MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                      Feb 10 2015, 10:45 am
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.



ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Robert H. Little                                          David E. Baum
Brookston, Indiana                                        Chesterton, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Martin E. Rogness,                                       February 10, 2015

Appellant-Petitioner,                                    Court of Appeals Cause No.
                                                         91A04-1405-DR-211
        v.                                               Appeal from the White Circuit
                                                         Court.
Roberta L. Rogness,                                      The Honorable Robert W. Thacker,
                                                         Judge.

Appellee-Respondent.                                     Cause No. 91C01-1109-DR-130




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 1 of 20
                                   STATEMENT OF THE CASE

[1]   Appellant-Petitioner, Martin E. Rogness (Husband) appeals the trial court’s

      division of marital property in the dissolution of his marriage to Appellee-

      Respondent, Roberta L. Rogness (Wife).


[2]   We affirm in part, reverse in part, and remand.


                                                    ISSUES

[3]   Husband raises four issues on appeal, which we consolidate and restate as the

      following two issues:

      (1) Whether the trial court erred in its division of the marital estate; and

      (2) Whether the trial court abused its discretion in its valuation of a tract of real

      estate.


                           FACTS AND PROCEDURAL HISTORY

[4]   Husband and Wife were married on November 16, 1986. Until a disabling

      back injury necessitated his retirement, Husband worked as a police officer for

      the City of Portage in Porter County, Indiana. Wife was employed by Porter

      County as a court reporter. The marriage produced no children, but Wife has

      two adult children from a prior marriage.


[5]   Early in the marriage, Husband’s mother procured the necessary licenses to

      open a new tavern, the Sportsman’s Lounge, in Valparaiso, Indiana. Husband

      primarily operated the business, but at various times Wife assisted with




      Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 2 of 20
      bookkeeping and bartending. Upon his mother’s death in 1999, Husband

      inherited the Sportsman’s Lounge.


[6]   Then, in 2001, Husband was diagnosed with lung cancer as a result of being

      exposed to asbestos in the course of his employment with the United States

      Steel Corporation many years earlier. In August of that year, Husband and

      Wife filed a negligence lawsuit against Husband’s former employer and fifty-

      nine other companies that manufactured, distributed, or installed asbestos-

      containing products. The lawsuit resulted in a net settlement of $307,291.51.


[7]   At the time they married, Husband and Wife each owned their own homes, and

      Husband also owned five duplexes. Throughout the course of their marriage,

      Husband and Wife accumulated more than twenty additional tracts of real

      estate, most of which were used as rental properties. To manage their rental

      business, they established Rogness Investments, Inc. Husband and Wife also

      partnered with Wife’s son to form Rogness Construction, Inc. With the

      exception of the marital residence, 157 York Circle in Valparaiso (York Circle

      Property), and 412 Sassafras in Valparaiso (Sassafras Property), titles to the

      parties’ remaining properties were held by either Rogness Investments or

      Rogness Construction.


[8]   On September 21, 2011, after nearly twenty-five years of marriage, Husband

      filed a petition to dissolve the marriage. Within several months of Husband

      filing the petition for dissolution, foreclosure proceedings were initiated against

      the York Circle Property and the Sassafras Property. In February of 2012, a


      Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 3 of 20
       receiver was appointed to manage the Sportsman’s Lounge and the rental

       properties. On June 6, 2013, a judgment of foreclosure was entered against

       Husband and Wife for the Sassafras Property for $108,559.98. Then on

       October 17, 2013, a judgment of foreclosure was entered on the York Circle

       Property in the amount of $298,712.97. The Porter County Sheriff was directed

       to sell the properties. Per the parties’ agreement, the receivership was

       terminated on December 20, 2012.


[9]    On October 29-30, 2013, the trial court conducted the final hearing of the

       divorce proceedings. Husband and Wife submitted a stipulation as to the

       values of the bulk of their marital assets, but they disputed the values of the

       Sportsman’s Lounge and their lake house, 5098 Highland Cove, Monticello,

       Indiana (Highland Cove Property), as well as how the marital estate should be

       divided. On January 30, 2014, the trial court entered its Decree of Dissolution

       and Final Judgment and Property Settlement Order, granting the divorce and

       ordering a distribution of the marital assets that would result “slightly in

       additional amounts for the Husband.” (Appellant’s App. p. 31).


[10]   On February 28, 2014, Husband filed a Motion to Correct Error. In part, he

       alleged that the trial court erred by failing to order Wife to reimburse Husband

       for his half of the money she misappropriated and by failing to consider the

       income generated by the rental properties as part of its division. On April 9,

       2014, the trial court conducted a hearing and, except for a nunc pro tunc

       correction of a clerical error, denied Husband’s motion.



       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 4 of 20
[11]   Husband now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                            I. Standard of Review

[12]   In this case, the trial court issued special findings of fact and conclusions

       thereon pursuant to Indiana Trial Rule 52(A). Therefore, our court “shall not

       set aside the findings or judgment unless clearly erroneous, and due regard shall

       be given to the opportunity of the trial court to judge the credibility of the

       witnesses.” Ind. Trial Rule 52(A). On review, our court will find clear error

       only if the evidence is insufficient—either directly or by inference—to support

       the findings or if the findings are insufficient to support the judgment. Capehart

       v. Capehart, 705 N.E.2d 533, 536 (Ind. Ct. App. 1999), reh’g denied; trans. denied.


[13]   Additionally, in a dissolution proceeding, trial courts are vested with broad

       discretion over matters concerning the disposition of the marital estate.

       Alexander v. Alexander, 927 N.E.2d 926, 933 (Ind. Ct. App. 2010), trans. denied.

       As such, our court employs “a strict standard of review.” Smith v. Smith, 854

       N.E.2d 1, 5 (Ind. Ct. App. 2006). We presume “that the trial court considered

       and complied with the applicable law.” Alexander, 927 N.E.2d at 933. The

       party challenging the trial court’s determination bears the burden of overcoming

       this presumption, which “is one of the strongest presumptions applicable to our

       consideration on appeal.” Id. Accordingly, “we will reverse a property

       distribution only if there is no rational basis for the award.” Smith, 854 N.E.2d

       at 6. We will consider only the evidence most favorable to the trial court’s


       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 5 of 20
       judgment and will neither reweigh evidence nor reassess the credibility of

       witnesses. Perkins v. Harding, 836 N.E.2d 295, 299 (Ind. Ct. App. 2005).


                                        II. Division of Marital Estate

[14]   Husband claims that the trial court erred in its division of the marital property.

       In calculating and distributing marital property, Indiana courts utilize a “‘one-

       pot’ theory.” Id. (quoting Fobar v. Vonderahe, 771 N.E.2d 57, 58 (Ind. 2002)).

       Specifically,

               [i]n an action for dissolution of marriage . . . , the court shall divide the
               property of the parties, whether:
               (1) owned by either spouse before the marriage;
               (2) acquired by either spouse in his or her own right:
                   (A) after the marriage; and
                   (B) before final separation of the parties; or
               (3) acquired by their joint efforts.


       Ind. Code § 31-15-7-4(a). The one-pot method ensures that all marital property

       is “subject to the trial court’s power to divide and award.” Hill v. Hill, 863

       N.E.2d 456, 460 (Ind. Ct. App. 2007). Marital property includes both the assets

       and liabilities of the spouses. Capehart, 705 N.E.2d at 536.


[15]   Indiana law requires that the distribution of the marital pot between the spouses

       be accomplished “in a just and reasonable manner.” I.C. § 31-15-7-4(b). “The

       court shall presume that an equal division of the marital property between the

       parties is just and reasonable.” I.C. § 31-15-7-5. This presumption may be

       rebutted with evidence regarding the following factors:




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               (1) The contribution of each spouse to the acquisition of the property,
               regardless of whether the contribution was income producing.
               (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, including the
               desirability of awarding the family residence or the right to dwell in the
               family residence for such periods as the court considers just to the
               spouse having custody of any children.
               (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.


       I.C. § 31-15-7-5. If, based on a consideration of these factors, the trial court

       determines that an unequal distribution is warranted, it must “set[] forth its

       reasons for so doing.” Maloblocki v. Maloblocki, 646 N.E.2d 358, 362 (Ind. Ct.

       App. 1995).


[16]   In this case, the trial court determined “that the presumption of an equal

       division of property has been rebutted . . . , and based upon the evidence

       presented, a fair and equitable division of the marital property would result

       slightly in additional amounts for the Husband.” (Appellant’s App. pp. 30-31).

       In making this decision, the trial court considered several of the factors

       enumerated in Indiana Code section 31-15-7-5, including that

               both parties owned real estate prior to their marriage, the Husband
               received property (real property and cash) as an inheritance from his
               mother, the parties received a large monetary settlement as a result of
               the Husband’s mesotheliom[]a, the Husband is disabled, and the
               parties’ assets are dissipated and used for the benefit of the Wife’s

       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 7 of 20
               children from a prior marriage and the Wife’s actions in hiding those
               assets.


       (Appellant’s App. p. 30).


                                            A. Unequal Distribution

[17]   Husband contends that the trial court committed reversible error because its

       property distribution improperly favors Wife. We will uphold an unequal

       distribution unless the trial court’s justifications for the deviation “are clearly

       against the logic and effect of the facts and circumstances before the court.”

       Maloblocki, 646 N.E.2d at 362-63. Here, neither party challenges the trial

       court’s determination that an unequal division is justified; rather, they dispute

       whether the trial court actually effectuated the distribution in favor of Husband

       as it intended.


[18]   In its Decree of Dissolution, the trial court neither calculated the gross marital

       estate nor calculated the total value of each party’s share; nor did it fix the

       specific percentage of the estate that each party was to receive. See Montgomery

       v. Faust, 910 N.E.2d 234, 238 (Ind. Ct. App. 2009) (“It is not enough for a trial

       court to simply say that its distribution is ‘unequal’; just as important is exactly

       how unequal the distribution is.”). “Appellate courts are ill-equipped to

       determine the value of specific assets or of the total marital estate in the first

       instance, so it is vital to our review to have the trial court do so.” Id.

       Nevertheless, we recognize that, in the present case, the trial court would have

       struggled to assign a value to the gross marital estate in light of the parties’

       failure to present specific evidence of value for a significant number of their
       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 8 of 20
       assets. See Perkins, 836 N.E.2d at 301-02. Instead, the trial court distributed the

       assets and liabilities item by item, assigning values only where the parties had

       submitted evidence thereof.


[19]   Based on the findings, it appears that the trial court awarded $709,218.82 to

       Husband, excluding his PERF Disability Pension and social security disability

       benefits,1 and $790,644.71 to Wife. This results in a division of 52.7% of the

       marital estate to Wife and only 47.3% to Husband, which is clearly inconsistent

       with the trial court’s determination that any deviation from an equal division

       should favor Husband.


[20]   Although Wife agrees with the trial court’s findings, she disputes Husband’s

       computation of the net value of five of the properties that she was awarded:

       392 Clear Creek, 609 Osage, 766-1 Governor, 739 Juniper, and 5155 Sherwin.

       She notes that “[t]he parties stipulated that the unencumbered value of these real




       1
         Wife contends that Husband’s PERF Disability Pension and social security disability benefits must be
       included in the marital pot. Unlike an ordinary retirement pension, a disability income benefit is not
       generally considered marital property, but it may be calculated as marital property “to the extent that either
       marital assets were used to acquire the future income or the income is future compensation for past services,
       as opposed to replacement for lost earning capacity due to disability.” Severs v. Severs, 837 N.E.2d 498, 499-
       500 (Ind. 2005). Here, the record does not reveal whether Husband made voluntary contributions to an
       employer-sponsored program, i.e., his PERF Disability Pension, to support its inclusion in the marital pot.
       See Jendreas v. Jendreas, 664 N.E.2d 367, 371 (Ind. Ct. App. 1996), trans. denied. As to his social security
       disability benefits, our supreme court has conclusively established that these are not marital assets and are
       thus not subject to distribution. See Severs, 837 N.E.2d at 501.

       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015          Page 9 of 20
       properties, as a group, on the date of dissolution was $420,000.” (Appellee’s

       Br. p. 18). They further stipulated that these properties are collateral for a

       $219,600 line of credit debt held by Rogness Construction. Thus, she argues

       that because “there was a $219,600 lien . . . the actual unencumbered net value

       of the real property at the time of dissolution was only $200,400.00”—not

       $310,200 as Husband asserts. (Appellee’s Br. p. 19). Utilizing Wife’s figures,

       her share of the estate would be reduced by $109,800, resulting in a 51%-49%

       split in Husband’s favor, which she asserts is consistent with the trial court’s

       findings. However, we disagree with Wife’s calculation.


[21]   In the Decree of Dissolution, Wife received a 50% ownership interest in

       Rogness Construction; her son owns the other 50%. The trial court ordered

       Husband to transfer title to the five aforementioned tracts from Rogness

       Investments to Wife—not to Rogness Construction. Even though Wife’s

       personal real estate secures the entire $219,600 line of credit, pursuant to their

       business partnership, Wife’s son is presumably liable for one-half of the

       company’s debt—or $109,800. Thus, as the trial court found, only $109,800 of

       the line of credit is considered a marital debt, which has the net effect of

       reducing the value of the marital asset to $310,200.


[22]   “When dividing marital property, the trial court must come close to the

       attempted apportionment otherwise the findings will not support the

       judgment.” In re Marriage of Pulley, 652 N.E.2d 528, 531 (Ind. Ct. App. 1995),

       trans. denied. Because the trial court concluded that “a fair and equitable

       division of the marital property would result slightly in additional amounts for

       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 10 of 20
       the Husband” but the actual effect is 52.7% to 47.3% in Wife’s favor, we must

       remand with instructions for the trial court to either execute a property division

       that is consistent with its findings or to enter additional findings that justify its

       current distribution. (Appellant’s App. pp. 30-31).2


                                 B. Indiana Code Section 35-15-7-5 Factors

[23]   Notwithstanding the fact that the trial court resolved to accord a larger share of

       the marital estate to him, Husband contends that the trial court abused its

       discretion by failing to adequately address all of the factors that would justify a

       disparate award. In particular, he asserts that the trial court’s apportionment of

       the estate does not take into account the value of the property that he brought

       into the marriage or the impact of the mesothelioma settlement proceeds. Wife,

       in turn, posits that “Husband wholly fails to recognize or even take into

       consideration the entire property distribution and the remaining assets that were

       awarded to him from the marital estate.” (Appellee’s Br. p. 6).


[24]   On appeal, our court acts under the presumption that the trial court considered

       the evidence in its entirety and “properly applied the statutory factors.” Helm v.

       Helm, 873 N.E.2d 83, 90 (Ind. Ct. App. 2007). As such, we presume that the




       2
         Although we have determined that a remand is necessary, we must address Husband’s remaining claims as
       they will continue to be at issue on remand.

       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 11 of 20
       trial court did “not rely on just one of the factors listed in Indiana Code section

       31-15-7-5” but instead considered “the factors ‘in conjunction with relevant

       evidence regarding other statutorily prescribed factors, and with any evidence

       demonstrating additional reasons that an unequal distribution would be just and

       reasonable.’” Id. The trial court is under no obligation to address any factors

       that are not implicated by the evidence. Id.


                                       1. Value of Pre-Marital Property

[25]   First, Husband argues that “the value of the property [that he] brought into the

       marriage at the time . . . of the Final Hearing was approximately $600,000[,]”

       which, “in and of itself, justified a greater deviation from a 50/50 division.”

       (Appellant’s Br. p. 11). Pursuant to Indiana Code section 31-15-7-5(2), a trial

       court may stray from the presumptive division of marital property if it finds that

       one spouse contributed more property to the marriage. However, nothing in

       this statute “suggests that the trial court must deviate from the traditional 50/50

       split simply because one party presents evidence that he or she owned certain

       assets prior to marriage.” Bertholet v. Bertholet, 725 N.E.2d 487, 495 (Ind. Ct.

       App. 2000).


[26]   In the present case, the trial court found:

               At the time the parties married, the Husband resided at and owned 409
               West 600 North, Valparaiso, Indiana, and also owned four duplexes
               located at 3344-46, 3345-47, 3348-50, and 3349-51 Ashland, Portage,
               Indiana, and a duplex at 5155 Sherwin, Portage, Indiana. Such real
               estate was free and clear of any indebtedness at the time of the
               marriage. Mortgages were obtained against several of these properties
               during the marriage.

       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 12 of 20
               At the time the parties married, the Wife resided at and owned 774-1
               Fox River Road, Valparaiso, Indiana. Such real estate was free and
               clear of any indebtedness at the time of the marriage. A mortgage was
               obtained against this property during the marriage.


       (Appellant’s App. p. 18). The court also specified that it considered the fact

       that “both parties owned real estate prior to their marriage” in deciding that the

       distribution should favor Husband. (Appellant’s App. p. 30).


[27]   We find that Husband’s argument that he is entitled to a larger share of the

       marital estate because “the net relative equity brought into the marriage by

       [him] would amount to approximately $500,000” is simply a request to reweigh

       evidence, which we decline to do. (Appellant’s Br. p. 11). “While it is true that

       the trial court must consider a spouse’s contribution of prior acquired property,

       that is but one factor for review and is entitled to no special weight.” Bertholet,

       725 N.E.2d at 496. Here, the trial court clearly contemplated the spouses’

       respective property contributions in determining that Husband should receive

       “slightly . . . additional amounts[,]” which is all that Indiana Code section 31-

       15-7-5 requires it to do. (Appellant’s App. p. 31). Accordingly, we find no

       abuse of discretion.


                                     2. Mesothelioma Settlement Proceeds

[28]   Second, Husband argues that it was an abuse of discretion to “award[] the

       property that benefited from the mesothelioma settlement to the [W]ife.”

       (Appellant’s Br. p. 12). Husband and Wife’s 2001 lawsuit resulted in a

       settlement with forty-one of the defendants for a net award of $307,291.51. At

       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 13 of 20
       the final hearing, both Husband and Wife testified that, during the marriage,

       they used the majority of these funds to pay down the mortgages on several of

       their rental properties. Husband now claims “that most, if not all, of the

       $307,291.51 proceeds (represented by three unencumbered properties) should

       have been set over to the Husband over and above a 50/50 division of other

       marital assets.” (Appellant’s Br. p. 12).


[29]   In its Decree of Dissolution, the trial court specifically found that a deviation

       was warranted because “the parties received a large monetary settlement as a

       result of the Husband’s mesotheliom[]a” and because “Husband is disabled.”

       (Appellant’s App. p. 30). The trial court determined “that the Husband shall

       receive, as his sole and separate property, all future net settlement proceeds that

       may be received as a result of the legal action.” (Appellant’s App. p. 24).

       Because the trial court considered the mesothelioma settlement as a factor

       justifying an unequal division, Husband assumes—without offering any support

       for his position—that he is necessarily entitled to receive the properties that

       directly benefited from the mesothelioma settlement. We disagree.


[30]   At the time of the final hearing, all but five of the properties held by Rogness

       Investments were subject to a mortgage. The trial court allocated four of them,

       valued at $260,000, to Wife and only one, valued at $100,000, to Husband.

       Despite his claim that these tracts were all, at some point, encumbered by

       mortgages that were paid off with the mesothelioma funds, Husband presented

       no evidence to demonstrate the extent to which these five specific properties—

       and only these five properties—benefited from the mesothelioma proceeds.

       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 14 of 20
       Moreover, in determining whether a trial court has made a just and reasonable

       award, we must consider its “disposition of marital property ‘as a whole, not

       item by item.’” Perkins, 836 N.E.2d at 299. So long as a trial court includes all

       marital assets in the marital pot, it has the discretion to decide whether to

       award an asset solely to one spouse or to apportion it between them. Wanner v.

       Hutchcroft, 888 N.E.2d 260, 263 (Ind. Ct. App. 2008). Because each spouse is

       entitled only to a just and reasonable share of the marital pot, not a specific

       share, we cannot say that it was an abuse of discretion for the trial court to

       award Wife with a portion of the real property simply because it may have

       benefited from the mesothelioma settlement proceeds.


                                        C. Revenue of Rental Properties

[31]   Husband also contends that the trial court abused its discretion in dividing the

       marital property by “fail[ing] to take into consideration whether each property

       was mortgaged or unmortgaged, resulting in a significantly unequal division of

       the net revenue.” (Appellant’s Br. p. 16). In particular, Husband asserts that

       whereas he was awarded only one unencumbered property, Wife received four

       tracts that are “free and clear” of any mortgages, which provided her with “a

       significantly larger portion of the rental business and the revenue therefrom.”

       (Appellant’s Br. p. 16).


[32]   We first note that the parties stipulated to the value of the majority of the rental

       properties and did not present evidence to demonstrate the cash flow thereof.

       As a result, Husband may not now challenge the values based on discrepancies

       in revenue generation. See Perkins, 836 N.E.2d at 302. Furthermore, contrary

       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 15 of 20
       to Husband’s position that “the impact of dividing income-producing marital

       assets in a dissolution” is a matter of first impression, in Indiana, it is well

       established “that ‘future earnings are not considered part of the marital estate

       for purposes of property division.’” Severs, 837 N.E.2d at 499 (quoting Beckley v.

       Beckley, 822 N.E.2d 158, 160 (Ind. 2005)); (Appellant’s Br. p. 17).


[33]   Our court has previously established that in “dividing the property, the court

       considers the value of the property owned by either spouse before marriage,

       acquired by either spouse in his or her own right before final separation, or

       acquired by the spouses’ joint efforts, but not the future income the marital property

       will produce after the dissolution.” Smith, 854 N.E.2d at 6. On occasion, Indiana

       courts have found “that certain rights to future payment constitute ‘property’ to

       be included in a marital estate.” Helm, 873 N.E.2d at 88. However, in those

       instances, the party’s interest in the future payment was vested. Id. Because

       Wife’s ability to generate income from her share of the rental properties is

       contingent upon her decision to continue leasing and her ability to maintain

       tenant occupancy, we find no vested interest in this income. See id.

       Accordingly, the trial court did not abuse its discretion.


                                                D. Attorney Fees

[34]   Next, Husband contends that the trial court erred in its division of the marital

       estate by allowing Wife to use marital assets to pay $5,000 in attorney fees.

       Particularly, based on the trial court’s directive that “[e]ach party shall pay and

       be responsible for his or her own attorney fees[,]” Husband contends that the

       trial court should have ordered her to reimburse him for one-half of these fees.

       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 16 of 20
       (Appellant’s App. p. 30). In its Decree of Dissolution, the trial court found that

       “Wife removed a $26,000.00 check that she found in the safe at the Sportsman’s

       Lounge. She delivered the check to her prior attorney. She then used $5,000.00

       to pay the retainer fee for her current attorney, and the remaining $21,000.00

       was delivered to the receiver.” (Appellant’s App. p. 27). Similarly, the trial

       court found that Husband improperly retained $2,288 in rental income that he

       was required to turn over to the receiver.


[35]   Based on its findings, we presume that the trial court included these depleted

       assets as part of the marital pot. See Alexander, 927 N.E.2d at 933. The trial

       court’s findings do not indicate that either party’s misuse of marital assets was

       to be charged against their shares of the estate or that Wife should reimburse

       Husband for the difference. Accordingly, we can infer that the trial court

       intended the parties to equally share the depleted assets, which would have no

       impact on the overall apportionment of the estate. See I.C. § 31-15-7-4(b). In its

       discretion, the trial court could still have considered Wife’s expenditure of the

       $5,000 as a factor that weighed in favor of Husband receiving a larger

       distribution of marital property. See I.C. § 31-15-7-5(4). Because the trial court

       need only effectuate a just and reasonable distribution of the marital estate as a

       whole, it is not an abuse of discretion to accomplish its division without

       requiring Wife to reimburse Husband for one-half of her attorney fees. See In re

       Marriage of Sloss, 526 N.E.2d 1036, 1040 (Ind. Ct. App. 1988) (“The only

       requirement of distribution of assets and liabilities is one of reasonableness.”).




       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 17 of 20
                              III. Valuation of the Highland Cove Property

[36]   Lastly, Husband claims that the trial court’s valuation of the Highland Cove

       Property is unsupported by the record. In a dissolution proceeding, the trial

       court has broad discretion in valuing the marital property. Reese v. Reese, 671

       N.E.2d 187, 191 (Ind. Ct. App. 1996), trans. denied. It is an abuse of discretion

       if “there is no evidence in the record supporting its decision to assign a

       particular value to a marital asset.” Thompson v. Thompson, 811 N.E.2d 888,

       917 (Ind. Ct. App. 2004), reh’g denied; trans. denied.


[37]   Although the parties stipulated to the fact that the Highland Cove Property was

       subject to a mortgage debt of $172,000, they disputed its value. During the final

       hearing, Husband submitted a comparative market analysis as evidence of

       value. Using a comparable pricing method, the analysis proffered a “Suggested

       List Price” of $179,066.67. (Husband’s Exh. 7, p. 2). On the other hand, Wife

       tendered an appraisal that was completed in December of 2010, which

       suggested a market value of $342,500. In its Decree of Dissolution, the trial

       court found that “neither the appraisal nor the market analysis is a conclusive

       determination of value, and that the Highland Cove [P]roperty, including the

       adjoining lot, has a total fair market value of approximately $300,000.00, with a

       mortgage balance of $172,000.00 for a net fair market value of approximately

       $128,000.00.” (Appellant’s App. p. 19). The trial court awarded the Highland

       Cove Property to Husband.


[38]   Our court has previously upheld a trial court’s determination of value where it

       “was within the range of values supportable by the evidence.” Sanjari v. Sanjari,
       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 18 of 20
       755 N.E.2d 1186, 1191-92 (Ind. Ct. App. 2001). In this case, the trial court’s

       valuation of $300,000 falls squarely within the range of the parties’ evidence.

       Nonetheless, Husband asserts that because Wife’s appraisal was obtained

       nearly a year before he filed the petition for dissolution, the trial court could not

       permissibly consider it as evidence of the Highland Cove Property’s value.

       Husband therefore insists that the trial court was obligated to assign a value of

       $179,066.67 based on the only remaining evidence of value—his comparative

       market analysis. When reduced by the mortgage debt, this award would

       constitute an asset to Husband worth only $7,066.67.


[39]   A trial court has discretion to choose the particular date on which to value the

       property. Reese, 671 N.E.2d at 191. The trial court abuses its discretion by “not

       selecting a date between the dissolution petition filing date and the final hearing

       date.” Trackwell v. Trackwell, 740 N.E.2d 582, 584 (Ind. Ct. App. 2000), trans.

       dismissed. Here, even though Wife submitted an appraisal that is dated prior to

       the final separation date, there is no indication that the trial court valued the

       Highland Cove Property at $300,000 based on a valuation date that preceded

       the filing date. See Thompson, 811 N.E.2d at 919. During the final hearing,

       Husband asked Wife whether she “believe[d] that [the appraisals] accurately

       portray what these properties are worth today[,]” and she answered

       affirmatively. (Transcript p. 195). In addition, the trial court found that

       Husband had obtained his market analysis “for purposes of trial.” (Appellant’s

       App. p. 19). From this evidence, we are able to infer that the trial court chose

       to value the Highland Cove Property as of the date of the final hearing.


       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 19 of 20
       Because the trial court selected a value within the range of evidence, we find no

       abuse of discretion in its valuation of the Highland Cove Property.


                                               CONCLUSION

[40]   Based on the foregoing, we conclude that the trial court erred in its division of

       the marital estate, and we remand with instructions for the trial court to either

       execute a property division that is consistent with its findings or to enter

       additional findings that justify its current distribution. We further conclude that

       the trial court acted within its discretion in its consideration of the statutory

       factors governing its distribution and in its valuation of the Highland Cove

       Property.


[41]   Affirmed in part, reversed in part, and remanded with instructions.


       Vaidik, C. J. and Baker, J. concur




       Court of Appeals of Indiana | Memorandum Decision | 91A04-1405-DR-211 | February 10, 2015   Page 20 of 20
