.00 in federal tax penalties and $748.00 in state tax

      penalties.


[6]   Two vehicles were purchased during the marriage. The value of the Ford F150

      truck was $6,048.00 and the value of the 2009 Chevy Traverse was $17,108.00

      at the time of separation. Matthew traded in both vehicles in order to purchase

      another vehicle after the parties had separated. Matthew purchased a Rhino

      ATV with a fair market value of $8,000.00 during the marriage, and the

      outstanding indebtedness on the ATV was $7,600.00.




      Court of Appeals of Indiana | Memorandum Decision 42A05-1409-DR-419 | August 11, 2015   Page 3 of 10
[7]   Both parties had retirement accounts. Jennifer’s retirement account benefits

      were $2,000.00 total and Matthew’s 401K benefits increased in value during the

      course of the marriage.


[8]   Matthew filed a petition for dissolution of marriage on April 8, 2013. A

      provisional hearing was held and the trial court issued its provisional order. On

      August 29, 2013, the trial court conducted a bifurcated hearing to issue the

      decree of dissolution and the parties began their presentation of evidence on the

      contested issues regarding property division. The final hearing was held on

      April 3, 2014, at which time the parties concluded the presentation of evidence.

      The trial court’s June 30, 2014 order resolved child-related issues which are not

      the subject of this appeal. However, Matthew appeals from the trial court’s

      order issued on July 7, 2014, resolving the division of property and debts.


                                   Discussion and Decision
                                         Standard of Review
[9]   When a trial court enters findings of fact and conclusions thereon pursuant to

      Indiana Trial Rule 52(A), as the reviewing court we are prohibited from setting

      aside the trial court’s judgment unless it is shown to be clearly erroneous.

      Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). We give due regard to the

      trial court’s opportunity to judge the credibility of the witnesses. Id.

      Accordingly, a trial court’s judgment is clearly erroneous only if its findings do

      not support its conclusions of law or its conclusions of law do not support its




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       judgment. Id. The findings are clearly erroneous only when the record

       contains no facts to support them either directly or by inference. Id.


                                           I. The Marital Pot
[10]   Matthew contends that the trial court abused its discretion by failing to include

       certain liabilities in the marital pot when dividing the property and assets.

       There are two steps involved in the process of dividing marital property.

       Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004), trans. denied.

       A trial court must determine what property must be included in the marital

       estate. Id. The trial court is required by statute to divide the property of the

       parties whether owned by either spouse before the marriage, acquired by either

       spouse in his or her own right after the marriage and before the final separation

       of the parties, or acquired by their joint efforts. Ind. Code § 31-15-7-4(a) (1997).

       “With certain limited exceptions, this ‘one-pot’ theory specifically prohibits the

       exclusion of any asset from the scope of the trial court’s power to divide and

       award.” Thompson, 811 N.E.2d at 912. Only the property acquired by one of

       the spouses after the final separation date is excluded from the marital estate.

       Id.


[11]   Once the trial court has determined what constitutes marital property, it must

       then divide the marital property starting with the presumption that an equal

       split is just and reasonable. Id. (citing Ind. Code § 31-15-7-5 (1997)). If a court

       chooses to deviate from that presumption, then it must state why it did so. Id.

       at 913. The party challenging the trial court’s division of marital property must


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       overcome the strong presumption that the trial court considered and complied

       with the applicable statute. Id.


                                               A. Vehicle Loans

[12]   Matthew claims that the trial court abused its discretion by assigning only the

       fair market value of the vehicles to him without offsetting that amount by the

       amount left to be paid on the vehicle loans. Matthew testified to and submitted

       Kelley Blue Book values for the vehicles reflecting fair market values of

       $6,048.00 and $17,108.00 for the Ford F150 and the Chevy Traverse

       respectively, values to which Jennifer ultimately agreed were appropriate.


[13]   He testified that the remaining amount of indebtedness on the vehicle loans was

       $20,000.00 for the Chevy Traverse and $9,000.00 for the Ford F150. However,

       he also testified that since the separation and filing of the petition he traded in

       both vehicles in order to buy a different vehicle. Although he testified that he

       suffered a loss when trading in those vehicles, he could not testify about the

       amount of the loss and did not present documentation about it. In Matthew’s

       final argument he subtracted the balance due on each of the vehicle loans from

       the fair market value of each when suggesting a total value of $8,057.00 to be

       assigned to him for the vehicles.


[14]   The trial court’s valuation of the vehicles using their fair market value was

       within the range of evidence presented at the hearings. Matthew did not

       establish the amount of loss he claims he suffered when trading in the vehicles.

       There is no abuse of discretion where the trial court’s valuation is within the


       Court of Appeals of Indiana | Memorandum Decision 42A05-1409-DR-419 | August 11, 2015   Page 6 of 10
       range of values supported by the evidence. Weigel v. Weigel, 24 N.E.3d 1007,

       1011-12 (Ind. Ct. App. 2015) (citing Balicki v. Balicki, 837 N.E.2d 532, 536 (Ind.

       Ct. App. 2005)).


                                               B. Tax Penalties

[15]   Next, Matthew argues that the trial court abused its discretion by failing to

       include the tax penalties Matthew suffered when the $20,000.00 loan he took

       against his 401K was converted to a withdrawal. He testified that the

       consequences of that conversion resulted in $8,321.00 in federal tax penalties

       and $748.00 in state tax penalties for a total of $9,069.00. Matthew claims that

       Jennifer should have to bear her half of those penalties.


[16]   Matthew asked the trial court to assign $51,614.00 as growth to the 401K

       account during the marriage, while Jennifer asked the trial court to assign a

       value of $53,985.43. The trial court’s valuation was $51,600.00. We find

       Matthew’s proposed valuation was faulty in some respects. He used an

       incorrect starting point for determining the growth of the account, and he failed

       to take into consideration a pre-marital loan he had taken against that account,

       which is reflected in that statement. His exclusion of the percentage of growth

       from pre-marital contributions to the account was therefore also based on a

       faulty calculation. The trial court’s valuation of $51,600.00, which is slightly

       under Matthew’s proposed valuation, however, is within the range of the

       evidence presented to the trial court and would appear to implicitly account for

       Jennifer’s share of the tax penalty obligation. We find no abuse of discretion

       here.
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                                II. Valuation of Marital Assets
[17]   Matthew claims that the trial court erred by determining that the value of the

       marital home had increased by $30,000.00 during the course of the marriage.

       We review a trial court’s valuation of marital assets for an abuse of discretion

       and will reverse the trial court’s decision only for an abuse of that broad

       discretion. Granzow v. Granzow, 855 N.E.2d 680, 685 (Ind. Ct. App. 2006). If

       there are sufficient evidence and reasonable inferences to support the valuation,

       there is no abuse of discretion. Id. We do not reweigh the evidence and will

       consider the evidence in the light most favorable to the judgment. Id.


[18]   Matthew testified that he purchased the home in 2004 for $100,000.00 and

       obtained a mortgage for the amount of the purchase price. He testified that the

       remaining obligation on the mortgage was $79,000.00. The parties testified

       about the purchase price of $20,000.00 paid to build the pole barn, which was

       erected on the marital property during the marriage. Further, Matthew testified

       that in June of 2010, when Matthew and Jennifer were cohabiting prior to

       marriage, Matthew replaced the roof at a cost of $5,219.25. Jennifer testified,

       and Matthew did not disagree, that during the marriage, she cooked, cleaned,

       decorated, and maintained the house. She testified that both she and Matthew

       improved the home by remodeling and landscaping. Jennifer’s grandparents

       helped the two by giving them new kitchen flooring as a Christmas present.

       They also helped Jennifer with painting projects at the house.


[19]   The trial court “shall divide the property of the parties, whether owned by

       either spouse before the marriage, acquired by either spouse in his or her own
       Court of Appeals of Indiana | Memorandum Decision 42A05-1409-DR-419 | August 11, 2015   Page 8 of 10
       right after the marriage and prior to final separation of the parties, or acquired

       by their joint efforts. . . .” Ind. Code § 31-15-7-4 (1997). The new roof

       increased the value of the marital residence. To the extent the trial court

       included that value in its determination, we find no abuse of discretion. See

       Larkins v. Larkins, 685 N.E.2d 88, 92 (Ind. Ct. App. 1997) (no abuse of

       discretion to award former wife one half of equity in marital residence including

       appreciation in valuation during period of pre-marital cohabitation).


[20]   The trial court asked the parties to submit written final arguments in lieu of

       closing arguments and proposed findings of fact and conclusions thereon. In

       his, Matthew argued that the only evidence regarding the valuation of the

       marital residence was the assessed value of the house, land, and barn at

       $77,000.00. He argued that given the current balance on the mortgage of

       $86,137.00, the marital residence had a negative value of $8,437.00, to which he

       would be entitled to half, or a negative $4,218.50. In hers, Jennifer argued that

       the home was purchased for $100,000.00 with a mortgage pay off amount of

       $78,488.00 as of the date of the filing of the petition. In addition to the new

       roof and the pole barn, she cited her nonmonetary contributions to the

       improvement of the home in arriving at a value of $140,000.00. She argued

       that the increased value of the marital residence of $140,000.00, less the balance

       she assigned the mortgage pay off, $78,488.00, resulted in an increase in value

       of $61,512.00, to which she was entitled to half, or $30,756.00.


[21]   The range of evidence of the increased value of the marital residence was

       therefore a negative $8,437.00 (Matthew’s valuation) and $61,512.00 (Jennifer’s

       Court of Appeals of Indiana | Memorandum Decision 42A05-1409-DR-419 | August 11, 2015   Page 9 of 10
       valuation). We find that the trial court’s assignment of $30,000.00 as the

       increased value of the marital residence is within the range of the evidence and

       does not constitute an abuse of discretion. Weigel, 24 N.E.3d at 1011-12.


                                                Conclusion
[22]   In light of the foregoing, we affirm the trial court’s judgment.


[23]   Affirmed.


       Kirsch, J., and Bradford, J., concur.




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