MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jun 19 2019, 9:31 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Bradley A. Rozzi                                         Brooks B.C. Ledger
Hillis, Hillis & Rozzi                                   Starr Austen & Miller, LLP
Logansport, Indiana                                      Logansport, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Traci Jones,                                             June 19, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-DC-2248
        v.                                               Appeal from the Cass Superior
                                                         Court
Marvin Jones,                                            The Honorable James K.
Appellee-Respondent                                      Muehlhausen, Judge
                                                         Trial Court Cause No.
                                                         09D01-1709-DC-154



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019                  Page 1 of 15
[1]   Traci Jones (Wife) and Marvin Jones (Husband) dissolved their marriage. Wife

      appeals the trial court’s valuation and division of property, arguing that the trial

      court erred in its distribution of the marital estate; by inappropriately awarding

      Husband a $6,000 credit; and by inappropriately ordering Wife to use part of

      her tax refund to pay for her attorney’s fees without making Husband pay more.

      Finding no error, we affirm.


                                                      Facts
[2]   Husband and Wife married in June 1994. Husband acquired the marital

      residence, made the initial $8,000 down-payment, and subsequently made all

      mortgage, utility, property tax, and insurance payments. Husband also made

      significant improvements to the marital residence by installing a new air

      conditioning system, a gas furnace, a privacy fence, a new roof, and concrete

      flooring in the garage. All payments came from Husband’s income, which was

      held in a joint checking account with Wife. Husband earns over $110,000 per

      year at Caterpillar, Inc., and Wife earns roughly $22,000 per year at the Four

      County Counseling Center.1 Additionally, Husband has a 401(k) pension

      account and an IRA as a benefit of his full-time employment. Husband testified

      that he paid the bills for the entirety of their marriage and that Wife’s




      1
          Both Husband and Wife also have part-time jobs from which they earn nominal incomes.


      Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019              Page 2 of 15
      contributions were “largely non-monetary[.]” Tr. Vol. II p. 66. Wife primarily

      cared for the children and took care of the marital residence.


[3]   Tax documents from 2015, 2016, and 2017 reveal that Husband paid

      significantly more in federal and state income taxes than Wife. See Appellee’s

      App. Vol. II p. 12-14. No federal taxes were withheld from Wife’s first year

      working full-time for the Four County Counseling Center. Wife testified that

      the $4,738 tax refund she received in 2018 from their joint filing was a refund of

      taxes that she “never paid [herself][.]” Tr. Vol. II p. 43. Wife kept almost all her

      income in a separate bank account or in her billfold.


[4]   After the couple separated in September 2017, Wife stayed in the marital

      residence and Husband moved into his parents’ home. On December 6, 2017,

      both parties signed, and the trial court approved, an Agreed Provisional Order

      outlining the duties and obligations of Husband and Wife until the final

      dissolution of their marriage. Husband was ordered to pay Wife $125 per week

      in child support. Even though this amount was lower than that recommended

      by the Child Support Guidelines, it factored in Husband’s monthly payment

      obligations for the marital residence, which included paying the mortgage,

      homeowner’s insurance, and gas bills. Wife was ordered to pay other household

      debts as well as any debts in her name.


[5]   At the June 22, 2018, final dissolution hearing, the trial court requested and

      received evidence from Husband and Wife so that it could calculate the value of

      all marital assets. At the end of the hearing, the trial court noted the disparity in


      Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019   Page 3 of 15
      income between the parties, concluding that a 60/40 division of the equity in

      the marital residence in favor of Wife was warranted but ordering a 50/50 split

      of the overall marital estate. See Tr. Vol. II p. 128.


[6]   On July 9, 2018, the trial court issued its final Decree of Dissolution,

      determining that the marital residence was worth $89,500. Pursuant to the

      60/40 split, the trial court awarded Husband equity in the marital residence in

      the amount of $32,633.60. Of that amount, $26,633.60 constituted Husband’s

      forty percent share and $6,000 constituted a credit that the trial court awarded

      him for the mortgage, homeowner’s insurance, and gas payments he made to

      Wife during the initial period of separation. Wife would continue living in the

      marital residence. The trial court valued the remaining disputed assets and

      distributed them to Husband and Wife accordingly.


[7]   Additionally, of the couple’s $4,738 tax refund, the trial court ordered Wife to

      use $735 to pay for tax preparation services and to use the remaining $4,000 to

      pay for her attorney’s fees. Husband was ordered to pay the remaining balance

      of Wife’s attorney’s fees. Wife now appeals.


                              Discussion and Decision

                                 I. Division of Property
[8]   First, Wife argues that the trial court erred in the way in which it divided and

      distributed the marital estate. Specifically, Wife claims that the trial court

      intended to split the overall marital estate 60/40, but the way in which the trial
      Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019   Page 4 of 15
       court distributed their assets resulted in Husband receiving a higher percentage

       than the trial court intended.


[9]    The division of marital property and assets is a task left to the sound discretion

       of the trial court. Love v. Love, 10 N.E.3d 1005, 1012 (Ind. Ct. App. 2014). We

       will reverse a trial court’s decision only if it is clearly against the logic and effect

       of the facts and circumstances before it, or if the trial court has misinterpreted

       the law or disregards evidence of factors listed in the controlling statute. Id.

       Additionally, we will evaluate the trial court’s valuation of marital assets under

       the same standard of review. In re Marriage of Nickels, 834 N.E.2d 1091, 1095

       (Ind. Ct. App. 2005). We will not reweigh the evidence, and we will consider

       the evidence in the light most favorable to the judgment. Id.


[10]   Indiana Code section 31-15-7-5 instructs trial courts on how to divide marital

       property at the time of dissolution. The statute states, in pertinent part:


               The court 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:

                        (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. . . .

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019   Page 5 of 15
       In short, a trial court should begin with the presumption that a 50/50 split is

       equitable unless the parties present evidence to the contrary. And based on that

       proffered evidence, the trial court may order a division of property that deviates

       from the standard 50/50 split.


[11]   Here, while the trial court split the value of the marital residence 60/40 in favor

       of Wife, it divided the overall estate 50/50. Therefore, Wife’s contention that

       any additional payments—including the $6,000 credit awarded to Husband or

       the order that Wife pay her own attorney’s fees out of the tax refund—

       somehow contravene this 60/40 division are unfounded. The 60/40 division

       relates only to the marital residence, and the trial court acknowledged the

       disparity in income by awarding her greater equity. Accordingly, any argument

       that “[t]he [t]rial [c]ourt failed to identify a net equity figure based on the

       property division as a whole and thereafter, divide the property in accordance

       with the 60/40 division . . . as it relates to the marital residence[,]” appellant’s

       br. p. 13, is unavailing.


[12]   Furthermore, Wife would have us reexamine the trial court’s valuation of

       property, including Husband’s IRA and 401(k) pension accounts, the marital

       residence, other disputed assets, and the figures proffered on her summary

       sheets. This amounts to a reweighing of the evidence, which we may not do.

       The record shows that the trial court, within its statutory authority, evaluated

       the earning capacity of both parties, the equity that Husband and Wife retained

       in the marital residence, and all other evidence to arrive at its determination.


       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019   Page 6 of 15
       Thus, the trial court did not err in its calculation and ultimate division of

       property.


                                                II. Credit
[13]   Next, Wife argues that the trial court erred when it awarded Husband a $6,000

       credit for payments he made to maintain the marital residence before

       dissolution. Specifically, Wife contends that Husband already received relief in

       the form of reduced child support, so the credit amount constituted an unjust

       enrichment for Husband.


[14]   The disposition of marital assets and awards is an exercise of the trial court’s

       sound discretion. Eye v. Eye, 849 N.E.2d 698, 701 (Ind. Ct. App. 2006). We will

       reverse a trial court’s decision only if it is clearly against the logic and effects of

       the facts and circumstances before the court, or if the trial court has

       misinterpreted the law. Hatten v. Hatten, 825 N.E.2d 791, 794 (Ind. Ct. App.

       2005). Although the facts and reasonable inferences might allow for a different

       conclusion, we will not substitute our judgment for that of the trial court. Id.


[15]   Wife concedes that Husband should receive some credit for the payments—

       mortgage, insurance, and utility—he made over the course of the initial period

       of separation, and there is case law affirming a trial court’s ability to do so. See

       Bojrab v. Bojrab, 786 N.E.2d 713, 721-22 (Ind. Ct. App. 2003), trans. granted and

       summarily aff’d in relevant part, 810 N.E.2d 1008 (Ind. 2004). However, Wife

       contends that Husband received a windfall from the $6,000 credit because he


       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019   Page 7 of 15
       was already making reduced child support payments. In reviewing the Child

       Support Obligation Worksheets and the total payments Husband made over the

       course of the initial period of separation, we find Wife’s argument unavailing.

       No matter the figure, the amount Husband ultimately paid for all obligations in

       the agreed provisional order far exceeds the amount he needed to close the gap

       and avoid any alleged windfall.


[16]   Even though Husband made reduced child support payments in the amount of

       $125 per week, he was still making mortgage, homeowner’s insurance, and gas

       payments for a marital residence he no longer inhabited. The trial court was

       crediting Husband for the numerous payments he made during the initial period

       of separation, thereby restoring the parties to their original positions. Thus, the

       trial court did not err in awarding Husband a $6,000 credit.


                                     III. Attorney’s Fees
[17]   Finally, Wife disputes the trial court’s disposition of attorney’s fees. She first

       argues that the trial court erred by not including the tax refund in the overall

       marital pot. Next, Wife contends that the trial court erred by not ordering

       Husband to pay for a greater portion of her attorney’s fees, forcing Wife to use

       most of the tax refund to do so.


[18]   We will reverse a trial court’s award of attorney’s fees only when it is clearly

       against the logic and effect of the facts and circumstances before the court. In re

       Marriage of Gray, 422 N.E.2d 696, 703 (Ind. Ct. App. 1981). We are not


       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019   Page 8 of 15
       permitted to substitute our judgment for that of the trial court merely because

       the same circumstances might justify a different outcome. Id.


[19]   The trial court is not required to give reasons for its determination regarding

       attorney’s fees. In re Marriage of Pulley, 652 N.E.2d 528, 532 (Ind. Ct. App.

       1995). Here, Husband agreed that his half of the tax refund be applied to the

       payment of Wife’s attorney’s fees. Tr. Vol. II p. 73. Wife fails to recognize that

       the tax refund she received was generated almost exclusively by income she did

       not earn and taxes she did not pay. Both Husband and Wife testified to this. In

       fact, nearly one-third of Husband’s income that generated the tax refund came

       from income he earned after the two separated in September 2017. Accordingly,

       the trial court distributed the entire award to Wife and then proceeded to

       apportion most of Wife’s award to cover her attorney’s fees. The trial court

       should have included the tax refund in the marital pot. But even if it had done

       so, the result would have been the same, with Wife receiving 100% of the asset.

       Therefore, the error was harmless.


[20]   Pursuant to the trial court’s broad discretion, it evaluated the tax refund,

       determined that Husband was the one who predominantly contributed to it,

       awarded it to Wife, and allocated most of it to cover Wife’s attorney’s fees.

       Given the trial court’s wide latitude to fashion an equitable resolution, see

       Hartley v. Hartley, 862 N.E.2d 274, 287 (Ind. Ct. App. 2007), it did not commit

       reversible error by allocating the refund as it did.




       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019   Page 9 of 15
[21]   Next, Wife insists that Husband should have paid more of her attorney’s fees.

       The trial court in this instance ruled that since Wife received the entirety of the

       tax refund comprised of money she did not earn, Husband should not carry the

       burden of paying all of the attorney’s fees, despite the disparity in income

       between the two. This decision involving distribution of an asset was well

       within the trial court’s discretion. There is nothing in the record or in the trial

       court’s valuation that would lead us to conclude that the trial court

       inappropriately allocated funds from the tax refund the way that it did. Based

       on these circumstances, the trial court did not err by ordering Husband to pay

       only a small portion of Wife’s attorney’s fees to make up the balance.


[22]   The judgment of the trial court is affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019   Page 10 of 15
                                                     IN THE
            COURT OF APPEALS OF INDIANA

       Traci Jones,                                                 Court of Appeals Case No.
                                                                    18A-DC-2248
       Appellant-Petitioner,

                v.

       Marvin Jones,
       Appellee-Respondent,



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


[23]   I respectfully dissent from the majority’s decision that the trial court did not err

       in granting Husband a $6,000 credit for mortgage payments he made while the

       dissolution proceeding was pending.


[24]   Husband argues this case is “identical” to Bojrab v. Bojrab, 786 N.E.2d 713 (Ind.

       Ct. App. 2003),2 and the majority cites Bojrab in support of its decision.

       However, Bojrab is not identical to this case. In Bojrab, the trial court issued a



       2
         Husband also cites Davis v. Davis, 2006 WL 3703262 (Ind. Ct. App. Dec. 18, 2006), in support of his
       position. Davis is an unpublished memorandum decision, however, and citation to unpublished decisions is
       inappropriate and prohibited by the appellate rules. Hazelett v. Hazelett, 119 N.E.3d 153, 160 (Ind. Ct. App.
       2019) (citing Ind. Appellate Rule 65(D)).

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019                    Page 11 of 15
       temporary order giving the wife possession of the marital residence and

       ordering the husband to pay the mortgage, insurance, and tax obligations on the

       property. The final dissolution decree ordered the house to be sold; the

       husband to continue to make the mortgage, insurance, and tax payments

       pending sale; the net proceeds of the sale to be split forty percent to the husband

       and sixty percent to the wife; and the net proceeds to be determined by

       subtracting the mortgage principal, insurance, and tax payments made by the

       husband from the date of the filing of the dissolution petition. On the

       husband’s motion to correct error, the trial court amended the decree to also

       require the husband be reimbursed out of the net proceeds of the sale for the

       mortgage interest payments he made. The wife argued this was in error, but this

       court held it was not: noting the marital estate closes on the day a petition for

       dissolution is filed, the court held that by ordering the husband be reimbursed

       for all payments he made following the dissolution petition, “the trial court

       restored the parties to their position when the petition for dissolution was filed.”

       Id. at 722.


[25]   Like the temporary order issued in Bojrab, the parties’ December 2017 Agreed

       Provisional Order granted Wife sole possession of the marital residence during

       the pendency of this action and ordered Husband to pay the monthly mortgage,

       homeowner’s insurance, and Duke Energy bills for the marital residence.

       Unlike Bojrab, however, this was an arrangement agreed upon by the parties

       rather than ordered by the trial court. Another important distinction is that the




       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019   Page 12 of 15
       parties agreed Husband would get a credit for those payments in the form of a

       reduced child support obligation:


               The Husband shall pay weekly child support in the amount of
               $125 . . . . This amount is a deviation from the Child Support
               Guidelines but takes into consideration the Husband’s
               maintenance obligations . . . .


       Appellant’s App., Vol. II at 6. Moreover, unlike Bojrab, in which the trial court

       granted a motion to correct error to include mortgage interest in the husband’s

       reimbursement; here, Husband expressly disclaimed that he was seeking

       reimbursement for anything but the reduction in mortgage principal. At the

       final hearing, Husband’s attorney noted that Husband “also paid interest, he

       paid the insurance, he paid the electric bill, all for a house he didn’t live in.

       We’re not asking that he be reimbursed for those things . . . .” Tr., Vol. II at 93-

       94. The trial court’s decree, stating the credit is “for mortgage payments

       [Husband] made . . . which reduced the principal balance due,” recognizes this

       disclaimer. Because Bojrab was a straight reimbursement situation, I do not

       believe it is directly applicable to this case in which the parties negotiated a set-

       off for the mortgage payments in the form of reduced child support.


[26]   Wife contends that the trial court’s decree essentially gives Husband a double

       credit because pursuant to the parties’ December 2017 Agreed Provisional

       Order, Husband was already granted a credit for these payments in the form of

       reduced child support. I agree. The majority notes that the amount Husband

       paid “for all obligations” the parties agreed he would undertake while the


       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019   Page 13 of 15
       dissolution was pending far exceeds the amount his child support was reduced. 3

       See slip op. at ¶ 15 (emphasis added). However, I do not believe the parties

       were engaged in a mathematical exercise nor did they intend mathematical

       precision when entering into the agreed order. The order does not contain any

       language anticipating a mathematical reckoning when a decree was entered.

       Rather, the parties recognized that Husband was making payments during the

       pendency of the dissolution from which he was not benefitting and intended to

       mitigate his financial expenditure. Taking into account the parties’ agreement

       to the reduction of child support in consideration of the Husband’s financial

       obligations as to the marital residence, and also considering Husband’s

       disclaimer of the amounts he paid in addition to the mortgage principal, I

       believe the trial court improperly granted Husband a redundant credit.

       Accordingly, I would reverse the trial court’s order as to the $6,000 credit.


[27]   With respect to the attorney’s fee issue, I concur in part and dissent in part. I

       agree that the tax refund should have been included in the marital pot but that

       its inclusion would not have significantly changed the ultimate property

       division. See slip op. at ¶ 19. I also agree that it is within the trial court’s

       discretion to order a party to pay part or all of the other party’s attorney’s fees

       in a dissolution action and the court does not have to give reasons for its

       decision. See id. Therefore, I agree with the majority that the trial court did not




       3
         It appears the majority relies in part on payments for which Husband did not ask to be reimbursed in
       globally comparing the figures.

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019                   Page 14 of 15
       abuse its discretion in ordering Husband to pay a smaller portion of Wife’s

       attorney’s fees than Wife has requested.4 And finally, I agree that the trial court

       has discretion with respect to the allocation of assets and I therefore agree it was

       appropriate for the trial court to allocate the tax refund to Wife. However, I do

       not believe the trial court had the discretion to order Wife to use the tax refund

       to pay the remaining portion of her attorney’s fees. Although Wife is obligated

       to pay those fees, once the tax refund was allocated to Wife, the use of the asset

       was up to her.


[28]   In all other respects, I concur with the majority opinion.




       4
         I am uncomfortable with language in the majority opinion that could be interpreted to diminish or disregard
       Wife’s contributions to the marriage. See, e.g., slip op. at ¶ 19 (stating that “Wife fails to recognize” that the
       tax refund “was generated almost exclusively by income she did not earn”) and ¶ 21 (stating that the trial
       court ruled Husband should not pay more of Wife’s attorney’s fees because Wife “received the entirety of the
       tax refund comprised of money she did not earn”). People contribute to a marriage in myriad ways, not just
       financial, and the fact that Husband earned the bulk of the couple’s income during the marriage does not
       mean Wife did not also contribute to the marriage in a meaningful way.

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2248 | June 19, 2019                       Page 15 of 15
