      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                   FILED
      this Memorandum Decision shall not be                               Aug 16 2019, 8:39 am
      regarded as precedent or cited before any
                                                                               CLERK
      court except for the purpose of establishing                         Indiana Supreme Court
                                                                              Court of Appeals
      the defense of res judicata, collateral                                   and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Laurie Baiden Bumb                                       Thomas A. Massey
      Bumb Law Office, LLC                                     Massey Law Offices, LLC
      Evansville, Indiana                                      Evansville, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Kevin Heckel,                                            August 16, 2019
      Appellant-Respondent/Cross-Appellant,                    Court of Appeals Case No.
                                                               18A-DR-2860
              v.                                               Appeal from the Spencer Circuit
                                                               Court
      Tammy Heckel,                                            The Honorable Lucy Goffinet,
      Appellee-Petitioner/Cross-Appellee                       Special Judge
                                                               Trial Court Cause No.
                                                               74C01-1606-DR-210



      Crone, Judge.


                                             Case Summary
[1]   Kevin Heckel (“Husband”) and Tammy Heckel (“Wife”) both appeal the trial

      court’s order dissolving their marriage. Husband contends that the trial court


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019              Page 1 of 17
      erred in dividing the marital estate equally and in summarily finding Wife’s

      witnesses more credible than his witnesses regarding the valuation of marital

      assets. Wife contends that the trial court erred in excluding certain assets from

      the marital estate and in failing to rule on her petition asserting that Husband is

      in contempt of a provisional order requiring him to share farm rental income

      with her. We conclude that the trial court did not abuse its discretion in

      dividing the marital estate equally and in summarily finding Wife’s witnesses

      more credible than Husband’s, but that it erred in excluding certain assets from

      the estate and in failing to rule on Wife’s contempt petition. We therefore

      affirm in part, reverse in part, and remand with instructions to include the

      challenged assets in the marital estate, equalize the estate accordingly, and issue

      a ruling on Wife’s contempt petition.


                                 Facts and Procedural History
[2]   Husband and Wife were married in October 1998. Their two children were

      born in 2001 and 2003. In 2003, Husband’s mother deeded approximately 210

      acres of Heckel family farmland, including a seventy-nine-acre turkey farm, to

      the parties jointly as husband and wife. Husband and Wife built their marital

      residence on a forty-acre parcel of that farmland. Husband and Wife also

      acquired farmland on their own, including the 108-acre Polster Farm, and

      rented some of their farmland. Husband was employed by Covia, formerly

      known as Unimin, and also managed the family farming operations. Wife

      operated a gift shop in a building that she and Husband purchased.



      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019   Page 2 of 17
[3]   In June 2016, Wife petitioned to dissolve the marriage. In January 2017, Wife

      filed a petition for contempt asserting that Husband had failed to divide $20,000

      in 2016 farm rental income equally with her in violation of an October 2016

      provisional order. The final hearing was held over multiple days in May and

      June 2018. During the hearing, the trial court stated that it would rule on the

      contempt petition in its final order. See Tr. Vol. 4 at 140 (“I’m going to save my

      ruling for the $10,000 to go with the […] final decree.”). The parties submitted

      proposed findings and conclusions at the trial court’s request.


[4]   In October 2018, the trial court issued its own findings, conclusions, and order

      dissolving the parties’ marriage and addressing child- and property-related

      issues. The relevant findings and conclusions read as follows:1


                 [Findings]

                 37. The Court finds Husband’s income at his current employer is
                 $117,712.92.

                 38. The Court finds Wife’s income is $51,000.

                 39. Based upon evidence and testimony presented the Court
                 finds that the farming operations have been operating at a loss
                 and no income will be attributed to either party.

                 ….

                 43. Indiana Code 31-15-7-4 provides that all marital property is




      1
          We replace the trial court’s references to the parties with “Husband” and “Wife” where appropriate.


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019                   Page 3 of 17
        to be divided and that the trial court shall divide the property in a
        just and reasonable manner.

        44. Indiana Code 31-15-7-5 states that the Court shall presume
        that an equal division of marital property is just and reasonable.

        45. There was no relevant evidence that [was] submitted by
        either party relating to the disposition or dissipation of marital
        property.

        46. There was no Prenuptial Agreement.

        47. Wife has a high school diploma and very little college.
        Almost all of her business attempts have been failures.

        48. Husband has an Electrical Engineering degree from Purdue
        University and has been very successful in employment.

        49. The parties acquired a substantial amount of farm land
        during the marriage. Some of the farmland was deeded to them
        by Husband’s mother.

        ….

        59. The Court does not find Husband’s valuations of the
        residence, farm land and operations convincing.

        60. The Court finds Wife’s valuations of the residence[,] farm
        land and operations convincing.

        ….

        63. Based upon evidence and testimony presented the Court
        finds Husband’s [Unimin] 401(k) to have a pre-marital rollover
        amount of $85,002.26 which will be fully set aside to him.

        64. Based upon evidence and testimony the Court finds

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019   Page 4 of 17
        Husband’s Unimin 401(k) valued at $346,365.53.

        ….

        66. Based upon the evidence and testimony presented the Court
        finds the Putnam Investment account in the amount of $5,457.19
        to be a pre-marital asset belonging to Husband and should be
        fully set aside to him.

        67. Based upon the evidence and testimony presented the Court
        finds the FPA Paramount Fund account in the amount of
        $5,164.73 to be a pre-marital asset belonging to Husband and
        should be fully set aside to him.

        ….

        [Conclusions]

         ….

        5. Wife shall be awarded the marital residence, along with 5
        acres, … free and clear of any claim from the Husband. The
        Court finds the value of the marital residence, and the
        surrounding 5 acres, to be $402,000.00. Husband shall execute a
        Quitclaim Deed to relinquish his name from the joint title.

        6. Husband shall be awarded the remaining 35 acres that
        surround the marital home. The court finds the value of the 35
        acres to be $105,000.00. Wife shall execute a Quitclaim Deed to
        relinquish her name from the joint title.

        7. Husband shall be the sole owner of the mortgage debt due and
        owing on the home in the amount of $197,181.00.

        8. Husband shall be the sole owner of the home equity debt due
        and owing in the amount of $49,190.93.


Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019   Page 5 of 17
        9. Husband shall transfer or pay off all the joint indebtedness
        from the marital residence within sixty (60) days of the date of
        this order.…

        10. Husband shall become the sole owner of the 79 acres
        containing the turkey farm …. The Court finds the value of the
        79 acres, containing the turkey farm, to be $960,000.00. Wife
        shall execute a Quitclaim Deed to relinquish her name [from] the
        joint title to this real estate.

        11. Wife shall become the sole owner of the 108 acres of farm
        ground known as the Polster Farm. The Court finds the value of
        the 108-acre farm to be $540,000.00. Husband shall execute a
        Quitclaim Deed to relinquish his name from the joint title.

        12. Husband shall become the sole owner of the remaining 121
        acres of jointly owned real estate. The Court finds the value of
        the real estate to be $525,000.00. Wife shall execute a Quitclaim
        Deed to relinquish her name from the joint title.

        13. The Court is awarding Husband all of the jointly owned real
        estate that originated from the Heckel family farm, with the
        exception of the 5 acres upon which the marital residence is
        located.

        14. Each party shall be the sole owners of any crops, fixtures,
        barns, grains, bins, timer and any other similar assets upon the
        real estate awarded to that party.

        15. Husband shall within thirty (30) days provide to Wife copies
        of all lease agreements.

        16. Wife shall become the sole owner of the business Evergreen
        Boutique and Christmas Shop, LLC. The Court finds the value
        of the business to be $50,000.00. Husband shall execute a
        Quitclaim Deed to relinquish his name from the joint title.


Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019   Page 6 of 17
        17. Wife shall be the sole owner of the Edwards Jones IRA in
        the amount of $29,447.66.

        18. Husband’s Unimin 401(k) shall be equally (50/50) divided,
        with the exception of the $85,002.26 pre-marital rollover amount,
        with Wife to receive a lump sum $173,182.77 by qualified
        Domestic Relations Order (QDRO) and Husband shall be the
        sole owner of the remaining balance.…

        19. Husband’s Unimin Pension plan shall be equally (50/50)
        [divided] by QDRO. The Court finds Wife’s interest to be in the
        amount of $37,116.86. Husband shall become the sole owner of
        the remaining balance.…

        20. Husband shall become the sole owner of the Putnam
        Investment account. The court concludes this to be a premarital
        asset.

        21. Husband shall become the sole owner of his FPA Paramount
        account. The court concludes this to be a premarital asset.

        22. Wife shall become the sole owner of [a Toyota Highlander
        valued at $30,000, a mower, a four-wheeler, and] home
        furnishings with the approximate value of $20,000.00.

        23. Husband shall be the sole owner of the personal property in
        his possession and also [certain farm equipment as well as all]
        other machinery, fixtures and equipment for the farm operation
        located on the real estate awarded to the husband.

        24. Husband shall be responsible for the Old National Bank farm
        operation loan in the amount of $46,753.33.…

        25. Husband shall be responsible for the Old National Bank
        commercial loan in the amount of $53,447.24.…

        26. Husband shall be responsible for the debt due and owing on

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019   Page 7 of 17
              the Toyota Highlander in the amount of $18,341.57.…

              27. Husband shall be responsible for the Custody Evaluation Fee
              in the amount of $18,850.00.…

              28. Husband shall be responsible for the payment of the Farm
              Bureau Policy Renewal in the amount of $4,814.00.

              29. Each party shall be responsible for their own attorney fees.

              ….

              31. To effect the Court’s 50/50 distribution of marital assets
              Husband shall pay to Wife a lump sum property settlement
              payment of $64,987.30, which shall accrue no interest if timely
              paid within three (3) months from the date of this Decree.


      Appealed Order at 5-15.


[5]   Both parties now appeal. Additional facts will be provided as necessary.


                                     Discussion and Decision

       Section 1 – The trial court clearly erred in excluding a portion
         of Husband’s 401(k) and the Putnam Investment and FPA
               Paramount accounts from the marital estate.
[6]   We first address Wife’s argument that the trial court erred in excluding a

      portion of Husband’s 401(k) and the Putnam Investment and FPA Paramount




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019   Page 8 of 17
      accounts from the marital estate.2 Where, as here, the trial court asks the

      parties to submit proposed findings and then enters findings of fact and

      conclusions on its own motion, “the specific findings control only as to the

      issues they cover, while a general judgment standard applies to any issue upon

      which the court has not found.” Apter v. Ross, 781 N.E.2d 744, 751 (Ind. Ct.

      App. 2003), trans. denied. “The specific findings will not be set aside unless they

      are clearly erroneous, and we will affirm the general judgment on any legal

      theory supported by the evidence.” Id. “A finding is clearly erroneous when

      there are no facts or inferences drawn therefrom that support it.” Id. A

      judgment is clearly erroneous if it relies on an incorrect legal standard. Buse v.

      Trs. of Luce Twp. Reg’l Sewer Dist., 953 N.E.2d 519, 523 (Ind. Ct. App. 2011).


[7]   “In reviewing the trial court’s findings, we neither reweigh the evidence nor

      judge the credibility of the witnesses. Rather, we consider only the evidence

      and reasonable inferences drawn therefrom that support the finding.” Apter,

      781 N.E.2d at 751 (citation omitted). While we defer substantially to a trial

      court’s findings of fact, we do not do so to conclusions of law. Buse, 953

      N.E.2d at 523. “We evaluate questions of law de novo and owe no deference

      to a trial court’s determination of such questions.” Id. (quoting McCauley v.

      Harris, 923 N.E.2d 309, 313 (Ind. Ct. App. 2010), trans. denied (2011)). “In

      other words, ‘[a] decision is clearly erroneous if it is clearly against the logic and



      2
        Husband asserts that “[t]he trial court’s Findings specifically include each of these pre-marital assets in the
      marital estate.” Husband’s Reply Br. at 8. The trial court listed the assets in its findings, but it did not
      include them in its itemized balance sheet of the marital estate.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019                       Page 9 of 17
      effect of the facts and circumstances that were before the trial court’ or if the

      court misinterprets the law.” Id. (quoting Young v. Young, 891 N.E.2d 1045,

      1047 (Ind. 2008)).


[8]   Indiana Code Section 31-15-7-4(a) provides that the trial court in a dissolution

      action “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.” (Emphases added.) “Indiana law has been

      uniformly interpreted as requiring the trial court to divide ‘all’ the property of

      the parties, specifically prohibiting the exclusion of any assets from the scope of

      the court’s powers to divide and award.” Nill v. Nill, 584 N.E.2d 602, 604 (Ind.

      Ct. App. 1992), trans. denied. “Only property acquired by an individual spouse

      after the separation date is excluded from the marital estate.” Thompson v.

      Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004) (emphasis added), trans.

      denied (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).


[9]   Based on the foregoing, we agree with Wife that the trial court clearly erred in

      excluding the premarital rollover portion of Husband’s 401(k) and his Putnam

      Investment and FPA Paramount accounts from the marital estate. Therefore,

      we reverse and remand with instructions to include those assets in the marital

      estate and equalize the estate accordingly.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019   Page 10 of 17
            Section 2 – The trial court did not abuse its discretion in
                       dividing the marital estate equally.
[10]   We now address Husband’s argument that the trial court erred in dividing the

       marital estate equally. The division of marital assets is a highly fact-sensitive

       task within the trial court’s sound discretion, and we will reverse only for an

       abuse of that discretion. In re Marriage of Marek, 47 N.E.3d 1283, 1287 (Ind. Ct.

       App. 2016), trans. denied. “We will reverse a trial court’s division of marital

       property only if there is no rational basis for the award; that is, if the result is

       clearly against the logic and effect of the facts and circumstances, including the

       reasonable inferences to be drawn therefrom.” Id. “We will also reverse if the

       trial court has misinterpreted the law or disregarded evidence of factors listed in

       the controlling statute.” Id. “Although the facts and reasonable inferences

       might allow for a conclusion different from that reached by the trial court, we

       will not substitute our judgment for that of the trial court.” Id.


[11]   Indiana Code Section 31-15-7-4(b) provides that the court “shall divide the

       property in a just and reasonable manner[.]” The court may do so by dividing

       the property in kind; “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”; “ordering the sale of the property

       under such conditions as the court prescribes and dividing the proceeds of the

       sale”; or ordering the distribution of pension benefits “that are payable after the

       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.” Id

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019   Page 11 of 17
[12]   “The court shall presume that an equal division of the marital property between

       the parties is just and reasonable.” Ind. Code § 31-15-7-5.


               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.

               (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.


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019   Page 12 of 17
       Id. “The statutory factors are to be considered together in determining what is

       just and reasonable; any one factor is not entitled to special weight.” In re

       Marriage of Lay, 512 N.E.2d 1120, 1125 (Ind. Ct. App. 1987). “The party

       seeking to rebut the presumption of equal division bears the burden of proof of

       doing so, and a party challenging the trial court’s decision on appeal must

       overcome a strong presumption that the trial court acted correctly in applying

       the statute[.]” Marek, 47 N.E.3d at 1288.


[13]   Husband argues,


               It is difficult to imagine a factual situation that is more
               appropriate for an unequal division of marital property than is
               presented here, where farm land that has been owned by the
               Husband’s family for generations is deeded to the parties, with
               the intent that ownership be with the Husband who was born,
               raised, and worked on the farm since childhood, and where the
               Wife has made no contributions of any kind toward the
               acquisition or maintenance of the farm land.


       Husband’s Br. at 29.3 He contends that “[t]he only findings that might arguably

       support an equal division would be Findings 37 and 38 concerning the earnings




       3
        Husband suggests that the trial court should have excluded the Heckel family farmland from the marital
       estate. This suggestion is a nonstarter for the reasons given in Section 1 above.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019               Page 13 of 17
       of the parties and Findings 47 and 48 concerning their earning abilities.” Id. at

       33.4


[14]   The substantial disparity in the parties’ earnings and earning ability is a valid

       justification for an equal division of the marital estate, even considering

       Husband’s maintenance of the farmland and the trial court’s award of the

       marital residence and a small portion of that farmland to Wife. Wife points out

       that after she and Husband received the deed to the Heckel family farmland

       from his mother, they obtained a joint mortgage to pay off the existing $45,000

       mortgage on the property and to pay $50,000 to each of Husband’s two siblings

       on his mother’s behalf. In other words, the farmland did not simply land in

       Wife’s lap with no strings attached. We cannot conclude that the trial court

       abused its discretion in dividing the marital estate equally between the parties.


              Section 3 – The trial court did not abuse its discretion in
              summarily finding Wife’s witnesses more credible than
                                Husband’s witnesses.
[15]   Husband also contends that the trial court abused its discretion “by summarily

       adopting all of the valuations of the Wife’s appraisers and valuators and




       4
           Husband complains,

               There was no finding that the trial court had determined that an equal division of the marital
               estate was just and reasonable or that the Husband had failed to rebut the presumption that an
               equal division is presumed to be just and reasonable by his relevant evidence in support of an
               unequal division.
       Husband’s Br. at 32-33. Those findings are implicit in Conclusion 31.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019                  Page 14 of 17
       rejecting all of the valuations of the Husband’s appraisers and valuators.”

       Husband’s Br. at 38. He complains that


               the appraisers employed different methods and approaches in the
               process of placing a value on [the] properties and their resulting
               opinions of value varied significantly. The total combined value
               of the Wife’s experts was approximately $400,000 higher than the
               total combined value placed by the Husband’s experts on [the]
               properties.


       Id. He further complains that the trial court


               provided no review, analysis or critique of the testimony of the …
               experts, their qualifications or their different methods and
               approaches to the valuation of the properties. Based upon the
               trial court’s findings, it is difficult to ascertain whether the court
               even considered and weighed the testimony and opinions of the
               Husband’s valuators.


       Id. at 39.


[16]   The trial court has broad discretion in determining the value of property in a

       dissolution action, and its valuation will be disturbed only for an abuse of

       discretion. Bertholet v. Bertholet, 725 N.E.2d 487, 497 (Ind. Ct. App. 2002). “If

       there is sufficient evidence to support the trial court’s decision, no abuse of

       discretion occurred.” Id. Husband cites no relevant authority for the

       proposition that a trial court is required to enter detailed findings regarding why

       it found one party’s witnesses more credible than another’s, particularly absent




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019   Page 15 of 17
       a request for special findings pursuant to Indiana Trial Rule 52(A).5 Contrary

       to Husband’s assertion, the trial court specifically stated that it considered the

       testimony and opinions of his valuators, and it simply found them less credible

       than those of Wife’s valuators. Husband’s argument is merely a request to

       reweigh evidence and judge witness credibility, which we may not do.

       Accordingly, we find no abuse of discretion.


           Section 4 – On remand, the trial court must rule on Wife’s
            petition for contempt regarding the farm rental income.
[17]   Finally, we address Wife’s argument that the trial court erred in failing to rule

       on her petition to hold Husband in contempt for failing to divide $20,000 in

       farm rental income equally with her pursuant to the October 2016 provisional

       order. This was clearly an oversight on the trial court’s part, and therefore on

       remand the court must rule on this issue.6




       5
        Husband devotes a significant portion of his statement of facts to a description of both parties’ valuations of
       various properties. Wife does the same. As this Court stated under similar circumstances in Crider v. Crider,
       15 N.E.3d 1042 (Ind. Ct. App. 2014), trans. denied,
              This case highlights just how inexact property valuation is; the trial court was faced with
              [multiple] qualified experts who presented diametrically opposed opinions, supported by
              extensive reports and reasoning, as to the value of [certain] real estate. It was for the trial court
              to decide which opinion to accept. We cannot reweigh the evidence or “judge the credibility of
              the battling expert witnesses.”
       Id. at 1059 (quoting Goodwine v. Goodwine, 819 N.E.2d 824, 830 (Ind. Ct. App. 2004)). We find Husband’s
       citation to Garriott v. Peters, 878 N.E.2d 431 (Ind. Ct. App. 2007), trans. denied (2008), inapposite because the
       trial court in that case gave no reason for discrediting a party’s unrefuted evidence.
       6
         We reject Wife’s suggestion that we may rule on her contempt petition as a court of first instance. We also
       reject Husband’s suggestion that the issue is moot because the trial court’s provisional order was extinguished
       by its final order.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019                      Page 16 of 17
[18]   Affirmed in part, reversed in part, and remanded.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2860 | August 16, 2019   Page 17 of 17
