                                                                  Sep 22 2015, 9:04 am




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Denise F. Hayden                                          Judy M. Tyrrell
Indianapolis, Indiana                                     Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Timothy Kendrick,                                         September 22, 2015
Appellant,                                                Court of Appeals Case No.
                                                          49A02-1412-DR-888
        v.                                                Appeal from the Marion Superior
                                                          Court
Angela Kendrick,                                          The Honorable John F. Hanley,
Appellee.                                                 Judge
                                                          The Honorable Christopher B.
                                                          Haile, Magistrate
                                                          Trial Court Cause No. 49D11-
                                                          1312-DR-44394



Brown, Judge.




Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015             Page 1 of 20
[1]   Timothy Kendrick (“Husband”) appeals from the trial court’s decree of

      dissolution of marriage. He raises one issue, which we revise and restate as

      whether the court abused its discretion in ordering him to make monthly

      equalization payments to Angela Kendrick (“Wife”) prior to the distribution of

      his pension benefits. Wife raises one issue on cross-appeal, which we revise

      and restate as whether the court abused its discretion in determining and

      distributing the marital estate. We affirm in part, reverse in part, and remand.


                                       Facts and Procedural History

[2]   Husband and Wife were married in September 1995. On December 12, 2013,

      Husband filed a petition alleging that the parties lived together until they were

      separated on or about November 8, 2013, and have not since lived together as

      husband and wife and requesting the dissolution of the marriage.


[3]   On October 29, 2014, the court held a final dissolution hearing at which the

      parties presented evidence and argument related to the value of the marital

      property, including the parties’ vehicles, debt, the marital residence, and

      Husband’s retirement accounts. The evidence included a valuation report

      prepared by Financial Evaluations, Inc., related to Husband’s retirement

      through the Public Employees’ Retirement Fund (“PERF”). The report stated

      that Husband’s retirement through PERF consisted of two components, a

      defined benefit pension and a defined contribution annuity savings account.

      The report also stated that the defined benefit pension required ten years to vest

      and, in its standard form, was single life payable at age sixty-five with a five

      year guarantee. The report stated that, with over fifteen years of service, the
      Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 2 of 20
      normal retirement age is sixty with no actuarial reduction for age and that, if

      the employee is at least age fifty-five and the employee’s years of creditable

      service plus age at retirement equals eighty-five, the employee is entitled to an

      immediate annuity.


[4]   The report stated that the purpose of the report was to “form a professional

      opinion as to assets (present) value of the accrued PERF pension benefit

      (normal retirement option: $950.79 per month at age 60.03 and life thereafter)

      existing on the date of valuation (12/12/2013)” and to “compute the coverture

      fraction and to estimate the portion of the pension which was earned during the

      marriage.” Petitioner’s Exhibit 1 at 2. In its findings, the report stated that the

      present value of the defined benefit pension annuity starting at age 60.03 and

      continuing through the retiree’s projected death was $172,285.30 and that the

      amount earned during the marriage, based on a coverture fraction of 67.4658

      percent, was $116,233.64. In a section setting forth assumptions and

      biographical data, the report set forth assumed discount rates published by the

      Pension Benefits Guaranty Corporation and stated that Husband was born on

      December 20, 1957, that his age at the date of valuation was 55.98, that he

      would receive a monthly payment of $950.79 payable at age 60.03 for sixty

      “[m]onths [c]ertain” and “life thereafter,” and that his life expectancy at the

      date of valuation was 27.45 years. Petitioner’s Exhibit 1.


[5]   In addition, the evidence included an appraisal report related to the marital

      residence, a mortgage statement, a spreadsheet of Husband’s debts and

      expenses with supporting documentation, and Husband’s estimated cost to

      Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 3 of 20
      repair two windows in the marital residence. The evidence also included an

      account balance statement of Husband’s defined contribution annuity savings

      account through PERF, a portfolio statement from TIAA-CREF, a statement of

      an investment account, and evidence of the estimated value of the parties’

      vehicles.


[6]   Husband testified that he had worked for IUPUI for twenty-six years, he made

      approximately twenty dollars per hour, he would have retirement benefits

      through PERF, he did not currently have access to those funds and would have

      access to them when he retired, he was fifty-six years old, and that he did not

      know when he would retire. He testified that he had been married for eighteen

      years and had been contributing to PERF for twenty-six years. In the file-

      stamped copy of his verified financial declaration filed with the trial court,

      Husband indicated that his gross weekly salary was $841.60. When asked if he

      “wanted to give [Wife] ½ of the time that [he] was married,” Husband stated

      “[t]hat is correct.” Transcript at 13-14. He testified that he did not have the

      ability to pay any lump sum, he did not have any other assets besides PERF

      where there is a sum of money, that the amount he owed on the house was

      higher than the house’s value, and that Wife’s son had caused damage to two

      windows.


[7]   Wife testified that she had fallen at work and receives approximately $900

      monthly in social security disability benefits. She stated that Husband had

      taken all of her keys, that when she returned to the house on one occasion to

      obtain her things Husband was home and would not open the door, that her

      Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 4 of 20
      son broke a window to access the house so that she could retrieve her property,

      and that she and her son did not cause any other damage. Wife requested that

      the court award her $50,000 and that it order Husband to pay her in

      installments over an eight-year period. She testified that she is unable to work

      and support herself and that, if it were not for her son, she would not have a

      place to live.


[8]   On November 5, 2014, the court entered a decree of dissolution of marriage. In

      the decree, the court awarded Husband the marital residence and ordered that

      he be responsible for all obligations on the residence including the mortgage.

      The court found the amount of the mortgage on the residence to be $82,500

      based on the admitted mortgage statement, and the value of the residence to be

      $79,000 based on the admitted appraisal report, for a net negative value of

      $3,500. The court awarded Husband a vehicle valued at $1,902, debt

      obligations totaling $24,492, his “PERF Saving account – $49,752.00,” and his

      “PERF Pension – $116,233.64.” Appellant’s Appendix at 6. The court

      awarded Wife the TIAA-CREF account of $10,180.30, an IRA of $500, and a

      vehicle valued at $1,983.


[9]   The court further found “that a presumption of an equal division of the marital

      estate has not been rebutted in this cause.” Id. at 7. The court ordered that

      Husband “shall pay [Wife] the sum of $62,154.17 to equalize the division of the

      marital estate after deducting the cost to replace the window broken by [Wife]

      and/or her son.” Id. This sum was reduced to judgment in favor of Wife and

      against Husband. The court also found that “no interest shall accrue on said

      Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 5 of 20
       judgment unless [Husband] defaults on payments since the bulk of the marital

       estate is the PERF pension benefits which he is not eligible to receive until

       retirement and which are not exempt by state law from division by Court

       order.” Id. The court further ordered Husband to pay $500 per month to Wife

       on the amount due her and to pay $500 in attorney fees to Wife’s counsel.


[10]   Husband filed a motion to correct error arguing that he will not receive any

       benefit from the PERF pension until he is retirement age, that a large portion of

       the amount awarded to Wife is derived from the PERF pension, and that

       essentially he is prepaying Wife her share of the pension even before he is

       eligible to receive pension benefits himself. The court denied Husband’s

       motion to correct error.


                                                     Discussion

[11]   Husband challenges the trial court’s order that he begin making monthly

       equalization payments prior to his retirement and the distribution of his pension

       benefits, and Wife cross appeals the court’s failure to divide the premarital

       portion of Husband’s pension.


[12]   The division of marital property is within the sound discretion of the trial court,

       and we will reverse only for an abuse of discretion. Love v. Love, 10 N.E.3d

       1005, 1012 (Ind. Ct. App. 2014). An abuse of discretion occurs if the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before the court, or if the trial court has misinterpreted the law or

       disregards evidence of factors listed in the controlling statute. Id. When we


       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 6 of 20
       review a claim that the trial court improperly divided marital property, we must

       consider only the evidence most favorable to the trial court’s disposition of the

       property. Id. Although the facts and reasonable inferences might allow for a

       different conclusion, we will not substitute our judgment for that of the trial

       court. Id.


[13]   The trial court’s division of marital property is highly fact sensitive. Id. A trial

       court’s discretion in dividing marital property is to be reviewed by considering

       the division as a whole, not item by item. Id. We will not weigh evidence, but

       will consider the evidence in a light most favorable to the judgment. Id. A trial

       court may deviate from an equal division so long as it sets forth a rational basis

       for its decision. Id. A party who challenges the trial court’s division of marital

       property must overcome a strong presumption that the court considered and

       complied with the applicable statute. Id. at 1012-1013. Thus, we will reverse a

       property distribution only if there is no rational basis for the award. Id. at 1013.


       A. Order of Immediate Monthly Payments


[14]   We initially observe that, at the dissolution hearing, Husband indicated that he

       wished for Wife to have one-half of the value of his PERF pension earned

       during the parties’ marriage, and he does not argue that the court abused its

       discretion in awarding Wife fifty percent of the value of his pension earned

       during the marriage. Rather, Husband “disputes how he is to pay the sums to

       [Wife].” Appellant’s Brief at 7. He contends that the court abused its

       discretion in ordering him to make immediate monthly payments to Wife of


       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 7 of 20
       money he would not be receiving until he retires. He states that, “[d]espite the

       fact that the distribution to [W]ife is termed an ‘equalization payment,’ it still

       amounts to the payment of PERF monies as that is the only remaining asset for

       [him],” and that “[i]t is the distribution of [his] PERF monies which he does

       not currently receive.” Id. at 10. He also argues that the monthly $500

       payment to Wife, together with the monthly debt payments the court ordered

       him to pay, amounts to more than fifty percent of his gross income. Wife’s

       position is that the court acted within its discretion in ordering Husband to pay

       her monthly installments before distribution of his pension benefit. She further

       posits that the court took into account that the bulk of the marital estate

       consisted of the PERF pension by not awarding her any interest on her

       judgment.


[15]   Ind. Code §§ 31-15-7 governs the division of property in actions for dissolution

       of marriage, and Ind. Code § 31-15-7-4(b) provides:

               The court shall divide the property in a just and reasonable
               manner by:
                        (1) division of the property in kind;
                        (2) setting the property or parts of the property over to one
                        (1) of the spouses and requiring either spouse to pay an
                        amount, either in gross or in installments, that is just and
                        proper;
                        (3) ordering the sale of the property under such conditions
                        as the court prescribes and dividing the proceeds of the
                        sale; or
                        (4) ordering the distribution of benefits described in IC 31-
                        9-2-98(b)(2) or IC 31-9-2-98(b)(3) that are payable after the

       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 8 of 20
                         dissolution of marriage, by setting aside to either of the
                         parties a percentage of those payments either by
                         assignment or in kind at the time of receipt.[1]

[16]   In addition, Ind. Code §§ 5-10.3-8 govern PERF benefits, including retirement

       benefit options, payment of retirement benefits, and retirement benefit

       computations. Ind. Code § 5-10.3-8-9(a) provides in part that “[a]ll benefits,

       refunds of contributions, and money in the fund are exempt from levy, sale,

       garnishment, attachment, or other legal process.” Ind. Code § 5-10.3-8-10

       provides in part that, except for certain limited exceptions related to insurance

       premiums and dues, “[a] member or a beneficiary may not assign any

       payment.”




       1
           Ind. Code § 31-9-2-98(b) provides:
                 “Property”, for purposes of IC 31-15, IC 31-16, and IC 31-17, means all the
                 assets of either party or both parties, including:

                         (1) a present right to withdraw pension or retirement benefits;


                         (2) the right to receive pension or retirement benefits that are not forfeited
                         upon termination of employment or that are vested (as defined in Section 411
                         of the Internal Revenue Code) but that are payable after the dissolution of
                         marriage; and


                         (3) the right to receive disposable retired or retainer pay (as defined in
                         10 U.S.C. 1408(a)) acquired during the marriage that is or may be
                         payable after the dissolution of marriage.


       (Emphasis added).

       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015                   Page 9 of 20
[17]   Under the Employee Retirement Income Security Act (“ERISA”), pension

       benefits may be assigned or alienated from the plan participant only if the order

       alienating the benefit is a qualified domestic relations order (“QDRO”).

       Parham v. Parham, 855 N.E.2d 722, 729 (Ind. Ct. App. 2006) (citing 29 U.S.C. §

       1056(d)(3)), trans. denied; see Von Haden v. Supervised Estate of Von Haden, 699

       N.E.2d 301, 304 (Ind. Ct. App. 1998) (observing that ERISA provides that

       alienation or assignment of benefits is generally prohibited under a pension

       plan, that there is a limited exception to the anti-alienation provisions for a

       QDRO, and that a QDRO allows a plan participant to assign part of a pension

       plan in a divorce settlement). However, PERF is a governmental plan and, as

       such, is not governed by ERISA. See 29 U.S.C. § 1003(b)(1) (stating that

       ERISA provisions “shall not apply to any employee benefit plan if . . . such

       plan is a governmental plan (as defined in section 1002(32) of this title)”); 29

       U.S.C. § 1002(32) (providing “[t]he term ‘governmental plan’ means a plan

       established or maintained for its employees by . . . the government of any State

       or political subdivision thereof, or by any agency or instrumentality of any of

       the foregoing”); see also In re Marriage of Adams, 535 N.E.2d 124, 126 n.2 (Ind.

       1989) (noting that the husband contended and the wife impliedly conceded that

       ERISA exempted certain governmental pension plans such as the police

       pension plan at issue), reh’g denied.


[18]   While the trial court did not have the option to divide Husband’s PERF

       pension by way of a QDRO or otherwise order Husband to assign his benefit

       payments to Wife, see Ind. Code §§ 5-10.3-8-9(a) and -10, the court did


       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 10 of 20
       nevertheless have the obligation to divide the marital estate under Ind. Code §

       31-15-7-4 and had the option to order Husband to make an equalization

       payment or payments to effect the division. See Everette v. Everette, 841 N.E.2d

       210, 213-214 (Ind. Ct. App. 2006) (concluding, based on the text of Ind. Code §

       5-10.3-8-9(a), that the husband’s PERF account was exempt from levy, sale,

       garnishment, attachment, or other legal process, including a QDRO, that this

       course did not leave the trial court without recourse to evenly divide the marital

       estate, and that distribution to the wife of an equalizing amount of the proceeds

       from the sale of property could be an appropriate mechanism to balance the

       distribution without violating the PERF statutes).


[19]   We note that Brett R. Turner, EQUITABLE DISTRIBUTION OF PROPERTY,

       contains a helpful discussion regarding methods for distributing retirement

       benefits. 2 Equit. Distrib. of Property, 3d §§ 6:30, 6:36 (2014). Courts utilize a

       number of methods for distributing pension benefits, including an immediate

       offset method, a deferred distribution method, or a variation or combination of

       the methods. See id. Under the immediate offset method, the court determines

       the present value of the retirement benefits and awards the nonowning spouse

       his or her share of the benefits in an immediate lump sum award of cash or

       property equal to the value of his or her interest. Id. at § 6:30. Under the

       deferred distribution method, the court makes no immediate division of the

       retirement benefits but determines the future benefits to which the nonowning

       spouse is entitled. Id. Traditionally, the benefits have been stated as a share of

       the owning spouse’s future benefit, and payment can be made directly to the


       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 11 of 20
       nonowning spouse by the plan administrator under certain circumstances or

       payment can be ordered to come directly from the owning spouse. Id.


[20]   Several fact situations may favor the use of an immediate offset method,

       including where the present value of the pension is relatively modest, the parties

       are highly litigious, the separating parties are relatively young, and the receiving

       spouse has immediate and substantial financial need. Id. at § 6:36. Other fact

       situations may favor a deferred distribution method, including where there is

       not sufficient other tangible property remaining in the marital estate so that a

       present award is possible, there is an unusually substantial risk that benefits will

       never be received, the present value of benefits is difficult to compute with

       reasonable accuracy, and both spouses have no other steady source of income

       for their retirement years. Id.


[21]   It is also possible to apply both the deferred distribution and immediate offset

       methods in a single case. Id. One such way to combine the methods is to order

       an offsetting cash award payable in installments. Id. Such an award can give

       the benefits of immediate offset in a case where there are not sufficient funds

       available for an immediate cash payment. Id. Like the immediate offset

       method, deferred offset awards are limited by the liquid funds available in the

       marital estate. Id. However, the limitation is not as severe as with an

       immediate offset award, because a deferred award is spread out over time, but

       the payor must still have sufficient liquid funds to make the installment

       payments. Id.



       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 12 of 20
[22]   In this case, the trial court determined the present value of the portion of

       Husband’s pension to be divided, and the equalization payment was based on

       the division of the marital assets, which was comprised of Husband’s pension

       and other non-pension property. To the extent the court’s order that Husband

       pay Wife $62,154.17 to equalize the division of the marital estate constituted an

       immediate offset or partial immediate offset of Husband’s pension, we note that

       the court also ordered that Husband pay the award to Wife in installments of

       $500 per month. The court further found that “the bulk of the marital estate is

       the PERF pension benefits which [Husband] is not eligible to receive until

       retirement.” Appellant’s Appendix at 7. Indeed, the court valued the marital

       property, excluding the PERF pension, at approximately $36,325, and the

       present value of Husband’s pension is significant relative to the value of all of

       the marital assets.


[23]   The evidence establishes that Husband’s pension represents a significant portion

       of the marital property and that Husband was fifty-six years old at the time of

       the hearing. The evidence does not indicate that Husband or Wife have other

       steady sources of income for their retirement years. These factors may tend to

       favor a deferred distribution. The absence of sufficient other tangible property

       remaining in the marital estate so that a total present award was possible,

       required, at a minimum, that any setoff be payable in installments. Wife

       testified she receives approximately $900 per month in social security disability

       benefits and that, if it were not for her son, she would not have a place to live.

       Husband does not know when he may retire, there is not an unusually


       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 13 of 20
       substantial risk that Husband’s benefits will never be received, and the present

       value of benefits is not difficult to compute with reasonable accuracy. These

       factors favor an immediate offset or an offsetting cash award payable in

       installments which begin immediately. The trial court ordered monthly

       payments which took into account the evidence and the parties’ needs and

       resources. The trial court’s order does not force Husband to retire, and he will

       receive any increase in the value of his pension due to his continuing to work.


[24]   Based upon the record, applying the deferential standard of review for division

       of marital property and in light of the considerations discussed above, we

       cannot say that the trial court abused its discretion in ordering that Husband

       make monthly payments to Wife beginning immediately rather than after he

       retires and starts receiving his pension benefit. See Hughes v. Hughes, 601 N.E.2d

       381, 384 (Ind. Ct. App. 1992) (affirming the trial court’s decision to award the

       husband’s pension benefit to him and, as in the case of a residence or other

       illiquid asset, to award the wife installment payments to satisfy her interest in

       the asset and noting that the court’s order did not force the husband to retire),

       trans. denied; Qazi v. Qazi, 546 N.E.2d 866, 872 (Ind. Ct. App. 1989) (holding the

       trial court did not abuse its discretion in ordering the petitioner to pay the

       respondent a portion of the present value of his pension plans, which were

       significant, in installments over a ten-year period where there were other

       marital assets), trans. denied.


       B. Valuation and Division of Husband’s Pension



       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 14 of 20
[25]   We next turn to the argument of Wife that the court failed to divide the marital

       estate equally after finding that the presumption that an equal division is fair

       had not been rebutted. She requests that this court remand with instructions to

       include the entire PERF pension in the marital estate and to divide the marital

       estate equally.


[26]   Ind. Code § 31-15-7-4(a) provides:

               In an action for dissolution of marriage under IC 31-15-2-2, 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.

       (Emphasis added). “This ‘one pot’ theory specifically prohibits the exclusion of

       any asset from the scope of the trial court’s power to divide and award.” In re

       Marriage of Nickels, 834 N.E.2d 1091, 1098 (Ind. Ct. App. 2005). “While the

       trial court may ultimately determine that a particular asset should be awarded

       solely to one spouse, it must first include the asset in its consideration as to how

       the marital estate should be divided.” Hartley v. Hartley, 862 N.E.2d 274, 282

       (Ind. Ct. App. 2007).


[27]   In addition, Ind. Code § 31-15-7-5 provides:

               The court shall presume that an equal division of the marital property
               between the parties is just and reasonable. However, this presumption
               may be rebutted by a party who presents relevant evidence, including

       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015     Page 15 of 20
               evidence concerning the following factors, that an equal division would
               not be just and reasonable:
                        (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.

       (Emphases added).


[28]   The evidence before the trial court related to the present value of Husband’s

       pension consisted of the valuation report prepared by Financial Evaluations.

       The report provided that the present value of the defined benefit pension

       annuity starting at age 60.03 and continuing through the retiree’s projected

       death was $172,285.30 and that the amount earned during the marriage, based

       on a coverture fraction of 67.4658 percent, was $116,233.64. The trial court

       found that “[t]he marital estate shall be valued and divided as follow[s]: . . .

       PERF Pension – $116,233.64.” Appellant’s Appendix at 6. The court also


       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015         Page 16 of 20
       found “that a presumption of an equal division of the marital estate has not

       been rebutted in this cause.” Id. at 7.


[29]   The trial court included only the coverture fraction of Husband’s pension in the

       marital estate for property division and failed to include the portion of his

       pension earned before the marriage. While the court may ultimately determine

       that the portion of Husband’s pension earned prior to the marriage should be

       awarded solely to him, it must first include the asset in its consideration as to

       how the marital estate should be divided. Accordingly, the court erred in

       failing to include all property, including that portion of Husband’s pension

       earned before the marriage, in the marital estate. We reverse that portion of the

       decree valuing Husband’s pension and the marital estate and remand with

       instructions for the court to include the entire value of Husband’s pension in the

       marital estate, to enter findings that either an equal division of the pension is

       just and reasonable under the circumstances or, alternatively, that the

       presumption of equal division has been rebutted by evidence which could

       include that a portion of the pension was earned by Husband prior to the

       parties’ marriage, and thus that an equal division would not be just and

       reasonable. The court is to recalculate the division of marital assets accordingly

       and, if necessary, recalculate Husband’s equalization payment, without the

       necessity of another hearing.


                                                    Conclusion

[30]   For the foregoing reasons, we affirm in part, reverse in part, and remand with

       instructions.
       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 17 of 20
[31]   Affirmed in part, reversed in part, and remanded.


       Riley, J., concurs.

       Friedlander, Sr. J., concurs in part and dissents in part with separate opinion.




       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 18 of 20
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Timothy Kendrick,                                         Court of Appeals Case No.
                                                                 49A02-1412-DR-888
       Appellant-Defendant,

               v.

       Angela Kendrick,
       Appellee-Plaintiff.




       Friedlander, Sr. J., concurring in part and dissenting in part.


[32]   I would affirm the trial court in every respect, including most notably its

       division of Husband’s pension, and therefore respectfully dissent in part from

       the portion of the Majority’s option that remands for further proceedings with

       respect to that issue.


[33]   As the Majority notes, trial courts may utilize the “coverture fraction formula”

       method to distribute pension or retirement plan benefits to earning and non-

       earning spouses. This method has been described thus: “Under this

       methodology, the value of the retirement plan is multiplied by a fraction, the

       Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015          Page 19 of 20
numerator of which is the period of time during which the marriage existed

(while pension rights were accruing) and the denominator is the total period of

time during which pension rights accrued.” In re Marriage of Fisher, 24 N.E.3d

429, 433 (Ind. Ct. App. 2014). Even without the magic words indicating that

the trial court technically considered all of Husband’s pension as a marital asset

before setting aside to him the coverture portion earned outside the marriage, it

is very clear that this is precisely the method employed in dividing Husband’s

pension between him and Wife. Although I understand the point the Majority

is making in remanding on the stated rationale, it needlessly prolongs this

litigation and ultimately serves no purpose. The trial court obviously employed

a well-established and well-accepted method in distributing Husband’s pension,

and I would let that be the end of the matter.




Court of Appeals of Indiana | Opinion 49A02-1412-DR-888 | September 22, 2015   Page 20 of 20
