MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Aug 09 2018, 9:17 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Craig A. Dechert                                         Mark A. Dabrowski
Kokomo, Indiana                                          Dabrowski Law Office
                                                         Kokomo, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Thomas Rees,                                             August 9, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-DR-447
        v.                                               Appeal from the Howard Superior
                                                         Court
Judith Rees,                                             The Honorable Brant J. Parry,
Appellee-Petitioner                                      Judge
                                                         Trial Court Cause No.
                                                         34D02-1604-DR-300



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018                Page 1 of 9
[1]   Thomas Rees appeals the trial court’s order dissolving the marriage between

      Thomas and Judith Rees. Thomas contends that the trial court erroneously

      valued an asset and erred in dividing the marital assets equally between the two

      parties. Finding no error, we affirm. We also find that Judith is entitled to at

      least a portion of her appellate attorney fees. Therefore, we remand for

      calculation of her fees and a determination of what portion Thomas owes.


                                                     Facts
[2]   Thomas and Judith were married in February 2009; each party brought a

      Kokomo residence into the marriage. On April 26, 2016, Judith filed a petition

      to dissolve the marriage. At the time the petition was filed, the couple owned

      several motor vehicles, including a 2007 Chateau motor home.


[3]   During the marriage, Judith was “separated from” the couple’s financial

      dealings. Tr. Vol. II p. 36. She had no access to any information about

      Thomas’s retirement account and had no information about anything related to

      a lien on the motor home.


[4]   On May 20, 2016, Judith’s counsel served discovery on Thomas, including

      interrogatories and a request for production. Thomas did not respond;

      therefore, on August 26, 2016, Judith’s counsel filed a motion to compel, which

      the trial court granted. Thomas never provided any documents in response to

      the request for production. He provided interrogatory responses on September

      8, 2016. In response to a series of detailed questions regarding real property,

      vehicles, lienholders of vehicles, and debt, he repeatedly responded “N/A[.]”

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018   Page 2 of 9
Tr. Ex. p. 48. At the hearing on the dissolution petition, the following

discussion occurred between Thomas and Judith’s attorney regarding Thomas’s

discovery responses:


        Q:       Can you tell me please since I’ve been waiting to get here
                 for a number of months in to court, why you didn’t
                 disclose the existence of your real property, your motor
                 vehicles, the amounts that you now claim are owed or
                 otherwise?


        A:       You want to know the reason why?


        Q:       Yes can you tell us why you didn’t?


        A:       Because I was just plain ass pissed off. Matter of fact
                 when, if my lawyer would confirm, when I came in and
                 they handed this to me I threw it back to them and then
                 most recently I didn’t fill it out at all.


        Q:       How about interrogatory number 30 did we ask you about
                 what you owed?


        A:       I suppose you did.


        Q:       Did you answer it?


        A:       Probably not.


                                                ***




Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018   Page 3 of 9
              Q:       Did you bring anything with you here today sir that
                       establishes the lien you allege is on the RV? The payment
                       that you make?


              A:       No.


              Q:       Nothing?


              A:       No.


      Tr. Vol. II p. 17-18. It was eventually established that Thomas had even

      stonewalled his own attorney. Judith’s attorney later asked Thomas, “were you

      so pissed off that you didn’t even tell your lawyer about the liabilities that you

      owe?” Thomas responded, “No, I did not.” Id. at 29.


[5]   The final hearing on the petition to dissolve took place on December 4, 2017.

      At the hearing, Thomas claimed, in relevant part, that the couple had a lien on

      the motor home, which had an original purchase price of $130,000, totaling

      approximately $100,000. He offered no documentary evidence, either before

      the hearing in response to discovery requests, or at the hearing itself, to support

      this claim (or any of his other claims).


[6]   Thomas has a retirement account worth approximately $296,000; Judith has a

      retirement account valued at approximately $38,500. Thomas receives

      approximately $250 per month from Social Security and approximately $3,600

      per month from other sources; Judith receives approximately $1,150 from




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018   Page 4 of 9
      Social Security per month and approximately $105 per month from other

      sources.


[7]   On December 6, 2017, the trial court entered a decree of dissolution. In

      relevant part, the trial court found that the value of the motor home was

      $130,000, noting as follows:


              [Thomas] testified that there is a debt on the vehicle. However,
              [Thomas] could not provide an exact amount. Further, as
              [Thomas] did not provide discovery to [Judith], [Judith] was
              unable to obtain evidence of the same. [Thomas’s investment]
              account decreased several hundred thousand dollars during the
              course of the marriage. It is not clear whether this vehicle was
              purchased with a portion of that money. Therefore, the Court
              will not include a debt for the vehicle.


      Appealed Order p. 2. The trial court awarded each party the residences they

      respectively owned prior to the marriage. Ultimately, having considered the

      required statutory factors, the trial court ordered that the marital estate be

      divided equally. It also ordered Thomas to pay a portion of Judith’s attorney

      fees in the amount of $3,500. Thomas now appeals.


                                   Discussion and Decision
                               I. Valuation of Motor Home
[8]   Thomas first argues that the trial court erred by valuing the motor home at

      $130,000. He contends that the amount of the alleged lien on the motor home

      should have been subtracted from the overall amount. Trial courts have broad

      discretion in ascertaining the value of property in a dissolution action. E.g.,

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018   Page 5 of 9
       Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). We will not reverse unless

       the valuation is clearly against the logic and effect of the facts and

       circumstances before the trial court, and in conducting our review, we will not

       reweigh the evidence. Id.


[9]    In this case, there is no evidence supporting Thomas’s assertion that there is a

       lien on the motor vehicle other than the bald declarations he made during his

       testimony. The reason that there is no such evidence is his dogged refusal to

       respond to Judith’s interrogatories in an honest and forthright manner and his

       outright refusal to produce any documents at all. It is readily apparent that the

       trial court questioned his credibility—which is certainly a fair assessment, given

       Thomas’s testimony reproduced above—and declined to credit his statements

       absent documentary evidence to back them up.


[10]   Thomas notes that after the decree of dissolution was entered, he filed a motion

       to correct error, seeking to introduce evidence of the vehicle lien for the first

       time. But this is evidence that he has had in his possession from the start. By

       his own admission at the final hearing, he simply and intentionally refused to

       produce it or to answer Judith’s questions about it honestly. Under these

       circumstances, the trial court was perfectly correct to deny the motion to correct

       error.


[11]   As it stands, the only evidence in the record that the trial court found to be

       credible establishes the value of the motor home to be $130,000. Therefore, its

       decision to value the vehicle in that amount was not erroneous.


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018   Page 6 of 9
                              II. Division of the Marital Estate
[12]   Thomas also argues that the trial court erred by dividing the marital estate

       equally. According to Thomas, he brought the majority of the couple’s assets

       into the marriage by way of his retirement account. He also admits that Judith

       is economically disadvantaged at the time of dissolution but argues that he left

       her “in a better position” than she was in when they got married. Appellant’s

       Br. p. 13.


[13]   When dividing a marital estate, the presumption is that the estate should be

       divided equally. The presumption may be rebutted by evidence that an equal

       division would not be just and reasonable. Ind. Code § 31-15-7-5. Among

       other things, the following factors may be considered:


               (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.



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018   Page 7 of 9
               (4)      The conduct of the parties during the marriage as related
                        to the disposition or dissipation of their property.

               (5)      The earnings or earning ability of the parties as related to:

                        (A)     a final division of property; and

                        (B)     a final determination of the property rights of the
                                parties.


       Id. The party challenging the trial court’s property division must overcome a

       strong presumption that the court complied with the statute and considered the

       evidence on each of the statutory factors. E.g., Harrison v. Harrison, 88 N.E.3d

       232, 234 (Ind. Ct. App. 2017), trans. denied.


[14]   In this case, the only evidence presented by Thomas was his own testimony and

       one document, which established the value of a retirement account in 2014—

       two years before the petition to dissolve was filed—and which was included in

       the exhibits introduced by Judith. As noted above, the trial court evidently

       found Thomas to be lacking in credibility, which is a sound conclusion given

       his admitted dishonesty throughout the proceedings. As a result, there is no

       evidence supporting Thomas’s argument or assertions. In other words, he fails

       to overcome the strong presumption that the trial court complied with the

       statute.


[15]   The trial court awarded Judith a portion of her attorney fees in the decree of

       dissolution. Given that Thomas’s arguments on appeal all stem from his own

       obstinacy and obstreperousness during discovery and at the final hearing, we



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018    Page 8 of 9
       believe it warranted to remand to the trial court to calculate Judith’s appellate

       attorney fees and decide what portion1 of those fees Thomas should bear.


[16]   The judgment of the trial court is affirmed and remanded for calculation of

       appellate attorney fees.


       May, J., and Robb, J., concur.




       1
           The trial court is free to find that Thomas should bear all, or only a part, of Judith’s appellate attorney fees.


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-447 | August 9, 2018                             Page 9 of 9
