MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Apr 04 2018, 8:32 am

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                                   ATTORNEYS FOR APPELLEE
Paul J. Watts                                            John R. McKay
Watts Law Office                                         Daniel Cyr
Spencer, Indiana                                         Hickam & Lorenz, P.C.
                                                         Spencer, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark A. Rittenhouse,                                     April 4, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         60A04-1708-DR-1840
        v.                                               Appeal from the Owen Circuit
                                                         Court
Rosetta D. Rittenhouse,                                  The Honorable Kelsey B. Hanlon,
Appellee-Defendant                                       Judge
                                                         Trial Court Cause No.
                                                         60C02-1512-DR-149



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 60A04-1708-DR-1840 | April 4, 2018           Page 1 of 13
[1]   Mark A. Rittenhouse appeals the division of marital assets ordered pursuant to

      the dissolution of his marriage to Rosetta D. Rittenhouse. He asserts the court

      abused its discretion by awarding Rosetta thirty percent of the marital estate.

      We affirm.



                            Facts and Procedural History
[2]   In January of 1994, Mark purchased a house. At that time, he and Rosetta

      were already dating, and she moved into the house with him. In 1999 or 2000,

      Rosetta moved out for approximately three months and then returned to Mark’s

      house, where she lived until “two thousand eleven or twelve,” (Tr. at 7), when

      she moved out for “the best part of two years.” (Id. at 8.) Mark and Rosetta

      began dating again in 2013, married on September 17, 2013, and separated on

      December 5, 2015. Mark filed a petition for dissolution of their marriage on

      December 29, 2015.


[3]   On July 17, 2017, the trial court entered an final order that included the

      following pertinent findings of fact:


              2.     The Petitioner, Mark A. Rittenhouse, is 62 years of age
              and is currently self-employed as a contractor. Last year [Mark]
              earned approximately $56,862.00.


              3.     He has had arthritis for several years, currently has lost the
              use of one hand and anticipates neck surgery in the immediate
              future, causing a decrease in income.




      Court of Appeals of Indiana | Memorandum Decision 60A04-1708-DR-1840 | April 4, 2018   Page 2 of 13
        4.    The Respondent, Rosetta D. Rittenhouse, is 70 years of
        age and has held different jobs both before and during the
        pendency of this action. [Rosetta] receives SSI benefits of
        $770.00 per month with medicare plus income from cleaning
        houses, averaging $75.00 per house. In recent years [Rosetta] has
        cleaned between 1 and 3 houses per week.


        5.   [Rosetta] has heart problems that have impacted her
        employment options.


        6.     On or about January 1, 1994, [Mark] purchased the
        residence . . . for $100,000.00. The remaining balance on the
        mortgage is approximately $34,011.00. The home’s present
        value is $150,000.00[.]


        7.     The Parties maintained a relationship for approximately
        20 years, residing together in the residence for most of that time
        with the exception of two periods, the first of approximately 1
        year and the second of approximately 2 years just prior to the
        marriage. During their cohabitation, they maintained separate
        accounts and did not comingle their debts or property other than
        the various items of personal property maintained in the home.


        8.      [Rosetta] did not make financial contributions to the
        acquisition, improvements or costs of maintenance of the marital
        residence prior to or during their marriage. [Rosetta] paid some
        utilities and regularly bought groceries but, otherwise, retained
        her income for her own benefit and did not make significant
        contributions to the household expenses.


        9.   [Rosetta] made non-monetary contributions to the
        household as a homemaker during the marriage.




Court of Appeals of Indiana | Memorandum Decision 60A04-1708-DR-1840 | April 4, 2018   Page 3 of 13
        10. During the time the parties resided together prior to the
        marriage, [Mark] assisted [Rosetta] with payments on her
        delinquent credit card accounts and bills.


        11. [Rosetta] had issues with overspending. [Rosetta] opened
        a Sears Mastercard account in [Mark]’s name without [Mark]’s
        knowledge or permission. [Mark] subsequently settled the
        balance of $4,553.11 by paying $2,276.56.


        12. Pursuant to this Court’s provisional order, [Rosetta]
        removed approximately $4,895.00 of personal property and
        home décor from the residence. The Court adopts the values
        contained in [Mark]’s Exhibit 1, excluding the $5,000.00 value
        placed on the MISCELLANEOUS items contained in [Mark]’s
        Ex. 1. The Court finds those items to be worth $2,500.00.


        13. [Mark] has pensions to which he has made no
        contributions for many years. [Rosetta] did not contribute to the
        acquisition of either pension.


        14. The debts of the parties total $61,487.50. The Court is not
        considering the loan against [Mark]’s IRA as marital debt, as he
        took that loan out after the filing of his Petition.


(Appellant’s App. Vol. 2 at 8-9) (emphasis in original). After a number of

statements regarding the law controlling the court’s decision, the court then

entered the following conclusions:


        4.    Although the Parties cohabited for a substantial time
        period prior to the marriage, [Mark] established his business and
        purchased his home, vehicles and pension prior to the marriage
        and without significant contribution from [Rosetta] during any



Court of Appeals of Indiana | Memorandum Decision 60A04-1708-DR-1840 | April 4, 2018   Page 4 of 13
        period of cohabitation. The Parties did not commingle their
        property and debts before or during the marriage.


        5.    [Mark]’s pension accounts should be a set-off in this favor
        and not included in the Court’s calculation of the distribution of
        the marital estate.


        6.    Both Parties appear to have diminishing earning capacities
        due to health concerns. [Mark] has a superior earning capability
        to [Rosetta].


        7.     [Mark] has rebutted the presumption that an equal division
        of the marital estate would be just and reasonable.


        8.     Considering the factors enumerated in I.C. 31-15-7-5,
        including the contribution of the parties to acquisition of the
        property, the extent to which the property was acquired before
        the marriage, the health and earning abilities of the parties and
        the dissipation of assets, the Court concludes that a just and
        reasonable distribution of marital assets would be as follows: a
        70% distribution to [Mark] and a 30% distribution to [Rosetta]
        (percentage calculated after setting off [Mark]’s pension
        accounts). The net value of the marital estate after the pension
        account’s set-off is $135,357.50 (see attached balance sheet).


        9.    Said distribution of assets and debts should be made as
        follows:


                 a.      [Rosetta] shall be awarded all the personal property
                         as contained in the proposed division in [Mark]’s
                         Exhibit 1, the same having a total value of
                         $4,895.00 (see paragraph 11 in Findings).




Court of Appeals of Indiana | Memorandum Decision 60A04-1708-DR-1840 | April 4, 2018   Page 5 of 13
                 b.      [Mark] shall be awarded all the personal property as
                         contained in the proposed division outlined in
                         [Mark]’s Exhibit 1, plus the tractor, which was not
                         included, the same having a total value of
                         $4,050.00.


                 c.      [Mark] shall be awarded the marital residence and
                         shall be sole[ly] responsible for the associated
                         mortgage and all other costs associated with the
                         same. The marital residence is valued at
                         $150,000.00 and was encumbered at the time of
                         final separation in the amount of $34,011.00.


                 d.      [Mark] shall be awarded as his sole and separate
                         property his retirement accounts. These shall be set-
                         off from the marital estate for calculation purposes.


                 e.      [Rosetta] shall be awarded the 2007 VW
                         Convertible worth approximately $7,700.00.
                         [Mark] shall pay the balance on the vehicle note
                         within 60 days of this Order and execute any
                         necessary documentation to effectuated [sic] the
                         transfer [of] full ownership of the vehicle to
                         [Rosetta]. [Rosetta] shall also be awarded the Ford
                         Explorer Sport Track worth approximately
                         $2,500.00.


                 f.      [Mark] shall be awarded the 2013 Chevy Truck
                         worth approximately $14,000.00 and shall be
                         responsible for the associated lien in the amount of
                         $14,000.00. [Mark] shall also be awarded the 1999
                         Ford Expedition worth approximately $2,500.00.


                 g.      [Mark] shall be responsible for the Sears Mastercard
                         Debt in the amount of $2,276.50, the Care Credit

Court of Appeals of Indiana | Memorandum Decision 60A04-1708-DR-1840 | April 4, 2018   Page 6 of 13
                               Card in the amount of $3,200.00, and the Visa Card
                               in the amount of $1,000.00.


                       h.      [Mark] shall have as his sole and separate property
                               the intangible property including the bank account
                               (#[ . . . ]) containing $1,200.00 and the Business
                               account containing $10,000.00.


                       i.      [Mark] shall pay to [Rosetta] a cash payment of
                               $25,512.25 within 90 days of this Order.


      (Id. at 10-12) (emphases in original).



                                 Discussion and Decision
[4]   Mark asserts the court’s division of the marital estate was an abuse of discretion

      because the court misapplied the law. Where, as here, a party requested

      findings and conclusions pursuant to Trial Rule 52, we cannot set aside the

      findings or judgment unless clearly erroneous. Quinn v. Quinn, 62 N.E.3d 1212,

      1220 (Ind. Ct. App. 2016). Our review is two-tiered: first, we decide “whether

      the evidence supports the findings, and second, whether the findings support

      the judgment.” Id. We affirm the trial court’s findings unless no facts or

      inferences from the record support them, but we review legal conclusions de

      novo. Id.


[5]   Indiana subscribes to a “one-pot” theory of marital property. Morey v. Morey, 49

      N.E.3d 1065, 1069 (Ind. Ct. App. 2016) (citing Ind. Code § 31-15-7-4). Thus,

      when parties petition for dissolution of marriage,

      Court of Appeals of Indiana | Memorandum Decision 60A04-1708-DR-1840 | April 4, 2018   Page 7 of 13
              the court shall divide the property of the parties, whether:


              (1) owned by either spouse before the marriage;


              (2) acquired by either spouse in his or her own right:


                       (A) after the marriage; and


                       (B) before final separation of the parties; or


              (3) acquired by their joint efforts.


      Ind. Code § 31-15-7-4(a); see also Ind. Code § 31-9-2-98 (defining “property” for

      the purposes of dissolution as “all the assets of either party or both parties”).

      Even if the court later determines that it will set a particular asset aside to one

      of the parties, it must first include such asset in the marital estate and assign it a

      value. Quinn, 62 N.E.3d at 1223. This “one-pot” theory ensures that all assets

      are subject to the trial court’s power to divide and award. Morey, 49 N.E.3d at

      1069.


[6]   Then, when the court divides the property, it


              shall presume that an equal division of the marital property
              between the parties is just and reasonable. However this
              presumption may be rebutted by a party who presents relevant
              evidence, including evidence concerning the following factors,
              that an equal division would not be just and reasonable:




      Court of Appeals of Indiana | Memorandum Decision 60A04-1708-DR-1840 | April 4, 2018   Page 8 of 13
        (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.


Ind. Code § 31-15-7-5. If the court determines that one party rebutted the

presumption of equal division, “then the court must state its reasoning in its

findings and judgment.” Morey, 49 N.E.3d at 1072.




Court of Appeals of Indiana | Memorandum Decision 60A04-1708-DR-1840 | April 4, 2018   Page 9 of 13
[7]   The trial court has discretion to divide marital property, and we reverse only if

      the court abused its broad discretion. Love v. Love, 10 N.E.3d 1005, 1012 (Ind.

      Ct. App. 2014). An abuse of discretion occurs if the trial court: (1) entered a

      ruling clearly against the logic and effect of the facts and circumstances before

      the court, (2) misinterpreted the law, or (3) disregarded evidence of factors listed

      in the controlling statute. Id. When we review a claim that the trial court

      improperly divided marital property, we consider only the evidence most

      favorable to the trial court’s disposition. Morey, 49 N.E.3d at 1069. Even if the

      facts and reasonable inferences might allow for a different conclusion, “we will

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


[8]   Division of marital property is highly fact sensitive, and we review a trial

      court’s division “as a whole, not item by item.” Love, 10 N.E.3d at 1012. We

      will not weigh evidence or consider evidence that conflicts with the trial court’s

      judgment. Id. The party challenging the division of marital property “must

      overcome a strong presumption that the court considered and complied with

      the applicable statute.” Id. at 1012-13 (quoting Wanner v. Hutchcroft, 888 N.E.2d

      260, 263 (Ind. Ct. App. 2008)). In essence, we may not reverse a property

      distribution unless there is no rational basis for it. Id. at 1013.


[9]   The trial court concluded Mark’s pension plans should be excluded from the

      marital estate and Mark had rebutted the presumption of equal division of the

      remaining marital assets. The court also concluded:


              4.    Although the Parties cohabited for a substantial time
              period prior to the marriage, [Mark] established his business and
      Court of Appeals of Indiana | Memorandum Decision 60A04-1708-DR-1840 | April 4, 2018   Page 10 of 13
               purchased his home, vehicles and pension prior to the marriage
               and without significant contribution from [Rosetta] during any
               period of cohabitation. The Parties did not commingle their
               property and debts before or during the marriage.


                                                     *****


               8.     Considering the factors enumerated in I.C. 31-15-7-5,
               including the contribution of the parties to acquisition of the
               property, the extent to which the property was acquired before
               the marriage, the health and earning abilities of the parties and
               the dissipation of assets, the Court concludes that a just and
               reasonable distribution of marital assets would be as follows: a
               70% distribution to [Mark] and a 30% distribution to [Rosetta]
               (percentage calculated after setting off [Mark]’s pension
               accounts). The net value of the marital estate after the pension
               account’s set-off is $135,357.50 (see attached balance sheet).


       (Appellant’s App. Vol. 2 at 10-11) (emphasis in original).


[10]   Mark asserts the trial court erred by giving Rosetta thirty percent of the marital

       assets remaining after his pensions were set aside to him: “Rose admittedly

       contributed nothing to the acquisition or costs of maintenance of the property

       and . . . [w]hile she paid some utilities and bought groceries, Rose’s ‘non-

       monetary contributions to the household’ as a homemaker were as much for

       her and her children’s benefit as for Mark.” (Appellant’s Reply Br. at 5.)


[11]   We decline Mark’s invitation to alter the percentage of marital assets to which a

       homemaker is entitled based on the bread-winning spouse’s post-hoc

       assessment of whether the homemaker’s presence in the home brought

       adequate benefit to the bread-winner. The court identified and valued the
       Court of Appeals of Indiana | Memorandum Decision 60A04-1708-DR-1840 | April 4, 2018   Page 11 of 13
       assets, determined the pensions Mark earned prior to cohabiting with Rosetta

       should be set aside to him, evaluated the statutory factors that control whether

       the presumption of equal division has been rebutted, determined justice

       required Mark receive seventy percent of the marital assets, and explained its

       decision in the final order. Mark has not demonstrated the court erred as a

       matter of law. Cf., e.g., Quinn, 62 N.E.3d at 1224 (reversing and remanding for

       recalculation of property disposition because court failed to include all property

       in the marital pot).


[12]   Mark also claims that affirming the trial court’s decision “effectively

       discourage[s] cohabiting couples in those circumstances from marrying.”

       (Appellant’s Br. at 8.) The “circumstances” to which Mark refers are the facts

       that the parties had cohabited for nearly twenty years prior to their 2013

       marriage, that during cohabitation the parties had intentionally kept their

       finances separate because of Rosetta’s compulsive spending, and that Mark had

       only married her when he thought the spending “problem was resolved.” (Id. at

       7.) He asks us to “balance that public policy [of acknowledging the

       contributions made during lengthy cohabitation if the parties later marry] with

       the equally important policy in favor of encouraging marriage.” (Id. at 6.)


       We are not unsympathetic to the frustration Mark undoubtedly feels about the

       decision he made in 2013 and the impact it has had on his finances. We

       cannot, however, ignore the policy decisions made by our Legislature.

       Indiana’s legislature adopted the “one-pot” theory of marital property, which

       defines all the assets produced before or during the marriage, by one or both of

       Court of Appeals of Indiana | Memorandum Decision 60A04-1708-DR-1840 | April 4, 2018   Page 12 of 13
       the parties, as marital property. Ind. Code § 31-15-7-4(a). It also created a

       presumption that all the marital assets should be divided equally between the

       parties. Ind. Code § 31-15-7-5. To the extent Mark is asking us to ignore the

       presumption that a wife is entitled to half of the assets owned by a married

       couple, his arguments are better addressed to the legislature.



                                               Conclusion
[13]   Mark has not demonstrated the trial court abused its discretion when it assigned

       to Rosetta thirty percent of the marital assets remaining after Mark’s pensions

       were set aside to him. Accordingly, we affirm.


[14]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 60A04-1708-DR-1840 | April 4, 2018   Page 13 of 13
