MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Mar 18 2019, 9:07 am

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


APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
Roger A. Carter                                          Stephen P. Rothberg
Niles, Michigan                                          Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Roger A. Carter,                                         March 18, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-DR-377
        v.                                               Appeal from the Allen Superior
                                                         Court
Jennifer Carter,                                         The Honorable Charles F. Pratt,
Appellee-Respondent                                      Judge
                                                         The Honorable Sherry A. Hartzler,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         02D07-1503-DR-292



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019                    Page 1 of 29
                                          Case Summary
[1]   Roger A. Carter (“Husband”), pro se, appeals the trial court’s decree dissolving

      his marriage to Jennifer Carter (“Wife”) and the trial court’s subsequent order

      denying his motion to correct error. Husband argues that the trial court erred in

      determining what property to include in the marital pot; valuing several marital

      assets; ordering him to pay the majority of Wife’s attorney’s fees; and declining

      to reduce the equalization payment due to Wife by the amount that Husband

      paid to Wife in provisional payments while the dissolution was pending.

      Finding no error, we affirm.



                            Facts and Procedural History
[2]   Husband and Wife were married in December 2005. This was both Husband’s

      and Wife’s second marriage. No children were born to the marriage, but at

      some point, Husband was appointed as co-guardian of Wife’s incapacitated

      adult daughter, J.K. Husband and Wife worked consistently during their

      marriage. Husband is the majority owner of a computer-consulting business,

      DBConnect, Inc., which he founded before the marriage.1 Wife is a physical-

      therapy assistant. Husband and Wife purchased the marital residence

      (“Greythorne”) during their marriage.




      1
       Throughout the record, because Husband is the President and primary employee of DBConnect, he and
      DBConnect are referred to interchangeably. To avoid confusion, we have distinguished between DBConnect
      and Husband where appropriate.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019             Page 2 of 29
[3]   Husband filed a petition for dissolution of marriage on March 5, 2015. On

      March 30, Husband filed a separate action to remove Wife as co-guardian of

      J.K. By mediated agreement, Wife became J.K.’s sole guardian on August 10,

      2016, and Husband and Wife agreed to pay their own attorney’s fees related to

      the guardianship case.


[4]   In June 2015, the trial court entered a provisional order requiring Husband to

      pay temporary spousal maintenance to Wife. See Appellant’s App. Vol. II p. 56

      (stating that Husband was to pay Wife a lump sum of $1500 for the first four

      weeks and then $700 a week until October 1, 2015). Husband was also ordered

      to pay $4500 in preliminary attorney’s fees to Wife’s counsel. In January 2016,

      the trial court modified its provisional order but still required Husband to pay

      $700 a week in temporary spousal maintenance to Wife.


[5]   In December 2016, the trial court held the final dissolution hearing over two

      days. Although Husband had earlier been represented by counsel, he appeared

      pro se at the hearing. The major areas of contention were: (1) the value of

      Husband’s business, (2) the value of the marital residence, and (3) Wife’s

      request for attorney’s fees. Regarding the value of his business, DBConnect,

      Husband submitted two alternative business valuations that he created, showing

      that on the date the petition for dissolution was filed, the value of DBConnect

      was either negative $59,262.51 or negative $85,586.82. Exs. 21-22; see also Tr.




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 3 of 29
      Vol. I p. 51.2 Husband said that he calculated these valuations by offsetting the

      value of DBConnect on March 5, 2015, with the value of DBConnect before the

      marriage in 2005. Tr. Vol. I p. 58. Husband’s valuations also excluded part of

      a $150,000 customer payment that DBConnect received in December 2014,

      about four months before he filed for divorce. Husband explained that he

      excluded part of this payment because the customer wanted to prepay for 600

      hours of work for which he would bill $250 an hour. See Ex. 30. Husband

      testified that by the date the petition for dissolution was filed, he had worked

      245.5 hours (i.e., completed $61,375 worth of work) and contended that there

      was “something along the lines of $88,000 of unearned income” remaining,

      which would require Husband to work an additional 354.5 hours. Tr. Vol. I p.

      59. Husband stated that he therefore excluded approximately $88,000 from his

      two valuations of DBConnect.


[6]   Wife disputed Husband’s exclusion of $88,000 of the $150,000 payment in his

      two valuations of DBConnect. On cross-examination, Wife’s attorney

      questioned Husband regarding DBConnect’s treatment of the $150,000

      payment. In response, Husband testified that once DBConnect received the

      $150,000 payment, it was deposited into DBConnect’s bank account. Id. at

      122; see also Ex. Y (showing a $150,000 deposit made into DBConnect’s bank

      account on December 18, 2014). Husband also acknowledged that the




      2
       While the record encompasses multiple hearings (each with its own transcript and exhibits), all transcripts
      and exhibits cited in this opinion are from the final dissolution hearing, which occurred December 5-6, 2016.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019                    Page 4 of 29
      $150,000 payment was reported as income on DBConnect’s 2014 tax return.

      Tr. Vol. I p. 124; see also Ex. W. Wife’s attorney then questioned Husband

      regarding DBConnect’s purchase of a large quantity of shares in Cyclone Power

      Technologies, Inc. for DBConnect’s employees’ Simplified Employee Pension

      Individual Retirement Accounts (SEP-IRAs) after receiving the $150,000

      payment. Tr. Vol. I pp. 124, 136-37, 143; see also Ex. HH (showing a $52,000

      check was deposited into Husband’s SEP-IRA on December 22, 2014).

      Husband admitted that after DBConnect received the $150,000 payment it

      wrote two checks (one for $41,250 and the second for $52,000) to fund its two

      employees’ SEP-IRAs, but he contended that DBConnect would have had

      enough money to fund its employees’ SEP-IRAs without the $150,000

      payment. Tr. Vol. I p. 152.


[7]   To refute Husband’s two valuations of DBConnect, Wife called James

      Houlihan, a certified valuation analyst, to testify regarding the value of

      DBConnect. Houlihan stated that he had reviewed DBConnect’s financial

      statements, including bank statements, income statements, and tax returns, and

      interviewed Husband to determine a value for DBConnect. Id. at 222.

      Houlihan found that DBConnect was “a very valuable business” and was

      “profitable” on the date Husband filed his petition for dissolution. Id. at 223.

      However, much of DBConnect’s value was attributable to Husband’s goodwill,

      which Houlihan did not include in his valuation of the business. Explaining

      that he took a “fairly conservative approach,” Houlihan estimated that

      DBConnect’s value as of March 5, 2015, was $209,000. Id. at 226. Houlihan


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 5 of 29
      said that he included the $150,000 payment that DBConnect received in

      December 2014 in his valuation because it was “recognized as income” on

      DBConnect’s 2014 tax return, the agreement (drafted by DBConnect with the

      customer) did not state that any money “would be repaid through lack of

      performance,” and a “large amount of profit sharing was paid out” shortly after

      DBConnect received the $150,000 payment. Id. at 227-28; see also Exs. 24, E,

      W, Y.


[8]   On cross-examination, Husband questioned Houlihan’s valuation of

      DBConnect. First, Husband asked Houlihan how he came up with $209,000 as

      the value of DBConnect. Houlihan responded that he reviewed DBConnect’s

      balance sheets which included “cash from both cash accounts,” a “revolving

      line of credit,” a “short-term investment account,” “payroll tax liabilities,” and

      “bills.” Tr. Vol. I p. 235. Houlihan stated that he also reviewed DBConnect’s

      income statements, which included its “accounts receivable.” Id. at 236.

      Focusing on DBConnect’s short-term investment account, Husband told

      Houlihan that the investment account, which was funded almost entirely with

      Cyclone stock, had a market value of “maybe two dollars,” and therefore

      questioned why Houlihan had valued the account at $29,995. Id. Houlihan

      replied that he had done so because that was the value that DBConnect gave

      this investment account on its tax returns and balance sheets. Id.; see also Ex. 24

      (showing $29,994.97 in “other assets” on DBConnect’s balance sheet as of

      March 5, 2015); Ex. D (showing $29,994.97 in “other assets” on DBConnect’s

      balance sheet as of March 28, 2015); Ex. X (listing a $29,995 short-term


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 6 of 29
      investment asset on DBConnect’s 2015 tax return); Ex. W (listing a $29,995

      short-term investment asset on DBConnect’s 2014 tax return). Husband then

      asked Houlihan to hypothetically value DBConnect and assume that the short-

      term investment account was worthless:


              Q       [F]or the sake of argument if I tell you that $30,000 short-
                      term investment that you included is worthless would you
                      not just subtract $30,000 off the $209[,000] and come up
                      with $179[,000]?


              A       Yes . . . my objective was to determine what the fair
                      market value of the assets were.


      Tr. Vol. I p. 248.


[9]   Next, Husband questioned why Houlihan included the entire $150,000

      payment in his valuation of DBConnect. In response, Houlihan explained that

      he did not agree with Husband’s contention that as of March 5, 2015,

      approximately $88,000 out of the $150,000 payment was “unearned income,”

      stating:


              I was asked to say what’s this business worth at a point in time . .
              . at that point I am addressing not necessarily the earned or
              unearned nature of that money but the restrict[ed] or unrestricted
              nature of that money if [DBConnect] . . . would’ve closed the
              books on that day . . . I don’t know what the recourse would’ve
              been[,] [the customer] w[as] not a secured creditor as to the
              money at least I couldn’t tell by any of the documents so you
              may have had to perform services after that date but that would
              not have affected the amount of money that [DBConnect]
              would’ve put in [its] pocket on that date of valuation if

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 7 of 29
               [DBConnect] had been liquidated and that was how I made my
               determination. [A]s of that date that money was unrestricted and
               available to be distributed . . . the money coming in December, a
               part of it . . . was paid out into a profit sharing which is a trust
               that [DBConnect] could not get the money out of. [A]ll I’m
               doing is recognizing when did [DBConnect] receive that money
               and the bases of the value liquidating um approach that I valued
               [DBConnect].


       Id. at 242-45. Husband then asked if Houlihan knew whether the profit sharing

       would have been paid out with or without the $150,000 payment. Houlihan

       responded that before the $150,000 payment was deposited, DBConnect’s bank

       account balance was insufficient to pay out the amount of profit sharing that

       was ultimately paid out. Tr. Vol. II p. 4; see also Ex. Y (showing DBConnect’s

       account balance on December 15, 2014, was $74,206.35; then after the

       $150,000 payment was received on December 18, 2014, DBConnect’s account

       balance was $224,191.35; and on December 23, 2014, DBConnect wrote two

       checks totaling $93,250).


[10]   Wife also called Matthew James, a financial adviser, to testify regarding the

       value of DBConnect’s employees’ SEP-IRAs and its short-term investment

       account. Both DBConnect’s employees’ SEP-IRAs and its short-term

       investment account were funded almost entirely with Cyclone stock. See Tr.

       Vol. I pp. 124, 136-37, 143. James testified that Cyclone is “an over-the-

       counter stock,” i.e., “pink sheet” or “penny stock,” that is “not available on a

       listed exchange such as the New York Stock Exchange” and is “traded between

       parties” rather than on an exchange. Tr. Vol. II pp. 50, 52. James further


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 8 of 29
       stated that Cyclone is “a very low-priced” stock, and that he “would not

       advise” his clients to purchase stock in Cyclone. Id. Regarding the value of an

       over-the-counter stock, such as Cyclone, James explained that in over-the-

       counter stock sales “the value [that] was paid or [what it was] sold for again” is

       not reported in “the same way a[n] exchange listed stock has to be reported,”

       and that a “number value quoted” for Cyclone stock “does not necessarily bear

       any relationship” to what those investments could bring if sold. Id. at 53.


[11]   Another issue was the value of the marital residence, Greythorne. After the

       petition for dissolution was filed, Husband refinanced Greythorne in July 2015

       with Nationstar Mortgage. See Ex. QQ. When Husband applied for

       refinancing, the appraised value of Greythorne was $471,000. See Ex. RR. To

       secure refinancing, Husband testified that he was required to pay more than the

       required closing costs, and that in August 2015, he received a refund of

       approximately $2800 from Nationstar. Tr. Vol. II pp. 94-95; see also Ex. GG

       (showing a $2434.82 wire transfer from Husband to Nationstar on July 28,

       2015; a $2817.95 check written from Nationstar to Husband dated August 20,

       2015; and a $2817.95 deposit made into Husband’s ProFed checking account

       on August 31, 2015). In May 2016, Husband sold Greythorne for $465,000.

       See Ex. TT. As part of the purchase, the buyer submitted $4000 in earnest

       money to “be applied to the purchase price at closing.” Id. After paying off the

       balance of the mortgage and costs of the sale, Husband received $38,048 in net

       proceeds from the sale of Greythorne. See Tr. Vol. I p. 69. Wife disputed

       Husband’s valuation of Greythorne and called Jeffrey Haller, a certified

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 9 of 29
       residential appraiser, to testify regarding the value of Greythorne. Haller

       testified that he believed that the fair market value of Greythorne was $478,000

       and would not have recommended to “sell for any less than this.” Tr. Vol. II

       p.45.


[12]   Finally, Husband challenged Wife’s request for attorney’s fees. Wife’s attorney

       stated that he had represented her in both the divorce and guardianship case.

       Wife’s attorney testified that in the divorce case he “charged [Wife] at the rate

       of $285 an hour” and stated that the costs of his legal services, including post-

       trial work, were $97,930.75 and litigation expenses were $8327.10. Tr. Vol. II

       p. 96. Wife’s attorney testified that in the guardianship case, he had billed

       $29,768.25 for legal services and $205 for litigation expenses. Tr. Vol. II p. 97.

       Wife’s attorney also provided the timekeeping and billing statements for both

       cases. See Exs. HHH, III. Wife’s attorney stated that the timekeeping and

       billing statements did not include the amounts he had been paid but testified

       that he had been paid “just under $33,500” for representing Wife in both

       matters and had allocated the “greater portion of that to the guardianship case.”

       Tr. Vol. II p. 99. Husband also testified and stated that while he was

       represented by counsel, he was billed $54,533.79 in the dissolution action and

       $103,471.61 in the guardianship case. Id. at 107; see also Ex. 77. At the

       conclusion of the hearing, the trial court took the matter under advisement, and

       both parties submitted proposed findings of fact and conclusions.


[13]   On April 11, 2017, the trial court issued a decree of dissolution. The decree

       addressed Greythorne as follows:

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 10 of 29
        14. The Court finds through the testimony of the qualified real
        estate appraiser that [Greythorne] had a fair market value of
        $478,000[.]


                                               *****


        23. The Court finds that [Greythorne] ultimately sold for
        $465,000.00 on May 11, 2016 resulting in net proceeds in the
        amount of $38,048.


                                               *****


        25. Husband contends that the value of [Greythorne] relative to
        the marital estate should be the net proceeds from the sale in the
        amount of $38,048.00. [i.e., $465,000 (sale price) - $33,422
        (earnest money + costs of the sale) - $393,530 (mortgage payoff)
        = $38,048]


        26. Wife contends that the value of the marital residence should
        be the fair market value of the residence less the mortgage
        encumbering the property at the time of sale. [i.e., $478,000 (fair
        market value) - $393,530 (mortgage payoff) = $84,470.07 (Wife
        did not include the costs of the sale)]


                                               *****


        31. The Court finds that [Greythorne] was unilaterally sold by
        Husband for $465,000. The Court finds that the costs for the sale
        and marketing of the home amounted to $29,422.45. The Court
        finds that the payoff for the mortgage was $393,529.93.


        32. The Court finds that [the] effective value of [Greythorne] for
        purposes of the marital estate is $55,047.62. This sum is arrived


Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 11 of 29
        at by the fair market value of $478,000 less the costs of the sale
        and the payoff of the mortgage.


Appellant’s App. Vol. II p. 192. As for the value of DBConnect, the court

explained:


        33. Ninety percent (90%) of [DBConnect’s] outstanding stock is
        owned by [Husband], and the remaining 10% by its only other
        employee. While not entirely clear from the evidence, [Husband]
        appears to have sponsored alternate values, most significantly
        including a negative value for DBConnect.


        34. James Houlihan, a qualified expert, conducted a business
        valuation of DBConnect and testified at trial. Houlihan’s
        evidence was to the effect that while the business was worth
        substantially greater than its net asset value, that additional value
        was bound up in “personal goodwill” and Houlihan therefore
        concluded the value of [DBConnect] at separation was
        $209,000.00, or, the “net asset value” of the business . . . Ninety
        percent (90%) of Houlihan’s conclusion of value is $188,100.00.


        35. Significant dispute over the DBConnect valuation relates to
        the treatment of DBConnect revenues paid in late December of
        2014, a short time prior to legal separation, in the amount of
        $150,000.00, which Houlihan included in his valuation of
        DBConnect. [Husband] disputed this inclusion, stating that it
        should not be treated as a component of value for DBConnect, as
        it was “pre-payment” for a client, for work not performed at legal
        separation, and, as such, not includable as a business asset.


        36. However, and as was described by Houlihan, [DBConnect]
        treated this payment as if it was in fact an asset of the business,
        noting, among other facts:



Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 12 of 29
                a. There was no provision in the operating
                agreement/contract (Prepared by [DBConnect]) between
                DBConnect and the customer for repayment of the monies
                ([Ex. 33]).


                b. The payment was treated on the books and records of
                DBConnect as “income” when it [was] received in 2014
                ([Exs. L, Y]), and was also reflected in tax returns of
                DBConnect ([Ex. W]) and the 2014 joint tax return of the
                parties ([Ex. BB]).


                c. That immediately upon [r]eceipt, [DBConnect]
                promptly disposed of a significant amount of said funds
                towards the purchase of an asset, which, in the normal
                course, is or was not one to which [DBConnect] would
                have access, that being, the purchase of securities to fund
                [Husband’s] SEP IRA ([Exs. HH, II]).


                                               *****


        38. The above-noted facts . . . lead[] the Court to fix a value of
        DBConnect to the marital estate at $188,100.00.


Id. at 193-94. Regarding Wife’s request for attorney’s fees, the court found:


        48. Contemporaneous with bringing the dissolution action,
        [Husband] filed suit in the Probate Division of this Court to
        remove [Wife] as the Guardian of the person and estate of her
        profoundly disabled, biological daughter, [J.K.]. In addition to
        the Complaint/Petition, the Court notes the final Order in that
        matter in evidence, wherein [Wife] remains as the child’s
        Guardian, but not, given other evidence, at no cost. That is,
        among her financial circumstances at the time the Decree is to be
        entered is a debt of over $30,000.00 in attorney fees and related
        expenses occasioned by dealing with [Husband’s] lawsuit.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 13 of 29
                                               *****


        53. The Court concludes that the economic circumstances of
        Wife are dire in comparison to the economic circumstances of
        Husband at the time of disposition.


                                               *****


        71. The Court addresses the issue of attorney fees and litigation
        expenses. In doing so, it incorporates certain other of these
        Findings related to income disparity, the ability to pay counsel, . .
        . financial circumstances at the time distribution is to become
        effective. In addition, the record in this case is replete with
        evidence that significant in those efforts required of [Wife] and
        her counsel were occasioned and may necessary for litigation
        decisions of [Husband], or those on his behalf. By way of
        example only, the Court notes its Order of August 26, 2016[,]
        following a hearing on discovery issues requiring almost one-half
        day of Court time, exclusive of time expended in Court filings,
        wherein [Husband] adopted litigation posture in this case
        unjustified by the Rules of Discovery, and cause what should
        have been a self-executing process significant time and expense
        for all concerned[.]


        72. The Court has considered the effect of its Provisional Orders
        as a function of this issue and has adjusted the attorney fee Order
        accordingly, but does not find that additional credits (to
        [Husband]) are due.


        73. Husband shall be ordered to pay toward Wife’s attorney fees
        and litigation expenses the sum of $84,500.00.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 14 of 29
       Id. at 197, 199, 202-03. Finally, the trial court ordered Husband to pay Wife an

       equalization judgment in the amount of $55,321.31, which accrues judgment

       interest until paid in full. Id. at 202 (Finding 69).


[14]   In May 2017, Husband filed a motion to correct error contending that the trial

       court “made factual errors, did not properly consider certain evidence, and . . .

       misapplied the law,” and requested that the trial court “reweigh the evidence

       accordingly.” Id. at 144. Husband also argued that the trial court’s valuation of

       DBConnect was incorrect because it “failed to account for accrued payroll” and

       “accrued vacation/leave time” that would be immediately payable if the

       business was liquidated. Id. at 152. Husband asserted that Wife’s expert,

       Houlihan, relied on balance sheets to value DBConnect, but because payroll

       accruals are not carried on balance sheets, Houlihan’s valuation of DBConnect

       was incorrect. Id. In support, Husband attached an affidavit to his motion,

       which he prepared and signed stating that as of March 28, 2015, DBConnect

       “had an accrued payroll totaling $17,600.41” and “accrued vacation pay

       totaling $17,600.41.” Id. at 169. In January 2018, the trial court held a hearing

       on Husband’s motion to correct error and thereafter denied it in all respects.


[15]   Husband now appeals.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 15 of 29
                                   Discussion and Decision
[16]   Where, as here, the trial court enters special findings and conclusions pursuant

       to Indiana Trial Rule 52(A), we apply a two-tiered standard of review.3 Barton

       v. Barton, 47 N.E.3d 368, 373 (Ind. Ct. App. 2015), trans. denied. We determine

       first if the evidence supports the findings and second whether the findings

       support the judgment. Id. The trial court’s findings and conclusions will be set

       aside only if clearly erroneous. Id. We neither reweigh the evidence nor

       reassess witness credibility. Id. Instead, we must accept the ultimate facts as

       stated by the trial court if there is evidence to sustain them. Id.


                                  I. Property in the Marital Pot
[17]   Husband first contends that the trial court erred when it included the entire

       $150,000 payment DBConnect received in December 2014 in the marital pot.

       It is well settled that in a dissolution action, all marital property, whether

       owned by either spouse before the marriage, acquired by either spouse after the

       marriage and before final separation of the parties, or acquired by their joint

       efforts, goes into the marital pot for division. Ind. Code § 31-15-7-4(a);

       Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind. Ct. App. 2014). The date of




       3
         To the extent Husband argues that the trial court accepted verbatim Wife’s proposed findings, and therefore
       erred in failing to properly scrutinize Wife’s proposed findings and conclusions, he is mistaken. Here, the
       trial court did not accept verbatim Wife’s proposed findings. Rather, as Husband acknowledges, only
       seventeen of the trial court’s seventy-five findings and conclusions were adopted from Wife’s proposed
       findings and conclusions. See Appellant’s Br. p. 24. Furthermore, the trial court made numerous changes to
       the seventeen findings and conclusions it adopted from Wife, and presumably scrutinized the findings and
       conclusions in doing so. We therefore find no error.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019                   Page 16 of 29
       “final separation” is the date the petition for dissolution is filed. Ind. Code §

       31-9-2-46. “The requirement that all marital assets be placed in the marital pot

       is meant to insure that the trial court first determines that value before

       endeavoring to divide property.” Montgomery v. Faust, 910 N.E.2d 234, 238

       (Ind. Ct. App. 2009). “Indiana’s ‘one pot’ theory prohibits the exclusion of any

       asset in which a party has a vested interest from the scope of the trial court’s

       power to divide and award.” Falatovics, 15 N.E.3d at 110 (quotation omitted).

       While the trial court may decide to award a particular asset solely to one spouse

       as part of its just and reasonable property division, it must first include the asset

       in its consideration of the marital estate to be divided. Id.


[18]   In general, then, any property in which a party has a vested interest on the date

       the petition for dissolution is filed is subject to division, and property acquired

       after the final separation date should not be included in the marital pot. Fischer

       v. Fischer, 68 N.E.3d 603, 608-09 (Ind. Ct. App. 2017), trans. denied. Whether a

       right to a present or future benefit constitutes an asset that should be included in

       the marital pot depends mainly on whether it has “vested” by the time of

       dissolution. Ford v. Ford, 953 N.E.2d 1137, 1142 (Ind. Ct. App. 2011). That is,

       “vesting is both a necessary and sufficient condition for a right to a benefit to

       constitute an asset.” Id. (quoting Bingley v. Bingley, 935 N.E.2d 152, 154 (Ind.

       2010)). There are two ways in which a right to a benefit can vest: (1) vesting in

       possession or (2) vesting in interest. Id. Vesting in possession connotes an

       immediately existing right of present enjoyment, while vesting in interest

       implies a presently fixed right to future enjoyment. Id.; see also In re Marriage of

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 17 of 29
       Preston, 704 N.E.2d 1093, 1097 (Ind. Ct. App. 1999)). Here, Husband asserts

       that DBConnect’s right to $88,625.00 of the $150,000 payment had not vested

       because its “interest in the $88,625.00 prepayment was in fact contingent upon

       [its] duty to perform the services outlined in the service agreement.”

       Appellant’s Br. p. 41.


[19]   Husband misunderstands the law. While we agree that the evidence does not

       show that DBConnect’s right to the entire $150,000 payment was vested in

       interest, the evidence does show that DBConnect’s right to the entire $150,000

       payment was vested in possession. That is, once DBConnect received the

       $150,000 payment, it had “an immediately existing right of present enjoyment.”

       Ford, 953 N.E.2d at 1142. This right to the entire $150,000 payment was

       illustrated by DBConnect’s unrestricted treatment of these funds. First, we note

       that DBConnect did not establish a second (i.e., escrow) account to hold the

       $150,000 payment, against which DBConnect would bill as it completed work

       to pay itself; instead, DBConnect deposited the entire $150,000 payment into its

       checking account. See Tr. Vol. I p. 122; see also Ex. Y. Next, after DBConnect

       deposited the entire $150,000 payment into its account, it wrote two checks

       (one for $41,250 and the other for $52,000) to fund its two employees’ SEP-

       IRAs. While Husband contended that DBConnect would have had enough

       money in its account to fund its employees’ SEP-IRAs without the $150,000

       payment, a brief glance at DBConnect’s account balance before the $150,000

       payment was received ($74,206.35) compared to DBConnect’s account balance

       after the $150,000 payment was received ($224,191.35) clearly shows that


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 18 of 29
       DBConnect would not have had enough in its account to contribute $93,250 to

       its employees’ SEP-IRAs without the $150,000 payment. See Tr. Vol. I p. 152;

       see also Tr. Vol. II p. 4; Ex. Y. Furthermore, as Husband concedes, DBConnect

       did not recognize the $150,000 “payment as income as it [was] earned” but

       instead, chose to recognize the entire $150,000 payment as income on its 2014

       profit-and-loss statement and 2014 tax return. Appellant’s Br. p. 40; see also

       Exs. L, W. Finally, there was no provision in the contract between DBConnect

       and the customer stating how monies from the $150,000 payment would be

       repaid if work was not completed. See Ex. 33. The evidence shows that

       DBConnect had an immediately existing right of present enjoyment to the

       entire $150,000 payment and therefore it was vested in possession on the date

       the petition for dissolution was filed. Because DBConnect’s interest in the

       entire $150,000 payment had vested, the trial court properly included the entire

       $150,000 payment in the marital pot.


                               II. Valuation of Marital Assets
[20]   Husband next challenges the trial court’s valuation of several marital assets. A

       trial court’s decision in ascertaining the value of property in a dissolution action

       is reviewed for an abuse of discretion. Del Priore v. Del Priore, 65 N.E.3d 1065,

       1076 (Ind. Ct. App. 2016), trans. denied. Generally, there is no abuse of

       discretion if a trial court’s chosen valuation is within the range of values

       supported by the evidence. Id. “A valuation submitted by one of the parties is

       competent evidence of the value of property in a dissolution action and may

       alone support the trial court’s determination in that regard.” Id. (citing

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 19 of 29
       Alexander v. Alexander, 927 N.E.2d 926, 935 (Ind. Ct. App. 2010), trans. denied.)

       When we review a trial court’s valuation of property in a dissolution, we will

       neither reweigh the evidence nor judge the credibility of witnesses. Id. at 1076-

       77.


                                              a. Greythorne
[21]   First, Husband challenges the trial court’s valuation of Greythorne. The trial

       court calculated the value of Greythorne by starting with its fair market value

       and then deducting the costs of the sale and marketing of the house and the

       mortgage payoff. In other words, $478,000 (fair market value) minus

       $29,422.45 (costs of sale and marketing) minus $393,529.93 (mortgage payoff)

       equals $55,047.62. Appellant’s App. Vol. II p. 192 (Findings 31 & 32). On

       appeal, Husband argues that the trial court “arbitrarily assign[ed] selling costs

       of $29,422.45” instead of $33,422, which Husband alleges are the actual closing

       costs. Appellant’s Br. p. 27. In support of his argument, Husband cites the

       Seller’s Settlement Statement, Ex. TT, which he alleges “clearly articulates the

       closing costs of the property of $33,422,” Appellant’s Reply Br. p. 7. It is true

       that the Seller’s Settlement Statement shows $4000 in “Earnest Money Held By:

       Century 21 Bradley Realty Inc.” listed in the seller’s “debit” column. Ex. TT.

       But to the extent that Husband’s argument is that anything listed in the seller’s

       “debit” column on the Seller’s Settlement Statement was a “cost” he bore, we

       fail to see how earnest money paid by the buyer would constitute a “cost” to

       Husband. In his briefs, Husband does not explain why the $4000 in earnest

       money paid by the buyer is a “cost” to him and relies exclusively on the Seller’s

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 20 of 29
       Settlement Statement’s placement of the $4000 in earnest money in the “debit”

       column. Without providing further explanation, Husband has not shown why

       $4000 in earnest money paid by the buyer is a “cost” to him, and therefore, we

       see no abuse of discretion in the trial court’s valuation of Greythorne.


                                                 b. DBConnect
[22]   Next, Husband challenges the trial court’s valuation of DBConnect.4

       Appellant’s App. Vol. II p. 193 (Finding 34). Specifically, Husband argues that

       the evidence does not support the trial court’s valuation of DBConnect’s short-

       term investment account and payroll liabilities. See Appellant’s Br. pp. 29, 32.


[23]   During the final dissolution hearing, Husband and Wife both put forth evidence

       pertaining to the value of DBConnect’s short-term investment account funded

       almost entirely with Cyclone, an “over-the-counter stock.” Wife called

       Houlihan, a certified valuation analyst, who, after reviewing how DBConnect

       valued the short-term investment account on its tax returns and balance sheets,

       assigned a value to the investment account of $29,995. See Tr. Vol. I p. 236; see

       also Exs. 24, D, E, F, G, H, U, V, W, X. Husband disagreed with Houlihan’s

       valuation of DBConnect’s short-term investment account and contended that




       4
         Husband also contends that the trial court used a valuation date that was after the date the dissolution
       petition was filed on March 5, 2015. Appellant’s Br. pp. 32-33. We disagree. The trial court heard
       testimony from Houlihan that he used a balance sheet from March 28, 2015, and an income statement from
       January to April 2015 to “retrace back” what DBConnect’s value would have been on March 5, 2015. Tr.
       Vol. I pp. 235-36. The trial court found Houlihan’s testimony to be credible and therefore adopted his
       valuation of DBConnect. See Appellant’s App. Vol. II p. 42. On appeal, we do not reweigh the evidence or
       assess witness credibility. Fischer, 68 N.E.3d at 608. Accordingly, we cannot say that the trial court abused
       its discretion.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019                    Page 21 of 29
       the market value of the investment account was “maybe two dollars.” Tr. Vol.

       I p. 236. However, Wife’s other expert, James, testified that the fair market

       value of investments in over-the-counter stocks, such as Cyclone, are difficult to

       determine because their sales are not reported, and that a quoted value may not

       represent the actual value of the investment if sold. See Tr. Vol. II p. 53. On

       appeal, Husband states that he does not “take issue with [Houlihan’s] general

       methodology, as it is generally sound” and instead argues that the trial court

       erred by adopting Houlihan’s valuation, which relied on DBConnect’s balance

       sheets valuing its short-term investment account at cost, as opposed to adopting

       Husband’s valuation, which relied on an exhibit that allegedly showed the

       “value of the short-term investment as of the date of filing” was $31.99.

       Appellant’s Br. pp. 27, 29; Appellant’s Reply Br. p. 9. First, the trial court’s

       valuation of DBConnect’s short-term investment account was within the range

       of values supported by the evidence. See Del Priore, 65 N.E.3d at 1076. Next,

       insofar as Husband’s argument is that the trial court should have calculated the

       value of DBConnect’s short-term investment account one way as opposed to

       another, the trial court has discretion to determine the value of marital assets.

       As such, the trial court did not abuse its discretion by choosing to adopt

       Houlihan’s method of valuing DBConnect’s short-term investment account

       instead of Husband’s.


[24]   Husband’s second challenge to the trial court’s valuation of DBConnect

       involves its payroll liabilities. At the outset, we note that the value of

       DBConnect was disputed throughout the final dissolution hearing, but Husband


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 22 of 29
did not contest its valuation with respect to payroll liabilities until filing his

motion to correct error, which the trial court denied. We review a trial court’s

denial of a motion to correct error for an abuse of discretion. Scales v. Scales,

891 N.E.2d 1116, 1118 (Ind. Ct. App. 2008). An abuse of discretion occurs

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

circumstances before it or if the court has misinterpreted the law. Id.

Specifically, Husband’s motion to correct error sought to admit allegedly newly

discovered evidence regarding DBConnect’s payroll liabilities. Appellant’s

App. Vol. II p. 152. Newly discovered evidence is “material evidence . . .

which, with reasonable diligence, could not have been discovered and produced

at trial.” Ind. Trial Rule 59(A)(1). To prevail on a motion to correct error

based on newly discovered evidence, a party must:


        demonstrate that the evidence could not have been discovered
        and produced at trial with reasonable diligence; that the evidence
        is material, relevant, and not merely cumulative or impeaching;
        that the evidence is not incompetent; that he exercised due
        diligence to discover the evidence in time for the final hearing;
        that the evidence is worthy of credit; and, that the evidence raises
        the strong presumption that a different result would have been
        reached upon retrial.


Scales, 891 N.E.2d at 1120 (citing Matzat v. Matzat, 854 N.E.2d 918, 920 (Ind.

Ct. App. 2006)). During the final dissolution hearing, Houlihan testified that

he accounted for both “payroll tax liabilities” and “payroll liabilities” when he

valued DBConnect. Tr. Vol. I pp. 235, 237. Then, after the trial court issued

its dissolution decree relying on Houlihan’s testimony to value DBConnect,


Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 23 of 29
Husband filed a motion to correct error seeking to admit two pieces of allegedly

newly discovered evidence: (1) an affidavit that Husband prepared and signed

alleging that DBConnect had “accrued payroll” and “payroll taxes” totaling

$17,600.41 and “accrued vacation pay” totaling $17,600.41; and (2)

DBConnect’s two employees’ paystubs that were issued on March 20, 2015.

Appellant’s App. Vol. II pp. 169, 171-172. On appeal, Husband does not argue

that he did not have access to DBConnect’s payroll information before the final

hearing and, to be sure, the evidence shows that Husband had ample access to

his own company’s records. First, we will not allow Husband to circumvent

the trial rules because he failed to get evidence of his own company’s payroll

liabilities before the final hearing. Therefore, because Husband failed to

demonstrate that he made a reasonably diligent effort to obtain information

regarding DBConnect’s payroll liabilities before the final hearing, we find that

the trial court acted within its discretion in denying Husband’s motion to

correct error. Next, regarding Husband’s argument that the trial court excluded

accrued payroll and accrued vacation pay in valuing DBConnect, we disagree.

The evidence shows that Wife’s expert, Houlihan, testified that he accounted

for “payroll tax liabilities” and “payroll liabilities” when calculating the value

of DBConnect. Tr. Vol. I pp. 235, 237. In adopting Houlihan’s valuation of

DBConnect, the trial court therefore adopted a valuation of DBConnect that

accounted for payroll liabilities. Accordingly, the trial court did not abuse its

discretion in valuing DBConnect.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 24 of 29
                                         III. Attorney’s Fees
[25]   Husband next contends that the trial court abused its discretion in ordering him

       to pay $84,500 of Wife’s attorney’s fees because the most he should have had to

       pay is $72,000. Appellant’s Reply Br. p. 14. Pursuant to Indiana Code section

       31-15-10-1, a trial court may order a party in a dissolution proceeding to pay a

       reasonable amount of the other party’s attorney’s fees. Barton, 47 N.E.3d at

       377. In determining whether to award attorney’s fees in a dissolution

       proceeding, trial courts should consider the parties’ resources, their economic

       condition, their ability to engage in gainful employment and earn income, and

       other factors being on the reasonableness of the award. Id. A party’s

       misconduct that directly results in additional litigation expenses may also be

       considered. Id. The trial court has broad discretion in awarding attorney’s fees.

       Del Priore, 65 N.E.3d at 1079. We will only reverse where the trial court’s

       award is clearly against the logic and effect of the facts and circumstances

       before the court. Id.


[26]   At the final dissolution hearing, Wife’s attorney testified that in the divorce

       case, the costs of his legal services, including post-trial work, were $97,930.75

       and litigation expenses were $8327.10. Tr. Vol. II p. 96. Wife’s attorney also

       testified that in the guardianship case, he had billed $29,768.25 for his legal

       services and $205 for litigation expenses. Id. at 97. Wife’s attorney provided

       the timekeeping and billing statements for both cases. See Exs. HHH, III.

       Wife’s attorney stated that the timekeeping and billing statements did not reflect

       what he had been paid in each case but testified that he had been paid “just

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 25 of 29
under $33,500” for both cases and had allocated the “greater portion of that

[money] to the guardianship case.” Tr. Vol. II p. 99. First, Husband alleges

that Wife’s attorney did not comply with Allen County’s Family Law Attorney

Fees local rule. The rule states:


        (1) All requests for attorney fees shall be presented to the Court
        by way of affidavit or oral testimony, as the Court allows. The
        affidavit shall be admitted into evidence subject to cross-
        examination. In addition, the affidavit shall have attached to it a
        billing statement which includes an itemization of services, the
        total fee for the services, payments received for the services, and
        the account balance.


LR02-FL00-718. Husband argues that “Wife’s attorney did not provide

evidence of payments received or the account balance” on the timekeeping and

billing statement for the divorce case. Appellant’s Br. p. 43. Although the

timekeeping and billing statement did not show the payments Wife’s attorney

received in the divorce case, Wife’s attorney testified about the payments he

had received. Wife’s attorney’s testimony along with the timekeeping and

billing statement for the divorce case are enough to satisfy Allen County’s local

rule. Next, Husband seems to argue that even if Wife’s attorney’s testimony

along with the timekeeping and billing statement for the divorce case satisfies

the local rule, Wife’s attorney is not credible because the timekeeping and

billing statement for the divorce case “contains a minimum of 17 errors.”

Appellant’s Reply Br. p. 14. To the extent that Husband tries to undercut

Wife’s attorney’s testimony by stating that he identified seventeen accounting

errors in the timekeeping and billing statement for the divorce case, that is a

Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019   Page 26 of 29
       credibility issue that we do not address on appeal. See Barton, 47 N.E.3d at 377.

       Given the evidence showing the extreme disparity in Husband’s income as

       compared to Wife’s along with the evidence showing that Husband’s litigation

       strategy caused an increase in Wife’s attorney’s fees, the trial court did not

       abuse its discretion in ordering Husband to pay $84,500 of Wife’s attorney’s

       fees.5


                                       IV. Provisional Payments
[27]   Husband asserts that “the trial court abused its discretion by failing to credit, or

       even to consider crediting, [him] for $51,900 in provisional payments he made

       to Wife through the date of the final hearing.” Appellant’s Br. p. 55. A

       provisional order is designed to maintain the status quo of the parties. Mosley v.



       5
        Husband also argues that one of the trial court’s findings is not supported by the evidence. In its dissolution
       decree, the trial court found that:

                48. Contemporaneous with bringing the dissolution action, [Husband] filed suit in the
                Probate Division of this Court to remove [Wife] as the Guardian of the person and estate
                of her profoundly disabled, biological daughter, [J.K.]. In addition to the
                Complaint/Petition, the Court notes that the final Order in that matter in evidence,
                wherein [Wife] remains as the child’s Guardian, but not, given other evidence, at no cost.
                That is, among her financial circumstances at the time the Decree is to be entered is a
                debt of over $30,000.00 in attorney fees and related expenses occasioned by dealing with
                [Husband’s] lawsuit.


       Appellant’s App. Vol. II p. 197 (Finding 48). Husband contends that because Wife’s attorney testified that he
       had been paid $33,500 and that he had allocated most of that money to the guardianship case, Wife could not
       have had a debt of over $30,000 related to the guardianship case. While Husband’s literal reading of this
       finding is technically correct, we believe that is not what the trial court meant. Rather, a common-sense
       reading of this finding, in its context, suggests that the trial court meant to point out that Wife incurred a debt
       of over $30,000 in attorney’s fees and expenses to retain guardianship of her own daughter. Nonetheless, the
       amount of attorney’s fees awarded to Wife is supported by the evidence of the parties’ income disparity and
       the evidence showing that Husband’s litigation tactics increased Wife’s attorney’s fees.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019                       Page 27 of 29
       Mosley, 906 N.E.2d 928, 929 (Ind. Ct. App. 2009). The determination of

       temporary orders in a dissolution proceeding is committed to the sound

       discretion of the trial court, and it can issue orders for temporary maintenance

       or support, temporary restraining orders, custody orders, and orders for

       possession of property to the extent it deems just and proper. Ind. Code § 31-

       15-4-8. A provisional order is temporary in nature and terminates when the

       final dissolution decree is entered or the petition for dissolution is dismissed.

       Ind. Code § 31-15-4-14. Any disparity or inequity in a provisional order can

       and should be adjusted in the trial court’s final order. Mosley, 906 N.E.2d at

       930. On appeal, we will consider only the evidence most favorable to the trial

       court’s decision. Id. We will reverse only where the decision is clearly against

       the logic and effect of the facts and circumstances before the court. Id.


[28]   Here, the evidence shows that the trial court “considered the effect of its

       Provisional Orders” and “adjusted the attorney fee Order accordingly, but d[id]

       not find that additional credits (to [Husband]) [were] due.” Appellant’s App.

       Vol. II p. 202 (Finding 72). As such, the evidence does not support Husband’s

       assertion that the trial court failed “even to consider” the provisional payments

       he made to Wife. Next, Husband argues that “[t]o the extent that Wife used

       provisional payments” to pay her attorney, Husband is “entitled to . . . a

       provisional offset.”6 Appellant’s Reply Br. p. 15 (emphasis added). However,




       6
        Husband also argues that the amount of attorney’s fees awarded to Wife must be reduced by the amount of
       provisional payments he made to Wife because Wife may have used money from the provisional payments to

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019              Page 28 of 29
       Husband does not cite any legal authority that supports such an entitlement.

       Accordingly, we conclude that the trial court did not abuse its discretion by

       declining to reduce the equalization payment owed to Wife by the amount of

       provisional payments made by Husband during dissolution.


[29]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       pay for any attorney in the guardianship case. But Husband fails to cite any legal authority to support this
       argument.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-377 | March 18, 2019                    Page 29 of 29
