MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be
                                                                             Oct 17 2018, 7:35 am
regarded as precedent or cited before any
court except for the purpose of establishing                                      CLERK
                                                                              Indiana Supreme Court
the defense of res judicata, collateral                                          Court of Appeals
                                                                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Rachele L. Cummins                                       Rebecca L. Lockard
Smith Carpenter Fondrisi                                 Jeffersonville, Indiana
Cummins & Schulte, LLC
Jeffersonville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Wendy T. Broady,                                         October 17, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-DR-309
        v.                                               Appeal from the Clark Circuit
                                                         Court
David W. Broady,                                         The Honorable Bradley B. Jacobs,
Appellee-Petitioner                                      Judge
                                                         Trial Court Cause No.
                                                         10C02-1608-DR-436



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018                   Page 1 of 17
[1]   Wendy Broady (Wife) appeals the trial court’s order dissolving her marriage to

      David Broady (Husband). Wife argues that the trial court erred by dividing the

      marital estate equally, by ordering that both parties pay their own living

      expenses during the pendency of the action, and by awarding Husband the

      cemetery plot that she brought to the marriage. We find no error aside from the

      portion of the order regarding Wife’s cemetery plot. We therefore affirm in

      part, reverse in part, and remand with instructions to amend the dissolution

      order to reflect that Wife is awarded her own cemetery plot.


                                                       Facts
[2]   Husband and Wife got married on February 21, 2012. Both parties had been

      married previously. Husband has a son from his previous marriage, which

      ended after his former wife died, and Wife adopted the child after she married

      Husband.1


[3]   Wife brought a number of assets to the marriage, including life insurance and

      retirement accounts she had inherited from her first husband following his

      death and two 401(k) accounts. Husband also brought assets to the marriage,

      including a pension plan and a 401(k) account. At the time of the marriage,

      Husband owned a home; Wife later paid off the mortgage on that home in the

      amount of $46,514.




      1
       She did not, however, request any parenting time with the child after the marriage was dissolved. She has
      not seen her son since August 2016.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018                 Page 2 of 17
[4]   Shortly after they got married, the couple began building a home. 2 They took

      out a mortgage to finance the residence. Additionally, without Husband’s

      knowledge, Wife accepted a loan in the amount of $250,000 from her mother to

      help pay for the house. The amount of the mortgage plus the debt to Wife’s

      mother exceeds the current value of the property. Over the course of the four-

      year marriage, Wife’s parents gifted the couple a total amount of $104,000

      ($26,000 per year). During most of the marriage, Wife did not work.3 Husband

      worked full-time during the marriage, earning approximately $800 per week;

      the couple used his income to pay some of their bills.


[5]   In June 2015, Wife was diagnosed with breast cancer. Since that time, she has

      undergone chemotherapy, a double mastectomy, and reconstructive surgeries.

      She attempted to return to work later in 20154 but was unable to maintain

      employment because of her health issues. At the dissolution hearing, Wife

      testified that her cancer had spread and she will continue to receive treatment.

      During the parties’ marriage, she was on Husband’s health insurance plan. She

      requested that he continue to be responsible for providing COBRA health

      insurance for her as long as possible.




      2
        Their second home was built on the same parcel of real property that Husband’s premarital residence was
      located on. Husband owned the real property.
      3
          It is unclear in the record whether Wife was employed prior to the marriage and, if so, where she worked.
      4
          At that time, she was trying to work part-time as a cashier at Kohl’s.


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018                    Page 3 of 17
[6]   On August 19, 2016, Husband filed a petition to dissolve the marriage. At that

      time, he was living in the home he brought to the marriage and she was living

      in the home they had built; each was paying the expenses for the respective

      home in which they were living. Wife asked that the trial court deviate from

      the presumptive equal division of property, instead awarding her 80% and

      Husband 20% of their assets. Each party had brought a burial plot to the

      marriage from their prior marriages; each asked to retain the one that they

      brought to the marriage.


[7]   The trial court held an evidentiary hearing on August 10, 2017, and on

      November 15, 2017, it entered a dissolution decree. In pertinent part, the trial

      court found and ordered as follows:


              24.      The Husband testified that he did not know that the Wife
                       had taken loans for the residence [that they built].

              25.      The Husband testified that the Wife is the one that wanted
                       the residence built . . . , and that if he knew there were
                       outstanding loans to her parents to build the residence, he
                       would not have been in agreement with the building of the
                       residence.

              26.      That the Wife has not made any payments to her parents
                       for the loans.

              27.      That despite the fact that the Wife has outstanding loans to
                       her parents, her parents continued to gift money every
                       year, instead of applying those payments to the loan.

                                                      ***

              29.      That the letters and the checks provided as proof of the
                       loan were revised after the filing of the dissolution. That
      Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018   Page 4 of 17
                 there was no lien or promissory note entered into at the
                 time the checks were written.

        30.      That there was a repayment plan, but no repayment has
                 been made.

        31.      That the Wife provided no evidence as to the value of the
                 investments and retirement plans prior to marriage.

        32.      That the Wife provided no evidence showing that there
                 had not been contributions to the investments and
                 retirements during the marriage.

                                                ***

        37.      That the Wife has over $600,000.00 in investments and
                 retirement, but did not make payments on her outstanding
                 medical bills nor the loan that she states her parents have
                 given her.

        38.      That the Wife is requesting the Court to allow her to retain
                 all her investments because she owned them [prior to the
                 marriage] but wants the Court to divide all the debt
                 equally between the parties.

        39.      The Wife is asking the Court to take into account the
                 Husband had pension and retirement accounts before the
                 marriage, but is not taking into account that the Husband
                 had equity in his home before [the] marriage and owned
                 the property that both residences are built upon before
                 [the] marriage.

                                                ***

        42.      That there would be no debt of the marriage if the Wife
                 had paid the debt when her investments came due.

        43.      There would be no outstanding medical debt if the Wife
                 had paid those debts when they came due.


Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018   Page 5 of 17
           44.      The Wife continued to use credit cards when she had
                    money in investments and bank accounts.

           45.      That the Wife did not make payments on the bills and
                    therefore incurred additional interest and late charges
                    which increased the debt of the marriage, while having
                    money available to pay the bills as they came due.

                                                      ***

           56.      That the Wife has had access to a great share of the
                    marital pot during the pendency of this matter.

                                           Conclusions of Law

                                                      ***

           6.       Here, [Wife] has severe health issues which prevent her
                    from working. Additionally, [Husband] receives $804 per
                    month[5] to support the child. Based on these
                    circumstances, the Court believes that setting child support
                    in a Guideline amount would be unjust and instead sets
                    support in the amount of $0.00 per week.

                                                      ***

           8.       That [the] Court finds that the presumption of an equal
                    distribution of the marital estate has not been rebutted by
                    the relevant evidence presented by the Wife, in that

                    a.       That the Husband’s income supported the family.

                    b.       That the Wife co-mingled her assets during the time
                             of the marriage.




5
    Following the death of the child’s biological mother, the child receives a monthly death benefit of $804.


Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018                      Page 6 of 17
                       c.      That the Wife took on debt in the marriage that the
                               Husband was not aware [of] and she took on that
                               debt when she had the ability to pay the
                               expenses . . .

                       d.      That the Wife’s Family gifted money to both the
                               Husband and Wife during marriage.

                       e.      That the Husband owned the [real property] that
                               both [residences] are on [before the marriage]. . . .

                       f.      That both parties had assets prior to the marriage.

                       g.      That there is no evidence as to the value of the
                               premarital assets of either party.

                       h.      That the Husband is the sole custodian and care
                               giver to the child of the marriage.

              9.       That there is not sufficient evidence to show that the
                       payment by [Wife’s mother] was a loan, instead of a gift.


      Appealed Order p. 4-10. The trial court ordered that each party would retain

      the residence in which they were living, that Husband “shall retain possession

      of the cemetery plots,” id. at 11, that Wife would be responsible for all her

      debts, and that Wife would make an equalization payment to Husband in the

      amount of $299,420. Wife now appeals.


                                   Discussion and Decision
                                I. Division of Marital Estate
[8]   Wife first argues that the trial court erred by dividing the marital estate equally

      between her and Husband, maintaining that she should have received 80% of


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018   Page 7 of 17
      the estate. She argues that the trial court erred because, had it focused on the

      following three issues, it would have awarded her a greater share of the estate:

      (1) her health and inferior earning capability; (2) her difficulty procuring health

      insurance; and (3) the amount of property that each spouse brought into the

      marriage and/or the amount of property in the marital estate that was acquired

      through gift or inheritance.


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

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

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

      other things, the following factors may be considered:


              (1)      The contribution of each spouse to the acquisition of the
                       property, regardless of whether the contribution was
                       income producing.

              (2)      The extent to which the property was acquired by each
                       spouse:

                       (A)     before the marriage; or

                       (B)     through inheritance or gift.

              (3)      The economic circumstances of each spouse at the time
                       the disposition of the property is to become effective,
                       including the desirability of awarding the family residence
                       or the right to dwell in the family residence for such
                       periods as the court considers just to the spouse having
                       custody of any children.

              (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:
      Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018   Page 8 of 17
                        (A)     a final division of property; and

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


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

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

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

       232, 234 (Ind. Ct. App. 2017), trans. denied. This presumption is one of the

       strongest presumptions on appeal. Id. at 234-35. In considering the trial court’s

       order, we may neither reweigh the evidence nor judge witness credibility, and

       will consider only the evidence most favorable to the trial court’s decision. Id.

       at 234.


                                             A. Wife’s Health
[10]   Wife first contends that the trial court should have awarded her a greater share

       of the estate because of her significant health issues. According to Wife, her

       poor health limits her ability to pay for her living expenses and medical bills,

       primarily because she is unable to maintain employment. She notes that

       Husband is currently healthy and employed.


[11]   The record reveals that although Wife was unable to maintain employment, she

       had multiple sources of income, including gifts from her parents and her

       investments. As Husband notes, even with the equal distribution of the estate,

       Wife has assets totaling over $299,000 and a promise of continued financial

       support from her parents. Wife’s arguments on this issue amount to a request


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018   Page 9 of 17
       that we reweigh the evidence, which we may not do. The trial court’s decision

       to divide the estate equally, even when factoring in Wife’s medical issues, is

       based on evidence in the record and is neither unjust nor unreasonable. 6


                                                    B. COBRA
[12]   Wife next argues that the trial court should have deviated from the presumed

       equal division of the marital estate by ordering that Husband should pay for her

       COBRA health insurance. She argues that her cancer “makes it unlikely she

       will be able to retain insurance after being removed from the COBRA plan.

       Her pre-existing conditions make insurers unwilling to take her on as a client.”

       Appellant’s Br. p. 11. There is no evidence in the record supporting these

       assertions.


[13]   Furthermore, if Husband were ordered to pay for her health insurance, it would

       amount to spousal maintenance. Wife has made no request for maintenance,

       nor is there any evidence in the record that meets the standards required for an

       award of spousal maintenance. See I.C. § 31-15-7-2. Therefore, the trial court

       did not err by declining to order Husband to pay for Wife’s health insurance.




       6
        We also note that the trial court took Wife’s medical issues into account by ordering that she pay no child
       support. Appealed Order p. 10.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018                  Page 10 of 17
                   C. Property Brought Into the Marriage and/or
                        Acquired Through Gift or Inheritance
[14]   Next, Wife contends that the trial court should have deviated from the

       presumed equal division based on the property that each spouse brought into

       the marriage and/or acquired through gift or inheritance during the marriage.

       She argues that her pre-marital assets “were substantially more” than

       Husband’s, emphasizing that she even used some of her assets to pay off

       Husband’s mortgage. Appellant’s Br. p. 12. Wife further notes that she has

       “substantial assets,” including investment accounts from her previous marriage

       and an additional inheritance from her parents, that should continue to belong

       to her.7


[15]   It is well accepted that Indiana follows the “one pot” theory, meaning that all

       property is included in the marital pot for division regardless of whether it was

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

       marriage and before the final separation, or acquired through joint efforts of

       both. E.g., Ahls v. Ahls, 52 N.E.3d 797, 801 (Ind. Ct. App. 2016). In this case,

       both parties had assets before the marriage. Both parties had retirement

       accounts and Husband also had a home and real property (real property on

       which the couple later built a second home). Wife’s parents gifted the couple




       7
        Wife also argues that there were no children born of the marriage. As the trial court observed, however,
       Wife adopted Husband’s son. Therefore, that child is considered to be of the marriage even though Wife
       evidently no longer wishes to maintain a relationship with her son.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018                Page 11 of 17
       jointly with annual sums of money. The fact that Wife allegedly8 brought more

       assets to the marriage does not lead us to find that the trial court should have

       deviated from the presumed equal division of the estate.


[16]   Moreover, the Wife wants to have her proverbial cake and eat it too. She asks

       that we find that she and Husband share her debt equally—debt that the trial

       court found she was able to pay off but had not, that she had incurred

       unnecessarily, and that she incurred in part without Husband’s knowledge—but

       that she, and she alone, should be awarded her assets. We do not find that the

       trial court erred by declining to divide the estate in such a fashion. In reviewing

       the trial court’s order, it is apparent that it carefully weighed all the evidence

       and reached conclusions regarding the parties’ credibility, finding Wife’s

       lacking. We decline to second-guess the trial court’s conclusions. In sum, we

       find that the trial court did not err by dividing the marital estate equally.


                                           II. Living Expenses
[17]   Next, Wife contends that the trial court erred by ordering each party to pay

       their own living expenses during the pendency of the action. Wife argues that

       the home that she lived in has more expenses than the home that Husband lived

       in, resulting in an unequal share of the costs.




       8
        Wife did not introduce any evidence establishing the value of her investments at the date of the parties’
       marriage.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018                  Page 12 of 17
[18]   Initially, we note that Wife chose to live in the home she ended up in; she could

       have lived in the other one but elected not to. Moreover, Husband has had sole

       and exclusive custody of the child during the pendency of this matter. Wife has

       had no contact with the child since August 2016 and has provided no financial

       support. Additionally, as noted above, Wife has ample income from her

       parents and her investments—income that exceeds Husband’s annual salary of

       approximately $41,000. Under these circumstances, even if the trial court’s

       order did result in Wife bearing a greater share of the living expenses during the

       pendency of this action, we find no error.


                                         III. Cemetery Plots
[19]   Finally, Wife argues that the trial court erred by awarding Husband both of the

       couple’s cemetery plots. We agree. Each party brought a cemetery plot to the

       marriage that they had obtained with their respective first spouses. Neither

       Husband nor Wife asked to be awarded both plots. Nevertheless, the trial court

       awarded both plots to Husband. We find that this portion of the order was

       erroneous. Therefore, we reverse on this issue only and remand with

       instructions to amend the final dissolution order to show that each party retains

       the cemetery plot they brought to the marriage.


[20]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions.


       May, J., concurs.
       Robb, J., concurs in part and dissents in part with separate opinion.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018   Page 13 of 17
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Wendy T. Broady,                                         Court of Appeals Case No.
                                                                18A-DR-309
       Appellant-Respondent,

               v.

       David W. Broady,
       Appellee-Petitioner




       Robb, Judge, concurring in part and dissenting in part.


[21]   I concur in parts II and III of the opinion. However, I respectfully disagree

       with the conclusions the majority reaches in part I.


[22]   I begin by noting the following findings by the trial court:


               1. The trial court considered that Wife “receives” gifts from her
               parents and imputed income of $26,000 to her;


               2. The trial court found Husband’s income to be $40,500;


               3. The trial court noted that Wife has severe health issues that
               prevent her from working;



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018      Page 14 of 17
               4. The parties were married for four years and the trial court
               found that Wife has investment and retirement assets in excess of
               $600,000; and


               5. The trial court ordered Wife to make a $300,000 equalization
               payment to Husband.


[23]   With those findings in mind, I disagree that Wife has not shown error in the

       trial court’s judgment. First, to the extent the trial court relied in any way on

       the gifts Wife has received from her parents in the past in determining her assets

       or in dividing the parties’ property, I would hold that was in error. See

       Appellant’s Corrected Appendix, Volume 2 at 10 (Findings of Fact and

       Conclusions of Law ¶ 9, stating “the Wife is employed at Kohls and receives

       dividends from her investments. She also receives money from her parents.”);

       see also slip op. at ¶ 11 (noting Wife has “multiple sources of income, including

       gifts from her parents”). Yes, the evidence showed Wife received a check

       denoted “gift” in the amount of $16,000 from her parents on January 1, 2012—

       prior to the parties’ marriage—and received checks for $26,000 at the beginning

       of 2013, 2014, 2015 and 2016. Wife also testified at the final hearing that she

       received a check from her parents in 2017, as well. The trial court imputed

       income of $26,000 to Wife. See Appellant’s Corrected App., Vol. 2 at 10-11, ¶

       9. That Wife received this money in the past, however, is in no way a

       guarantee that she will continue to receive this money in the future.


[24]   In this regard, I look to Loeb v. Loeb, 261 Ind. 193, 301 N.E.2d 349 (1973), in

       which our supreme court held that only property that is vested in the parties on


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018   Page 15 of 17
       the date the petition for dissolution is filed is part of the marital estate. In Loeb,

       the court considered husband’s remainder interest in a trust and determined it

       should not be included in the parties’ marital estate because he would take

       nothing from the trust if he predeceased the settlor; therefore, he had no present

       interest of possessory value to include. Id. at 353. In other words, husband’s

       interest was too remote and speculative to be included in a property settlement

       award. Id. Here, Wife has no present interest at all in the gifts her parents may

       or may not give her in the future. At any time, for any reason, or for no reason

       at all, Wife’s parents may decide to discontinue giving her the financial gifts.

       Although there was evidence and testimony that Wife has received these gifts

       for at least the past six years, there was no evidence or testimony supporting the

       notion that her parents are obligated to continue giving the yearly gifts.

       Therefore, I cannot say, as Husband and the majority do, that she has “a

       promise of continued financial support from her parents.” Slip op. at ¶ 9. As

       this money appears to be the source of the trial court’s imputation of income to

       Wife and at least in part the reason for equally dividing the marital property, I

       would remand for the trial court to reconsider the property division without

       extrapolating the past gifts into future income available to support her after she

       makes a nearly $300,000 payment to Husband.


[25]   Second, I agree with the majority that Wife’s request for Husband to pay for her

       COBRA health insurance amounts to a request for maintenance. See slip op. at

       ¶ 13; In re Coomer, 622 N.E.2d 1315, 1320 (Ind. Ct. App. 1993) (noting COBRA

       medical benefit paid out of Husband’s future income resembled an award of


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018   Page 16 of 17
spousal maintenance). I disagree with the majority that Wife made no request

for maintenance, however. See id. Wife did not file an answer to Husband’s

petition for dissolution, but she did file a motion for a provisional order. In that

motion, Wife noted that she is unemployed and unable to work due to her

illness, and she requested a provisional order for maintenance during her

disability. In addition, Wife requested at the final hearing that Husband keep

her on his health insurance through COBRA as long as allowed due to the fact

she has a pre-existing condition: “[T]he insurances are not real happy[;] they

don’t want to insurance [sic] somebody with cancer.” Transcript, Volume Two

at 67.9 Therefore, I believe the question of incapacity maintenance was

squarely before the trial court and yet the trial court made no specific findings

regarding this request, although it did note that Wife has “severe health issues

which prevent her from working” in determining that she would not be ordered

to pay any child support. Due to that determination, Wife has some additional

resources to meet her own expenses, but it amounts to only $100 per month.

Appellant’s Corrected App., Vol. 2 at 19. Because the trial court acknowledged

Wife’s severe health issues and inability to work but did not address her request

for Husband to pay for COBRA benefits, I would remand for the trial court to

consider this issue as well.




9
 Although Wife did not provide any evidence other than her own testimony regarding her insurability, it is a
matter of common knowledge that pre-existing conditions can dramatically impact insurance availability and
pricing.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-309 | October 17, 2018                Page 17 of 17
