MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                       FILED
regarded as precedent or cited before any                          Dec 12 2019, 9:45 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
Laurie Baiden Bumb                                      Matthew J. McGovern
Bumb Law Office, LLC                                    Anderson, Indiana
Evansville, Indiana
                                                        Michelle A. Cox
                                                        Evansville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Richard W. Campbell,                                    December 12, 2019
Appellant-Respondent/Cross-Appellee,                    Court of Appeals Case No.
                                                        18A-DN-2501
        v.                                              Appeal from the
                                                        Vanderburgh Superior Court
Barbara W. Campbell,                                    The Honorable
Appellee-Petitioner/Cross-Appellant                     Sheila M. Corcoran, Judge
                                                        Trial Court Cause No.
                                                        82D01-1701-DN-33



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019          Page 1 of 15
                                          Case Summary
[1]   Richard W. Campell (“Husband”) appeals the trial court’s division of property

      in Husband’s divorce from Barbara W. Campbell (“Wife”). Wife cross-appeals.

      We affirm the trial court in all respects.



                            Facts and Procedural History
[2]   The following facts are taken from unchallenged findings by the trial court.

      Husband (who is 66) and Wife (who is 70) married in 1989. It was the second

      marriage for each, and they did not have any children together. Wife brought

      approximately $75,000 in assets into the marriage, and Husband brought a

      small amount of debt. Wife, who has a two-year degree in computer

      programming, invested in Husband’s education early in the marriage, and

      Husband became a certified public accountant at Wife’s urging after failing the

      exam multiple times. In 1993, Husband and Wife used $30,000 of Wife’s

      premarital assets as collateral for a loan to start an accounting business, Richard

      Campbell CPA. In 2011, Richard Campbell CPA merged with other

      accountants to form Myriad CPA, LLC. During the marriage, Wife performed

      a variety of work for both accounting businesses, including bookkeeping, office

      administration, cleaning and maintenance, and client work. At various times,

      she also worked two unrelated jobs to support the marriage. The parties agree

      that Wife was underpaid while she worked at Myriad. She retired in 2014.




      Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019   Page 2 of 15
[3]   In 2015, Myriad’s business began to decline, and Husband started to “spend

      excessive amounts of money from his personal funds on food and alcohol that

      he consumed during the work week while he was the managing partner of

      Myriad.” Appellant’s App. Vol. II p. 19. In March 2016, Husband “became

      romantically involved with a co-worker” and subsequently “spent a significant

      amount of time and money during work hours eating out, consuming alcohol,

      and frequenting motels in furtherance of this relationship with her.” Id. “By

      Husband’s own account, he was sharing elaborate lunches, drinking alcohol,

      and going to motels during work hours a total of 106 days during a nine-month

      period in 2016.” Id. at 20. In total, Husband “misused or wasted close to

      $50,000.” Id. at 30. In addition to that spending, personal financial statements

      created by Husband indicate that the value of his interest in Myriad decreased

      by at least $300,000 in 2016.


[4]   In late 2016, Wife was diagnosed with an incurable liver disease that can lead to

      liver failure, a liver transplant, or death. Because of her illness, Wife cannot

      support herself through employment, and she receives about $1,000 in social

      security each month.


[5]   Husband and Wife separated on December 24, 2016, and Wife filed for divorce

      two weeks later, on January 6, 2017. While the case was pending, Husband

      further dissipated marital assets. In July 2017, he “began to draw from his

      capital account in lieu of receiving a Myriad paycheck resulting, in part, in a

      lower capital account value on 12/31/17 than on 12/31/16.” Id. at 21. Then,

      on January 1, 2018, Myriad merged with a larger accounting firm, Alexander

      Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019   Page 3 of 15
      Thompson Arnold (ATA), and Husband rolled a $164,080 note receivable from

      his Myriad partners—a marital asset—into his ATA capital account so that he

      would no longer receive payments on the note. Husband also gave ATA the

      option to purchase the building that Myriad had under lease—a building co-

      owned by Wife—thereby foreclosing the possibility of selling the building to

      another prospective buyer on the open market for a higher price. In addition,

      Husband agreed to sell a condo—also co-owned by Wife—to his son under an

      installment contract that would bring half as much per month ($304) than

      renting the condo to someone else ($600 to $650).


[6]   The trial court held the final hearing in January and March of 2018 and issued

      its Findings of Fact and Conclusions of Law and Final Decree of Dissolution of

      Marriage in June 2018. The court concluded that “it is reasonable to value the

      marital property as close to the filing date as possible, with the exception of

      certain bank accounts that were used by the parties during the provisional

      period,” so that there would be “no need to compensate Wife separately for the

      post-filing dissipation by Husband.” Id. at 28, 31. The trial court determined

      that an unequal division of the marital estate in favor of Wife is appropriate,

      specifically, 60% to Wife and 40% to Husband. To accomplish this split, the

      court assigned specific assets to the parties and then ordered Husband to pay

      Wife “cash equalization payments that total $531,155.77[.]” Id. at 36.


[7]   In addition to the property division, the trial court ruled on several other

      matters. On Wife’s motion for sanctions under Trial Rule 37, the court found

      that “Husband engaged in a pattern of non-compliance in the discovery process

      Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019   Page 4 of 15
       throughout this case, and attempted to conceal information from Wife to

       further his interests in this litigation, causing Wife to incur unnecessary expense

       and causing the Court to intervene on three (3) separate occasions.” Id. at 37.

       Due to this conduct, the complexity of the case, and the “circumstances of both

       parties,” the court ordered Husband to pay Wife $30,000 for attorney’s fees and

       $5,000 for litigation expenses. Id. at 39. Finally, the court found Husband in

       contempt for multiple violations of a March 2017 provisional order.


[8]    Husband now appeals, and Wife cross-appeals.



                                    Discussion and Decision
[9]    Husband challenges several aspects of the trial court’s property division. Wife

       cross-appeals, arguing that the trial court should have ordered Husband to

       provide security for the equalization payment.1


                                           I. Husband’s Appeal
[10]   Husband contends that the trial court committed multiple errors in its division

       of the marital property. The division of marital property is within the sound

       discretion of the trial court, and we will reverse only for an abuse of that

       discretion. Love v. Love, 10 N.E.3d 1005, 1012 (Ind. Ct. App. 2014).




       1
         In addition to her cross-appeal, Wife asserts that Husband “should be estopped from appealing the trial
       court’s decision” because he has taken actions pursuant to it, such as transferring certain property.
       Appellee/Cross-Appellant’s Br. p. 19 (citing DeHaan v. DeHaan, 572 N.E.2d 1315, 1329 (Ind. Ct. App. 1991),
       reh’g denied, trans. denied). Because we reject all of Husband’s appellate claims, we need not reach this issue.

       Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019                  Page 5 of 15
                                      A. Kevin Schwartz note
[11]   Husband first argues that he is “personally liable” for a share of a debt owed to

       Kevin Schwartz, a former Myriad partner, and that the trial court failed to

       include this liability in its calculation and division of the marital pot.

       Appellant’s Br. pp. 20-23. After Schwartz retired at the end of 2015, Myriad

       executed a promissory note promising to pay him $725,000 for his interest in

       the company—60 monthly payments of $12,083.33 each. According to

       Husband, he and the other remaining Myriad partners were personally

       obligated to make these payments, so “Myriad made the payments each month

       and each partner’s share of the payments to Kevin Schwartz was deducted from

       his capital account.” Id. at 21. By the end of 2016 (a week before Wife filed for

       divorce), the total debt remaining was about $580,000. Husband says that his

       “share of the balance due on this note on that date was in the amount of

       $192,966” and that the trial court “made no reference to this outstanding

       obligation in its Findings of Fact and Conclusions of Law.” Id. at 21-22.


[12]   Husband is incorrect. The trial court referenced the Kevin Schwartz note in its

       factual findings about the value of Husband’s interest in Myriad. The court

       found:


               46. Husband provided different calculations of the value of his
               interest in Myriad by adjusting the value of his capital account
               using different methods and different financial figures that were
               only preliminary and not final figures. As of the last day of trial,
               Myriad had not finalized its company books for 2017.



       Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019   Page 6 of 15
         47. Husband’s calculations of value at trial lacked consistency,
         and reduced the value of his capital account by what he testified
         to was his portion of a note payable to a former Myriad partner
         that was not reflected on the company books, or personally
         guaranteed by the partners.


         48. The evidence demonstrated Husband was an active
         participant in the management of Myriad and able to influence
         the value of his capital account in 2017 after his wife filed for
         dissolution of their marriage.


Appellant’s App. Vol. II p. 21 (emphasis added). In light of Finding 47, which

Husband fails to acknowledge in his briefs, we are confident that the trial court

factored the Kevin Schwartz note into its valuation of Husband’s interest in

Myriad at $800,873—a valuation that Husband does not challenge on appeal.2

The trial court’s handling of the Kevin Schwartz note was not an abuse of

discretion.




2
 Perhaps the reason Husband doesn’t challenge the trial court’s valuation of Myriad is that it is at the low
end of a range provided by Husband himself. As Wife notes:
         In September 2017, Husband prepared a personal financial statement for a bank showing
         that the value of his interest in Myriad as of 12/31/16 was $1,000,000. At the time of his
         deposition, the Husband showed the value of his Myriad interest as of 12/31/16 was
         $866,865. In a different balance sheet, as of December 31, 2016, the Husband’s interest
         in Myriad was valued at $800,872.98.
Appellee/Cross-Appellant’s Br. p. 25 (citations omitted). Wife argues that the trial court’s valuation of
$800,873 “was clearly within the range indicated by the evidence,” id. at 26, which Husband doesn’t dispute.

Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019                  Page 7 of 15
                                        B. Provisional orders
[13]   Next, Husband contends that the trial court’s division of the marital estate

       failed to fully account for various provisional orders that were entered while the

       case was pending.


[14]   In a March 2017 provisional order, the trial court authorized the payment of

       $15,500 to each of the parties’ attorneys/experts from a United Fidelity Bank

       account. According to Husband, that account had a balance of $104,646 as of

       the date of filing, various expenditures reduced the balance before the

       provisional order, and the two $15,500 distributions brought the balance down

       to $62,324. In its final order, however, the trial court divided the full date-of-

       filing balance, awarding $62,324 to Wife and $42,322 to Husband. Husband

       argues:


               This award to the Husband completely disregards the
               expenditures made from this account prior to the entry of the
               March 20, 2017 Mediated Agreed Provisional Order as well as
               the payment of a total of $31,000 in attorney fees pursuant to that
               Order. After the distribution to the Wife of $62,324 from the
               United Fidelity account, there was only a minimal balance
               remaining in that account. The $42,322 awarded to the Husband
               from that account simply did not exist and should not have been
               factored into the trial court’s division of marital assets.


       Appellant’s Br. p. 25.


[15]   It is true that the $42,322 “awarded” to Husband did not actually exist by the

       time of the final decree. However, as Husband himself acknowledges, the trial


       Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019   Page 8 of 15
       court used date-of-filing values for certain assets so “there is no need to

       compensate Wife separately for the post-filing dissipation by Husband.”

       Appellant’s App. Vol. II p. 31. Husband does not dispute the trial court’s

       finding that he dissipated assets after Wife filed for divorce, nor does he dispute

       the trial court’s authority to use date-of-filing values as a way of addressing

       post-filing dissipation. As such, we cannot say that the trial court abused its

       discretion by awarding Husband $42,322 from the United Fidelity account.


[16]   Also in the March 2017 order, the trial court directed that the $4,292.20

       monthly payments Husband was receiving under a $164,080 promissory note

       from Myriad be divided equally between the parties ($2,146.10 each) during the

       pendency of the case. Husband made those payments to Wife for nine months

       (March-December 2017)—a total of $19,314.90—and the trial court factored

       those payments into its eventual division of the note, awarding Husband

       $144,765.10 of the $164,080 and awarding Wife the other $19,314.90.

       However, Husband didn’t make the payments to Wife for the last six months

       before the final decree (January-June 2018). As a result, the trial court found

       Husband in contempt and ordered him to make up those six payments—a total

       of $12,876.60. On appeal, Husband doesn’t dispute that he failed to make the

       payments, the trial court’s contempt finding, or the order to make up the missed

       payments. Instead, he asserts that the trial court should have included the

       $12,876.60 in Wife’s share of the marital estate and deducted the same amount

       from his share, just as it did with the nine payments that Husband actually

       made. But Husband doesn’t cite any authority for the proposition that the trial


       Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019   Page 9 of 15
       court was required to factor any of the provisional payments into the final

       division of assets, let alone all of them. To the contrary, we have held that

       “whether to give credit for temporary support and maintenance in the final

       division of the property lies within the sound discretion of the trial court.”

       Rodgers v. Rodgers, 503 N.E.2d 1255, 1258 (Ind. Ct. App. 1987), reh’g denied,

       trans. denied. Husband has failed to convince us that the trial court abused that

       discretion in this case.


[17]   In an October 2017 order, the trial court granted a motion to compel discovery

       filed by Wife and ordered Husband to transfer $20,000 to Wife “for litigation

       expenses.” Appellant’s Appendix. P. 127. The court added, “Said sum shall be

       included in the marital estate at the Final Hearing.” Id. Seizing on the latter

       language, Husband asserts that $20,000 “should have been credited to the Wife

       in the final distribution of the marital estate[.]” Appellant’s Br. p. 26. As Wife

       notes, however, “[t]he terms of a provisional order may be revoked or modified

       before the final decree on a showing of the facts appropriate to revocation or

       modification.” Ind. Code § 31-15-4-15. Wife contends that the trial court’s

       change of course with regard to this $20,000 was justified by Husband’s

       dissipation of assets, his lack of cooperation during discovery, and his contempt

       of court. In his reply brief, Husband offers no response. We find no abuse of

       discretion on this issue.


[18]   At the end of the final hearing on March 7, 2018, the parties agreed that each

       would take a distribution of $40,000 from a Fifth Third bank account. In its

       final order, the trial court awarded the remaining balance of $20,419 to Wife.

       Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019   Page 10 of 15
       Husband makes an argument that the award should have instead been $17,954,

       based on the premise that the trial court used the date-of-filing value for this

       account. But nothing in the trial court’s order indicates that it used the date-of-

       filing value for this particular asset. To the contrary, the math suggests that the

       court used the value as of the end of the final hearing, which, according to

       Husband’s own exhibit, was $100,419. See Appellant’s App. Vol. II p. 145.

       After the two distributions of $40,000, then, the balance was $20,419, which is

       exactly what the trial court awarded to Wife. As Wife observes, using the later

       value was reasonable because the account continued to receive rental income

       until the final hearing date. See id. at 28 (“The Court concludes it is reasonable

       to value the marital property as close to the filing date as possible, with the

       exception of certain bank accounts that were used by the parties during the

       provisional period.” (emphasis added)). We see no abuse of discretion.3


                                                C. 529 accounts
[19]   Husband also argues that the trial court erred by awarding him 529 college-

       savings accounts that the parties established for their grandchildren. He




       3
         In its March 2017 provisional order, the trial court ordered the parties not to withdraw money from this
       account without a joint agreement. Notwithstanding that order, Husband withdrew $2,500 from the account
       without Wife’s consent “to pay his expert real estate appraisal fee[.]” Appellant’s App. Vol. II p. 40. Wife
       asked Husband to return the funds, but Husband did not. In the final decree, the trial court found Husband
       in contempt for this withdrawal and concluded that Wife is entitled “to reimbursement of half of the $2500,”
       or $1,250. Id. On appeal, Husband doesn’t dispute that he withdrew the money, the contempt finding, or the
       order to pay Wife $1,250. However, he contends that the trial court should have separately credited him for
       that $1,250 in its calculation and division of the marital estate. But we think the trial court adequately dealt
       with Husband’s improper withdrawal by valuing the Fifth Third account as of the date of the final hearing,
       after Husband made the withdrawal.

       Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019                 Page 11 of 15
       contends that the accounts “should not be included in the award to either party,

       but should be set aside for the educational expenses of the parties’ four (4)

       grandchildren as was intended when the parties contributed to the accounts.”

       Appellant’s Br. p. 32.


[20]   In support of this proposed treatment, he cites our decision in D.G. v. S.G., 82

       N.E.3d 342 (Ind. Ct. App. 2017), trans. denied. There, a husband and wife set

       up 529 accounts for their children, and when they divorced, the trial court

       assigned the accounts to the wife. Wife appealed, and we reversed, explaining:


               [T]he trial court treated the accounts as Mother’s separate
               property in the distribution. This is not consistent with the
               uncontroverted evidence that the 529 funds were solely to be
               used as college funds for Children. Although the trial court
               might order one or both parents to act as custodian, neither
               parent requested the power or right to liquidate the funds or use
               them for any purpose other than education expenses. On
               remand, the trial court should set aside the 529 accounts before
               valuing the distribution to either parent or ordering an
               equalization payment.


       Id. at 353. Husband asserts that this case is similar to D.G. because both parties

       presented evidence that the accounts “were intended for the use of the parties’

       four (4) grandchildren for the payment of their educational expenses.”

       Appellant’s Br. p. 31.


[21]   We agree with Wife that D.G. is distinguishable. Here, as Wife notes, there is

       “significant evidence of the Husband’s behavior in dissipating the marital estate

       and moving assets without the Wife’s permission,” Appellee/Cross-Appellant’s

       Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019   Page 12 of 15
       Br. p. 33, creating a concern that he might do something similar with the 529

       accounts (since they are in his name). In D.G., on the other hand, there was no

       indication that the spouse who controlled the 529 accounts had engaged in any

       such behavior, so simply setting aside the accounts was a proper resolution.

       Given this distinction, Husband has failed to convince us that the trial court

       abused its discretion by awarding the 529 accounts to him.


                                   D. Kentucky Lake property
[22]   Finally, Husband argues that the trial court erred in its disposition of property

       the parties own at Kentucky Lake (a condo and related items). The trial court

       ordered Husband to sell the property, to “pay to Wife 60% of the sale proceeds

       of the Kentucky assets after closing costs and realtor’s commission, if any,” and

       to “pay for the taxes associated with the sale of these assets.” Appellant’s App.

       Vol. II pp. 31-32. Husband contends that the court erred by (1) making him

       responsible for any tax liability that arises from the sale of the property and (2)

       failing to provide for the payment of expenses incurred until the property is sold

       (e.g., utilities, homeowners-association dues, maintenance, property taxes).

       However, Wife asserts, with no dispute from Husband, that these claims are

       without merit because Husband “failed to present any evidence as to what the

       maintenance and upkeep costs were, and further failed to present any evidence

       as to the tax liability of which he now complains.” Appellee/Cross-Appellant’s




       Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019   Page 13 of 15
       Br. p. 34. We agree. Given this lack of evidence, we cannot say that the trial

       court abused its discretion on these two issues.4


                                        II. Wife’s Cross-Appeal
[23]   In her cross-appeal, Wife contends that the trial court erred by not ordering

       Husband to provide security for the equalization payment. Wife relies on

       Indiana Code section 31-15-7-8, which provides that in a property-division

       order the trial court “may provide for the security, bond, or other guarantee that

       is satisfactory to the court to secure the division of property.” We review a trial

       court’s decision under this statute for an abuse of discretion. Birkhimer v.

       Birkhimer, 981 N.E.2d 111, 127 (Ind. Ct. App. 2012), reh’g denied.


[24]   Wife argues that an order for security under Section 31-15-7-8 is necessary

       because “the Husband’s conduct demonstrated an obstinance and penchant for

       avoiding payments to the Wife.” Appellee/Cross-Appellant’s Br. p. 36.

       However, we have held that the language of Section 31-15-7-8 affords trial

       courts “the broadest possible discretion” in requiring security for the payment

       of the division of marital property and that “we will not substitute our judgment

       for that of the trial court.” In re Marriage of Davis, 182 Ind. App. 342, 350, 395

       N.E.2d 1254, 1259 (1979). Moreover, Wife acknowledges that she has a lien




       4
         Husband cites one case in this part of his brief: Keown v. Keown, 883 N.E.2d 865 (Ind. Ct. App. 2008). As
       Husband notes, we held in Keown that the cost of future repairs was properly included in the costs of sale of a
       marital residence. In that case, however, the wife “admitted into evidence a detailed proposal from an
       industrial service contractor estimating the total cost of the repairs to be $1,972.” Id. at 870. Again, Husband
       fails to direct us to any such evidence in this case.

       Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019                 Page 14 of 15
       against Husband pursuant to the general judgment-lien statute, Indiana Code

       section 34-55-9-2, and she fails to explain why that lien offers insufficient

       security. Finally, Wife does not dispute Husband’s assertion that the parties

       “have significant marital assets which are more than sufficient to satisfy the trial

       court’s division of marital property between the parties.” Appellant’s Reply

       Br./Cross-Appellee’s Br. p. 19. For these reasons, we will not disturb the trial

       court’s decision on this issue.


[25]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DN-2501 | December 12, 2019   Page 15 of 15
