MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                  FILED
regarded as precedent or cited before any                                         Aug 31 2020, 11:22 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
D. L. Poer
Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gabriel Correa,                                          August 31, 2020
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-DC-2535
        v.                                               Appeal from the Madison Circuit
                                                         Court
Bridgett Correa,                                         The Honorable G. George Pancol,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         48C02-1808-DC-451



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020          Page 1 of 18
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, Gabriel Correa (Husband), appeals the trial court’s

      dissolution order in favor of Appellee-Petitioner, Bridgett Correa (Wife).


[2]   We affirm.


                                                   ISSUES
[3]   Husband presents this court with three issues which we restate and reorder as:


              (1) Whether the trial court abused its discretion in valuing the
                 marital residence;


              (2) Whether the trial court abused its discretion dividing the
                  marital estate; and


              (3) Whether the trial court abused its discretion in computing
                 Husband’s child support obligation.


                      FACTS AND PROCEDURAL HISTORY
[4]   Husband and Wife were married on December 30, 2014. The parties have two

      children, I.C., born May 23, 2013, and N.C., born September 28, 2015. The

      parties separated in July of 2017 but continued to live in the marital home on

      West Constellation Drive in Pendleton, Indiana, until the end of December of

      2017.




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 2 of 18
[5]   Wife filed a petition for dissolution on August 16, 2018, and, on August 31,

      2018, Father filed a cross-petition. On December 18, 2018, the trial court

      entered provisional orders granting Wife possession of the marital residence

      pending the final hearing. The trial court ordered Wife to pay the expenses of

      the marital residence, including the mortgage, taxes, and insurance, which she

      did.


[6]   On July 1, 2019, the trial court held the final hearing. Wife requested that the

      marital residence be awarded to her. Neither party had the marital home

      appraised prior to the final hearing. For valuation purposes, Wife had admitted

      into evidence the closing documents from the parties’ January 28, 2016,

      refinancing of the home which showed a “sale price” of $123,865. (Exh. Vol. p.

      3). Wife also introduced evidence that the mortgage balance on the home on

      September 5, 2018, was $116,365.55. 1 Wife proposed to value the home’s

      equity by subtracting the amount owed on the mortgage from the 2016 sale

      price. Husband requested that the trial court order the home be appraised and

      listed for sale. Husband did not present any independent evidence of the

      home’s value.


[7]   To support her child support worksheet, Wife had the parties’ W2s from 2018

      admitted into evidence. Husband argued that his 2018 income should not be




      1
        Wife’s counsel mistakenly cited this figure as $116,544 when questioning Wife at the final hearing. It
      appears that the trial court made its equity calculation using this incorrect figure. However, we do not
      address the error further because the parties agreed on an equalization amount at the hearing on the parties’
      motions to correct error.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020                   Page 3 of 18
      used to calculate his child support because it was not typical or illustrative of his

      current income. Husband testified that he worked for a car dealership. For the

      first six months of 2018, Husband detailed cars and was paid on a per-car basis.

      As a car detailer, Husband had the opportunity to work overtime, and, as

      Husband testified, he worked overtime to replace the child support he paid

      pursuant to the trial court’s provisional orders. Husband further testified that,

      in mid-2018, he switched to being an oil change technician for the same

      employer, a job that did not have the same opportunities for overtime as his

      previous position. Father did not offer a current pay stub into evidence.


[8]   On July 1, 2019, the trial court entered its Order dissolving the marriage,

      dividing the marital estate, and ordering child support. The trial court valued

      the equity using the method proposed by Wife. The trial court awarded the

      marital residence to Wife, subject to its debt, and ordered that Wife had six

      months from the entry of the decree to refinance the home in her own name

      only. If she were unable to accomplish this, the home was to be sold and the

      profits split between the parties. The trial court also awarded Wife her 401k

      retirement account, valued at $3,799, and found her debts to be $4,387. The

      trial court awarded Husband his 401k account, valued at $4,170, and found his

      debts to be $5,000. The trial court ordered Wife to pay Husband $3000 in order

      “to make an equitable division of the marital estate which will allow her to keep

      the real estate.” (Appealed Order, p. 2). The trial court awarded joint legal

      custody of the children to the parties and primary physical custody to Wife.

      The trial court directed Husband to pay $193 per week in child support based


      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 4 of 18
       on its finding that Husband had a weekly income of $965 based upon his 2018

       W2.


[9]    On July 16, 2019, Wife filed a motion to correct error seeking to have

       Husband’s 401k valued at $10,300 as of the date of filing. On July 26, 2019,

       Husband filed a motion to correct error in which he recognized the parties had

       stipulated that the value of his 401k was $10,300. Husband further alleged in

       his motion that the trial court had miscalculated Wife’s net estate, had erred in

       valuing the marital estate using the January 28, 2016, sale value, and had erred

       in basing his income for child support calculations on his 2018 wages.


[10]   On September 25, 2019, the trial court held a hearing on the parties’ motions to

       correct error. No new evidence was introduced, but the parties stipulated that

       Husband’s 401k was valued at $10,793 on the date of filing and that his total

       marital debt was $9,198. The trial court observed that “it was supposed to be a

       fifty[-]fifty division.” (Transcript p. 146). Based on the parties’ stipulations, the

       new equalization payment from Wife to Husband was calculated as $2,571.

       When the trial court asked Husband’s counsel if she had any objection to that

       figure, Husband’s counsel replied, “No your Honor, I can live with that.” (Tr.

       p. 151). Husband then argued that the trial court had erred in valuing the

       marital home based on Wife’s method of calculating the home’s equity and that

       it had erred in calculating his income for child support purposes.


[11]   On September 25, 2019, the trial court granted Wife’s motion to correct error

       and ordered that “[Wife’s] payment to [Husband] to make a fifty-fifty


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 5 of 18
       distribution of the marital estate shall be in the sum of $2,571.00 as opposed to

       [the] $3,000 previously entered.” (Appellant’s App. Vol. II, p. 9). The trial

       court denied Husband’s motion to correct error.


[12]   Husband now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[13]   Husband challenges the trial court’s division of the marital estate and its child

       support order. As a threshold matter, we observe that Wife has failed to file an

       appellate brief in this matter. We do not develop arguments on behalf of an

       appellee who fails to file a brief. WindGate Props., LLC v. Sanders, 93 N.E.3d

       809, 813 (Ind. Ct. App. 2018). In such cases, we will reverse if the appellant

       establishes prima facie error, meaning error at first sight or error on the face of it.

       Id. However, even in light of this relaxed standard, we still have the obligation

       to correctly apply the law to the facts in the record to determine whether

       reversal is required. Id.


[14]   Husband appeals following the trial court’s denial of his motion to correct error.

       A trial court’s ruling on a motion to correct error is generally reviewed for an

       abuse of discretion, approaching our review with a strong presumption of

       correctness. Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013). An abuse

       of discretion occurs when the trial court’s decision is against the logic and effect

       of the facts and circumstances before it and the inferences to be drawn

       therefrom. Paulsen v. Malone, 880 N.E.2d 312, 313 (Ind. Ct. App. 2008).

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 6 of 18
       However, we review any questions of law de novo. Healey v. Carter, 109 N.E.3d

       1043, 1047 (Ind. Ct. App. 2018), trans. denied. Our standard of review requires

       us to examine the propriety of the underlying order dividing the marital estate

       and calculating child support.


                                      II. Valuation of Marital Residence

[15]   Husband challenges the trial court’s adoption of Wife’s proposed method of

       valuation of the marital residence. A trial court has broad discretion in

       determining the value of property in a dissolution proceeding. O’Connell v.

       O’Connell, 889 N.E.2d 1, 13 (Ind. Ct. App. 2008). We will affirm a trial court’s

       valuation of marital assets as long as there is sufficient evidence and reasonable

       inferences therefrom in the record to support the valuation. Morey v. Morey, 49

       N.E.3d 1065, 1069 (Ind. Ct. App. 2016). In conducting our review, we will not

       reweigh the evidence, and we will consider the evidence in the light most

       favorable to the judgment. Id. Although the facts presented to the trial court

       and the reasonable inferences flowing from those facts might support a different

       conclusion than that reached by the trial court, we will not substitute our own

       judgment for that of the trial court. Id.


[16]   Here, the trial court adopted Wife’s proposal to subtract the remaining

       mortgage balance as of September 5, 2018—a date after the filing of Wife’s

       dissolution petition—from the January 2016 sale price of the home, leaving an

       equity balance. Wife showed that the sale price of the home on January 28,

       2016, was $123,865 and that the outstanding mortgage balance as of September

       5, 2018, was $116,365.55. The trial court then set the balance over to Wife.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 7 of 18
       Therefore, even in light of our relaxed standard of review, we will not disturb

       the judgment of the trial court because evidence existed in the record to support

       the trial court’s method of calculating the value of the marital residence. See id.


[17]   Husband argues that the trial court abused its discretion because its valuation

       method “took no account of the 2015 purchase price or construction costs of the

       residence, improvements made, or the substantial increase in real estate value

       since 2015.” (Appellant’s Br. p. 13). However, Husband presented no evidence

       at the final hearing or at the motion to correct error hearing to support a

       competing value for the marital residence. Although he contends that there was

       evidence in the record that homes in the area were being sold for $175,000, the

       only reference to that figure in the record came from his own counsel’s question

       to Wife, who denied that she was aware of such comparable sales. “[T]he

       burden of producing evidence as to the value of the marital property rests

       squarely on the shoulders of the parties and their attorneys.” Galloway v.

       Galloway, 855 N.E.2d 302, 306 (Ind. Ct. App. 2006). We cannot conclude that

       the trial court abused its discretion in failing to consider evidence that was not

       presented to it.


[18]   In addition, inasmuch as Husband contends that the trial court abused its

       discretion by failing “on two separate occasions to order an appraisal with

       which [Wife] had refused to cooperate,” we find no evidence in the record

       supporting his allegation that Wife refused to comply with any demand made

       by Husband that she cooperate in having the home appraised. We also find

       unavailing Husband’s argument that the trial court’s use of what he calls the

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 8 of 18
       “cost method” was inappropriate because that method is only used for the

       replacement value of unique structures. (Appellant’s Br. p. 13). Husband has

       waived this claim, as he did not raise it at the trial court level. See Cavens v.

       Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006) (“Issues not raised at the trial

       court are waived on appeal.”). Finding no abuse of the trial court’s

       discretion in valuing the marital home, we likewise conclude it did not abuse

       its discretion in denying Husband’s motion to correct error. See Paulsen, 880

       N.E.2d at 313.


                                      III. Division of the Marital Estate

[19]   Husband next challenges the trial court’s division of the marital estate. It is the

       duty of the trial court to divide the marital estate in a dissolution proceeding in

       a “just and reasonable manner.” Ind. Code § 31-15-7-4(b). There is a

       presumption that an equal division of marital property between the parties is

       just and reasonable, and a trial court may only deviate from an equal division

       when that presumption is rebutted. I.C. § 31-15-7-5. A trial court’s division of

       the marital estate is “‘highly fact sensitive and is subject to an abuse of

       discretion standard.’” Campbell v. Campbell, 993 N.E.2d 205, 212 (Ind. Ct. App.

       2013) (quoting Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002)), trans. denied.


[20]   Husband’s argument is two-fold: He contends that the trial court “neither

       stated its intention to divide the marital estate equally nor made such an equal

       division, even assuming the [t]rial court’s valuation had been accurate and

       appropriate.” (Appellant’s Br. p. 12). However, although the July 1, 2019,

       Order did not specify that the trial court was dividing the marital estate equally,
       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 9 of 18
       the trial court explicitly stated at the hearing on the motion to correct error that

       it had intended to divide the marital estate equally, and, in its written order on

       the motions to correct error, it provided that “[Wife’s] payment to [Husband] to

       make a fifty-fifty distribution of the marital estate shall be in the sum of $2,571.00 as

       opposed to $3,000 previously entered.” (Appellant’s App. Vol. II, p. 9)

       (emphasis added). Therefore, we find no merit to Husband’s contention that

       the trial court failed to state its intention to divide the estate equally.


[21]   As to his second contention that the trial court did not divide the estate equally,

       we find that Husband has waived that claim for failing to provide a competing

       value for the marital home. See Campbell, 993 N.E.2d at 215 (declining to

       address Husband’s contention that the trial court’s dissolution order resulted in

       an unequal division where he did not present evidence of the value of the

       marital assets). In any event, we have already concluded that the trial court did

       not abuse its discretion with the method it chose to value the only disputed

       asset, the marital home. Husband also agreed at the hearing on the motion to

       correct errors that an equalization payment of $2,571 from Wife to Husband

       was proper, apparently as an alternative proposal in the event that his challenge

       to the valuation of the marital home was denied. Accordingly, we cannot

       conclude that the trial court abused its discretion in dividing the marital estate

       or in denying Husband’s motion to correct error. See Paulsen, 880 N.E.2d at

       313.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 10 of 18
                                               IV. Child Support

[22]   Husband challenges the trial court’s reliance on his 2018 income for

       determining his child support obligation because he asserts that it included

       overtime to which he is no longer entitled or guaranteed. We presume that a

       trial court’s child support calculation is valid and review it only for an abuse of

       discretion. Matter of Paternity of T.M.-B., 131 N.E.3d 614, 618 (Ind. Ct. App.

       2019), trans. denied. An abuse of discretion occurs if a trial court’s

       determination is clearly against the logic and effect of the of the facts and

       circumstances before it or if it has misinterpreted the law. Id. “We do not

       reweigh the evidence or assess the credibility of witnesses.” Id.


[23]   “In fashioning a child support order, the trial court’s first task is to determine

       the weekly gross income of each parent.” Trabucco v. Trabucco, 944 N.E.2d 544,

       549 (Ind. Ct. App. 2011), trans. denied. According to Indiana Child Support

       Guideline 3(A), ‘weekly gross income’ includes “income from any source, . . .

       and includes . . . income from salaries . . . [and] overtime[.]” If the parties

       dispute the weekly gross incomes to be used to calculate support, each party

       may submit a child support worksheet to the trial court, signed by the party and

       supported with documentation. Child Supp. G. 3(B), cmt. 1. “Each party

       bears the burden of justifying the incomes used in his or her own worksheet.”

       In re Paternity of G.R.G., 829 N.E.2d 114, 119 (Ind. Ct. App. 2005).


[24]   The commentary to the Support Guidelines provides that “it is not the intent of

       the Guidelines to require a party who has worked sixty (60) hour weeks to

       continue doing so indefinitely just to meet a support obligation that is based on

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 11 of 18
       that higher level of earnings.” Child Supp. G. 3(A), cmt. 2(b). Relying on this

       commentary, Husband argues that, by using his 2018 W2 which included the

       overtime he no longer worked, the trial court “coerced [Husband] to work as

       much overtime as he could manage ‘just to meet a support obligation . . . based

       on [a] higher level of earnings’ – and even that onerous obligation is likely to

       prove insufficient.” (Appellant’s Br. p. 14). However, at the final hearing, Wife

       submitted her child support worksheet showing Husband’s weekly gross income

       as $1,056, and supported that figure with Husband’s 2018 W2. Husband’s child

       support worksheet showed his weekly gross income as $600, which he testified

       was his actual income because he no longer worked the overtime hours he had

       worked in 2018. It was within the trial court’s discretion to weigh and reject

       that testimony, and Husband presented no documentation to the trial court, in

       the form of a paystub or otherwise, to support his claim to reduced or non-

       existent overtime hours. We do not reassess the credibility of witnesses as part

       of our review. See T.M.-B., 131 N.E.3d at 618. Even though Husband must

       merely demonstrate prima facie error on appeal, his lessened appellate burden

       does not allow us to ignore our standard of review. Given that Husband did

       not document his actual income for the trial court, we cannot conclude that the

       trial court abused its discretion when it computed Husband’s weekly gross

       income based on his 2018 W2.


                                             CONCLUSION
[25]   Based on the foregoing, we conclude that the trial court acted within its

       discretion when it valued the marital home, divided the marital estate, and

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 12 of 18
       calculated Husband’s child support obligation, and, thus, did not abuse its

       discretion in denying Husband’s motion to correct error.


[26]   Affirmed.


[27]   Altice, J. concurs


[28]   May, J. concurs in result with separate opinion




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 13 of 18
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Gabriel Correa,                                          Court of Appeals Case No.
                                                                19A-DC-2535
       Appellant-Respondent,

               v.

       Bridgett Correa,
       Appellee-Petitioner.




       May, Judge, concurring in result with opinion


[29]   The majority affirms the trial court’s decision regarding the division of property

       in this dissolution matter, and I agree we should affirm the trial court’s

       decision. However, I believe the majority misstates the record before us and

       engages in improper speculation as to the intent of a statement made by

       Husband’s counsel regarding a revised equalization payment from Wife to

       Husband. Therefore, I respectfully concur in result with opinion.


[30]   In calculating the equalization payment due to Husband from Wife, the trial

       court took into account both the appraisal of the marital residence and the

       personal assets and debts of both parties, including the value of each

       individual’s retirement account:
       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020      Page 14 of 18
               The Court having assigned the equity of the home on the [Wife]’s
               side of the ledger along with the 401k and showing her debts as
               presented in the summary in the sum of $4,287.00 and showing
               her debts as presented in the summary in the sum of $4,387.00
               and finding that the [Husband]’s assets are his 401k in the sum of
               $4,170.00 and his debts in the amount of $5,000.00 for the Sentra
               vehicle. The Court finds that Wife is to pay the Husband
               $3000.00 to make an equitable division of the marital estate
               which will allow her to keep the real estate.


       (Appealed Order at 2.) The majority stated in Footnote 1 of its opinion:


               Wife’s counsel mistakenly cited this figure [the value of the
               marital residence] as $116,544 when questioning Wife at the final
               hearing. It appears the trial court made its equity calculation
               using this incorrect figure. However, we do not address the error
               further because the parties agreed on an equalization amount at
               the hearing on the parties’ motions to correct error.


       Slip op. at n.1. While the figure noted in the footnote is certainly incorrect, see

       App. Vol. II at 15 (listing outstanding principal on the marital residence as

       “$116,365.55”), neither party appeals the figure used and the equalization

       payment was based on other figures in the record. The majority’s Footnote 1

       takes a figure not designated as an issue and emphasizes it, which confuses the

       already complicated calculations in the case.


[31]   In addition, the language of Footnote 1 in the majority opinion seems to

       suggest that the agreement by the parties as to the equalization payment

       amounts to an agreement on the valuation of the marital estate as a whole. The

       majority furthers this interpretation by stating later in its opinion that “Husband


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 15 of 18
       also agreed at the hearing on the motion[s] to correct errors that an equalization

       payment of $2,571 from Wife to Husband was proper, apparently as an

       alternative proposal in the event that his challenge to the valuation of the

       marital home was denied.” Slip op. at ¶ 21. This generalization of the record

       and speculation as to Husband’s motives is erroneous, as Husband argued

       about the valuation of the marital residence before the trial court and contends

       on appeal that the valuation of the marital residence was incorrect. A thorough

       reading of the record reveals the actual terms of the agreement between the

       parties regarding the equalization payment from Wife to Husband, as shown

       below.


[32]   After the trial court’s order, Wife filed a motion to correct error, with which

       Husband agreed in part. The parties agreed that:


               The Court found that HUSBAND’s 401K had a value of $4,170
               as of date of filing. This is error. Counsel for HUSBAND
               originally submitted documentation purporting that the 401K has
               a value of $4,170 as of the date of filing, but she had accidently
               used a value from August, 2017. [Husband’s] counsel then
               presented a correct [sic] document which showed the 401K to be
               valued at approximately $10,300 as of date of filing.


       (Appealed Order at 5.) During the hearing on the motions to correct error, the

       trial court proposed a revised equalization payment of “twenty five seventy

       one” (Tr. Vol. II at 151), based on the correct value of Husband’s 401K and

       Husband’s updated figure of marital debt. The amount was proposed by Wife’s

       counsel during argument based on the updated value of Husband’s 401K. After


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 16 of 18
       the trial court repeated that figure and asked if Husband’s counsel had any

       objection, Husband’s counsel stated, “No your Honor, I can live with that.”

       (Id.)


[33]   The trial court then attempted to adjourn, but both parties asked the judge to

       wait. Husband then presented argument on “the value of the marital

       residence[.]” (Id. at 152.) While the trial court ultimately denied Husband’s

       request to appraise the marital residence and base its value thereon, Husband’s

       acquiescence to the updated equalization payment of $2,571.00 was not

       tantamount to an agreement to the valuation of the marital residence. If it had

       been, Husband would not have needed to argue for the trial court to recalculate

       the value of the marital residence, nor would he have brought the issue on

       appeal.


[34]   Further, nowhere in the record does Husband indicate that his agreement to the

       equalization payment was “an alternative proposal in the event that his

       challenge to the valuation of the marital home was denied.” Slip op. at ¶ 21.

       The majority’s statement regarding the intent or strategy behind Husband’s

       reply to the trial court’s query is pure conjecture. This has never been the role

       of appellate review, as noted over a half century ago, when our court, en banc,

       stated: “We may not speculate as to what the facts actually are, but must decide

       the case upon the record before us.” Norling v. Bailey, 121 Ind. App. 457, 460,

       98 N.E.2d 513, 514 (1951), reh’g denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 17 of 18
[35]   While I agree we should affirm the decision of the trial court, because of the

       errors in the majority opinion as discussed supra, I must respectfully concur in

       result with opinion.


[36]




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2535 | August 31, 2020   Page 18 of 18
