      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                            Oct 23 2017, 5:35 am
      court except for the purpose of establishing
                                                                                CLERK
      the defense of res judicata, collateral                               Indiana Supreme Court
                                                                               Court of Appeals
      estoppel, or the law of the case.                                          and Tax Court




      ATTORNEY FOR APPELLANT
      Dorothy Ferguson
      Anderson, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Franklin Branham,                                        October 23, 2017
      Appellant,                                               Court of Appeals Case No.
                                                               48A05-1702-DR-434
              v.                                               Appeal from the Madison Circuit
                                                               Court
      Dianne Ross Branham,                                     The Honorable Angela Warner
      Appellee.                                                Sims, Judge
                                                               Trial Court Cause No.
                                                               48C01-1501-DR-36



      Barnes, Judge.


                                             Case Summary
[1]   Franklin Branham (“Husband”) appeals the dissolution decree entered in his

      divorce from Dianne Ross Branham (“Wife”). We reverse and remand.



      Court of Appeals of Indiana | Memorandum Decision 48A05-1702-DR-434 | October 23, 2017        Page 1 of 13
                                                    Issues
[2]   The dispositive issue we address is whether the trial court properly denied

      Husband’s motion to continue the final hearing. For purposes of guidance on

      remand, we also discuss the appropriate means of addressing a spouse’s alleged

      dissipation of marital assets.


                                                     Facts
[3]   Husband and Wife were married in 1999. They had no children together. At

      the beginning of the marriage, Husband was unemployed, but he had

      previously worked for Chrysler and had a pension of $299 per month. During

      the marriage, Husband began working at a car dealership and earned more than

      $100,000 annually in the last few years of the marriage. He also received

      approximately $30,000 annually in Social Security benefits. Husband had a

      401(k) retirement account through the dealership, from which he frequently

      made substantial withdrawals. In 2013, he withdrew $110,000; in 2014,

      $50,000; in 2015, $21,400; in 2016, $75,000. Husband also accrued

      approximately $60,000 in credit card debt. Husband’s tax returns also reflect

      that he earned $55,900 in gambling income in 2014; such income apparently

      was not received in any other year. During the marriage, Wife began a horse

      boarding business, from which she earns approximately $10,000 per year. The

      parties kept their finances separate during the marriage, although Husband paid

      the mortgage and other household expenses.




      Court of Appeals of Indiana | Memorandum Decision 48A05-1702-DR-434 | October 23, 2017   Page 2 of 13
[4]   Wife filed for divorce on January 21, 2015. In March 2015, the parties agreed

      to a provisional order that allowed Wife to continue living in the marital

      residence but required Husband to continue making mortgage, tax, insurance,

      and utility payments. Husband also was required to pay Wife $500 monthly in

      maintenance and $750 in attorney fees. The order also continued a previous

      restraining order prohibiting the parties from “damaging, destroying,

      concealing, transferring, or encumbering any marital property other than such

      income as is required to meet the regular conduct of their employment and the

      necessities of day-to-day life.” App. Vol. II p. 200.


[5]   A final dissolution hearing originally was scheduled for June 2, 2015. This was

      continued at Wife’s request, and the hearing eventually was rescheduled for

      December 8, 2015. Meanwhile, on June 30, 2015, Wife filed a petition to hold

      Husband in contempt for failing to comply with the provisional order with

      respect to paying the mortgage, maintenance, and attorney fees. The trial court

      held a contempt hearing on August 13, 2015, and took the matter under

      advisement. Husband moved to continue the December final hearing date; the

      trial court granted that motion and gave the parties thirty days to reach an

      agreement and, if they did not, they were to enter mediation. On December 16,

      2015, the trial court denied Wife’s contempt petition.


[6]   It does not appear the parties actually entered mediation, and another final

      hearing was scheduled for July 22, 2016. However, on July 13, 2016, Wife filed

      a second contempt petition. She subsequently moved to continue the final

      hearing but to have a hearing on the contempt petition. The trial court

      Court of Appeals of Indiana | Memorandum Decision 48A05-1702-DR-434 | October 23, 2017   Page 3 of 13
      continued the final hearing but did hold a contempt hearing on July 22, 2016.

      The trial court thereafter found Husband in contempt for failing to pay the

      mortgage and maintenance as required. It also found Husband had improperly

      cashed out his retirement accounts in order to purchase a residence for himself,

      in violation of the restraining order. After this hearing, Husband retired from

      his position at the car dealership and began living solely off his Chrysler

      pension and Social Security benefits of approximately $2,500 per month. 1


[7]   A final hearing again was scheduled, this time for October 21, 2016. On

      October 17, 2016, Husband filed a motion to have the parties’ real and personal

      property appraised, as well as a motion to continue the final hearing. The trial

      court denied the continuance motion.


[8]   On the morning of October 21, 2016, Husband’s attorney filed an emergency

      motion to continue. The motion alleged that Husband “has been admitted to

      Community North Psychiatric Ward for suicidal evaluation” and that “Counsel

      will submitted [sic] documentation upon receiving this documentation from

      Community North.” Id. at 60. Wife and the parties’ attorneys appeared at the

      hearing. Counsel for Husband stated:


                 Your Honor, my office was contacted earlier this morning by Mr.
                 Branham’s sister indicating that Mr. Branham had been placed
                 on hold at Community North Hospital due to what she believed
                 at the time, suicidal thoughts with an active plan. Um, we then




      1
          Husband turned seventy-two years old in October 2016.


      Court of Appeals of Indiana | Memorandum Decision 48A05-1702-DR-434 | October 23, 2017   Page 4 of 13
              contacted Community North and obtained documentation that,
              in fact, he was admitted to the hospital. They didn’t necessarily
              go into depth at that time due to HIPPA [sic] and other
              requirements saying what he was in there for. His sister then
              called back after I received the documentation and confirmed
              that he was in the hospital. It was her understanding he wasn’t
              doing well, and that he was gonna be there for some time. Um,
              based on that, it would be my position that the matter be
              continued today. I would certainly be at a disadvantage without
              Mr. Branham here. . . . If the Court does not feel inclined to
              continue it, that the Court at least allow us—the matter be
              bifurcated so that the Petitioner can put on her evidence and I
              have the opportunity to come back with Mr. Branham and put
              on his evidence and cross examine at that point in time.


      Tr. Vol. I p. 113.


[9]   Wife objected to the continuance request. Her counsel did not deny that

      Husband was hospitalized but claimed he had severely dissipated the marital

      estate, was behind on his maintenance, had intentionally retired in order to

      avoid paying maintenance, and had incurred the credit card debt without

      Wife’s knowledge. Counsel further stated, “I’m not aware that Mr. Branham

      has a history of any type of mental disability. So, it’s very coincidental, uh, if

      that’s the—last night is the night that he suddenly became suicidal. I think Mr.

      Branham’s afraid of the consequences of the Court, doesn’t wanna be here.” Id.

      at 114-15. The trial court denied the continuance request, noting that the

      matter had been pending for almost two years and that Husband had been

      found in contempt at the parties’ last hearing. The trial court further stated,




      Court of Appeals of Indiana | Memorandum Decision 48A05-1702-DR-434 | October 23, 2017   Page 5 of 13
               the Court is concerned that there’s been . . . an attempt to avoid
               coming to court today, again, either fearful of the consequences
               or, maybe under the, the stress or weight of what information I
               know that [counsel for Wife] has indicated that she has . . .
               uncovered through the discovery process and investigation of this
               case.


       Id. at 117. The trial court then received evidence from Wife, which included

       testimony alleging that Husband had been financially supporting another

       woman during the marriage, and took the matter under consideration.


[10]   On February 1, 2017, the trial court entered its dissolution decree. It found in

       part:


               The Court finds that Husband has been unable to document what
               he spent his retirement withdraws [sic] on except for a $40,000
               house. The Court concludes that Husband dissipated marital
               assets which is evidenced by the large retirement withdraws [sic]
               during the past 3 years, without explanation; gambling winnings
               in the amount of $55,000 in 2014; overwhelming charges on his
               credit card statements, and his unwillingness to abide by the
               property restraining order entered by this Court.


       App. Vol. II p. 45. The trial court calculated the total amount of dissipation as

       $312,300, based on Husband’s 401(k) withdrawals in 2013-2016, plus his 2014

       gambling winnings. The trial court proceeded to award every item of marital

       property to Wife, including the marital residence and the residence Husband

       had subsequently bought for himself, and awarded her the entirety of

       Husband’s Chrysler pension. As for the credit card debt, the court found that

       Husband should not “be entitled to credit for this debt or that Wife should have

       Court of Appeals of Indiana | Memorandum Decision 48A05-1702-DR-434 | October 23, 2017   Page 6 of 13
       to contribute to the debt.” Id. at 46. Furthermore, the court found “that in

       order to create a fair and equitable division of the marital estate Husband owes

       a judgment to Wife in the sum of $100,000 in addition to the assets that have

       been ordered set over to her above.” Id. at 47. The court also ordered Husband

       to pay $5,000 in attorney fees for Wife, combined with past due maintenance of

       $21,225. Husband now appeals.


                                                   Analysis
[11]   Wife has not filed an appellee’s brief. In such a case, we need not undertake the

       burden of developing an argument on the appellee’s behalf. Riggen v. Riggen, 71

       N.E.3d 420, 422 (Ind. Ct. App. 2017). “Instead, ‘we will reverse the trial

       court’s judgment if the appellant’s brief presents a case of prima facie error.’”

       Id. (quoting Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)).

       This means error at first sight, on first appearance, or on the face of it. Id.


                                                I. Continuance

[12]   Husband contends the trial court erred in denying both his motion to continue

       for the purpose of appraising property and his emergency motion to continue

       on the day of the hearing. We need only address the emergency motion.

       Indiana Trial Rule 53.5 provides in relevant part:


               Upon motion, trial may be postponed or continued in the
               discretion of the court, and shall be allowed upon a showing of
               good cause established by affidavit or other evidence. The court
               may award such costs as will reimburse the other parties for their
               actual expenses incurred from the delay.


       Court of Appeals of Indiana | Memorandum Decision 48A05-1702-DR-434 | October 23, 2017   Page 7 of 13
       We review the denial of a continuance request for an abuse of discretion. J.P. v.

       G.M., 14 N.E.3d 786, 789 (Ind. Ct. App. 2014). An abuse of discretion occurs

       if a decision is clearly against the logic and effect of the facts and circumstances

       or the reasonable and probable deductions that may be drawn therefrom. Id. at

       790. “If good cause is shown for granting the motion, denial of a continuance

       will be deemed to be an abuse of discretion.” Id.


[13]   Generally, “the unavoidable absence of a party is good cause for a

       continuance.” Breezewood Mgmt. Co. v. Maltbie, 411 N.E.2d 670, 672 (Ind. Ct.

       App. 1980). “[A] continuance should not be denied, except for weighty

       reasons, when the application therefore is proper and shows good cause since, it

       is an important privilege of a party to be present at his own trial.” Flick v.

       Simpson, 145 Ind. App. 698, 705, 252 N.E.2d 508, 512 (1969). “But it is not

       error to deny a continuance when the party fails to show a sufficient reason for

       his absence.” Id. “It cannot be doubted that under proper circumstances, the

       illness of a party litigant is sufficient grounds for a continuance.” Terry v. Terry,

       160 Ind. App. 653, 666, 313 N.E.2d 83, 91 (1974). We also note, “[c]itation of

       authority is not required to sustain the proposition that a party to an action is

       entitled to be personally present in court when a trial is held in which he, or she,

       is a party of record.” Jordan v. Deery, 778 N.E.2d 1264, 1272 (Ind. 2002).




       Court of Appeals of Indiana | Memorandum Decision 48A05-1702-DR-434 | October 23, 2017   Page 8 of 13
       “Absent waiver or extreme circumstances, a party may not be excluded.” In re

       Change of Name of Fetkavich, 855 N.E.2d 751, 755–56 (Ind. Ct. App. 2006).2


[14]   Here, the denial of Husband’s continuance request also impacted his right to be

       present at his final dissolution hearing. Although Husband’s counsel did not

       submit an affidavit in support of the continuance motion, Trial Rule 53.5 does

       not specify what “other evidence” can be used to support such a motion. There

       was no dispute that Husband was in fact hospitalized at the time of the hearing

       due to alleged suicidal ideations, as represented by Husband’s counsel on the

       record. Both Wife’s counsel and the trial court speculated that Husband

       actually was malingering or faking his suicidal intentions, but there was no

       evidence to support such speculation.3 Although it was true, as the trial court

       noted, that this case had been pending for almost two years, it was Wife who

       had moved to continue two out of three of the previously-scheduled final

       hearings. There is no indication Husband had ever failed to appear at previous

       hearings, and so the emergency continuance was not part of a regular pattern by

       him. As for Husband’s previous contempt citation and allegations of

       dissipation of marital property, they seem to have little bearing on the question

       of his hospitalization. It may very well be true that the stress of the occasion

       prompted Husband’s hospitalization, but we cannot discern why that would




       2
         Although Jordan specifically addressed the right to be present at a jury trial, we held in Fetkavich that the
       right clearly applied to all types of proceedings. Fetkavich, 855 N.E.2d 755 n.4.
       3
         If, indeed, it was later discovered that Husband had been malingering, the trial court could have devised a
       sanction to address that misconduct.

       Court of Appeals of Indiana | Memorandum Decision 48A05-1702-DR-434 | October 23, 2017                Page 9 of 13
       justify denying the continuance request, any more than if Husband had suffered

       a heart attack. Husband’s situation was nothing like, for example, being absent

       from a hearing because he was attending a convention. Cf. Loudermilk v. Feld

       Truck Leasing Co. of America, 171 Ind. App. 498, 506-07, 358 N.E.2d 160, 165-66

       (1976) (noting that continuance based on absence of moving party may be

       denied if absence was result of party “exercising his free will and discretion in

       choosing his whereabouts on the trial date”). In sum, and keeping in mind that

       we are reviewing this issue for prima facie error, we conclude Husband has

       established that the trial court abused its discretion in denying his emergency

       motion to continue. We reverse the final dissolution decree and remand for

       further proceedings consistent with this opinion, including a new final

       dissolution hearing.


                                                II. Dissipation of Assets

[15]   Although we are remanding for further proceedings, and it is possible Husband

       could produce evidence at a new hearing to establish that he did not dissipate

       marital assets, we believe it is necessary to make some observations with respect

       to dissipation in the event the issue arises again on remand. Here, the trial

       court’s calculation of the marital estate was that it consisted of $108,819 in

       assets, plus Husband’s Chrysler pension of $299 monthly. 4 The court did not

       indicate a valuation date for the estate. The trial court did not assign any debt




       4
           The trial court did not assign a present-day total value to the pension.


       Court of Appeals of Indiana | Memorandum Decision 48A05-1702-DR-434 | October 23, 2017   Page 10 of 13
       to the estate, save for the mortgage on the marital residence, although there was

       evidence of Husband having incurred $60,000 in credit card debt. It also found

       Husband had dissipated a total of $312,300 in so-called assets, based on 401(k)

       withdrawals and his 2014 gambling winnings.5 Of this amount, $96,400 was

       dissipated in 2015 and 2016, after Wife filed the dissolution petition, and the

       other $215,900 was dissipated in 2013 and 2014, before she filed it. The trial

       court awarded 100% of the marital assets it listed to Wife. It also ordered that

       Husband “owes a judgment to Wife in the sum of $100,000 in addition to the

       assets that have been ordered set over to her above” based on his dissipation of

       assets, incurring of debt, and superior earnings. App. Vol. II p. 18.


[16]   The trial court’s findings and conclusions do not seem to support a judgment

       against Husband for $100,000. As a general rule, if there is a finding that one

       spouse dissipated marital assets, such finding may be used by the trial court in

       determining what is a just and reasonable distribution of the property owned by

       the parties at the time of dissolution. In re Marriage of McNanama, 272 Ind. 483,

       487, 399 N.E.2d 371, 373 (1980); see also Ind. Code § 31-15-7-5(4). However,

       this can only affect the marital assets in which a vested present interest exists at

       the time of dissolution, not the future income of either party. McNanama, 272

       Ind. at 487, 399 N.E.2d at 373. In other words, a trial court may not award a

       judgment to one spouse for the other spouse’s dissipation that exceeds the total




       5
        It is not clear that Husband’s gambling winnings were an “asset,” as opposed to income. See Kondamuri v.
       Kondamuri, 852 N.E.2d 939, 953 (Ind. Ct. App. 2006) (noting that gambling winnings are taxable income).

       Court of Appeals of Indiana | Memorandum Decision 48A05-1702-DR-434 | October 23, 2017        Page 11 of 13
       value of the marital assets. Id. A judgment above the value of the martial estate

       can be entered only if the distinct criteria for awarding maintenance are met.

       Id.; see I.C. § 31-15-7-2. In valuing the marital estate, the trial court may use

       any date between the date of the filing of the dissolution petition and the date of

       the final hearing. Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A trial

       court may not directly compensate a party for pre-separation dissipation, but it

       may do so for post-separation dissipation if dissipation occurred after the date

       the court utilizes for valuing the marital estate. In re Marriage of Sloss, 526

       N.E.2d 1036, 1040 (Ind. Ct. App. 1998).


[17]   Here, in addition to awarding Wife all of the identified marital assets, using an

       unspecified valuation date, the trial court also set aside the $60,000 in credit

       card debt solely to Husband, and furthermore awarded a $100,000 judgment to

       Wife. It also appears the trial court may have intended to compensate Wife at

       least partially for dissipation that occurred before the dissolution petition was

       filed. As currently entered, and without information as to what date the trial

       court used to value the marital estate, the $100,000 judgment is effectively an

       award of maintenance to Wife in excess of the marital estate that necessarily

       would come out of Husband’s future income. This was improper. On remand,

       should there be another finding of dissipation, the trial court must confine itself

       to the legal parameters outlined in this opinion when addressing that

       dissipation.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1702-DR-434 | October 23, 2017   Page 12 of 13
                                                 Conclusion
[18]   Husband has established prima facie error in the trial court’s denial of his

       emergency continuance motion. We reverse the final dissolution decree and

       remand for the trial court to conduct a new hearing and enter a new dissolution

       decree in accordance with this opinion.


[19]   Reversed and remanded.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1702-DR-434 | October 23, 2017   Page 13 of 13
