MEMORANDUM DECISION
                                                                         Apr 10 2015, 7:08 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
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
Anthony Zapata                                            Octavia Florence Snulligan
Indianapolis, Indiana                                     Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Victoriano Medina-Noralez,                                April 10, 2015

Appellant-Respondent,                                     Court of Appeals Case No.
                                                          49A02-1312-DR-1042
        v.                                                Appeal from the Marion Superior
                                                          Court; The Honorable Burnett
                                                          Caudill, Magistrate;
Sally Medina,                                             49D03-1302-DR-6386
Appellee-Petitioner.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1312-DR-1042 | April 10, 2015           Page 1 of 8
[1]   Victoriano Medina-Noralez appeals the court’s distribution of marital assets

      pursuant to his divorce from Sally Medina. He asserts the court erred by

      dividing the marital assets unequally without explaining why unequal division

      was proper, and he asserts the court erred when it refused to certify the “verified

      statement of the evidence” he submitted pursuant to Indiana Appellate Rule

      31(A).


[2]   We reverse and remand.


                                 Facts and Procedural History
[3]   Victoriano and Sally were married on December 23, 1995. They separated on

      February 20, 2013. Sally filed a petition for divorce. A final hearing was held

      on August 1, 2013, but was not audio recorded due to technical difficulties.

      The court entered a final decree of dissolution on November 19, 2013. That

      decree states, in relevant part:

               6.    The Petitioner/Wife shall have sole and exclusive ownership
               and possession of the marital residence at 11020 Springtree Place,
               Indianapolis, Indiana 46239 and pay all debts thereon and hold the
               Respondent/Husband harmless.
               7.      The Petitioner/Wife is to pay the Respondent/Husband $2,000
               as his share of the equity in the marital residence.
               8.     The Petitioner/Wife is to pay all debts in her own name, and
               the Respondent/Husband is to pay any debts in his own name.
               9.     The Respondent shall have all personal property in his
               possession, the 2006 Hyundai, and all boxing equipment.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1312-DR-1042 | April 10, 2015   Page 2 of 8
              10.    The Petitioner/Wife shall have all personal property in her
              possession except the boxing equipment, and the 2010 Scion.[1]
              11.     There were no evaluations submitted into evidence of any other
              assets of the parties.
      (App. at 42 (footnote added).)


[4]   Victoriano wished to appeal that order. When he learned the final hearing had

      not been recorded, and thus no transcript could be prepared, he prepared and

      submitted a verified statement of the evidence pursuant to Ind. Appellate Rule

      31. (See id. at 2.) The court initially granted Victoriano’s motion to certify his

      statement, but then revoked that certification to permit Sally to file her verified

      statement of evidence. After Sally filed her statement, (see id. at 5), the

      Honorable Burnett Caudill, Magistrate, submitted an affidavit on June 13,

      2014, stating:

              1. Your affiant heard the above-referenced case on August 1, 2013,
                 and a transcript cannot be provided due to a malfunction of the
                 Court’s recording equipment.
              2. The testimony was elicited with the assistance of an interpreter for
                 the Husband.
              3. In addition to the certified statements of evidence submitted by the
                 parties, your affiant, due to the paucity of evidence other than the
                 testimony of the parties, recalls that values of the assets were not as
                 specific as submitted.
              It should be noted that the Court of Appeals order required
              certification by May 25, 2014, but the parties did not submit their




      1
       Due to the imprecise wording of this decree, it is unclear whether Wife has, or does not have, the 2010
      Scion. We request the trial court clarify this matter on remand.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1312-DR-1042 | April 10, 2015             Page 3 of 8
              statements of evidence to this Court for consideration until June 11
              and June 12, 2014.[2]
      (Id. at 1 (footnote added).)


                                      Discussion and Decision
                                             1. Division of Assets

[5]   Victoriano challenges the court’s division of marital assets. We review a

      division of assets for an abuse of discretion, which occurs if the court’s decision

      is against the logic and effect of the facts and circumstances before the court. In

      re Marriage of Fisher, 24 N.E.3d 429, 432 (Ind. Ct. App. 2014). The statute

      controlling division of marital property 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
              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.




      2
       We note the file-stamped copies of the statements of evidence from Victoriano and Sally are dated February
      28, 2014, and April 4, 2014, respectively. (See App. at 2, 5.)

      Court of Appeals of Indiana | Memorandum Decision 49A02-1312-DR-1042 | April 10, 2015           Page 4 of 8
              (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.
      Ind. Code § 31-15-7-5.


[6]   Victoriano asserts the court’s division of marital property was unequal. The

      court entered findings awarding Sally the marital residence and Victoriano

      $2,000.00 as his share of the equity in same but no value of the residence was

      given in the decree. (App. at 42.)


[7]   If a court orders an unequal division of marital assets, the trial court “must

      consider all of the factors set out in IC § 31-15-7-5.” Wallace v. Wallace, 714

      N.E.2d 774, 780 (Ind. Ct. App. 1999) (emphasis in original), trans. denied.

      Although a trial court’s order is not required to be explicit, we must be able to

      infer the trial court’s reasoning for the unequal division. See Eye v. Eye, 849

      N.E.2d 698, 703 (Ind. Ct. App. 2006) (exclusion of factors from written findings

      is not a bar but reasoning must be inferable).


[8]   Our review of the court’s final order leaves us unable to determine whether the

      court intended its division of marital assets to be equal or unequal. The court’s

      order neither includes an explicit statement of its intention nor values the

      marital assets in a way that permits us to calculate the percentage of the estate

      given to each party. Based on the fact the trial court did not give us any

      explanation of the reasoning behind the distribution of the assets, let alone how


      Court of Appeals of Indiana | Memorandum Decision 49A02-1312-DR-1042 | April 10, 2015   Page 5 of 8
      that reasoning is supported by Ind. Code § 31-15-7-5, we must reverse and

      remand for the court to enter a more explicit order.3 See Bertholet v. Bertholet,

      725 N.E. 2d 487, 497 (Ind. Ct. App. 2000) (case remanded to trial court to

      determine value of marital business when valuation was indeterminable by

      review of the court order).


                                                2. Appellate Rule 31

[9]   Victoriano asserts the trial court erred in not granting his Motion to Certify

      Verified Statement of the Evidence.4 Indiana Appellate Rule 31 explains the

      proper procedure in the event the transcript of a hearing is unavailable:

               A. Party’s Statement of Evidence. If no Transcript of all or part of
               the evidence is available, a party or the party’s attorney may prepare a
               verified statement of the evidence from the best available sources,
               which may include the party’s or the attorney’s recollection. The party
               shall then file a motion to certify the statement of evidence with the
               trial court or Administrative Agency. The statement of evidence shall
               be attached to the motion.
               B. Response. Any party may file a verified response to the proposed
               statement of evidence within fifteen (15) days after service.
               C. Certification by Trial Court or Administrative Agency. Except
               as provided in Section D below, the trial court or Administrative




      3
       Victoriano asserts the trial court erred in ruling no valuations were submitted into evidence. We note that
      while the trial court has discretion to ascertain values of property, see Hiser v. Hiser, 692 N.E.2d 925, 927 (Ind.
      Ct. App. 1998), we cannot rule on whether any abuse of discretion occurred because we do not know
      whether any values were in evidence.
      4
        Victoriano claims his due process rights were infringed by this denial. Although there is a scarcity of
      information throughout this case, Victoriano was not denied due process. He had his day in court and due
      process does not include an absolute right to a transcript. See Ruetz v. State, 268 Ind. 42, 46, 373 N.E.2d 152,
      155 (1978) (no denial of due process when following appellate rules providing for a substitution for
      transcription).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1312-DR-1042 | April 10, 2015                   Page 6 of 8
               Agency shall, after a hearing, if necessary, certify a statement of the
               evidence, making any necessary modifications to statements proposed
               by the parties. The certified statement of the evidence shall become
               part of the Clerk’s Record.
               D. Controversy Regarding Action of Trial Court Judge or
               Administrative Officer. If the statements or conduct of the trial court
               judge or administrative officer are in controversy, and the trial court
               judge or administrative officer refuses to certify the moving party’s
               statement of evidence, the trial court judge or administrative officer
               shall file an affidavit setting forth his or her recollection of the disputed
               statements or conduct. All verified statements of the evidence and
               affidavits shall become part of the Clerk’s Record.
[10]   Victoriano submitted his Statement of Evidence. Sally disagreed with his

       statement and filed one of her own. The trial court did not certify either

       Statement of Evidence. Pursuant to App. R. 31(C), the court could certify its

       own Statement of the Evidence rather than accept either party’s statement of

       the evidence. Such a statement could include some but not all of the parties’

       statements. App. R. 31(C). This is not what the court did.


[11]   The court submitted an affidavit affirming there was a controversy in the instant

       case regarding the evidence presented. On its face, this appears to be an

       attempt by the court to conform with App. R. 31(D). However, App. R. 31(D)

       does not apply here as the issue is not “the statement or conduct of the trial

       court judge” but rather what, if any, evidence was presented at trial. As such,

       the court should have filed a statement of evidence pursuant to App. R. 31(C).

       See Whiting v. State, 969 N.E.2d 24, 27 n.3 (Ind. 2012) (when court’s actions are

       not at issue, App. R. 31(D) does not apply).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1312-DR-1042 | April 10, 2015   Page 7 of 8
[12]   Under App. R. 31(C), the court “shall . . . certify a statement of the evidence,

       making any necessary modifications to statements proposed by the parties.”

       The affidavit submitted does not provide a statement of the evidence. The

       affidavit submitted by Magistrate Caudill states that “due to a paucity of

       evidence other than the testimony of the parties, [the affiant] recalls that values

       of the assets were not as specific as submitted.” (App. at 1.) The inadequacy of

       that statement from the court does not serve the purpose of App. R. 31(C) and

       does not permit us to review the validity of the findings in the court’s final

       order.


                                                 Conclusion
[13]   We reverse and remand for the trial court to issue a new final order and a

       certified Statement of the Evidence in accordance with this opinion. In the

       event the trial court cannot remember the basis for its ruling, or create such a

       certified statement, the court may need to conduct a new hearing that is

       recorded and enter a new final order based thereon.


[14]   Reversed and remanded.


       Barnes, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1312-DR-1042 | April 10, 2015   Page 8 of 8
