MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Apr 02 2020, 7:56 am
regarded as precedent or cited before any                                      CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.



ATTORNEYS FOR                                             ATTORNEY FOR
APPELLANT/CROSS-APPELLEE                                  APPELLEE/CROSS-APPELLANT
Alex M. Beeman                                            Karen Celestino-Horseman
Reminger Co., L.P.A.                                      Austin & Jones, P.C.
Indianapolis, Indiana                                     Indianapolis, Indiana

Randall D. Cloe
Cloe Legal, LLC
Carmel, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffery T. Gorham,                                        April 2, 2020
Appellant/Cross-Appellee/Plaintiff,                       Court of Appeals Case No.
                                                          19A-PL-1193
        v.                                                Appeal from the Hamilton
                                                          Superior Court
Fazia Deen-Bacchus,                                       The Honorable Michael A. Casati,
Appellee/Cross-Appellant/Defendant.                       Judge
                                                          Trial Court Cause No.
                                                          29D01-1610-PL-8970



Friedlander, Senior Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-PL-1193| April 2, 2020                      Page 1 of 13
[1]   Jeffery T. Gorham sued his former attorney, Fazia Deen-Bacchus, alleging she

      committed malpractice while representing him in a divorce case. The trial court

      granted summary judgment to Gorham as to liability and later awarded

      Gorham some, but not all, of the damages he requested. Gorham appeals, and

      Deen-Bacchus cross-appeals. We affirm in part, reverse in part, and remand

      with instructions.


[2]   Dana Gorham (“Wife”) and Jeffery Gorham (“Gorham”) were married on

      December 18, 2009. On April 24, 2013, Wife petitioned for dissolution of

      marriage. Gorham hired Deen-Bacchus to represent him. On September 15,

      2014, the court (“the dissolution court”) ordered dissolution of the marriage

      and found Gorham and Wife’s marital assets and debts (“the marital pot”) as

      follows:


                                                Assets & Debts


                                                       Value                 Debt      Net Value


      Vehicles:

      2002 Audi A4                                   $4,500.00               $0.00     $4,500.00


      2012 Toyota Prius                             $16,404.00          ($15,554.00)    $850.00


      Bank Accounts, Cash, CD’s,
      etc.
      Schwab Checking #2828                           $975.00                           $975.00



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1193| April 2, 2020       Page 2 of 13
Smarty Pig Savings                              $100.00                            $100.00


Chase Checking #7693                             $27.00                            $27.00


Retirement, 401(k)s, IRAs,
etc.
Schwab Retirement Account                       $750.00                            $750.00
(Guggenheim 401(k))
Wells Fargo IRA                              $89, 612.41                         $89,612.41


Obligations

Nelnet                                       ($56,463.18)         ($56,463.18)   ($56,463.18)


Appellant’s App. Vol. II, p. 44. The dissolution court concluded that Wife had

rebutted the presumption of equal division of the marital pot and divided it as

follows:


                                                                NET ASSET          DEBT


 WIFE


 2012 Toyota Prius                                                  $850.00


 Wells Fargo IRA                                                  $89,612.41


 Less 37.5% of $49,963.18                                        ($33,604.65)


 Net Marital Estate to Wife                                       $56,857.65




Court of Appeals of Indiana | Memorandum Decision 19A-PL-1193| April 2, 2020         Page 3 of 13
 HUSBAND


 2002 Audi A4                                                     $4,500.00


 Schwab Checking #2828                                              $975.00


 Smarty Pig Savings                                                 $100.00


 Chase Checking #7693                                               $27.00


 Schwab Retirement Account (Guggenheim                              $750.00
 401(k))

 Wells Fargo IRA to Husband                                       $33,604.65


 Sub-total                                                        $39,956.65


 Nelnet                                                                        ($56,463.18)


 Net Martial Estate to Husband                                                 ($16,506.53)


Id. at 45. In addition, the dissolution court found that Gorham had accrued

approximately $129,000.00 in student loan debt. Because Gorham had “far

superior” economic circumstances to Wife and earned a salary more than twice

that of Wife’s, the dissolution court ordered Gorham to assume sole

responsibility for his student loan debt. Id. at 43. On October 15, 2014,

Gorham’s counsel Deen-Bacchus mailed a copy of a motion to correct error to

the dissolution court but did not file it until October 20, 2014. Gorham’s

motion to correct error was ruled untimely and dismissed by the dissolution

court, a decision which was affirmed by this Court in a memorandum decision.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-1193| April 2, 2020       Page 4 of 13
      Gorham v. Downing, Case No. 29A02-1411-DR-803 (Ind. Ct. App. Jun. 4, 2015),

      trans. denied.


[3]   On October 13, 2016, Gorham filed a complaint alleging that Deen-Bacchus

      had provided him negligent representation by failing to timely file the motion to

      correct error, and, as a result, Gorham was unable to challenge the property
                                                                        1
      distribution ordered by the dissolution court. On June 4, 2017, Gorham

      moved for partial summary judgment as to liability, which motion was granted

      by the trial court. On November 1, 2018, Gorham moved for summary

      judgment as to damages, which motion was denied by the trial court. On April

      9, 2019, the trial court held a hearing regarding damages. On April 30, 2019,

      the trial court entered a final judgment in favor of Gorham, awarding him

      $18,877.20 in damages.


                                          1. Direct Appeal Issues
[4]   Gorham contends that the trial court erred: (1) by concluding that the

      dissolution court did not err in holding him responsible for the entire amount of

      his student loan debt without including the amount of his premarital student

      loan debt in the marital pot; and (2) in calculating Gorham’s damages regarding

      the American Express card debt (“AMEX debt”). “Where the trial court enters

      specific findings of fact and conclusions sua sponte, we apply the following two-

      tiered standard of review: whether the evidence supports the findings, and




      1
          The trial court refers to this order as the “Decree.” Appellant’s App. Vol. III, p. 206.


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1193| April 2, 2020                   Page 5 of 13
      whether the findings support the judgment.” Fowler v. Perry, 830 N.E.2d 97,

      102 (Ind. Ct. App. 2005). These findings and conclusions will only be set aside

      if they are clearly erroneous, meaning the record contains no facts or inferences

      supporting them. Id. “A judgment is clearly erroneous when a review of the

      record leaves us with a firm conviction that a mistake has been made.” Id. We

      consider only the evidence most favorable to the judgment and will neither

      reweigh the evidence nor assess witness credibility. Id.


                                           A. Student Loans
[5]   Gorham contends that the trial court erred in determining that the dissolution

      court did not err by holding him responsible for the entire amount of his

      premarital student loan debt without including it in the martial pot. Pursuant to

      Indiana law, all property goes into the martial pot when dividing property in a

      dissolution proceeding, regardless of whether it was owned by either spouse

      prior to the marriage, acquired by either spouse in his or her own right, or

      acquired by the joint efforts of the spouses. Thompson v. Thompson, 811 N.E.2d

      888 (Ind. Ct. App. 2004), trans. denied; see also Ind. Code § 31-15-7-4 (1997).

      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. Although the trial court may ultimately decide to award an asset or debt

      solely to one spouse, it must first include the asset or debt in its consideration of

      the marital estate to be divided. Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1193| April 2, 2020   Page 6 of 13
[6]   While we agree with Gorham that his premarital student loan debt should have

      been included in the martial pot, we conclude that any error that occurred could

      only be considered harmless. The dissolution court found, “[Gorham’s]

      economic circumstance [sic] are far superior to [Wife’s] in that [he] has a law

      degree; that his earnings are more than twice Wife’s earnings. Having made

      that finding the Court is ordering [Gorham] to assume his Student Loan debt.”

      Appellant’s App. Vol. II, p. 43. Based on this finding, it is clear to us that the

      dissolution court intended Gorham to be held responsible for his entire student

      loan debt, and its decision to set aside the premarital loans rather than listing

      them in the marital pot is merely a distinction without a difference.


[7]   Gorham also contends that the trial court failed to address the dissolution

      court’s alleged error of awarding Wife an amount that exceeded the net value of

      the marital estate. A property division under Indiana Code section 31-15-7-4

      cannot exceed the value of the marital assets without being considered an

      improper form of maintenance and an abuse of discretion. Goodman v.

      Goodman, 754 N.E.2d 595 (Ind. Ct. App. 2001). Here, the marital assets were

      valued at $96,814.41, and the dissolution court awarded Wife $56,857.65;

      therefore, her award did not exceed the value of the marital assets in violation

      of Indiana Code section 31-15-7-4.


                                    B. American Express Debt
[8]   Gorham contends that the trial court erred in calculating his damages as to the

      AMEX debt. The trial court concluded that a Chase retirement account (“the

      Chase IRA”) in the amount of $27,004.92 was an asset that should have been
      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1193| April 2, 2020   Page 7 of 13
included in the marital pot and divided by the dissolution court, and the AMEX

debt in the amount of $1,505.00 likewise. In doing so, the trial court

concluded:


        9. Due to the errors made by the [dissolution] court as set forth
        above, it is not possible to determine the trial court’s intent on a
        precise percentage split of the marital estate that the trial court
        intended. It is clear from the Decree that the trial court did find
        that Wife rebutted the presumption of an equal division of the
        estate, in her favor.


        10. For purposes of determining damages to [Gorham], this
        Court will use a percentage split of 55 percent to Wife and 45
        percent to [Gorham], as to the net amount. Accordingly,
        $27,004.92-$1,505 = $25,499.92 X .45 = $11,474.96 as damages
        for [Gorham] as to the Chase retirement account and American
        Express credit card.


Appellant’s App. Vol. III, pp. 205-06. Gorham contends that the way in which

the trial court subtracted the AMEX debt from the Chase IRA amount and then

multiplied that net amount by forty-five percent incorrectly treated the AMEX

debt as an asset rather than a debt. We agree with Gorham. Had the AMEX

debt been included in the marital pot, as the trial court determined it should

have been, Wife would have been responsible for fifty-five percent of the

amount and therefore Gorham should have received damages in the amount of

fifty-five percent of the AMEX debt. The trial court should have awarded

Gorham damages as follows: forty-five percent of the Chase IRA equaling

$12,152.21 and fifty-five percent of the AMEX debt equaling $827.75, added



Court of Appeals of Indiana | Memorandum Decision 19A-PL-1193| April 2, 2020   Page 8 of 13
       together for a total amount of $12,979.69. Gorham has established that the trial

       court erred in this regard.


                                      2. Cross-Appeal Issues
[9]    Deen-Bacchus contends that the trial court erred by awarding Gorham forty-

       five percent of a Chase IRA and attorney’s fees as damages. An adverse

       judgment is one entered against the party defending on a given question.

       Garling v. Ind. Dept. of Nat. Res., 766 N.E.2d 409 (Ind. Ct. App. 2002), on reh’g,

       trans. denied. In regard to the Chase IRA and attorney’s fees, the trial court

       entered a judgment in favor of Gorham, the party who had the burden of proof;

       therefore, Deen-Bacchus cross-appeals from an adverse judgment. “When the

       trial court enters findings in favor of the party bearing the burden of proof, we

       will hold the findings clearly erroneous if they are not supported by substantial

       evidence of probative value.” Id. at 411. “Even if the supporting evidence is

       substantial, we will reverse the judgment if we are left with a definite and firm

       conviction a mistake has been made.” Id.


                                               A. Chase IRA
[10]   Deen-Bacchus contends that the trial court erroneously awarded Gorham

       damages in the amount of forty-five percent of a Chase IRA which was valued

       at $27,004.92. In doing so, the trial court concluded:


               6. [Gorham] also contends the marital dissolution court
               improperly excluded a Chase retirement account in the amount
               of $27,004.92 from the marital estate and the ordered division of
               the marital estate. Although evidence of this asset was presented

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1193| April 2, 2020   Page 9 of 13
               at trial, the trial court did not address this asset in the Decree,
               which was erroneous. This asset was in Wife’s name, so by
               failing to address this asset in the Decree, it was received by Wife
               in its entirety. It should be noted that [Deen-Bacchus] argued to
               this Court that there was no evidence presented at trial as to this
               asset, despite the record that each party to the dissolution action
               submitted to the [dissolution court] a signed and affirmed
               financial declaration which included the listing of this asset and
               its value. This Court does not agree with [Deen-Bacchus’s]
               assertion that these financial declarations are not evidence. Also
               consider that Black’s Law Dictionary defines “evidence” in part
               as, “any species of proof, or probative matter, legally presented at
               the trial of an issue, by the act of the parties and through the
               medium of witnesses, records, documents, exhibits, concrete
               object, etc., for the purpose of inducing belief in the minds of the
               court or jury as to their contention.”


       Appellant’s App. Vol. III, pp. 204-05.


[11]   The record indicates that evidence regarding the Chase IRA was admitted as

       exhibits at the final hearing before the dissolution court. Deen-Bacchus does

       not dispute this, stating, “[Deen-Bacchus] has not disputed there was evidence

       regarding the Chase IRA. What [Deen-Bacchus] has argued is that Wife

       presented the evidence regarding the Chase IRA and it was Wife who asserted

       the claim for total ownership of the Chase IRA.” Appellee’s Cross-Appeal

       Reply Br. p. 5. Moreover, in the untimely motion to correct error, Deen-

       Bacchus argued that the Chase IRA should have been included in the martial

       pot. Like Gorham’s premarital student loans, we conclude that the Chase IRA

       should have been included in the marital pot. See Thompson, 811 N.E.2d at 888

       (noting that the court shall include all property owned by either spouse prior to

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1193| April 2, 2020   Page 10 of 13
       the marriage in the marital pot before dividing the property in a dissolution

       proceeding). The trial court correctly decided that the dissolution court’s failure

       to properly address the Chase IRA in its division of assets was erroneous.


[12]   Deen-Bacchus contends, in the alternative, that if the trial court properly

       awarded damages for the Chase IRA, it erred in awarding forty-five percent

       rather than thirty-seven-and-one-half percent as the dissolution court did with
                                   2
       the Wells Fargo IRA. In awarding Gorham forty-five percent, the trial court

       reasoned:


               “[d]ue to the errors made by the [dissolution] court as set forth
               above, it is not possible to determine the [dissolution] court’s
               intent on a precise percentage split of the marital estate that the
               [dissolution] court intended. It is clear from the Decree that the
               trial court did find that Wife rebutted the presumption of an
               equal division of the estate, in her favor.”


       Appellant’s App. Vol. III, pp. 205-06. Given that the trial court correctly

       concluded that the Chase IRA and AMEX debt should have been included in

       the marital pot and was required to make a conjecture as to how the dissolution

       court would have split these amounts had they been included in its order, and

       that the dissolution court had determined that Wife had rebutted the

       presumption of an equal division of the marital pot, we cannot say that the trial




       2
        It appears that both the Wells Fargo IRA and Chase IRA were inherited by Wife or funded by her
       inheritance.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1193| April 2, 2020                Page 11 of 13
       court’s decision to award Gorham damages in the amount of forty-five percent

       of the Chase IRA was clearly erroneous.


                                           B. Attorney’s Fees
[13]   Deen-Bacchus contends that the trial erred in awarding Gorham attorney’s fees.

       An award of attorney’s fees is within the sound discretion of the trial court and

       absent an affirmative showing of error or abuse of discretion we must affirm the

       trial court’s order. Woude v. 1st Midwest Bank, 45 N.E.3d 847 (Ind. Ct. App.

       2015). We review both the decision to award attorney’s fees and the amount of

       the fees, which must be supported by the evidence. Id. “Indiana adheres to the

       American rule that in general, a party must pay his own attorneys’ fees absent

       an agreement between the parties, a statute, or other rule to the contrary.” R.L.

       Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458 (Ind. 2012). Indiana

       Code subsection 34-52-1-1(b) (1998) provides:


               (b) In any civil action, the court may award attorney’s fees as part
               of the cost to the prevailing party, if the court finds that either
               party:

                        (1) brought the action or defense on a claim or defense that
                        is frivolous, unreasonable, or groundless;

                        (2) continued to litigate the action or defense after the
                        party’s claim or defense clearly became frivolous,
                        unreasonable, or groundless; or

                        (3) litigated the action in bad faith.


[14]   Here, the trial court awarded Gorham attorney’s fees in the amount of

       $7,402.42, which it found to have been incurred “as a direct result of [Deen-
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1193| April 2, 2020   Page 12 of 13
       Bacchus’] negligence.” Appellant’s App. Vol. III, p. 206. The trial court did

       not conclude that Gorham was entitled to attorney’s fees under any of the listed

       exceptions to the American rule in Indiana Code subsection 34-52-1-1(b), and

       neither party contends that there was an agreement between the parties or that

       another rule to the contrary applies. The trial court’s reasoning for awarding

       attorney’s fees in this case runs in direct contradiction to the American rule, to

       which Indiana adheres. Therefore, the trial court abused its discretion in

       awarding Gorham attorney’s fees.


[15]   Regarding the issues on direct appeal, we conclude that the trial court erred by

       concluding that the dissolution court’s decision to set aside Gorham’s

       premarital student loans from the martial pot was within its discretion;

       however, said error was harmless. We also conclude that the trial court erred in

       its calculation of damages regarding the AMEX debt. Regarding the issues on

       cross-appeal, we conclude that the trial court’s decision to award Gorham

       damages in the amount of forty-five percent of the Chase IRA was not clearly

       erroneous; however, it abused its discretion in awarding Gorham attorney’s

       fees.


[16]   Judgment is affirmed in part, reversed in part, and remanded with instructions

       for the trial court to award Gorham damages in the amount of forty-five percent

       of the Chase IRA and fifty-five percent of the AMEX debt and to vacate the

       award of attorney’s fees.


       Najam, J., and May, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1193| April 2, 2020   Page 13 of 13
